Introduction
You will find hyperlinks scattered throughout the JACC web site. Of course, there are many other excellent references that are not available on the Internet but can be found in your local county law library. For example, you'll need to do some reading in the legal texts and operative case law of your jurisdiction to get a grip on what courts have expressly ruled can and can't properly be said in criminal case jury argument. I've included some of the most recent articles in periodicals in the list below. The CCJA also provides a Bibliography of Pretrial and Trial Advocacy and a Bibliography of Crimes and Defenses.
Effective jury argument requires communication skills.To enhance your skills and persuasive technique in reaching the jury in argument, don't be hesitant to draw upon other disciplines such as speech communication, behavioral psychology, theater, etc. You'll find some helpful cutting-edge advice in texts in your local library. There is also some worthwhile advice on the Internet. I've included some of those references below.
Recent Articles in Periodicals on Jury Argument
I have listed below fifty plus writings on the subject of jury argument. These two older articles also merit your attention: Alschuler, Courtroom Misconduct by Prosecutors and Trial Judges, 50 Texas Law Review 629 (1972); and Vess, Walking A Tightrope: A Survey of Limitations on the Prosecutor's Closing Argument, 645 Journal of Criminal Law and Criminology 22 (1973).
+ Alford, Appellate Review of Racist Summations: Redeeming the Promise of Searching Analysis, 11 Michigan Journal of Race and Law 325 (2006).
+ Schwan, Right Up to the Line: The Ethics of Advancing Nullification Arguments to the Jury, 29 J. Leg. Prof. 293 (2005).
+ Ethics, Should Prosecutors Use Inconsistent Arguments?, 19 Criminal Justice 47 (2005).
+ Ramadan, The Challenge of Explaining "Reasonable Doubt," 40 Criminal Law Bulletin 3 (2004).
+ Tanford, The Limits of Cl.osing Argument, 1 Indiana Civil Lit. Rev. 111 (2004).
+ Townsend, Improper Jury Argument and Professionalism, 67 Tex. B. J. 448 (2004).
+ Laudan, Is Reasonable Doubt Reasonable?, 9 Legal Theory 295 (2003).
+ Minhas, Proof Beyond a Reasonable Doubt: Shifting Sands of a Bedrock, 23.N.Ill. Univ. L. Rev. 109 (2003).
+ Young, Summing-Up to Juries in Criminal Cases - What Jury Research Says About Current Rules and Practice, The Criminal Law Review, page 665 (October 2003).
+ Spiecker & Worthington, The Influence of Opening Statement/Closing Argument Organizational Strategy on Juror Verdict and Damage Awards, 27 Law and Human Behavior 437 (2003).
+ Saltzburg, Closing Argument Vouching: Crossing the Line, 18 Criminal Justice 42 (2003).
+ Watts & Gowan, Closing Arguments from a Plaintiff's Perspective, 26 Am. J. Trial Advoc. 505 (2003).
+ Cantrell, Prosecutorial Misconduct: Recognizing Errors in Closing Argument, 26 Am. J. Trial Advoc. 535 (2003).
+ Alexander, Preparing for More Effective Closing Arguments, 17 Me. Bar J. 194 (2002).
+ McElhaney, Close with a Big Finish, (Tips for Crafting the Closing Argument for Trial Lawyers), 88 A.B.A.J. 56 (2002).
+ Malone, Be The First to Close, 38 Trial 82 (November 2002).
+ Agnes, An Ounce of Prevention is Worth a Pound of Cure: A Collaborative Approach to Eliminate Improper Closing Arguments, 87 Mass. L Rev. 33 (2002).
+ Roberts, The SEC of Closing Arguments, 25 Am. J. Trial Advoc. 271 (2002).
+ Gonzalez, Ten Tips for Closing Argument, 13 Practical Litigation 15 (March 2002).
+ Caldwell, Perrin & Frost, The Art and Architecture of Closing Argument, 76 Tul. L. Rev. 961 (2002).
+ Simson & Garvey, Knockin' on Heaven's Door: Rethinking the Role of Religion in Death Penalty Cases, 86 Cornell l. Rev. 1090 (2001).
+ Conner, What You May Not Say to the Jury, 27 Litigation, No. 3, 36 (Spring 2001).
+ Montz, Why Lawyers Continue to Cross the Line in Closing Arguments: An Examination of Federal and State Cases, 28 Ohio N. U. L. Rev. 67 (2001).
+ Frazier, Making the Effective Argument, 43 For the Defense, No. 11, 53 (November 2001).
+ Conner, What You May Not Say to the Jury, 27 Litigation 36 (Spring 2001).
+ Closing Argument: the Final Chapter, 37 Trial 58 (March 2001).
+ Carlson & Carlson, Outrageous Opponents: How to Stop Them in Closing Argument, 6 Georgia Bar Journal 12 (February 2001).
