A trial is still an ordeal by battle.
For the broadsword there is the weight of evidence;
for the sharp spear, the blazing gleam of truth;
for the rapier, the quick and flashing knife of wit.
In your opening statement, tell the jury what your evidence is.
In your jury argument, tell the jury what the evidence means!
Plan your case presentation around the jury argument you want to make.
The evidence is fodder for argument.
The jury plays a big role in "jury" argument. Jury argument seldom convinces jurors contrary
to their inclination; arguments are more effective when they confirm the juror's own opinion.
The best arguments are those about matters as to which there is ambiguous evidence.
If a fact is beyond change and beyond dispute, why argue it,
unless it is susceptible of different interpretations or conclusions.
To those who say the jury argument is unimportant - Think of a criminal trial without arguments
at its conclusion. It would be like eating unbaked bread - raw dough!
Check CCJA's dedicated Jury Argument web site for discussion of preparation, delivery, tips and tactics, do's and don'ts, links to videos of actual arguments in scores of criminal trials, famous speeches, voice, gestures, storytelling, etc., regarding jury argument in criminal cases plus numerous samples of convincing and persuasive arguments.
For information concerning how to obtain a useful 1500 page publication
with over 5500 sample arguments for defenders and prosecutors see
Moses, Jury Argument in Criminal Cases - A Trial Lawyer's Guide
and for a 550 page book of essays and transcripts of famous jury arguments see Moses,
The Last Word - Transcripts of Arguments from Memorable Criminal Cases.
Brief Outline of Typical Defense Argument
on the Guilt/Innocence Issue
[Defense arguments are typically either sandwiched between the prosecution's opening argument and closing rebuttal argument or precede or the prosecutor's closing argument. Either way, in almost every jurisdiction the prosecution gets the last word!]
- Open with an attention-getting hook that incorporates the theme of your case that was introduced during your opening statement.
- Discuss the law relevant to the defense(s).
- Apply the relevant law to the salient evidentiary facts. Your argument must be clear and reasoned and formatted for the ear and eye. Be creative. Use at least one, but no more than three, visuals; one for each of your basic points, no more than three basic points. Recognize, address, and negate the obvious weaknesses in your own story of the case.
- Meet and refute the prosecution's claims. Exploit weaknesses in the prosecution's story of the case
- Attack the credibility of the prosecution's witnesses.
- Underscore the absence or paucity of prosecution evidence on elements of the offense. Challenge the prosecution's weakest a claims and demonstrate their logical frailty.
- Discuss the prosecution's burden of proving quilt beyond a reasonable doubt and the defendant's entitlement to the presumption of innocence.
- Conclude your message with strength, reiterating your theme and asking for a verdict of acquittal.
QUESTIONS TO ASK YOURSELF WHEN YOU EDIT YOUR WRITTEN JURY ARGUMENT
1. Do you have a theory of the case (core statement, thesis)? Do you personally believe the overall message? What central points (no more than three or four) and sub-point do you want to make? Do the details resonate with you?
2. Is it written to appeal to the core values and entrenched views of jurors in your case?
3. Does it begin with an attention-getting device such as a "hook" or "grabber" that will capture the jurors' interest?
4. Does it have a clear beginning, middle, and conclusion?
5. Are transitions from one point to another point clearly headlined so that the jurors know you are leaving one point and beginning another?
6. Are any portions irrelevant or repetitive?
7. Is your story of the case (your version of the facts and the logical inferences) supported by the evidence?
8. Are there any light moments in your argument?
9. Did you employ any figures of speech in the use of words, meaning of words, and/or order and arrangement of words to affect the listener in a convincing (bringing the juror to your way of thinking) manner and persuasive (moving the juror to vote the verdict you desire) way?
10. Does the argument reflect your commitment to the position you advocate?
11. Do you utilize more than one format, e.g., visuals, to present your arguments? Are the formats arranged and integrated in their most effective order?
12. Does the body of your argument build to a climax at the end?
13. Do you use plenty of one and two-syllable Anglo-Saxon action nouns and verbs? Are your words simple, clear, and, at key points, in the active, i.e., the subject acting rather than being acted upon, and present, i.e., as though the action is taking place at the time of speaking, tense? Did you make sure to leave out direct statements of personal opinion by omitting the personal pronoun "I"?
14. Is your closing exhortation, e.g., the prosecutor's plea for effective law enforcement, the defender's call to arms or action, strong and persuasive?
15. Is there enough flexibility in the jury speech you plan to deliver to allow you to ad lib if necessary?
TO-DO CHECKLIST FOR ARGUMENT
- Look good! Dress in a manner that will add ethos to your argument, i.e., fortify your personal trustworthiness, credibility, and sincerity in the hearts and minds of your jurors.
