A Guide to Defence Closing Statements
A crucial component to the success of any trial defense is an impactful defense closing statement. A closing statement serves as the concluding address of counsel at the end of a trial or case. It is an opportunity for the defense to argue after hearing the evidence and assess how the facts should be applied based on the law provided to the jury. In general, a closing statement provides the defense with an opportunity to reinforce the position taken at trial, rehash the strong points, and answer hypothetically whether there has been enough evidence to reach the standard of proof beyond a reasonable doubt as to each crime charged . It gives the defense the power to reach the jurors in their last opportunity to speak directly to the one’s who will decide the fate of the accused. Therefore, this portion of a trial must be carefully crafted, thoughtful, strategic, and an accurate reflection of the defense put forth throughout the course of the trial. As a practical matter, it is one thing for the attorneys to understand the theory that they are submitting to the jury, but another for the jury to understand a defense theory. Accordingly, the defense must leave the jury with an understandable theory of defense so that they are convinced that the defense theory is true or at least raises a reasonable doubt in their minds as to the guilt of the accused.
The Components of a Successful Closing Statement
The key elements of an effective defense closing statement are threefold. First is the structure and flow of the closing statement, which must be built to take the jury in a simple and easy-to-follow progression that ends in the "verdict knot." Second is the persuasive language used by counsel to positively effectuate the issues that underlie the litigation and the case as a whole. And third is the recognition and acknowledgment of how the case is being processed by the jury’s emotions and feelings, rather than just simply through the jury’s intelligence and logic. Counsel must feel out, through the testimony and the evidence that came into focus via direct and cross-examination, what facts and what evidences will resonate emotionally for the jurors, and how those facts and evidences can be used in combination with each other to create an emotional bond that reinforces and substantively supports the vision of a verdict that counsel is trying to convey.
Some specific examples include using strong, meaningful yet concrete words like "justice," and "truth," while avoiding vague, empty or sterile words like "proven." All words should be concrete images and real actions that represent a powerful meaning. The jurors must be told why the evidence and the outcome they are being asked to find at the end of the case can and should matter to every person in the community. Speak to their humanity and their collective conscience. Tell them why your client, through the circumstances of this case, deserves their care and consideration, and why the community should stand in their corner and stand up for their good name.
Exploring Examples of Defence Closing Statements
In addition to using our examples, defendants can learn from well-known defense closing statements. Here are three of our favorites:
1. O.J. Simpson’s Trial Closing Argument
The verdict: Not guilty
The impact: Simpson’s defense closing argument jury instructions are probably one of the best written and most famous on the planet. With O.J. Simpson’s trial, the defense lawyers preserved for appeal by using their Q&A worksheets from trial to prepare for closing and framing their closing statements in a similar fashion. This style of closing statement is the best option for new trial motions because it leaves no room for the prosecution to twist the facts or spin the case in their favor.
The excerpt: Here’s a short, but juicy excerpt from his closing:
"There are some people who say that because he’s black it doesn’t matter to them whether he’s guilty or not. That is an indication of ignorance. That kind of attitude would allow this man, this great athlete, to be framed by a police department that does not have any credibility in this city. A police force that has got a history of framing people.
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There’s been testimony concerning his homes and the people who live around him concerning his lifestyle. No one came out to testify that Simpson ever mistreated any of his three wives, or his children. Nobody. None of the servants testified in that manner. None of his neighbors testified in that manner. Nobody testified that he was ever in any way anything but a good neighbor, a good friend, and a good husband."
2. Miranda v. Arizona’s Defense Closing
The verdict: Not applicable
The impact: The most interesting thing about this closing argument is that it was never actually used. In the case of Miranda v. Arizona the Supreme Court famously made this piece of legal advocacy part of the record because this closing was so compelling.
The excerpt:
"The rights of the individual against the state will be preserved only so long as we have judicial processes capable of subjecting the illegal interrogations of individuals to the scrupulous safeguards to which our privacy against the state entitle us. The greatest enemies of the truth are the criminal law. The greatest friends of law enforcement are the criminal law. The greatest enemies of the police officers on the street are those who don’t follow the law. The greatest friends of law enforcement are those who live within the law."
3. In regards to the Johnnie Cochran defense closing argument
The verdict: Not Guilty
The impact: If you’re a criminal defense lawyer you have to love this closing statement clip from Johnnie Cochran (RIP). With this closing statement, he opened the door to the prosecution to compare blood samples of the victim with the rest of the crime scene samples. That possibility was fatal for the prosecution because they concluded that the prosecution’s evidence had been compromised.
The excerpt:
"Well he planted the blood at the scene, it better fit. Because the blood out there doesn’t, blood does not fit. Because it was planted. The blood out there, the blood matches blood inside. It took somewhere in America to finally put it together. They all fit. And blood over there, does not fit that blood over there.
[And it] took somewhere in America Finally, a guy by the name of Bruno made the point. It took someone to move past all the non-senses, move past all modalities, move past all of these so-called experts like Detective Vannatter, he had it right all the time, it was only someone who had the guts to look and to say to their colleagues, ‘that’s the right blood, that’s a size 11 blood, that’s the right stain for the crime scene, the blood fits and it was planted.’"
How to Construct a Chart or Checklist for Your Defence Closing Statement
Whether you have years of trial experience, or you are preparing for your first trial, closing arguments can induce anxiety. You may be wondering whether there is anything you are forgetting to say, and whether the suggestions of a colleague last week on what you need to say were correct. As in many other areas, being prepared will help with this anxiety. When you prepare to give your defense closing argument, you want to develop an organized checklist of the items you want to cover.