+ Smith, Case Note, Criminal Procedure - Defendant's Right to Be Present at Trial - Prosecutor's Comments During Summation Regarding Defendant's Opportunity to Tailor Testimony to That of Preceding Witnesses, 68 Tenn. L. Rev. 409 (2001).
+ Bright, Developing Themes in Closing Argument and Elsewhere: Lessons from Capital Cases, 27 Litigation 40 (Fall 2000).
+ Kadoch, Seduced by Narrative: Persuasion in the Courtroom, 49 Drake L. Rev. 71 (2000).
+ Steele, Public Knowledge, Popular Wisdom and Urban Legend: Educating the Jury About Memory On Closing Argument, 36 Criminal Law Bulletin 316 (2000).
+ Cook, Impermissible Final Argument, Other Holdings (Indiana Criminal Procedure Case Law Survey), 43 Res Gestae 221 (May 2000).
+ Ramsell, Donald, Effective Closing Argument in DUI Jury Cases, 88 Ill. B. J. 285 (2000).
+ Tobin, Case Note, Miscarriage of Justice During Closing Argument by an Overzealous Prosecutor and a Timid Supreme Court, 45 South Dakota Law Review 186 (2000), 11 Practical Litigation 13 (March 2000).
+ Anderson, An Advocate's Guide to Effective Closing Argument, 11 Practical Litigation 13 (March 2000).
+ Closing Argument: The Final Chapter, 37 Trial , No. 3, 58 ( March 2001).
+ Christie, Build a Solid Opening Statement and Closing Argument: Beginning and Ending, 5 Georgia Bar Journal 9 (October 1999).
+ Tobin, Misconduct During Closing Arguments in Civil and Criminal Cases: Florida Case Law, 24 Nova L. Rev. 35 (1999).
+ Sanders, The Worst Jury Argument I Ever Made, 50 S. C. L. Rev. 845 (Spring 1999).
+ Platania & Moran, Due Process and the Death Penalty: The Role of Prosecutorial Misconduct in Closing Argument in Capital Trials, 23 Law & Human Behavior 471 (1999).
+ Clifford, Identifying and Preventing Improper Prosecutorial Comment in Closing Argument, 51 Me. L. Rev. 241 (1999).
+ Closing Arguments: Journey's End, 35 Trial 84 (July 1999).
+ McElhaney, Focus Your Final Argument: to Close Effectively, Highlight the Points that Really Count, 85 A.B.A.J. 72 (June 1999).
+ Easton, Cashing In Your Credibility During Final Argument, 46 The Federal Lawyer, No. 3, 30 (March -April 1999).
+ McElhaney, Hit Themes: Weave Your Facts Into a Story the Jury Can Follow, 84 A.B.A.J. 88 (August 1998).
+ Renfro, Closing Argument: A String of Pearls, 25 Litigation, No. 1, 37 (Fall 1998).
+ Vesper, Seinfeld Syndrome: The Indifference of Otherwise Nice Jurors, 34 Trial 39 (1998).
+ Demetrio, The Key to Final Argument, 12 CBA Record, No. 2 , 20 (February - March 1998).
+ Hong, A Theory of Final Argument in Civil Trials, 21 Hamline L. Rev. 31 (1997).
+ Hong, Summation at the Border: Serious Misconduct in Final Argument in Criminal Trials, 20 Hamline L. Rev. 43 ( 1996).
+ Nidiry, Restraining Adversarial Excess in Closing Argument, 96 Colum. L. Rev. 1299 (1996).
+ Hong, Summation at the Border: Serious Misconduct in Final Argument in Civil Trials, 19 Hamline L. Rev. 179 (1995).
+ Sandys, et al, First Ballot Votes, Pre-Deliberation Dispositions, and Final Verdicts in Jury Trials, 19 Law and Human Behavior 175 (1995).
+ Davis, Enlisting the Jury in the "War on Drugs": A Proposed Ban on Prosecutor's Use of "War on Drugs" Rhetoric During Opening and Closing Argument of a Narcotics Trial, 1994 U. Chi. Legal Forum 395
+ Saunders, Informal Fallacies in Legal Argumentation, 44 S. C. L. Rev. 343 (1993).
+ Corboy, Final Argument: Earning the Jury's Trust, 28 Trial, No. 2, 60 (1992).
+ Martin & Duarte, Understatement and Overstatement in Closing Argument, 51 La. L. Rev. 651 (1991).
+ Chang, et al, Literature, History and Quotations: A New Perspective on an Old Technique, 42 Mercer L. Rev. 671 (1991).
+ Pennington, et al A Cognitive Theory of Juror Decision Making:The Story Model, 13 Cardozo L. Rev. 559 (1991).
