Closing Arguments. Stephen Lindsay, Fairview, NC

Closing Arguments Stephen Lindsay, Fairview, NC

Federal CJA Trial Skills Academy April 25 - April 30, 2010 San Diego, CA Organizing Your Closing Argument Jonathan Rapping* Executive Director Southern Public Defender Training Center * Used with permission of the author

A. Understand the Purpose of the Closing: It is Not Simply a Longer Opening Statement B. Start with a convincing statement that your client did not do it C. Lay out for the jury what is at issue in the case (and maybe even what is not) D. Lay out your case theory E. Argue the law a. Presumption of Innocence b. Burden of Proof c. Standard of Proof / Beyond a Reasonable Doubt d. Other Case Specific Instructions F. Argue the Facts a. Facts in Evidence i. arguing facts that directly undermine evidence presented by the state ii. arguing facts that affirmatively promote your case theory b. Absence of Facts c. Attacking the Integrity of the Investigation G. Conclusion

There are many considerations that go into making an effective closing argument. Keeping an eye on the theme, using the art of storytelling, staying mindful of body language, making use of exhibits, and using rhetorical techniques such as triples are just a few. However, the most important aspect of a good closing argument is the lawyer s ability to organize her arguments and place them into a structure that allows for an effective presentation of those arguments. The closing argument must provide the jury with a roadmap along the path of arguments you have to support your case theory. That roadmap must clearly lead the jury to the conclusion you seek. You may have many compelling points to support your case theory or, equally important, to cause the jury to doubt the state s prosecution theory. However, if they are delivered in a disorganized fashion, they will be lost on your audience. You must walk your jury through the journey on which you wish to take them during your closing argument. Unfortunately, in addition to being the most important aspect of the closing argument, organizing your thoughts into an effective presentation can also be the most difficult part of the process. Every trial lawyer has had the experience of knowing the points she wishes to make to the jury in her closing but not knowing how to best reduce them to a coherent, organized, and convincing argument. In this article I lay out a template for producing a coherent closing argument 1. This organizational structure is by no means the only way to deliver an effective closing argument. It is, however, an effective outline any criminal defense lawyer can use to organize the many thoughts we necessarily have running through our heads as we prepare for closing arguments. A. Understand the Purpose of the Closing: It is Not Simply a Longer Opening Statement One thing you must understand before you begin organizing your closing argument is what it is you are trying to accomplish. It is 1 There are examples of arguments throughout this article. As a disclaimer up front, I do not take credit as the person who made up these arguments. Most are variations of arguments I have heard different lawyers make at different times. They are mostly a compilation of many things I have heard many times in many variations from many lawyers. Therefore, I can not give credit to anyone in particular. However, there is no shame in taking good arguments you hear and making them your own. Therefore, use these, or any others you may hear, to the extent they may benefit your client.

not simply a longer opening statement. The goals are very different. The opening statement is a story about an incident. With your opening statement it is critical that you have the jury believing in your client s innocence as they begin the process of receiving evidence and filtering it through the lens you provide. It is not good enough to have the jury believing your client may have committed the charged offense, but that the state won t be able to prove it. You need the jury to be willing to presume your client innocent as the case begins. However, this is much more of a burden than you need to, or should, take on in your closing argument. With your closing argument you want the jury to believe that your client did not do the things of which he is accused, but to also understand that they need not believe in your client s innocence in order to find him not guilty. You need not take on the burden of proving your client s innocence and must find a way to make the jury understand that. Therefore, closing argument can be much more difficult than opening statement. It is not just a story about an incident, it is a story about the trial and how we want the jury to apply the law and interpret the facts. You must find a way to both argue your theory of the case while making the jury understand the high burden placed on the government. You must jointly convince the jury that you believe in your client s innocence while helping them to realize that even if they do not, they still must acquit your client. You need to consider how you can argue that the evidence supports your case theory and that, therefore, the jury should have a reasonable doubt. Otherwise you risk shifting a burden on yourself that you need not take on. Therefore, an effective closing argument begins by assuring the jury that the state has it all wrong and that your client did not do what he is accused of. It then transitions to a discussion of the law and the heavy burden our constitution places on the state. It then effectively argues the facts as reasons to doubt, rather than reasons your client is innocent. When done properly, the jury hears you as arguing that your client did not do the things with which he is accused while understanding that they need not go nearly that far in order to render a verdict of not guilty. If you fail to understand this distinction, you risk taking on a burden that might unnecessarily lead to your client s conviction. it B. Start with a convincing statement that your client did not do

