Often, you will need to deal with a juror’s natural tendency to feel that a “not guilty” verdict fails to solve the problem at hand. Generally, folks want their efforts to be meaningful. In some cases, you will need to counter a juror’s sense that a “not guilty” verdict would be tantamount to a failure to resolve the problem at hand. There may be a need to answer, were possible, the nagging question: “if your client did not commit this reprehensible offense, then who did?”
DON’T TAKE ON MORE THAN IS NECESSARY
If you do not need to dispute a particular point to obtain a favorable verdict, then do not take it on. Common sense tells us that we do not need to contradict everything that a prosecution witness says, and often the skill demonstrated in closing argument is how deftly counsel can distill the contradictions down to those salient issues that matter to his or her case. On the other hand, it is likewise true that it is often impossible to demonstrate the falsity of critical portions of a prosecution witness’ testimony, even though we may be able to demonstrate conclusively that some other portion of their story is false or totally implausible.
BRING HOME CONTRADICTIONS IN PROSECUTION’S CASE
From Edward Bennett William’s closing in his defense of Secretary of State (and former Texas Governor) John Connally, when expounding upon the contradiction in Government snitch, Jake Jacobson’s “story:”
“What I have to say about…this third version of Mr. Jacobson’s story, it is like the old grandfather’s clock that strikes thirteen. It calls into question all that has come before.”
Tennessee Williams’ lexicon brings us another word for liar. Edward Bennet Williams used this turn of phrase to describe a witness’ propensity to lie:
“Have you ever witnessed such mendacity.”
WHY WOULD THESE PROSECUTION WITNESSES BE TELLING THIS STORY?
The two questions you must answer in your closing are:
- Why would they be telling such a story, if it were not the truth? and
- Why would they pick my client, out of the universe of people out there, to be saying such a things about him or her?
EMPHASIZE WITNESS’ MOTIVE FOR TELLING THIS STORY
Another masterful turn of phrase from William’s close in the Connally case was his description of Jacobson’s fear of prosecution for embezzling:
“He feared, members of the jury, the charge of embezzling his client’s funds. He feared that with a passion. And, so a case that was conceived in greed, was born in lies.”