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2013년 7월 8일 월요일

THE DO'S AND DON'TS OF CLOSING ARGUMENTS

By Mark B. Wilson, P.C
There are many different ways to present a closing argument, and each attorney should develop a style that is most comfortable to him or her. However, I have learned there are some elements every attorney should consider including and excluding, regardless of the attorney's style.

CLOSING ARGUMENT DO'S


Do Use a Chronology

A jury usually does not hear evidence in chronological order. Nevertheless, a chronology of events is often important to a jury's decision. Accordingly, attorneys should consider preparing a chronology of events (also called a timeline) to use during closing argument. I have used elaborate chronologies prepared by professional artists that help tell the story of the case. However, not every case justifies this expense. Software is now available to aid attorneys in creating their own timelines.
When preparing a chronology, it is important to take care in deciding what to include and what to exclude. The chronology should tell a story. Unimportant events should be excluded. Important events (e.g., the date the defendant was put on notice of a dangerous condition) should be highlighted. It is critical that the attorney have evidence to support every event on the timeline, or a court may require the attorney to remove the event from the timeline or exclude it from closing argument altogether.

Do Play Videotaped Testimony

I cannot emphasize enough the power of videotaped testimony during trial. Damaging testimony is even more devastating when used during closing argument because the attorney can set up the testi­mony, play only the important clips the attorney wants the jury to hear, and then argue why the testimony is important. In a premises liability case where my client was raped, defendant's property manager testified that in response to plaintiff's question about the safety of the apartment complex, the property manager said the property was safe. Later, the property manager testified that within the 12 months before my client applied for an apartment, there were numerous crimes on the property, including physical attacks, shootings, death threats and burglary. When I asked the property manager why he did not tell my client about these crimes, he responded "I'm not CNN."
When the jury heard this testimony during trial, the testimony seemed benign because it was mixed with hours of other testimony the defense counsel designated, presumably in an effort to mitigate the damaging admission. But when the critical testimony was played during closing argument, the jury heard it in proper context, in the proper order and without any peripheral testimony. The jury actually gasped when they heard the edited testimony in closing argument.

Do Show Pull Quotes

Many cases have documents with critical language that may influence a jury's decision. Rather than quoting the language during closing argument, attorneys should consider using a projector in conjunction with an elmo to display the language onto a screen. A more expensive (and impressive) option is to prepare a blow up of the document with the critical language appearing to jump out of the document (i.e., in a larger font and highlighted). I call this a pull quote. Pull quotes help the jury focus on the important language of the document and ignore what is not important. Elmos can be used to project all types of evidence onto a screen and should be used as often as possible.

Do Incorporate Charts, Graphs and Diagrams

Almost any demonstrative evidence used during closing argument is better than none. The goal is to keep the jurors' atten­tion. Attorneys should determine what types of demonstrative evidence can help the jury decide the case and consult with professional artists in creating them. Once again, if a case does not justify hiring an artist, an attorney can create simple but effective charts on a personal computer. It is almost always helpful to prepare a chart regarding damages, setting forth the types of damages at issue and the amounts the attorney wants the jury to award.
Some examples of charts I have used in closing arguments include: (1) a chart identifying the defendant's inconsistent statements; (2) a chart showing the top 10 reasons why the defendant's defenses did not make any sense; (3) a pie chart comparing sales figures of transactions at issue; and (4) a bar chart showing the defendant's purchasing history.
I particularly like using artwork in closing argument to help tell the story of the case. My partner created a story board that exemplifies this technique. The first board shows three musketeers in blue jerseys smiling at each other with their swords held high, representing three companies who agreed to work together on a business transaction. The next board shows two musketeers in red jerseys talking with one of the musketeers in a blue jersey (with the other two musketeers in blue jerseys in the background), representing how one of our client's partners was secretly negotiating with two other companies to steal the deal. The third board shows the traitor musketeer stabbing the other two blue musketeers in the back with a sword, representing the traitor musketeer's decision to steal the deal for himself. The last board shows the traitor musketeer with the other two red musketeers smiling at each other with their swords held high. Everyone understood the theme that defendant had stabbed his partners in the back, despite the defendant's promise to complete the deal with our client and the other partner.