The first words out of your mouth are the most important. The moment you stand up to begin your closing argument, all eyes are on you. Every person watching is waiting to hear what you have to say. The first words out of your mouth will convey to the jury what it is that you feel about the case. Do not treat this valuable moment as warm up. Remember the concepts of primacy and recency. You must start strong. Do not begin by saying, May it please the court, Ladies and gentlemen, thank you for your attention, or any other introduction that does not convey the most important point in your client s case, i.e. that he is innocent. When you stand up you must be ready to show the jury that this is the moment you have been waiting for since you first met your client... an opportunity to tell them that the state has wrongly accused an innocent man. You ve been thirsting for this moment. You sat through the state s summation, eagerly waiting for this moment. You are anxious to begin to fight for the life of a person you believe is innocent. All of these sentiments must come across in your first breath. Your first words should be something along the lines of: 1) Jimmy Brown did not rape Lisa Davis!, or 2) Mary Simon is innocent! She did not possess cocaine on June 1 st!, or 3) The state has the wrong man, Larry Thomas did not rob anyone! Say these words with feeling. Say them with conviction. Say them as though your client s life depends on the jury believing them. C. Lay out for the jury what is at issue in the case (and maybe even what is not) Once you have made a strong statement of innocence, tell the jurors what is at issue in the case. You want to define for them what they should focus on once they begin deliberations. You should also consider telling them what they need not focus on. Once you tell them what is at issue, make sure to tell them how that issue must be resolved. The arguments you make later in your closing will demonstrate to the jury why they must reach the conclusion you advocate. In this segment of the closing you want to define the issues and tell the jury how to resolve those issues. The following are some examples: No one is arguing that Jimmy Brown and Lisa Davis never had sex. That is not at issue in this case. The only question you must

consider is whether Mr. Brown and Ms. Smith had sex consensually. From the evidence in this case you know the answer to that question is, yes. There is no question that the police found drugs in the console of a car registered to Ms. Simon. But Ms. Simon did not put those drugs in her car. She didn t know they were there. She never possessed the drugs in question. The issue in this case is whether Mr. Thomas used the threat of force to take money from Mark Allen. The answer is clearly no. D. Lay out your case theory Now that the jury has been made aware of the important issue(s) in the case and told how they should resolve those issues, tell the jury your case theory in a few paragraphs. This will help the jury to understand how the important pieces of evidence fit into the case and how they support the case theory you have developed throughout the case. The length of your story will vary on the complexity of the case. In general, be concise. Don t forget that people have short attention spans. Do not spend more time than you need to set out the important points. An example might be: Mark Allen has a terrible problem. He is a chronic gambler. It is a problem that he tried to keep a secret. It is a problem he tried to run from. It is a problem that caught up with him on May 15 th. On that date Mark Allen found himself owing Larry Thomas one thousand dollars from a wager on a basketball game. Mark Allen used his paycheck to pay Mr. Thomas the money he owed. Unfortunately, this was Mr. Allen s rent money. Mr. Allen and his wife live paycheck to paycheck. They need every cent they earn. When his wife found out that he could not pay the rent, Mr. Allen could not bring himself to tell her the truth. So he made up a lie. He said Larry Thomas robbed him. But you know you can t believe Larry Thomas. E. Argue the law