+ Wice, Preserving Error Three Key Stages of a Criminal Trial: Voir Dire, Jury Instructions and Final Argument, 54 Tex. Bar J., No. 6, 563 ( June 1991).
+ Weiss, Final Argument: The Use of Storytelling, 64 Florida Bar Journal, No. 5, 40 (May 1990).
+ Page, Final Argument and the Failure to Call Available Witnesses, 64 Florida Bar Journal, No. 1 , 63 ( January 1990).
+ Carlson, Argument to the Jury; Passion, Persuasion, and Legal Controls, 33 St. Louis U. L. J. 787 (1989).
+ Meyers, Persuasive Arguments Theory: A Test of Assumptions, 15 Human Communication Research 357 (1989).
+ Park, Don't Speak for Yourself: The Lawyer's Duty to Refrain from Expressing Personal Opinion at Trial, 36 Federal Bar News and Journal, No. 1, 36 (1989).
+ Tigar, Jury Argument: You, the Facts and the Law, 14 Litigation, No. 4, 19 (Summer 1988).
+ Frug, Argument as Character, 40 Stan. L. Rev. 869 (1988).
+ McElhaney, The Greased Pig: Handling the Elusive Witness in Final Argument, 74 A.B.A. Journal 115 (May 1988).
+ McElhaney, James, The Golden Rule , 73 A.B.A.J. 106 (December 1987).
+ Hare, An Essay on Jury Argument, 10 Am. J. Trial Advoc. 73 (1987).
+ Morrow, Closing Argument, 27 A. F. L. Rev. 189 (1987).
+ Linz, et al, Attorney Communication and Impression Making in the Courtroom: Views from Off the Bench, 10 Law and Human Behavior 281 (1986).
+ Baldwin, Jury Argument: How to Prepare and Present a Closing Argument, 20 Trial 58 (1984).
+ McElhaney, Rules of Final Argument, 9 Litigation, No. 4, 45 ( Summer 1983).
+ Cicero, Nondefensive Final Argument for the Defense, 8 Litigation, No 3, 45 (1982).
+ Cleary, The Final Argument in a Criminal Case, 27 Practical Lawyer, No. 6, 39 (1981).
+Jackson, et al, Structure of Conversational Argument: Pragmatic Bases of the Enthymeme, 66 Quarterly Journal of Speech 251 (1981).
+ Hample, A Cognitive View of Argument, 16 Journal of the American Forensic Association 151 (1980).
+ McElhaney, Analogies in Final Argument, 6 Litigation, No. 2, 37 (1980).
+ O'Keefe, Two Concepts of Argument, 13 Journal of the American Forensic Association 121 (1977).
Public Speaking - Books & Sites
+ Beebe, Steven & Beebe, Susan, Public Speaking: An Audience-Centered Approach, Allyn & Bacon, Upper Saddle River, New Jersey, pp 454 (2003).
+ Davidson, Jeff, The Complete Guide to Public Speaking, Wiley Publishing Inc, Hoboken, N.J., pp. 324 (2003).
+ DeVito, Joseph A., The Essential Elements of Public Speaking, Allyn & Bacon, Upper Saddle River, New Jersey, pp. 300 (2003).
+ German, Kathleen, et al, Principles of Public Speaking, Allyn & Bacon, pp 336 (2004).
+ Grice, George & Skinner, John, Mastering Public Speaking, Allyn & Bacon, Upper Saddle River Road, New Jersey, pp. 512 (2004).
+ McKerrow, Raymie, et al, Principles and Types of Public Speaking, Allyn & Bacon, Upper Saddle River, New Jersey, pp. 438 (2003).
+ Morgan, Nick, Working the Room: How to Move People to Action Through Audience- Centered Speaking, Harvard Business School Press, Boston, pp.230 (2003).
+ Jeary, Tony, Life Is a Series of Presentations, Simon & Schuster, New York, pp.251 (2004).
+ Leech, Thomas, How to Prepare, Stage, and Deliver Winning Presentations, AMACOM, New York, pp. 330 (2004).
+ Wood, N. , Perspectives on Argument, Prentice Hall, New Jersey (4th Edition 2004).
+ Freely, A., Argumentation and Debate, Thompson/Wadsworth, Belmont, CA (11th edition 2005).
+ Zarefsky, David, Public Speaking: Strategies for Success, Allyn & Bacon, Upper Saddle River, New Jersey, pp.528 (2005).
+ Rieke, R., et al, Argumentation and Critical Decision Making, Allyn & Bacon, Upper Saddle River, New Jersey (6th edition 2005).