Do Play Animations

If a case permits it, an animation can be useful not only during trial, but also during closing argument. Almost anything can be animated, from car accidents to the steps necessary to construct a concrete floor. In one case, my office created an animation for closing argument showing the hands of a magician moving shells around a table. One hand uncovered a shell to reveal the word "Covenant," representing the plaintiff's contention my client agreed to a covenant not to compete in a business agreement. Then, the hands move the shells around and uncover the same shell to reveal the words "No Covenant," representing plaintiff's statement on a tax return that my client did not agree to a covenant not to compete. The shell game was powerful.

Do Argue With a Theme

Ideally, closing argument will expand on a case theme introduced in opening statement. For instance, assume the case theme is: "This is a case about how defendant put profits before safety." The closing argument should focus on how the defendant took shortcuts in a variety of safety issues which led to numerous accidents and eventually plaintiff's death. Do not be afraid to argue in closing argument-juries expect it. Appealing to emotions is important if the case facts justify it. My experience indicates juries award higher damages when they are angry.

Do Argue the Evidence/Cite Consequences for Failing to Act

Even though a jury has heard all the evidence, it is critical to synthesize the evidence in closing argument. Merely sum­marizing the evidence is insufficient. The evidence needs to be argued. For instance, if the defendant had knowledge of a dangerous condition but did nothing about it, the trial attorney needs to remind the jury about the evidence and then draw a conclusion about it. The conclusion might be that the defendant was incompetent - or worse - intentionally ignored the problem because the defendant concluded that addressing the problem would be too expensive. There may be evidence that the defendant had an expensive bid to repair the problem and then decided not to make the repair. As a result of this shortsighted attitude, plaintiff was killed.
It may be appropriate to tell the jury the consequences of their verdict. For instance, if the jury does not award significant damages, the defendant will continue manufacturing cars that kill people. Making the case bigger than just the facts presented may tend to elevate the importance of the case and increase the damages award.

Do Argue the Jury Instructions

Pick out the top five or six jury instructions supporting your case and argue them. Sometimes it is helpful to enlarge the jury instructions or project them on a screen. Failing to argue the key instructions can be fatal because the jury may misunderstand them.

Do Tell the Jury How to Answer the Questions on the Verdict Form

I have heard war stories about juries congratulating the losing attorney because the jurors misunderstood the verdict form and thought they were voting one way when in fact they were voting the other. The best way to ensure the jury understands the verdict form (and answers the questions correctly) is to take them through the form, question by question, and fill in the blanks as you explain it. I like to project the verdict form on a screen during this process.

Do Ask for Money

Some attorneys believe they may sound greedy if they ask the jury for a particular sum of money. The problem with this analysis is that juries have no idea how much money to award for certain damages such as pain and emotional suffering. Left to their own ideas of compensation, juries will almost always award less than if the attorney had requested a particular sum. Accordingly, your closing argument should conclude with a specific request for damages. Of course, it is important to justify the request. There are many resources trial attorneys can use to assist in crafting arguments to support awards for general damages.
CLOSING ARGUMENT DON'TS

Don't Attack Opposing Counsel

Attacking opposing counsel does not help your client and does nothing to advance your case. Moreover, you may offend the jury by making personal attacks.

Don't Summarize the Evidence Witness by Witness

I have seen attorneys present closing arguments by simply summarizing the evidence each witness presented, witness by witness. This style is not persuasive. It is boring.

Don't Bore the Jurors

Closing argument is supposed to be the climax of the case. It is your chance to be free from the rules that bound you during voir dire and the presentation of evidence. There are few rules that govern closing argument; accordingly, it should be fun to watch. If you bore the jurors, they may miss the point of your closing argument. Most jurors are accustomed to watching two minute closing arguments on television. If you plan to argue for an hour or more (longer than an entire episode of The West Wing), you better entertain the jurors or you will lose them.