The jury will be instructed on many legal principles. You do not want to attempt to address all of them. The law tends to be boring. Besides, cases are won on the facts. The story you tell and the emotional themes you inject into your case are the keys to success. However, there is some law you will want to deal with. You must identify the principles that are most important to your case. Once you ve done that you must discuss those principles within the context of your case or some other anecdote that will bring the law to life. Talking about the law, without using storytelling techniques, is a sure way to lose your audience. Then why talk about the law at all, you may ask. There are important principles built into our system of justice that provide people charged with crimes great protection. You want to make certain that the jurors understands those principles and think about them in a context, which you provide them, that will best assure they reach the conclusion you desire. Examples are the presumption of innocence, the burden of proof, and the standard of proof. There are other instructions that can help a jury understand how certain facts in the case support the outcome we desire. Argued properly, they provide a filter through which the jury can view the evidence to reach the result we advocate. Examples of these include a self defense instruction, an instruction on witness credibility, or an instruction on how to evaluate identification evidence. You should consider your transition into a discussion of the law and how you plan to help the jury understand the importance of this discussion. This is the perfect opportunity to begin to help the jury understand the ideas set forth in Part A, i.e. that while the evidence points to your client s innocence, the jury does not need to go that far to return a verdict of not guilty. You may say something like this: The evidence in this case has proven that things happened as I just explained. The evidence has proven that Mr. Thomas did not rob Mark Allen. But you do not need to go nearly that far in order to find Mr. Thomas not guilty. The evidence need not prove Mr. Thomas innocence in order for you to find him not guilty. It need not convince you of what happened on May 15 th before you acquit Mr. Thomas. That is because in this country we are all protected by some very important legal principles. Principles that form the heart and soul of our great system. Let s talk about some of those principles.

You may also consider empowering the jury by reminding them of the importance of its function in our legal system as a way to get them to tune into the legal discussion. An example of this type of transition is: The American criminal justice system is admired all over the world. It is admired for the protections it afford every one of its citizens. It protects each and every one of us should we find ourselves in Mr. Thomas situation, an innocent man wrongly accused of a crime he did not commit. At the heart of this great system is you, the jury. No one is more important to this system than the twelve of you. You are the people charged with ensuring that these protections are provided to Mr. Thomas. In one respect your job is extremely difficult. But in another it is really very easy. It is difficult because you are given a responsibility that most people will never know. You hold the life of a man in your hands. You will decide the fate of a human being, Mr. Thomas. That is a grave responsibility that makes your job a difficult one. However, in another respect your job is quite easy. It is easy because you are not asked to figure out what happened in this case. You are not asked to determine whether Mr. Thomas is innocent. You are only asked to determine whether the prosecution has convinced you beyond a reasonable doubt that Mr. Thomas did the things he is accused of. If you have uncertainty, if you feel like you aren t sure, if there are unanswered questions that keep you from feeling confident about what happened, your job is easy. You must find Mr. Thomas not guilty. You can then begin your discussion of the law. Note that this transition accomplishes several objectives. It pumps the jury up about the importance of our system and the role they play. This helps convince them of the seriousness of the legal principles you will discuss. It also reminds them of the import of their role and the fact that they hold another person s life in their hands. This implicitly reminds them of the dire consequences of a wrong decision. It then goes on to talk about the standard of proof you will discuss below and the fact that they need not figure out what happened. It seeks to assure

them that it is okay if they can t solve the crime. They can still do justice. The three legal principles that I choose to address in every case are the presumption of innocence, the burden of proof, and the standard of proof (beyond a reasonable doubt). If you choose to go right from your case theory to a discussion of these principles a transition might be something as simple as:... Before we go on to look at the evidence in this case more closely, I d like to take a moment to discuss some important legal principles. The judge will talk to you about the law before you begin deliberations. However, there are three principles that are so central to our system that they deserve discussion. These principles protect us all as American citizens. They protect each and every one of us should we ever find ourselves in Mr. Thomas situation, an innocent man wrongly accused of a crime he did not commit. i. The Presumption of Innocence Then we would go on to discuss the first of those fundamental principles, the presumption of innocence. Following is an example of one such discussion using a metaphor to bring life to this legal principle: The first of these principles in the presumption of innocence. The presumption of innocence is like a cloak that we all wear as American citizens. It protects every member of our community should we ever be falsely accused of a crime. This cloak of innocence can not be removed unless and until the state meets a very high burden. A burden the state has not met in this case. But that important cloak of protection that makes up the foundation of our great justice system only works when every member of our community believes in this principle. Before being sworn in as jurors, each of you agreed to honor this principle. By doing so you agreed to view Mr. Thomas as an innocent man at the outset of this case. You agreed to continue to hold this view as you listened to the evidence in this case. You agreed to not remove this cloak from Mr. Thomas unless you