+ The Art of Public Speaking by Stephen Lucas
A Few Internet Sources
- Here's an article on jury argument by a jury consultant and others on public speaking and jury argument. This 157 page pdf file written by a psychologist and a civil lawyer highlights the relationship between the voir dire, opening, and summation; sample openings and closings comprise the last 45 pages. Here's a Canadian writing professor's (1) take on argument. This article is useful for those who recognize that a primary goal of jury argument is to provide jurors with arguments and refutations for the deliberation room. Here's a professor's jury argument guide and a Wisconsin defender's 5 page discussion of argument and a discussion of the Power of Words and a discussion of Avoiding Pitfalls in Closing Argument and Thoughts on Closing Arguments (civil cases).
- This article contends that lawyers are abusing the purpose of opening statements and jury arguments in civil cases. These simple little articles (1), (2), provide a basic approach to argument in a Florida civil personal injury case. Here are some other short offerings by civil lawyers on how to argue a case: (1), (2 ).
- For samples of argument here are some excerpts from the transcript of the prosecution and defense arguments in a child molestation case. Here's an article titled Striking Hard Blows But Not Foul Ones: Special Considerations in Closing Argument in Child Abuse Trials. A sample argument (1) of unknown derivation.
- Here you'll find excerpts from Clarence Darrow's death penalty argument to the court in the Leopold & Loeb child murder of young Bobby Franks. The argument has some excellent examples of pleas for special treatment based on sympathy for the families of the defendants (argumentum ad misericordium). The same terrific site by a University of Missouri at Kansas City law professor contains opening statements from the defense at the trial of Lizzie Borden; the prosecution and defense (1 ) & (2) jury arguments at the trial of Sacco and Vanzetti; the jury argument in the Black Sox Scandal trial of 1921; and the jury arguments of the prosecution and defense (delivered by the famous Max Steuer [I think it's pronounced STOY-yur.] -You've got to read this one.) in the Triangle Shirtwaist Fire trial. There's also a copy of a prosecution argument in the Oklahoma City Bombing case against Tim Mcveigh and Marsha Clark's losing argument for the prosecution in the OJ case.
- JFK assassination junkies may enjoy reading Irvin Dymond's defense argument on behalf of Clay Shaw in his Louisiana state court trial for conspiracy to kill JFK. The jury returned a verdict of acquittal in less than an hour. At the same site, you can read about New Orleans prosecutor Jim Garrison, portrayed by Kevin Costner in the film JFK.
- The prosecution and defense arguments in the Martha Moxley murder case of Connecticut v. Michael Skakel, tried in 2002, almost 30 years after the killing, and in which the prosecution's argument was uniformly hailed as tipping the balance for conviction. The argument was presented with great emphasis on visual technology, so much so that that defense reportedly complained on appeal that the verdict was unfairly propelled by the swell of emotion generated by the prosecutor's closing. Here is the opinion of the Connecticut Supreme Court affirming Skakel's conviction and discussing the issue of improper prosecution argument that amounts to a denial of a fair trail when,as in Skakel, the trial lawyer failed to object to any of the instances of allegedly improper argument that are claimed on appeal. Never forget the importance of trial objection to preserve specific instances of claimed improper argument.
- This site provides information about oral and visual presentations in a variety of contexts.
- Created by Jay VerLinden, Professor of Communications at Humboldt State University the Argument and Critical Thinking Tutorial is a useful, interactive, hands-on site that will help reinforce your understanding of the classical logical structure of arguments. The site also has a page of links to other helpful sources for those interested in understanding communications theory. Here's another useful previously mentioned web site for honing your talent in the art of rhetoric and speech.
- Tony Serra is a counterculture California criminal defense lawyer with a reputation for delivering scintillating (brilliantly lively, stimulating) jury arguments in criminal and civil cases. Here is his argument in the successful civil rights lawsuit brought by his client, Judi Bari, against the FBI and the Oakland Police Department.
- This is a delightful nonverbal dictionary of gestures, signs, modes of attire, and body language cues.
- Political rhetoric and the forensic rhetoric used in courtrooms to persuade jurors have some things in common. Here is a bibliography of references related to political rhetoric. This excellent site lets us understand how politicians, including some current ones, can use exaggerated political rhetoric to manipulate the minds of the electorate. Every would be legal persuader should spend a bit of time about the art of rhetoric. Try this link if you are interested in rhetorical theory and these (1 - Wikipedia's rich source of rhetoric), (2 -the British "Rhetorosaurus"), (3 - Robert Harris' Handbook of Rhetorical Devices provides good reading with some useful example of rhetorical devices that can be employed in courtroom arguments) for insight into rhetorical terms.
- Movie-goers will find a few samples of famous movie jury arguments on Youtube, e.g., Newman in The Verdict
- Acting as his own lawyer didn't help Socrates, but his words in his defense to the charge of corrupting the youth of Athens are worthy of your attention. Socrates was not given to writing, but we know much of his thinking from his student, Plato. The Apology was Plato's vision of what Socrates told his Athenian jury.