Don't Waive Closing Argument

I tried a case where opposing counsel waived closing argument. Never, never, never waive closing argument.

Don't Overstate (or Fabricate) Evidence

Some overly aggressive attorneys overstate or simply make up evidence to support their closing argument. This can ruin your credibility and prompt a sustainable (and embarrassing) objection.

Don't Object (Unless the Closing Argument is Really, Really Objectionable)

Most jurors find objections during closing argument to be rude. Accordingly, do not object unless opposing counsel makes a major mistake that prejudices your client. Sometimes it is better to let a mistake go by (such as a reference to nonexistent evidence) and address the mistake in rebuttal.

Don't Read the Closing Argument

Some nervous attorneys read their prewritten closing argument to the jury. This is boring. If you use charts, graphs, etc., you will be able to free yourself from notes.

Don't Get Personal

Do not refer to jurors by name or tell overly personal stories. You will make jurors uncomfortable, and they will lose track of your argument. Stick to your case theme.

Don't Write Your Closing Argument at the Last Minute

Twice, I have seen opposing counsel drafting closing argument while I was presenting mine. This is a mistake. You cannot prepare a coherent closing argument on the fly. I prepare my closing argument before trial starts. Then, I modify the closing argument as the trial progresses, practicing it as often as possible.

Don't Forget Rebuttal

If you represent the plaintiff, you have a "second closing argument" called rebuttal. Some plaintiff attorneys forget to take advantage of this unique opportunity to have the last word. While defense counsel is presenting his or her closing argument, take notes of a few points you can address quickly without reference to complicated evidence. When defense counsel is finished, the jurors are ready to deliberate, so rebuttal should be short and snappy.
This article first appeared in OCTLA Gavel, Spring 2006.
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Theory of the Case

Contents

Background

To defend a client effectively, the lawyer must understand how to tell a story to the court. This story can be summarized as the defense theory of the case. The more convincing and touching the story is, the more persuasive the argument becomes to the factfinder, who ultimately decides the facts of the case. Every well-knit story needs a plot, and for a defense argument, the plot provides the best tool for explaining the facts of your theory of the case.
The basic requirement in preparing a defense is to develop a theory of the case. Of course it is necessary to research the law and to identify the elements of each charge. It is also important to go over the prosecution's evidence carefully to see if there is evidence of each element. But a well thought out theory of the case enables the defender to ask the right questions and look for the right evidence to prepare for trial.
A theory of the case consists of the following parts:
  1. The relevant law - The law or jury instructions that apply to the issues which arise in your case.
  2. The facts of the crime that are beyond dispute - Those facts which (no matter what you do or say) will be believed by the factfinder as true. These include those facts which you will be able to present (through affidavit, direct examination or cross-examination) which the factfinder would likely accept as true.
  3. Common sense - Ordinary people must believe based on their life experiences that the defense theory of the case is what happened.
  4. Emotional factors - Emotions often motivate more decisions by people than logic. Therefore, a theory of the case should generate feelings in the factfinder as to what, how, and why the case occurred.
Here is how three public defenders have defined the theory of the case:
"That combination of facts and law which in a common sense and emotional way leads the judge to conclude a fellow citizen is wrongfully accused" - Tony Natale, Federal Defender
"The central theory that organizes all facts, reasons, arguments and furnishes the basic position from which one determines every action in the trial" - Mario Conte
"A paragraph of one to three sentences which summarizes the facts, emotions and legal basis for the citizen accused's acquittal or conviction on lesser charge while telling the defenses story of innocence or reduced culpability" - Vince Aprile
A theory of the case should be distinguished from a theory of the defense. A theory of the defense conveys an attitude that there are two sides or visions. A theory of the case is a positive, affirmative statement of what actually occurred and what the law directs should happen to an individual who has been accused in a situation.
The theory must be credible and believable. It must be consistent with bad facts and explain away bad facts at the same time. It should be interesting and entertaining. Finally, the theory should be client-centered and driven by the requirements of the factfinder.
A theory of the case is not mistaken identification, self-defense, reasonable doubt, inadequate police investigation or coercion and duress.