Some items for your checklist should include:
A brief overview of the evidence: Some call this an "overview" statement, but it is different from what you would say at the beginning of the trial. This is not a time to remind the judge or jury of "what the evidence has been so far." You are summarizing the evidence in the trial. For example, "In the evidence, we heard from Mrs. Brown, the complaining witness, who testified she was attacked by the defendant, Mr. Smith, standing alone in his driveway at 11:00 at night, and that a police officer saw Smith in the driveway soon after the attack. The officer described Mr. Smith as compliant, and stated that he never saw any abrasions, scratches , or other physical injuries on Mr. Smith. Mr. Smith testified that he had gone outside to his car and was standing there when the police came by at his neighbor’s request. He also testified that while he was standing at his car, shirt untucked and pant legs partially in his socks, he was not doing anything in particular at that time. He had his hands in front of him. We heard testimony from Mr. Jones, the police officer who responded to the scene, who also described Mr. Smith, shirt untucked, pant legs partially in his socks, with his hands in front of him. That description is consistent with Mr. Smith’s testimony that he was standing by the passenger door of his car, with his hands in front of his mid-section."
We are not providing court-reporter type transcripts, but outlining an overview statement. Your points should not be verbatim, but your thoughts for how to summarize the evidence as you have presented it.
For example, if your defendant has testified to any exculpatory statements (self-defense, for example), then you will want to touch on that. It should be brief, but you can briefly read the indictments or charges and ask the jury to find your defendant not guilty.
Discovering and Using PDF Closing Statements
As is the case with many litigators, sometimes you just need to have a look at what your colleagues are doing. I find that this is particularly true when I am preparing a closing argument for trial. In addition to deciding the strategy of the argument, I want to see how other trial lawyers have handled similar cases. It is generally in the final days before trial that I go looking for more examples.
Just like there are many places to find examples of defense trial notes, there are also some excellent PDF files out there which contain trial notes for closing arguments. Typically, these are from law school clinics or private law firms. The best places to look are at the website of law school clinics where students have represented defendants in criminal cases. The American Bar Association has a list of law school clinics across the country. Additionally, the websites of public defender offices also sometimes include links to their closing arguments.
Whenever possible make it a point to get hold of examples that are similar to your case. If you are defending a CSEC case, find an example that is from a CSEC case. If you are defending a child molestation case, find an example that is from a child molestation case. These examples are infinitely more helpful than you may realize.
Once you find an example that seems relevant to your case, print it off and read it carefully. I like to print off closing argument notes and then add my highlights directly onto the notes in yellow ink. That way, I can go back and refer to the entire set of notes later. If you are working with a co-counsel, this can also be a good way to divide up the work.
Finally, be sure to focus on the specific points made in various examples of closing arguments. Closing arguments are only as useful as the points that they connect with. For example, if you have a co-defendant, you will likely want to use the fact that the prosecutor’s office has offered your co-defendant a deal in exchange for his testimony in order to develop reasonable doubt as to your client’s guilt. If you have a mistaken identity defense, you may want to make a big deal out of the fact that the photos and identifications from the show-up are of such poor quality that the jury could never be able to reach a verdict based on that evidence. The point is that you should be looking for examples of effective ways to discuss the defense theory of your case, and also discuss any and all viable limitations of the prosecution’s evidence.
Avoiding Common Errors in Defence Closing Statements
Defense closings are an important part of any litigant’s strategy. You only get one shot to present your closing, so it is essential to effectively convey your overall message regardless of the specific subject discussed. To do so, you first must identify the key themes of your case and then bolster those themes with supporting evidence drawn from the testimony at trial. Defenses that suffer from excessive generalizations, seem prepared months before the trial and merely rehash the evidence instead of focusing on the key themes should be avoided. Defense closings should be persuasive and engaging. They should elevate the value and interest in the case by making the jurors care about the outcome. The most common mistakes defense attorneys make in delivering their closing remarks include:
Overly General Statements Excessive generalization inevitably leads to inclusion of incorrect or inaccurate information that ends up undermining key points. Instead of focusing on the ultimate issue, closing remarks often include detailed analysis of irrelevant issues. These elements detract from the overall message by making the presentation too long or overly complicated. Generally speaking, the closer you are to the ultimate issue, the better your argument will be, if short and relevant.
Ready for Trial Syndrome A poorly organized closing statement that jumps around from one concept to the next presents a clear sign that counsel is simply going through the motions instead of being present and engaged throughout the trial. This is a recipe for disaster – jurors pick up on this weakness right away. Being overly prepared for closure will also have a negative impact on the persuasiveness of your argument because it will reek of insincerity, making it difficult for the jury to trust the content presented . Being too overprepared will also lead to longer arguments than necessary. Naturally, the more time jurors are presented with arguments, the more bored they will become and the less likely they will be to remember key points.
Mercenary Based Closings Juries expect that attorney’s will advocate on behalf of their clients, but deliberately trying to inject outrage into the closing statements by using inflammatory words or controversial ads will damage juror’s view of the lawyer’s integrity and honesty. Closing is not the place to focus on how the decision will impact the bottom line. Juries are notoriously skeptical of lawyers who spend closing venting about the way the decision will impact the defendant’s bottom line. These tactics suggest a mercenary approach that speaks to the attorney’s character rather than making the case for or against the verdict itself. Jurors want to hear about the take home issues – how the verdict impacts the real world.
Rehashing the Evidence Simply repeating the evidence presented in trial, accompanied by ipsis verbis oral statements of depositions, only makes it harder for the jurors to pay attention and remember critical aspects of your testimony. Focusing on everything that happened during cross examination is a mistake and will not help you win the case. Witnesses are usually unhelpful. Witnesses should be used to emphasize key points already noted to show why the points are important. Also, don’t just repeat what the witness said, use the case in chief to introduce the evidence, say what that means in the closing…Getting to the point in timely fashion will instill confidence in the jurors and keep them engaged in the case.