In television dramas, closing arguments are the height of the trial: The prosecutor and defense lawyer each deliver 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. (For information on a related topic, see Opening Statements: What the Prosecution and Defense Can and Can’t Say.)
Under the Sixth Amendment, defendants have a right to present a defense. They are also entitled to give a closing argument. Usually, the prosecution first makes a closing argument, then the defense attorney. The prosecutor, who has the burden of proof, frequently gets the chance to respond to the defense’s final argument.
For defense counsel, 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, reasonable doubt as to the defendant’s guilt.
An effective closing argument ties together all the pieces of a trial and tells a compelling story. Generally, closing arguments should include:
For example, in a shoplifting case, the criminal defense attorney’s closing argument might go through all the evidence, but focus on the fact that the surveillance video was blurry and the defendant’s alibi. Counsel could then remind the jury that it must be convinced of guilt beyond a reasonable doubt, a very high standard. Since there is reasonable doubt 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 might point out that police found items at the defendant’s home that are identical to the stolen goods, and 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 defendant guilty.
In practice, judges give attorneys great freedom at closing, as long as the argument has some relation to the evidence presented at trial. Additionally, 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 proper closing argument. When attorneys overstep them, usually a judge will simply tell the jury to disregard the improper argument. But when attorneys commit serious misconduct during closing, a judge might declare a mistrial, and if not, a court of appeal might overturn any conviction.
Arguments must be based on evidence. Most importantly, the conclusions that an attorney urges a jury to draw must be based on the evidence. Counsel cannot use the closing argument as an opportunity to refer to evidence that wasn’t part of the trial. 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 cannot 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. And asking the jury to “send a message” to other criminals by finding the defendant guilty may be improper since the focus is only whether the particular defendant on trial committed a crime. (State v. Woodard, 2013 ME 36 (2013).)
A good closing argument can result in an acquittal, a hung jury, or even a conviction for a less serious offense. If you are facing criminal charges, the best way to protect your rights and defend yourself is to work with an experienced criminal defense attorney.