Theme of the Case

A theory of the case may also include a theme of the case. A theme of the case is a word, phrase, or simple sentence that captures the controlling or dominant emotion and/or reality of the theory of the case. The case theme must be brief and easily remembered by the jurors. Examples of a theme of the case include:
  • Puppet of Fear
  • Unwilling Participant
  • Forced to Rob
  • Unwilling Accomplice
  • Victim of Fear
  • Two Victims
  • Coerced to Crime
  • Frightened, Forced, and Falsely Accused
  • Frightened, Forced, and Framed
A theme functions to strengthen the defendant's case in several ways. First, the theme repeatedly reinforces your theory of the case in the factfinder's mind. Second, the theme provides an easy catch-word or catch-phrase for the factfinder to use when determining guilt or innocent. The theme enables the defense lawyer to re-orient the factfinder to the theory of the case quickly and easily. A theme also forces the prosecution to argue against your theory rather than simply arguing their own case. Finally, the theme brings a vivid image and emotion to the factfinder every time it is used. These themes can be used in every facet of the case: motions, negotiations, opening statements, direct examinations, objections, closing arguments, instructions, post-verdict motions, sentencing, and dealing with the media.

Benefits of the Theory of the Case

A theory of the case benefits and drives all other aspects of the defense. For instance, a theory of the case:
  • Directs pre-trial motion practices
  • Focuses and prioritizes voir dire questions
  • Functions as a mini opening statement
  • Measures the prejudice of prosecutorial actions
  • Creates parameters for the scope of cross-examination
  • Places all witnesses in the defense context
  • Reveals the appropriate attitude for cross-examining each witness
  • Organizes the presentation of the defense case
  • Serves as a checklist for eliciting essential information from defense witnesses
  • Dictates the essential defense instructions and reveals inappropriate instructions
  • Identifies and prioritizes issues for opening statements and closing arguments

Creating a Theory of the Case

Stage One - Acquisition

Learn as much as possible about the individual facts of the case. Gather all information, even if it appears to be harmful or irrelevant to the defense. Clearly harmful information is as important or more important than any other information.

Stage Two - Brainstorming

Objectively analyze the facts and the evidence in the case. Identify the facts that are likely to reach the listener. Try to determine how the government will make its case. What evidence does the government have? How will the government address the neutral facts? By anticipating the government's case you can prepare for it.
Often, there are certain facts in a case that a listener will believe to be true no matter what you do or say. You should identify these facts and make the facts part of your theory. Be creative, think of all the possible case theories you could use based on the evidence you have gathered. Start by examining all of the possible defenses for the offense your client is charged with.
When you brainstorm consider if a witness can identify your client at the scene. Can the government prove the client was at the scene? Is there any evidence that your client was framed? Did the crime actually occur? Are your client's actions justified or excusable? For example, was the client acting in self-defense or under duress? Is your client guilty of a lesser charge? Think through all of the possibilities before choosing a defense.
After brainstorming all the possible theories, subject each theory to two tests. First, the facts beyond change test. Is the theory consistent with of the facts beyond change? If there are any facts inconsistent with you theory you may want to choose a different theory. The listener will not accept a theory that is inconsistent with a fact that the listener believer to be true. Second, the plausibility test. Is the theory plausible? Is the theory internally consistent? Does the theory sound like the truth? If more than one theory passes both tests, choose the theory that best applies to the listener's world view. For example, if the listener has a police background, a theory that a police officer made a mistake is a better choice than a theory suggesting that the police office is lying.

