SAMPLES OF DEFENSE JURY ARGUMENT DISCREDITING
INFORMANTS & COOPERATING COCONSPIRATORS
Jurors cautioned to be skeptical from the beginning of the case - I told you in my opening statement, at the very beginning of this case, that you were going to hear from some biased people, and, without exception, the record reflects either that every one of them had made some kind of deal or that every one of them had a reason to say what s/he said. I asked you to please be skeptical and to listen not only to they said , but to the way they said it and how they said it and why they said it. I asked you to keep your mind open to that because you don't have to accept at face value what they said. That's your prerogative as a juror. You're free to call into question the tactics used by the prosecution.
Credibility of prosecution witnesses - When the prosecution has a particularly weak case, one which stands or falls on the believability of someone who is not worthy of belief, you can expect them to make some sort of pitch along this line: (state the argument that you anticipate,e.g., "You' can't expect angels to be present when crimes are hatched in hell." or "We didn't pick the witnesses, the defendant did. We have to play the hand that was dealt to us." or "When you're investigating the devil, sinners are better witnesses than saints." etc.) The core of the prosecution's case has come from the words of a thoroughly disreputable individual. The test of believability doesn't rest on anyone but the prosecution. They must prove that what (name the informant or cooperating co-conspirator) told you was true beyond any reasonable doubt. They can't shift the burden of proving honesty of their witness by saying, "Well, what kind of witness would you expect us to have?"
Prosecution vouching for credibility and truthfulness of accomplice or coconspirator witness - How can you believe someone like (name the accomplice/coconspirator)? This is such a topsy-turvy sort of case. I really marvel at it because here we have the government, through its prosecutor, vouching for the credibility and truthfulness of an admitted criminal.
Witness stand in this case became a shady place for shady characters -During the prosecution's case, this witness stand (indicating by pointing at the stand) was a shady place for some very shady characters.
Informant's testimony would gag hyena - Some of this evidence is just too hard to swallow. The testimony we heard from (name the informant) would gag a hyena.
Informant as creaky center pole of prosecution's circus tent - (Name the informant) is the creaky center pole that has to hold the prosecution's circus tent up.
Informant' first career as a criminal morphed into second career as professional witness - (Name the informant) made a career out of petty and violent crime. Now he's making a second career out of being a government informant witness.
Watching prosecutor present accomplice/coconspirator/informant testimony like watching someone trying to dance with partner who has bad breath - Watching the prosecutor conduct the direct examination of (name the cooperating co-conspirator) was like watching someone dance with a partner that had halitosis or bad breath (or a communicable disease). The prosecution has to dance with the one that they bring to the party, but did you notice how they kept (name the cooperating co-conspirator) at arms length (indicating by turning your face to the side and holding your arms straight out and dancing a step or two).
Informant's presentation like a Texas back road - (Name the informant) testimony was like nine miles of bad Texas (or use your state) back road, potholes and all.
Evasive attitude of informant witness on cross-examination - Did you notice how (name the cooperating co-conspirator) wouldn't give a straight answer? He just wanted to kick the can on down the road for the prosecutor, trying to create fact from fantasy so he can get his own fanny out of the sling.
Take informant's testimony with a "stalactite of salt" - Based on what we know about (name the informant), we need to take his testimony not with a grain of salt but with a "stalactite" of salt. That's the great big icicle of salt hanging from the ceiling of the cavern. (The "stalagmite" is the inverted icicle that starts from the floor.)
Government informant as the ultimate prostitute - The really interesting thing about (name the informant) is that he is a person of mercenary virtue. Because if the money was better, the booze freer, and the women easier on the other side of whatever side he's on, he'd turncoat in a second. He sells his soul to the highest bidder. (Name the informant), you see, is the ultimate prostitute.
Government won't profit by employment of evil - You can't accomplish anything good by the employment of evil.
Informant as unlikable - No one likes crooks, but even if we did, we wouldn't like crooks that are two-faced stool pigeons. And even if we liked two-faced stool pigeons, would we like (name the informant)?
Informant like a rat on a sinking ship - (Name the cooperating co-conspirator) has a tremendous talent for self-preservation. Like a rat on a sinking ship, he figured out that the waters were rising and he decided to get himself to high ground.
