Podcast - The Basic Rules for Closing Argument
In this episode of his "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small outlines essential rules for lawyers during closing arguments. He speaks about the importance of not misstating evidence or introducing facts that were not presented during trial. Mr. Small also reminds attorneys to refrain from expressing personal opinions and focus solely on the evidence at hand.
Listen to more episodes of The Trial Lawyer's Handbook here.
Mr. Small is also the author of the new American Bar Association (ABA) book Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and What They Can Teach Trial Lawyers.
Daniel Small: There aren't many legal rules governing closing arguments, but there are some. And breaking them can have serious consequences for your case.
Here are some of the most basic rules:
No. 1: Don't misstate the evidence. You can argue the evidence, reasonable inferences from the evidence and the credibility of witnesses. You can point out the absence of evidence as two different issues, but you cannot argue facts that were never admitted into evidence. It's against the rules, and it's against common sense. You need to be the source of truth to the jury. You need to be their honest advocate and their honest guide.
Similarly, you cannot misstate the evidence. If the only evidence about the date of a meeting was that it occurred in December, you can't argue that it occurred in January. If a witness tells you he can't remember whether Bill Smith was at a meeting, you can't argue later that Bill Smith was at the meeting. You'd be surprised how often lawyers do that. Disorganized lawyers may lose track of what's in evidence and what's not. Lawyers sometimes assume that if the point involves background facts, it doesn't matter. And lawyers sometimes think that their own question is enough to put a fact in evidence. Even if the answer doesn't actually do that, it isn't. Your words are not evidence.
No. 2: Don't express personal opinion. You cannot explicitly inject your personal opinions into a closing argument. You can't say, for example, "I personally believe there is no doubt as to the defendant's guilt." Likewise, you cannot personally vouch for a witness. You can't say, "The witness is a policeman, well known to those of us in the law enforcement community for his honesty and professionalism." The safest and most prudent thing to do is never use the words I, me, my or myself. Remember, it's not about you. It's about the evidence.
No. 3: Don't make inflammatory appeals. You can't make an inflammatory appeal to the jury's passions or prejudices. For example, a prosecutor in a drug case should not argue about the evils of drug trafficking. Whether a drug trafficking is bad does nothing to establish whether the defendant on trial is guilty of the charges against him or her. Inexperienced lawyers learning trial advocacy for the first time do that with some frequency. But sometimes more experienced lawyers, particularly those who believe they are on the side of the angels, do it too. It doesn't matter how important it is to punish polluters or stop unlawful discrimination. The case is about the evidence, not some broader societal goal. Your verdict may help achieve a broader goal, but that's not what the evidence is. And that's not what you can argue.
No. 4: Don't raise forbidden topics you can't talk about, or even hint at topics that the jury may not consider. For example, you can't raise the topic of punishment in a criminal case. For example, "Think carefully before you send this man to a certain prison term." Nor can you raise issues that the court has excluded. Don't edge right up to the line either, unless you're 100 percent confident that what you're doing is proper.
No. 5: Special limits for prosecutors. Prosecutors are not permitted to comment in any way on the defendant's failure to take the stand. That includes indirect comments like, "That evidence stands uncontradicted," when the defendant is the only witness who could have contradicted. Prosecutors likewise cannot suggest in any way that the defendant had a burden to put forward evidence. Again, that includes indirect as well as direct comments. Sometimes prosecutors say something like, "There is no evidence that the defendant is not guilty." If that isn't improper, it's awfully close.
One of my favorite exceptions to this when I was a prosecutor was opening statements. And it's an important exception in civil cases as well. Defense counsel beware. Don't overstate or oversell. As a prosecutor in closing, how great is it to be able to say, "Defense counsel made some promises to you in opening statement, and you have a right to see if those promises have been kept." But then quote exactly a transcript of opening if possible, and tread carefully.
Probably 95 percent of the mistakes made by prosecutors in closing argument come in rebuttal when they are responding, often in anger or frustration, to something defense counsel just said. If you are a prosecutor, take a deep breath before responding. Don't say something stupid that will lead to a reversal. In short, don't undercut your closing argument and risk reversal — or worse — by doing something improper or objectionable. Follow the basic rules.