Stage Three - Execution

Select the theory that gives your client the best chance to achieve the client's desired result. Only choose one theory. Having more than one theory will undermine your credibility. We suggest that you pick a theory that presents an affirmative picture of your client's innocence.
Your final theory of the case should have persuasive facts, strong emotions, a legal basis for the listener to find your client innocent, vivid imagery, and concrete language.
Your final theory of the case should be client-centered, listener driven, and a compelling and believable story.
View the listener as a member of an adult education class. You are the teacher and you must teach the listener your theory. You can teach the listener through demonstrative or physical evidence, visual displays, re-enactments, and analogies.
Plan your case in reverse. Start at the end. If you are appearing before a jury, draft jury instructions tailored to your theory. In drafting the instructions, consider the law underlying your theory.
Draft your closing argument based on the evidence that led you to select the theory. Explain and support your theory while arguing against the government's theory.
During cross examination, your goal should not be to discover new facts. Ask questions about facts that you know will support your theory. If a line of questions does not advance your theory, do not use it.
Use the opening statement to introduce your theory to the listener.

Factual Component

When finalizing your theory of the case remember to include the most important facts, good, bad, and indifferent.
When developing a theory of the case to explain a conflict or criminal act, the defender should ask:
  • What happened?
  • What did they do, feel, want?
  • What is the relationship between the parties involved?
  • What are the physical particularities?
  • What are the legal elements of the case?

Legal Component

Include the legal strategies and phrases you will use during the trial. Include the elements of the crime charged. For each element, list the evidence in support and the evidence rebutting the element. If there is little or no evidence in the case file to rebut an element, then part of the defense investigation is to look for such evidence.

Emotional Component

Include the emotions of the scene. Put the listener in the defendant's position.

Vocabulary of the Case

Use the vocabulary of the case in your theory. This, internal vocabulary, comes from the documents of the case such as police reports, witness statements, official records, and personal documents. The vocabulary of the case also comes from the testimony of the witnesses. External vocabularies are the words you are able to get witnesses to use. Make the witness use vivid synonyms. External vocabulary must come from the witness and should not be over-dramatized. External vocabulary should be consistent and credible with the normal vocabulary of the witness.

Storytelling

Storytelling allows the legal aid lawyer to set the stage, introduce the characters, create an atmosphere, and organize ideas into a carefully crafted narrative format, thereby impacting the way each judge perceives a given case. Without such a framework, judges will understand the evidence and testimony in accordance with the prosecutor's argument. Once the defense lawyer successfully executes a framework, he can use the client's experiences to influence the judge's imagination, leading most judges to understand the evidence in the context of the client's past experiences. More importantly, storytelling will cause judges to uyse both their hearts and minds in considering the defense's argument.
The following suggestions may help the lawyer decide what language to use or avoid in stating a theory of the case on behalf of a client:
  • The language of storytelling and the language the lawyer normally uses are very different. The lawyer should tell the story as if he is casually speaking with friends.
  • Speak accurately. What you actually saw should match what you intend to say.
  • Translate legal terms or abstract concepts into clear, common, and simple language.
  • Use effective language.
    • Avoid words or phrases with reserved meaning, for example "I think," "I believe," or "I will try to prove."
    • Use active tense.
    • Avoid unconscious hesitation or useless verb pauses.
    • Use language that has the appropriate emotional and appealing elements.
    • Use vivid language.
    • Use concrete rather than abstract language.
    • Use detailed and accurate rather than general or vague language.
  • There should be sentence variety, but short sentences are best.
  • Do not refer to notes while speaking.

Conclusion

Whether defense counsel chooses to develop a specific defense or simply to rely on the prosecutor's failure to carry the burden of proof he must begin early on to develop a theory of the case. Some defenses are directed at a failure of proof (e.g., alibi or consent) whereas others are more general and are applicable even if all the elements of the crime are proved (e.g., self-defense, insanity, entrapment). The approach you take will determine many subsequent actions. In addition, in some states the defense must give notice to the prosecutor that a specific defense is being asserted. This is often true, for example, of the alibi defense.
Anyone handling a defense understands that it is necessary to look at the most obvious aspects. But it is also important to consider the facts beyond the obvious. It is the job of the defense to point out the whole picture, beyond the first glance, the most obvious. Developing the theory of the case points the directions for investigation, and the investigation is likely to uncover information that further develops the theory of the case.
See Trial
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sample opening statements

