Trial judges rightly have broad discretion in how they handle the cases before them. That is because we recognize that justice isn’t a matter of geometric form or algebraic equation. In a jury trial, we strive to make sure juries get it right. Even so, experience teaches that some practices are better than others. So let’s consider closing arguments, and the rules, or rulings, governing them.
In the neat and tidy world of hornbooks, jurors decide facts, judges decide the law and tell the jury what the law is, and the lawyers are mere advocates, presenting such evidence as they believe advances their client’s interests.
Taken to its extreme, this cold logic would yield the elimination of closing arguments altogether. After all, lawyers aren’t witnesses – pains are taken to make sure lawyers, especially prosecutors, don’t vouch for witnesses. And as judges state routinely during their final charge to the jury: what the lawyers tell jurors about the law is not the law – it is the judge’s responsibility, and some will even go so far to say that it is their right, to tell jurors what the law is.
What’s left, then, for lawyers to do during closing arguments? Isn’t it simply surplus to let lawyers comment on the evidence at all?
On the distant horizon, I see a day in which closing arguments will be eliminated. We already prohibit opening statements in criminal cases in the state courts, a bizarre notion to lawyers in most of the country.
In the past year, I’ve experienced unusual rulings about what could take place during closing arguments in criminal cases. A brand new federal judge imposed a time limit of 30 minutes on arguments in one case. He was persuaded to extend it to 45 minutes. I told him I could hardly be expected to give the jury any meaningful suggestions on how to decide the case in the time it took to broadcast a sitcom.
I could feel this judge pushing the lawyers out the door.
But the rulings that shocked me involve the ability of lawyers to discus the law jurors will apply during deliberations. There are actually judges who prohibit lawyers from displaying portions of the jury charge to the jury during argument.
This strikes me as the worst sort of pettifoggery.
As trial lawyers know, jury instructions are much labored over. There are no surprises by the time a case gets to a jury. Good judges, and almost all are good, make sure the lawyers get a copy of the charge before argument. We don’t want surprises.
I’ve taken to displaying portions of the charge on an overhead projector so that the jury knows what the defense is focusing on. Portions of the reasonable doubt, presumption of innocence, and burden of proof charges state black letter law. A judge recently prohibited me from doing so, insisting that to do so might mislead the jury, although just how that might happen remains a mystery.
In cases involving complex issues, such as mental states and lesser included offenses, defense counsel are remiss not to discuss the differences between specific intent, extreme indifference, recklessness and criminal negligence, to name but a few. Decades of a client’s life turn on a jury’s decision about this issue.
I followed the judge’s ruling and did not display a copy of the law we all knew he would read once arguments were done, although it struck me as silly. Instead, I did a PowerPoint presentation in which I used the language of the charge to assist my argument; I was careful to tell the jurors they would get their instruction on the law from the judge. I thought I was going to be held in contempt there for a moment. It was, to my mind, ridiculous — sort of like placing a bow on an assembled bicycle beneath a Christmas tree and requiring the recipient to pretend he does not know what his gift is until the bow is removed.
I sensed once again a growing uneasiness on the bench with the role and place of closing argument at trial.
I read about the hours’ long arguments of the likes of Clarence Darrow with envy. Those days are long gone. The robes rule, and guard their turf. We trial lawyers are increasingly suspect. I object, of course.
Norm Pattis is a criminal defense attorney and civil rights lawyer in Bethany. Most days he blogs at www.pattisblog.com.