- Remember to stay within conversational distance, e.g. 5-10 feet, from your jurors. Move only when there is a motivated purpose in moving. Move in and out. When you move take several steps rather than one. Don't rock, e.g., taking one step forward and one backward. Don't pace. You may need to turn your back on the jury on occasion, e.g., to secure an exhibit, but don't argue with your back to the jurors.
- Be enthusiastic about your message.
- If you are going to try to pull a rabbit out of a hat, the first thing to do is get a hat! Write your jury speech before you deliver it. Write your argument for the jurors' ears, not for their eyes. They won't read your argument. They'll hear it. So, write as you speak, but with more flair. Rehearse it. Some of our politicians prove that the sound bite that rings true in the limo doesn't work if the speaker can't get his mouth around the words. Can you say simple tongue twisters like "Red leather, yellow leather" five times rapidly without screwing up? If not, rehearse your argument again.
- Cut out the foamy, fuzzy, frothy, fluffy filler. Be succinct and substantive. Be aware that the right word counts. There are lots of ways to communicate a thought. Strive for the most persuasive mode.
- If the jury needs to know why, what, who, when, where, and/or how, make them want to know .
- You need a well planned exit strategy for every argument. It's your way of ending the argument on a high note. Have a way out before you start into your argument.
- Remember the words of Peanut's creator Charles Schultz: Don't worry about the world coming to an end today - it's already tomorrow in Australia.
- To add strength and spice, you will find it helpful to read the suggestions in Jury Argument in Criminal Cases and transcripts of arguments by able courtroom advocates. We create new arguments by being exposed to eloquent existing ones.
A FEW TIPS re JURYARGUMENT
1. Open your argument with an attention arresting sentence or two. The idea is to say something that fixes the jurors' full attention on what you have to say next. What you use to arrest attention can vary, e.g., a question (one that will be answered), an analogy, a compelling fact, an interesting paradox, a quote, a short anecdote, a legal definition of a term of great importance to your case theory, a concession made be the opposition, a brief relevant anecdote, a very short narrative story, etc. [Note: In the first minute of argument is typically a "grace period" during which the opposition will typically give you more leeway to say something that otherwise might draw an objection.]
2. After you have gained their attention, tell your jurors what is yet to come. Give them a brief verbal outline (forecast or preview) of where you are going with your argument, i.e., the topics you will cover. If appropriate, explain what you meant in your attention arresting (hook, grabber) opener.
3. In argument, prosecutors will listen closely to the defense argument. Prosecutors in most jurisdictions have the opportunity to reply to the defense argument in the prosecution's closing (rebuttal) argument. To reply effectively to what has been said, one must know what has been said. In jurisdictions where prosecutors are allowed to split argument, defenders should listen closely to the prosecutor's opening argument. Defenders are allowed to reply to the prosecutor's opening argument, but the defender must anticipate and refute, by anticipatory reply, what will be said by the prosecutor during the closing (rebuttal) portion of argument. [In some jurisdictions, e.g., NJ, MA, there is no prosecution opening argument; the defense argues and then the prosecution argues.]
4. In argument, try telling a personal story or using an apropos analogy to make a point. Create and use at least one explanatory visual to enhance your argument.
5. Recognize that you won't be able to change the juror's basic life view or way of thinking. Try to present your argument in a way that caters to the jurors' world view, not yours.
6. Try to answer the questions that you think the jurors would ask if they were allowed to do so.
7. Don't ask your jurors to assume too much. Explain why any assumption you make is logical.
8. Don't ask your jurors to presume the existence of facts that don't flow logically, either by deductive or inductive reasoning, from other facts proven by evidence.
9. Give the jurors reasons to trust the accuracy and credibility of the sources of your evidence.
10. Identify the major problems with your opponent's argument. Challenge its weaknesses point by point.
11. Discuss the key jury instructions in layman's language; talk about the evidence and explain what it means in light of the allegations and defenses; respond to and deconstruct the opposition's theory of the case.
12. As you complete the body of your argument, summarize your points. Connect the dots.
13. End your argument on a strong note! You may want to tie your case together with a closure that reiterates the theme that you voiced in your opening statement.
14. What you say at the beginning and conclusion of your argument will resonate more loudly and stick longer than what you say in the body of the argument.
15. The only parts of the argument that you commit to memory (memorized) are the beginning and ending. All the rest is extemporaneous (well planned and prepared, but without the exact wording being determined in advance).
16. The aim of jury argument: Victory comes when your jury argument helps you persuade, convince and influence the jury to think something you want them to think and do something you want them to do.