decided that the government has met its very high burden. Mr. Thomas continues to wear this cloak as he sits before you today. As you listen to these final arguments, you must continue to presume he is innocent. You must do this as you hold the state to the standard required by the laws of this great country. We will talk about that standard in a moment.

ii. The Burden of Proof We would then discuss the burden of proof: The second important principle is the burden of proof. In our criminal justice system the burden lies with the state. We do not require any person to prove his innocence. Our system recognizes that an innocent person may not have much to offer about an incident they had nothing to do with. Our system insists that before the state can take away a citizen s liberty, it must bear the entire burden of proving accusations against that person. This means that if any of you have any questions about what happened the evening of May 15 th, you can not look to Mr. Thomas for the answers. It was the responsibility of the state to answer these questions for you. And the state s failure to do so can be the basis of a not guilty verdict. So if you wanted to hear from [some witness who was discussed but did not testify], you may not look to Mr. Thomas. Look to the state. If you feel that [cite a question in the case that was not sufficiently answered] was not answered to your satisfaction, that was the responsibility of the state. You may not hold that against Mr. Thomas. If your client did not testify you may address it as follows: As Judge Martin will instruct you, you may not hold it against Mr. Thomas because he did not testify in this trial. Mr. Thomas has the right to make the state prove its case against him. We do not ask an innocent person to explain why another would make up a lie about them. We don t require an innocent man to take the stand to merely say I am innocent. Mr. Thomas has made that statement loud and clear by his decision to fight these charges against him. Your scrutiny must be on the fabricated evidence the state has used against a valuable member of our community. And where the defense has presented evidence you may choose to say something like: Our Constitution allows Mr. Thomas to sit back and make the state prove its case against him. He is not required to present a

single shred of evidence. But yet he did. You heard from [go on to catalogue the witnesses the defense presented]. Mr. Thomas provided you [go on to catalogue the evidence the defense presented]. Or: Our Constitution allows Mr. Thomas to sit back and make the state prove its case against him. He is not required to present any evidence. He could sit back and hold the government to the burden it is required to meet under the law. But he chose to take the stand because he wanted you to hear what really happened. iii. The Standard of Proof / Beyond a Reasonable Doubt You should then discuss the standard of proof, proof beyond a reasonable doubt. This is a difficult concept to grasp. What it means is not that well defined. Quite simply it is any doubt a juror may have that he or she can give a reason for. Lawyers discuss this concept in many ways. However you decide to discuss this principle, you must do so in a way that makes it understandable to the non lawyers. I have heard lawyers talk about how the standard in a criminal case is the highest standard in any legal system world wide. They tell the jury that this standard is higher than the standard used to take away a person s property, to strip them of fundamental rights in a civil context, and even than that used to remove your children from you. Others try to help the jury to understand the concept of proof beyond a reasonable doubt as relative to other degrees of certainty. They might say something like, in a criminal case you may think the accused probably committed the offense... that is not enough. You may believe the accused likely committed the offense... that is not enough. You may feel fairly certain that the accused committed the offense... that is not enough. In each of those scenarios you must find that person not guilty. You may only return a verdict of guilty if you have no reasonable doubt. Colleagues of mine have used a reasonable doubt chart, that lists various degrees of certainty from unsure to fairly confident, with many degrees in between. Above fairly certain is beyond a reasonable doubt. There is a bright line

