A good closing also needs to be a good show

A truly effective and powerful closing argument can be described in three terms: straightforward, intuitive and good theater.

Jurors should understand what you’re saying, how your argument makes sense with the evidence, and how it agrees with what you stated in the opening statement. You should anticipate what the jurors’ questions might be and the best way to answer them. Most importantly, your performance must be good theater — if you’re not interested and emotional about your case, why should the jury be?

Many litigators make the unwitting mistake of apologizing during their closing arguments. They profusely thank the jurors for their service and say they’re sorry if they can’t answer every one of their questions. Do not do that. Be respectful and pleasant, but don’t minimize your own words with apologies. Be steadfast in your theory of the case and believe what you’re saying.

A great closing should seamlessly dovetail with jury selection and the opening statement, because they are the first salvos launched against the state’s case and the first seeds of reasonable doubt planted in a juror’s mind. Even the best closing argument will be ineffective if jury selection was boring and useless and/or if the opening statement fell flat.

Keys to being straightforward

Your argument must be straightforward. Look to three areas to succeed at this. First, the closing argument should incorporate aspects of jury selection. Selecting a jury isn’t about trying to uncover a person’s secrets, having someone struck for no real reason, or having people half-heartedly commit to legal ideas. Rather, it’s about making people doubt what they are about to see. To do that you should focus on jurors’ individual experiences with doubting facts or scenarios in their own lives.

Great examples are when you have potential jurors who manage people, are schoolteachers, or have a job requiring them to arbitrate grievances. These are people who have only disciplined others when they have determined what actually happened. They almost always will provide you with a good story about how they thought someone did something wrong, but later they discovered that the person was innocent. Or, they’ve experienced situations where there were different sides to a story and they simply couldn’t figure out which side was correct. These jurors usually conclude their story by telling you that they didn’t take any action against anyone because they couldn’t be sure who was right. These stories provide you with wonderful real-life examples of reasonable doubt in action.

Artfully weave the premise of these stories into your argument. You can’t single out a juror and foolishly display his or her story for the entire courtroom. But you can argue the point of the story and how it applies in your case.

For example, there is the common story of a manager who was tasked with resolving a dispute between employees but couldn’t determine for herself which employee was truthful, so the manager didn’t discipline anyone. This is great to use because you can argue something along the lines of, “…in this case we have no physical evidence, only differing stories of what happened. And, as we know from our own personal experiences, like when we try to resolve disputes with employees, what people say might not always be accurate, and we cannot act and make judgments in situations where we simply don’t know what happened…” Use these stories to subtly remind the jury that if they doubt the veracity or correctness of the state’s case, they must acquit.

Circling back to opening

Second, the closing should also agree with the opening statement. In practice, this means that the predictions you gave the jury during the opening statement were accurate, i.e., the state failed to prove the exact items you said they would fail to prove. Remind the jurors of what you said in the opening and how you explained that the supposed evidence would not conclusively show guilt. Point out specific pieces of evidence that help you.

Additionally, if the evidence is so overwhelming toward guilt, find some other anchor in your case. It doesn’t have to be much, just something. For example, perhaps there’s some piece of physical evidence that doesn’t conclusively support a finding of guilt. Or, maybe there’s evidence that proves only a lesser intent for a less serious crime. Or, perhaps the foundation of the state’s case rests solely on speculation from minor pieces of evidence. In essence, your anchor should be the vessel through which the jury sees the case from your point of view.

Lastly, explain reasonable doubt in a no-nonsense/common sense way. Make it easy for jurors to understand the reasonable doubt jury instruction (JIG), because the JIG is confusing.

Most people have no working knowledge of the term “reasonable doubt,” so don’t expect them to understand in just a few minutes how “reasonable doubt” is a greater burden of proof than the standards concerning “preponderance of the evidence” or “clear and convincing.”

