A South Carolina Criminal Defense Blog

Posts in category Closing argument

Win Your Case

In Win Your Case, Gerry Spence describes his approach to trying cases, and essentially lays out the method that is shared at Spence’s Trial Lawyers College in Wyoming.   He begins with the importance of self-discovery, a lifelong process that we ignore at the peril of ourselves and our clients – as Uncle Slim said, “ya can’t get nowhere with a thousand dollar saddle on a ten dollar horse.”

Spence talks about the importance of story, of credibility, of working on yourself, knowing who you are, and just being yourself when you are in front of the jury – discovering the story through the use of psychodrama, telling the client’s story in opening, direct, cross, and closing argument.  There are a thousands books out there on trial practice, and programs that teach trial advocacy – this book goes beyond technique and suggests what we can do with those skills once we have them.  Any trial lawyer who cares about his or her clients should read this book; I can’t recommend it enough.

Every successful case starts with an act of imagination

A few days ago I found this article, written by professor Steven Lubet at the Northwestern
University School of Law, titled “Trial Theory and Blind Poetics.”  I’ve read it and re-read it, and I recommend it.  It’s relatively short, eight pages, but it packs a wealth of insight into a small package.

The article encapsulates some of what I see as the most important tools in effective advocacy, and I see Lubet’s ideas as a jumping off point, the beginning of a conversation and an invitation to experiment, rather than an author stating conclusions.

Lubet begins by talking about the importance of developing a compelling story, a story that is holistic and not incremental, a story that will be developed over time as new facts are learned – “every successful case starts with an act of imagination.”

He points out that the components of a successful story are that it must be factual and logical, and it must be visual – it must allow the jury to see the facts and the events as they happened.  It must have a powerful moral claim – the decision makers must know that they are doing the right thing at the end of the day.  I would add that it must have an emotional component as well – ultimately people (jurors) do not make decisions based on logic; rather they make decisions based on emotion, and then they use logic to justify the decisions that they have made.  Few mediums are more effective for evoking emotion than effective storytelling.

People are captivated by story – it has been this way since the dawn of time in every culture around the world.  Explanations can be persuasive, but effective storytelling allows a jury to experience a thing, to visualize it, see it and relate to it.  It is easy for an opening statement or a closing argument to devolve into an explanation or even a rant, but when the storyteller gets lost in the details, the audience is lost.  Explanations do not hold an audience’s attention, and you want the jury to be thinking, “tell me more.”

Gerry Spence says that the first thing he did when he took on a new case was to write his opening statement – what he meant by that is the first thing he did was to write his client’s story, which then evolves over the course of the case as new information is gained and as different ways of presenting the information is tested.

Lubet in his article says that the story must be imagined as a whole concept, rather than as the combination of distinct parts.  That may be true, but there are often other stories that must be developed before the trial begins – for example, each potential witness in a case has their own story that must be explored, in an attempt to understand that witness and their motivations.  That witness’ story has to be developed and can be told as well – the witness’ story as it impacts our client’s story, and as a part of our client’s story.

One important aspect of trial preparation in our office that is not mentioned by Lubet is the use of psychodrama to discover the story.  Re-enacting key events in the client’s life and key scenes from the case allows us to learn new facts that would not have come out through simple interviews, and new ways to present those facts.  It helps us to find those facts or events that resonate, it helps to find the truth and clarity when the facts otherwise seem confused, and it helps in discovering ways to help the jury visualize what happened in a case – showing them rather than telling them.

Once upon a time . . .

And every day . . .

Until one day . . .

And because of that . . .

And because of that . . .

Until one day . . .

And ever since . . .

 

The “CSI Effect”

In a comment to “smoke and mirrors,” MBennett pointed back to a post he wrote in 2007 about stock arguments that prosecutors always use and never deviate from, including “smoke and mirrors,” “the spaghetti defense,” “explain it to your spouse/neighbor,” “send a message,” and “plea for law enforcement.”

In a criminal trial, when the defense puts on a case or enters any evidence, the prosecutor gets the last closing argument – this is important, because then the last thing that the jury will hear before going back to the jury room to deliberate is the prosecutor.  No matter how bad I want to, I can’t get back up and respond to what they have said.

So, when the defense attorney puts in evidence, we have to anticipate the prosecutor’s arguments in our closing.  The stock arguments that we hear over and over from prosecutors in Horry County are “smoke and mirrors” and “the CSI effect.”

In our most recent trial in Georgetown, I knew that the CSI effect was going to come up – there was a footwear impression that was photographed on a door, and an essential part of the state’s case was an allegation that my client had kicked in a door.  The problem is that everyone was telling me that another person intimately involved in the case had kicked in the door – they had either seen him do it that morning or they would testify that he had admitted it to them.

The police had taken photographs of a clear footwear impression, with rulers held up next to it and everything, but that was it.  My client was arrested immediately after this was supposed to have happened, but they did not take his shoes, they did not send the photographs or any shoes to SLED for analysis, and there was no report tying his shoes to the footprint.

When there is forensic evidence – CSI (crime scene investigation) evidence such as DNA, footprints, fingerprints – in a case, the prosecutor goes on and on about the wonders of modern technology, and how amazing it is that forensic science can tell us how a crime happened and who committed it.

But when there is no forensic evidence, the prosecutor will tell the jury about “the CSI effect.”  You see this stuff on the television, where they have this amazing technology and they collect all this forensic evidence, and then you expect us to have all of this forensic evidence to prove our case – but it’s not like that in the real world.  Out here in the real world, we have to rely on good, old fashioned witness testimony.  (apparently prosecutors only prove their case on television, that’s not necessary in the real world out here)

Except, what about when they have forensic evidence that it appears they have done nothing with?  Either 1) the police dropped the ball and didn’t follow through with their investigation; or 2) someone looked and saw that the shoes did not match, and they did not want to muddy the waters.

The “CSI effect,” if there is such a thing, is that television shows that depict police and prosecutors actually proving their cases might, from time to time, cause the public to demand that police and prosecutors actually prove their cases as well, out here in the real world.

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