separating fairly certain and beyond a reasonable doubt to highlight all the various degrees of certainty that require an acquittal. Another effective method is to think of a story that involves an important decision in life. Make one of the government witnesses who has credibility problems the character in the story who holds your life, or the life of a loved one, in their hands. This can demonstrate why a juror should have a reasonable doubt. For example: Imagine your spouse has a serious heart condition. You go to a doctor to get a diagnosis. You walk into the doctor s office and who is the doctor? None other than Mark Allen. Dr. Allen has gambling slips falling from his pockets. You see a message on his desk from his wife expressing concern that they can t pay this month s rent. Dr. Allen checks out your spouse and immediately tells you that your spouse will need the most expensive procedure. This is a procedure that is life threatening if not successful. To top it off, Dr. Allen says your spouse needs to have this surgery immediately and you need to write him a check this moment before he begins the operation. Do you have second thoughts? Do you seek a second opinion? Of course you do. Mr. Thomas life depends on how much you trust the word of Mark Allen. Just as Mark Allen s words would not be good enough when it comes to the life of your spouse, they should be equally troubling when you have to decide the fate of Mr. Thomas. However you decide to make the concept of proof beyond a reasonable doubt understandable and meaningful to your jury, you must do this. You must do something to counter human nature that wants to try to determine what happened. They want to take alternate theories and choose which makes the most sense. It is not in our nature to think that not figuring out what happened is a perfectly acceptable outcome in a criminal trial. Having a doubt is normal and requires the rendering of a not guilty verdict. You may also want to impart on the jury the finality of their decision. The fact that the verdict is irreversible should cause jurors to take deliberations very seriously. It can help hammer home the importance of their function, thereby further empowering them as protectors of the liberty of our citizenry.

I have heard lawyers effectively convey to jurors the importance of thoughtful and careful consideration of the evidence as they examine potential reasons to doubt by arguing something like: Once you begin deliberation we urge you to carefully and thoughtfully consider all of the evidence in this case. Take your time, your decision is final and irreversible. If you rush to judgment and wrongly return a verdict of guilty you can not later take it back after you think of this case when you return to your daily routine. If you wake up in the middle of the night and think, oh my, I have made a terrible mistake, I just can t stop thinking about how the description Mark Allen first gave the police of the robbery is vastly different from the story he told in court, you can t call Judge Martin and change your vote. It is final. If you find yourself continually thinking about how neither Mark Allen nor Mr. Thomas had any injuries consistent with the struggle Mr. Allen claims took place, you can t call the prosecutor and tell her you want to reconsider. If you think to yourself a week from now how much pressure Mark Allen must have felt when confronted by his wife about the missing money, and you realize that is a powerful motive to make up a story, you can t call me and say, I feel terrible, I want to take back the verdict. It is irreversible. So please consider all of the reasons to doubt in this case. Remember that you each only have to have one reason to doubt. They need not be the same reason. I urge you to leave no stone unturned as you begin your search for reasons to doubt. iv. Other Case Specific Instructions In addition to these bedrock principles, you may have other legal principles that you wish to highlight for the jury in light of your case theory or certain facts in your case. It can be a very powerful technique for a lawyer to take the language from an instruction the judge will deliver and to weave it into her argument using the facts in her case. Such arguments will shape the way the jury thinks about the case as they ponder the judge s instructions and will give influence they way they view various evidence in the case. Which additional instructions you choose to argue should depend on which help you to tell the story of your case theory and the state s failure to meet its burden.