Here’s how to explain reasonable doubt to the jury: You were all selected to serve as jurors because you are all reasonable and fair people. If you have a doubt about the evidence that is based upon reason, then you have a reasonable doubt and cannot convict.

Your argument must also be insightful. You should be thinking throughout the trial about what questions the jury may have concerning the evidence in the case. Make an educated guess on what your questions might be if you were a juror.

Identify key questions

It’s helpful to have someone watch your trial. Not necessarily a second chair; just someone who could give an opinion as to what questions they would have after viewing the trial.

Let the jury know that you’re answering common-sense questions that anyone would have if they observed the whole trial. Stress the questions that remain unanswered by the state, and fold them neatly into your arguments on reasonable doubt. Do not apologize for any questions you think are left unanswered by you, because you don’t have a burden of proof in any trial.

Remind the jurors that the defense need not put in any defense at all to any charge — all burdens of proof are on the state and you don’t have to answer any questions. But also remind them that you did put in a case and tried to answer their questions.

The defense presents its case in two ways: cross-examination of the state’s witnesses and/or calling its own witness. When you cross-examine a state’s witness, you’re presenting a defense. You’re not required to question anyone, but when you do, the answers to the questions are part of your case. You may also call your own witnesses, including the defendant. Obviously, anything that your witnesses say is part of your case.

Use your intuition and personal tools to determine which links in the chain of proof seem weak, and which adverse witnesses seem shaky or unclear. Argue how those weaknesses place the prosecutor’s entire case in question.

Remember that everything you do in closing argument is centered toward creating uncertainty in the state’s case.

No scripts, no PowerPoints

Lastly, your closing argument must be good theater.

Please don’t be boring. Find something interesting to say, even if it doesn’t seem like much. Don’t read from a script like a small child at play practice. Don’t stare at your feet and shuffle like an old man. Most of all — don’t use a PowerPoint display unless you absolutely, 100 percent, know how to work it.

Jurors want to believe that you believe what you’re telling them. You will lose their attention and emotional commitment to the case if you appear to have no belief in your own case. This is the time where actions do speak louder than words, and if your body language displays indifference or a lack of command of the events of the trial, you will lose the case. Also, if you are overly dramatic, insincere, or a mime of what you’ve seen in the media, you will lose the case.

Good theater also means successfully executing separate acts in a play. You do this by having clear and distinct “acts” in your argument. Begin strong with a solid position on your theory of the case and why that theory is correct. Then weave the evidence into the theory and show the jury how easy it is to see your position. Review helpful portions of witnesses’ statements and remind the jury of any physical evidence that helps your case.

Next, add the parts of the law that help you. For example, if your theory of the case is “lying witnesses” then argue the JIGs on impeachment and credibility. If your theory is “lesser intent” then argue the JIGs that tell the jury to look towards a lesser crime if they have a reasonable doubt to the greater crime. If your case is about an affirmative defense such as self-defense, then argue the JIGs that place the burden on the state to disprove the affirmative defense.

Also, be sure to address in one of your “acts” the prosecutor’s forthcoming rebuttal. Tell the jury that the prosecutor will have an opportunity to speak again right after you and that you only have this one chance to talk to them. Try to make them feel that it’s unfair for you to only have one bite at the apple whereas the prosecutor gets two.

Try to diffuse what the prosecutor might say. For example, tell the jury that the prosecutor might argue X, and if she does, ask them to think of how you would respond. Tell them that you would respond to certain points by stating this or that.

The number of “acts” to your closing depends upon the type of case and length of the trial. But always remember that arguing for more than one hour should only be done on extraordinary and long trials. Many successful first-degree murder cases had closings less than one hour. You will lose the jury’s attention if you’re too verbose.

A closing argument, like all parts of a trial, is more art than science. You definitely need a thorough knowledge of the law, evidence, and procedure. But all will be lost if this knowledge cannot be capably exploited on your stage.

Joe Tamburino is a criminal defense attorney with the law firm Caplan & Tamburino.