Closing Argument in Criminal Trials

In television dramas, closing arguments represent the height of the trial, with the prosecutor and defense lawyer each delivering an emotional plea for justice. In real life, closing arguments are a way for the attorneys to pull together all the evidence for the jury—they're intended to appeal to jurors' reason, not just their passion.

Defendant's Right to Make a Closing Argument

Under the Sixth Amendment, defendants have a right to present a defense, which includes the right to make a closing argument. This right applies in both jury and bench trials and when a defendant chooses self-representation.

The Role and Purpose of Closing Arguments in Criminal Trials

An effective closing argument ties together all the pieces of a trial and tells a compelling story. It's the prosecutor's and defense attorney's chance to make good on the promises they made during opening statements describing what they would prove. The judge or jury has likely heard hours or even days of evidence. Closing arguments provide the final opportunity for the attorneys to clarify the issues and persuade the factfinder to believe their theory of the case.

Points Made in Closing Argument

Generally, closing arguments should include:

• a summary of the evidence
• reasonable inferences that can be drawn from the evidence
• an attack on any holes or weaknesses in the other side's case
• a summary of the law for the jury and a reminder to follow it, and
• a plea to the jury to take a specific action, such as convicting, acquitting, or convicting only on a lesser charge.

The defense also wants to highlight the prosecution's burden to prove every element beyond a reasonable doubt.

Example of Closing Argument

For example, in a shoplifting case, the prosecutor might point out that the store owner identified the defendant as the culprit, surveillance video backs this up, and police found items at the defendant's home that are identical to the stolen goods.

The criminal defense attorney's closing argument might review all the evidence, focusing on the fact that the store owner only saw the culprit for a couple of seconds, the surveillance video was blurry, and the defendant has a solid alibi. Counsel could then remind the jury that it must be convinced of guilt beyond a reasonable doubt, a very high standard. Because reasonable doubt exists about the identity of the shoplifter, the defense attorney will ask the jury to follow the law and find the defendant not guilty.

In rebuttal, the prosecutor could point out that the alibi came from the defendant's family member—hardly an unbiased source. The prosecutor will then ask the jury to uphold the law and find the defendant guilty.

Who Goes First in Closing Arguments? What's the Order of Presentation?

In most states, the prosecutor delivers the first closing argument. The defense follows. After, the prosecutor may get the chance to respond to the defense's final argument.

The prosecutor essentially gets the first and last words in a trial because it bears the burden of proof. This burden of proof for a criminal conviction is the highest standard that exists in the judicial system—proof beyond a reasonable doubt. This standard requires the prosecutor to prove their case with near certainty and convince all 12 jurors of the defendant's guilt.

For defense counsel, the closing argument is the last chance to remind the jury of the prosecution's high burden of proof and to persuade the jury that there is, at a minimum, a reasonable doubt as to the defendant's guilt.

How Long Are Closing Arguments?

The length of closing arguments often depends on the complexity of the case. The judge might set a time limit, or counsel might agree to a time limit and present their suggestion to the court.

While judges have broad discretion to decide how long counsel will have in closing arguments, it must be reasonable in light of :

• the nature of the case
• the amount of evidence
• the number of witnesses
• the complexity of the issues, and
• the seriousness of the offense.

Ultimately, the time limit must reflect the defendant's right to a fair trial.

For some cases, each side might get 30 minutes total in closing arguments. Complex cases could warrant each side getting several hours. Attorneys usually don't want to go too long, or they risk losing jurors' attention.

Are There Rules for Closing Arguments?

In practice, judges give attorneys considerable freedom at closing, as long as the argument has some relation to the evidence presented at trial. Judges must carefully craft any restrictions on closing so that they don't deny the defendant the opportunity to discuss important considerations for the jury.

Nonetheless, there are limits to a proper closing argument. Unlike what we see on TV, neither side can suddenly march in and present new evidence, give personal opinions, or speculate about new theories or claims. Attorneys can't make inflammatory statements. They also can't suggest jurors send a message through their verdict.

In the end, the judge controls the scope, tone, and direction of closing arguments. Below are examples of the limits to closing arguments.

Arguments Must Be Based on Evidence Presented at Trial

Most importantly, the conclusions that an attorney urges a jury to draw must be based on the evidence presented at trial. Counsel cannot use the closing argument as an opportunity to refer to new evidence or any evidence the court excluded. For example, an attorney can't argue that no similar crimes have been committed in the location in question since the defendant's arrest without having presented evidence to that effect.

Arguments Can't Be Irrelevant, Confusing, or Prejudicial

Judges can also prohibit or exclude arguments that are unrelated to the case, confusing, or inflammatory. For example, name-calling is generally forbidden. It's also improper to ask the jury to send a message to other criminals by finding the defendant guilty. The jury's job is to decide the case based on the facts before it, not on emotions.

Arguments Can't Misstate the Law

Judges decide what the law is. Counsel can reference how the law applies to the evidence, but any misstatement of the law will not be tolerated. Judges must correct any misstatements even if opposing counsel doesn't first object. An attorney must also keep their arguments to the laws presented in the jury instructions.

Arguments Can't State Personal Opinions

Attorneys cannot give their personal opinions on matters for the jury. They can't vouch for a witness's credibility or state whether they believe the accused to be innocent or guilty. Counsel can discuss evidence that supports or diminishes a witness's credibility, such as biases or inconsistencies in their testimony, but personal opinions or attacks are off limits. Personal attacks on opposing counsel are also not allowed.

What Happens If an Attorney Makes an Improper Remark During Closing Argument?

When an attorney oversteps during closing arguments, the opposing counsel can object. Attorneys usually want to object immediately so the judge can rule and correct the mistake. In some cases, judges will step in even if no objection is made, especially when counsel misstates the law.

Unfortunately, a bell once rung cannot be unrung. Once the statement is out there, a ruling won't make jurors "unhear" it. But judges can ask the jurors to disregard the statement. Depending on just how serious the misstep was, the judge might:

• admonish (firmly direct) the jurors to disregard the statement (and sometimes make counsel apologize to the jury)
• provide curative or cautionary instructions to the jury, or
• grant a request for a mistrial.

Judges don't grant mistrials lightly. They need to determine whether the statements were so prejudicial that they deprived the defendant of a fair trial. For example, an appellate court reversed a defendant's conviction in a murder case where a prosecutor misstated the burden of proof and presumption of innocence, provided personal reactions to the case, and encouraged the jury to make decisions based on emotions and not evidence. (State v. Muniz, 548 P.3d 172 (Or. Ct. App. 2024).)

Obtaining Legal Assistance

Lawyers and legal scholars like to debate whether a trial is won during opening or closing arguments. There's no clear winner, but it's always important to have a good criminal defense attorney by your side, every step of the way.