For example, in a self defense case a lawyer might argue something like, The law, as Judge Johnson will instruct you, does not require that any of us stand by and allow another person to physically harm us. The law allows each and every one of us to use whatever force is necessary to defend ourselves when we have a reasonable belief that we are under attack. When Michael Swain desperately swung a beer bottle at Andrew Dixon, known to his friends as Spike, Mr. Swain did what he believed was necessary to protect himself. Put yourselves in Michael Swain s shoes the night of July 8 th. You are five foot seven inches, a hundred and forty pounds. You are very familiar with Andrew Dixon s reputation as a violent and destructive man. Mr. Dixon has accused you of flirting with his girlfriend. As Andrew Dixon s six foot, two hundred pound frame comes rushing towards you, you see pure hatred in his eyes. Your heart begins to pound. Terror overcomes you. In the two seconds you have to make a decision. You grab the closest object you can find. You pray. You swing. The law does not require that we stand by as another person does physical harm to us. Mr. Swain s actions were reasonable. They were justified. They were done in self defense. Another example of using an instruction to help the jury to understand how to view evidence in the case might be a case where the credibility of a witness is at issue. If you have an instruction on the factors the jury might consider when weighing credibility you might argue something like: This entire case comes down to whether you believe the words that come out of the Hillary Porter s mouth. The question is, do you have a doubt about her credibility? Well in weighing a witness credibility, Judge Henderson will instruct you that there are many factors you may consider. You may consider any biases the witness may have. Immediately an alarm should sound. You will think about Hillary Porter s animosity towards Mr. Porter because of the divorce they are currently going through. Judge Henderson will also tell you that you may consider any financial incentive the witness may have. You will think about the financial interest Hillary Porter has in the pending divorce case and how your decision in this matter will impact what she hopes

to receive. And Judge Henderson will tell you that you should evaluate the witness demeanor on the stand. You will recall how cooperative Hillary Porter was with Mr. Young [the prosecutor] as he asked her questions, but how she became uncooperative and unwilling to answer simple questions I asked her on crossexamination. When you think about the factors that can help you decide Hillary Porter s credibility that Judge Henderson will provide you during his instructions to you, you will realize that they all point to one conclusion. She is not trustworthy. F. Argue the Facts While you will certainly address the facts to some extent earlier in your argument, you should save a thorough analysis of the facts until after you have discussed whatever legal principles you deem important in your case. The success of your discussion of the legal principles you deem important will impact how the jury considers the facts you will discuss. As you discuss the facts in your case it can be helpful to refer to legal principles you previously discussed as you tell the jury why certain facts are important and how the jury should consider those facts. The factual discussion can reinforce arguments you have made about the law and how it should be used in your case. Having said that, a good closing argument is one that contains factual arguments throughout. As demonstrated above, factual arguments can, and should, be made throughout your discussion of the law. But it is essential that you include a section in which you comb through the facts, in an organized and thoughtful fashion, highlighting the facts that support your case theory and explaining how the jury should view those facts, i.e. as reasons to have doubt about the prosecution case. This section of your closing will be the meatiest and how you organize your argument about the facts is of critical importance. The organization of this section will also depend on the case. In some cases it may make sense to organize the discussion by witnesses or other important pieces of evidence. In others it may be more powerful to organize this presentation by issue. However you chose to organize this discussion, it must be in a logical and understandable manner. You should organize the facts into groupings that you wish to argue: i.e.

problems with the physical evidence, reasons to doubt the complainant, lack of corroborating evidence, etc. It is important that you consider how you will argue the facts that are in evidence, but equally important is how you choose to deal with the absence of important facts and how that void should impact the jury s decision. In addition to these two categories of factual argument that you will likely lay out in every case, there may be times that you make a third type of argument: one that attacks the quality of the investigation. All of these categories give the jury a reason to doubt. We will briefly discuss these categories of factual argument. Before we begin that discussion we should talk about how you might transition from the legal discussion to the factual discussion. The transition into and out of the legal discussion can be the most difficult. We addressed the transition into that discussion. Let s consider how we may transition into a discussion of the facts. Consider implicitly discussing the facts as reasons to doubt. This highlights the state s burden and ensures you do not take on a burden you don t have. We have just argued to the jury that they only need one reason to doubt to return a verdict of not guilty. We now want to give them many reasons to doubt to highlight how easy their decision should be in this case. You may consider labeling the facts you discuss as reason to doubt #1, reason to doubt #2, etc., thereby highlighting the many reasons to doubt present in the case. In an appropriate case where you have enough reasons to go around, this might be preceded by the following transition: You only need one reason to doubt. However, in this case there is enough doubt that you can each have your own reason. You would then go on to lay out twelve reasons to doubt. A simple transition from a legal discussion of reasonable doubt to the facts of the case might be as simple as, you only need one reason to doubt, and you fulfill your duty as a jury by returning a verdict of not guilty. Just one. That should be easy in this case. This case is filled with reasonable doubt. Let s talk about all of the reasons to doubt in this case. You then launch into a discussion of the facts as reasons to doubt.