Opening Statements

Background

The purpose of the opening statement is to introduce the parties and counsel to the jury and to provide a roadmap of what the evidence will show and what the jury will be asked to decide. The opening statement should not be argumentative. It is an opportunity for the defense to marshal the significant facts in a logical fashion that makes sense and leads to one conclusion, a defense verdict. The opening statement may be the most effective piece of advocacy during a trial and, as such, should be delivered in a calm, logical manner that brings the jury to your side. Like all aspects of the trial, the opening statement should be driven by the defendant's theory of the case.

Basics

After voir dire, this is the jury's first contact with the defense lawyer. Given the fact that first impressions are hard to change, counsel should be very conscious of dress, grooming and body language. The lawyer must attempt to come across as honest, sincere, considerate and credible. Avoid using complicated legal terms. Try to speak to the members of the jury in clear and simple terms that they will understand.
Since the prosecution has the burden of proof in a criminal case, it makes the first opening statement. The defense then gives its opening statement. While the defense is permitted to defer its opening statement until after the prosecution has rested it case, this rarely makes sense.
In preparing for the opening statement, the defense lawyer should develop a theme that will be set forth in the opening. The theme can be a word, phrase or simple sentence that captures the controlling or dominant emotion or theory of the defense; it should be brief and easily remembered by the factfinder. For example, in a case is which the defendant was charged as an accomplice, the defense may refer to the defendant as an "unwilling accomplice" who was forced to participate in the crime.
Every opening statement is different and it is impossible to address all of the issues that may arise. The following sets forth some very basic principles. The basic structure for the opening statement should be an introduction, the body and the conclusion.
  • Introduction: Begin by introducing yourself to the factfinder and telling them who you represent. Explain the charges that have been filed against your client, make clear your denial of guilt and set forth any and all defenses. With respect to the client, it may be helpful to give some additional introductory information. For example, it may be helpful to say that the client has no criminal history, is an upstanding member of the community and is employed. Anything that may enhance the credibility of the defendant or will generate empathy from the factfinder can be helpful. This is also the time to introduce the prosecution's heavy burden of proof (i.e., beyond a reasonable doubt) and to explain how it cannot meet that burden.
  • Body: While the opening statement is not considered evidence, it is the first opportunity for the defense to explain what the evidence will show. In the body, the defense should tell a story that identifies the "plot, the setting and the characters." It should place questions in the minds of the jurors that they should be asking when they hear the prosecution's case. Defense counsel should communicate a theme that will run through the entire defense. The theme should incorporate the character of the defendant, the relevant facts and the law to be applied.
  • Chronology: The body of the opening should provide a timeline of the events as they occurred. This gives the defense a logical framework in which to describe how and what happened.
  • Description: To help the factfinder visualize what happened, provide a description of the scene of the alleged crime, the evidence that will be presented and the witnesses that will testify. Remember to restrict your discussion to evidence that will be admissible at trial. If real or demonstrative evidence will be discussed during the opening, you may want to consider a pretrial ruling on admissibility.
  • Credibility: If the defense will utilize witness testimony, briefly discuss the credibility and qualifications of each witness in the opening. For example, if expert witnesses will be used, describe their qualifications. The opening is also the time to begin to impeach the credibility of the prosecution witnesses and to minimize the prosecution's likely attempts to impeach the credibility of the defense witnesses. For example, if a defense witness' credibility can be impeached based on criminal history, this is the time to minimize the prosecution's attack by explaining how it has no bearing on the witness' testimony.
  • Facts: The defense should allow the facts to argue the case by setting forth the facts in such a manner that there is only one logical conclusion. It is also the time to briefly apply the facts to the law. While the court will define the applicable law, the defense should attempt to show how the facts do not support the prosecution's case but support a not guilty verdict.
  • Conclusion: The defense should always conclude by telling the factfinder that you want them to return a verdict in your client's favor and what that verdict should be. Simply reiterate the best facts and state how they support the desired not guilty verdict.

