Trial Court Series No. 10             Published on Jan. 26, 2018

The best part of trying a case to a jury was always the last part which is known as the “Closing Argument.” 

Theory of the Case: “Lack of Evidence” Prevails

I’d begin preparing the Closing at the very start of a case. As a criminal defense lawyer, I would review police reports, witness statements, as well as any physical evidence that would eventually be shown at trial.

Attorneys develop a “theory of the case,” and that is what “kick-started” the closing argument for me. I dealt with aggravated assaults, robberies, and drug offenses, as well as a few low-level homicides.

There are only a few theories to apply toward such defenses, and I’d tried my best to fit the facts – or lack of facts – into one of the theories.

   Each step of the trial was a part of the closing argument. That included the “opening statement,” the direct examination as well as the cross-examination of witnesses, and the decision to highlight a piece of evidence.

Impeachment of a Witness Always Works

  There’s nothing quite like cross-examining a witness who says something different from what he said at a previous court proceeding. We’d be given copies of “preliminary hearing” notes and knew what a witness had stated under oath before. I wrote out the statements and almost knew by heart key elements of what they said.

When they stated something different, I knew I had them exactly where I wanted ‘em – trapped with a “prior inconsistent statement.”

I’m sure that you heard how lawyers should never ask a question without knowing the answer. I believe that is where it comes from. You’d ask questions based on what you gleaned from previous statements. When a witness changed their story, you’d zero in and create what is called an “impeachment.”

Were they telling the truth before, or are they telling the truth now? How can you believe anything they say?

Such a Gift Would Almost Ensure a Victory!

I’d write out the closing argument the night before the trial was to end. I’d carry the yellow legal pad containing the argument from the defense table to the jury members sitting in the box. I’d refer to the pad and tell ‘em how I needed it because the case was too important to my client for someone like me to forget the details. I’d use the pad as a prop.

I’d also raise my voice at a crucial moment and then let my voice crack at an emotional part of the argument. I’d apologize for raising my voice as well as getting too emotional, as I tried to appear as humble as possible. It was all true — I’d really get into the closing for the benefit of my client, winning more jury trials than I lost.

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   By the end of the closing, I’d be exhausted. I’d collapse as I took the seat next to the defendant and hoped my performance won over some members of the jury — enough for a “Not Guilty” verdict or even a “Hung Jury” mistrial finding by the judge.

 Too soon the verdict would be announced, and I’d be back to square one as I started to review my next case, my next closing argument. It was exhilarating and rewarding whether you’d win or lose.

Ah, Hell, it was Always Better When You Won!