In a case in which a conviction hinges on the testimony of a single witness you might try something a little more dramatic. For example, If you have a reasonable doubt about the story the prosecutor is asking you to believe, you must find Mr. Thomas not guilty. How could you not have a reasonable doubt. In this case, reasonable doubt walked right in front of you, took the witness stand, raised his right hand, and said, my name is Mark Allen. You would then begin talking about all the problems with Mark Allen s testimony. The obvious connection between your discussion of reasonable doubt and your discussion of the facts of the case is another reason to discuss the law immediately before the facts. However, you choose to do so, think of a good transition i. Facts in Evidence As we prepare our closing argument we must consider the facts that have been presented throughout the case and how we will argue those facts. We must think about which of the facts in the case will best help us advocate for the outcome we desire. In closing argument we are permitted to argue the logical inferences from facts presented. In general we must marshal facts that will help us do one of two things: 1) directly undermine evidence presented by the state, or 2) affirmatively promote our case theory. a. arguing facts that directly undermines evidence presented by the state As defense attorneys we must be masters at pointing out holes in the state s case. A skilled prosecutor will present evidence in such a way that it lays out a clear and compelling story of guilt. The prosecutor will attempt to mask problems with the evidence she presents and suggest that the evidence leads to only one conclusion. In reality, there will always be a question mark behind any piece of evidence. Some question marks are obvious. Others are less so. It is up to us to find them. Examples of arguments that point out defects in the state s case include: 1) You know you can t trust the state s key witness, Bubba Jones, because he has such a powerful motive to lie. At the time he came forward with the information he claims he has about this case, he was awaiting a trial for murder. He made a deal with the prosecutor. In

exchange for his testimony in this trial he hopes to earn freedom. This was his only chance to keep from dying in prison. This motive gives you a reason to doubt the prosecution case, or 2) Now, Jill Taylor tells you that she saw Mr. Luther pull the trigger. But you know that is not true. You know she talked to Mr. Robles, a defense investigator, three days after the shooting, and at that time she said she did not look out of her window until several seconds after the shots were fired. You have to have a doubt about a story that changes over time, or 3) The fingerprint evidence does not have the value the prosecution wants you to believe. You heard from Dr. Wilmer, a leading expert in fingerprint analysis, who told you that the evidence is inconclusive. You can not conclude that Mr. Simpson left the fingerprint at the scene of the crime. That is speculation on the state s part. Dr. Wilmer s testimony gives you yet another reason to doubt the state s case. Equally true is that a collection of facts can tell any number of stories depending on how they are argued. It is also up to us to offer alternate versions of events to the jury. During trial we must develop facts that highlight the problems with the state s evidence and suggest alternate theories of what might have occurred. Spelling these arguments out in a coherent fashion is the function of closing argument. An example may be, Trisha Newman made up a story about rape after her boyfriend caught her sneaking into their apartment at two o clock in the morning. But you know that Trisha Newman had consensual sex with Mr. Alexander because she did not call the police after leaving his apartment. She had a cell phone. She never used it. If Trisha Newman was really raped she would have called the police as soon as she left the apartment. She didn t. That is a reason to doubt. At the end of every discussion of a fact or set of facts, tell the jury why those facts create a reason to doubt. b. arguing facts that affirmatively promote your case theory While attacking the prosecutor s case is a central role of the defense attorney, we also must develop facts that support our case theory. Therefore, a second category of factual argument is to catalogue those facts that support our case theory. However, these are still reasons to doubt and should be argued as such. These facts will certainly include any evidence that we put on in a defense case if we choose to do so. However, they may also include facts we were able to develop during the prosecution s case. Spelling