Common Pitfalls of Opening Statements

The most common pitfall to avoid in opening statements is making promises that cannot be kept. Defense counsel must ensure that the facts are set forth accurately and that the defense can support the facts as stated. The prosecution will, obviously, highlight and attack any area in which the defense has failed to fulfill the promises it made in the opening. Failing to meet the promises made in the opening statement can significantly impact the credibility of the defense and, as such, highlight weaknesses.
As noted above, the opening statement is not considered to be evidence. Many lawyers make the mistake of telling the jury this during their opening statement. Unfortunately, this results in giving the jury the mistaken impression that what is set forth in the opening is not important.
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sample closing argument

Sample Closing Arguments Transcripts

Following are sample transcripts that include closing arguments.

Contents

Closing Argument in a Manslaughter Case

Case: Commonwealth of Virginia v. Raelyn Balfour
Summary: This transcript is the closing argument in a high-profile case in Virginia where a mother is on trial for manslaughter for accidentally leaving her infant in a car seat in the back of her car throughout the workday. The undisputed evidence was that she forgot to drop the child off at day care, and left him in the car unintentionally. The prosecutor argues that forgetting one's child in the car amounts to a "callous disregard' for human life - the necessary standard for involuntary manslaughter. Defense lawyer John Kenneth Zwerling argues that the defendant accidentally caused the tragedy, cared deeply for her child, and cannot possibly be found to have acted in callous disregard for him. The crux of the argument focuses on the very definition of manslaughter - what it is, and perhaps what it should be as applied to an honest lapse of memory. Of note is that Mr. Zwerling plays a tape of a 911 call during the closing argument, which depicts the defendant screaming and crying as she holds her child upon realizing she forgot him the car. The jury found the defendant not guilty.
{{Media:Closing_argument.pdf|Word]]

Closing Argument in a Capital Murder Case

Case: Commonwealth of Virginia v. John Allen Muhammad
Summary: This transcript is the closing argument of a very high-profile case in which a sniper is on trial for capital murder for murdering ten people and critically injuring three others over several weeks in October, 2002. Solid evidence linked the defendant’s seventeen year old co-conspirator to the murders, but the theory was that the defendant was the mastermind and in control of the crimes. The prosecutor argued that the defendant was the “immediate perpetrator” of the shooting and thus primarily responsible. In response, the defense concentrated on shifting all blame onto the co-conspirator. Note how the defense attorney is very respectful and sympathetic to all the victims and their families, but distances his client from any responsibility for those injuries. The defense also spends a lot of time defining legal terms – such as “immediate perpetrator” and “reasonable doubt” – to argue that the prosecutors did not meet their burden of proof. The defendant was found guilty of capital murder and given the death sentence.

Closing Argument in a Kidnapping and Murder Case

Case: People v. David Alan Westerfield
Summary: This is the closing argument for the defense in a California case in which a man is on trial for the kidnapping and murder of a seven year old girl. The defense attempts to discredit the physical evidence using scientific theories of contamination. Note how the defense attorney provides other logical explanations for the defendant's behavior while attempting to convince the jury that the prosecution's conclusions are illogical. This use of logic provides the jury with another, plausible explanation for who may have murdered the victims. The defendant was found guilty of kidnapping and murder.

Video Footage of Actual Closing Arguments

Closing Argument in a Murder Trial

Case: People v. Orenthal James Simpson
Summary: This is the closing argument in an infamous California murder trial, delivered by Johnnie Cochren, lead lawyer for the defense. The defendant, a famous American football player and actor, was accused of the murder of his ex-wife and her friend. The case against him was quite strong: including DNA, motive, and strong witnesses. Notice how the lawyer uses a short, catchy phrase as one of his themes: "If the gloves don't fit, you must acquit." Also note how he effectively transforms this case into a racial issue, thus proposing that a vote against the defendant is a vote for racism. The defendant was found not guilty.
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