Informant's advice as trustworthy as that a cat gives a door mouse - The advice that (name the informant) gave (name the defendant) was about as trustworthy as advice a cat gives a door mouse.
Informant as government's pet viper - (Name the informant) was the government's pet viper. Trust him like you'd trust a rattlesnake.
Taxpayers providing cookies for government's rat - We heard about all the goodies that the informant received from the government in return for his story. Of course, it's taxpayer money that's paying for all those goodies. If there's a moral here, it's that "If you give a rat a cookie, he's gonna want a glass of milk." And, in the case of (name the informant), all of us are footing the grocery bills for his milk and a whole lot more.
Government buying testimony - When you buy witnesses with rewards or hope of rewards, you do so at the cost of truth. Testimony purchased at such a cost can't pass the smell test.
Wear rubber boots and gloves when analyzing informant's testimony - When you deal with (name the informant) you'd better wear rubber gloves and plenty of disinfectant.
Government informant as shark trained to eat goldfish - Here's the aquatic version of what happened in this case. The government caught a shark.They trained their shark. Then they brought their shark in to eat a goldfish. After their shark ate the goldfish, they charged the goldfish with a crime and brought the shark in as the chief government witness.
Government informant or as trained seal or dog - (Name the informant, cooperating accomplice or coconspirator) adopted the strategy of the trained seal (or dog) who rolls over and shows his belly - just putting himself completely at the disposal of the prosecution. You've not only seen him roll over. You've seen him bark. And you've seen him sit up and beg. He'll do anything to please his trainer, anything to get a sardine (or doggie treat) from the prosecutor. Sorry, by comparing the government's informant with a seal (or dog), I don't mean in any way to insult trained seals (or dogs). Seals are amazing animals (Dogs are loyal companions.)
Famous informants in history - Informers have been selling out to the government for many years. Judas sold out Jesus for 30 pieces of silver. Benedict Arnold sold out his country for a promise that he'd be made an officer in the British army. And (name the informant) sold out (name the defendant) for (indicate the concession provided by the government).
Betrayal of innocent - Judas example - There's a story that we all know that gives us an example of a supposed friend who betrayed an innocent person. "When the morning has come, all the chief priests and elders of the people took counsel against Jesus to put him to death. When they had bound him, they led him away and delivered him to Pontius Pilate, the Governor. Then, Judas, who had betrayed him, when he saw that he was condemned, repented himself and brought, again, the 30 pieces of silver to the chief priests and elders saying, 'I have sinned, and have betrayed the innocent blood.' And they said, 'What is that to us? See thou to that.' And he cast down the pieces of silver in the temple and departed and went and hanged himself. " In the case of Judas it was too late for the betrayer to save the innocent person. But we have something different here. We have a mere mortal, just an ordinary human being, on trial. But we have an American trial jury here to say to our Judas, "(name the cooperating coconspirator), we won't let you betray an innocent person." It's not too late for you folks to say "No" to this Judas.
Government's informant akin to homeless dog - Did you get the impression that the government's informant was kind of like a homeless dog that wants to be petted by the prosecutor? Except , when this trial is over, he's expecting a lot more than a biscuit and a pat on the head, a whole lot more.
Would jurors snuff out accused's life based on informant/coconspirator testimony - If this were a death penalty case, would you vote to snuff out the the life of (name the defendant) on the testimony of (name the informant or cooperating coconspirator)? If you wouldn't, let me ask you why it's any more easy to send a man to prison based on this corrupted witness testimony? Does it make an more sense just because the punishment is not as severe?
Accomplice shifting blame - One of the most despicable characteristics of some humans is their ability to shift the blame. Do you remember, maybe even from childhood, knowing people who always shifted the blame to others. I'm talking about the kind of person who when he is caught doing something will immediately start pointing a finger at someone else and blaming that other person. Shifty people are good at shifting the blame and (name the informant/coconspirator) is a master at trying to shift the blame. And, in this case, if you have to shift the blame, who could be a more convenient fall guy than (name the defendant)?
History of shifting the blame - People have been trying to put the blame on each other since the beginning of time. Remember the story of Adam and Eve? We're told that Adam put the blame on Eve when God asked why he ate the forbidden fruit. So it started with "Eve made me do it. " We've all heard the old bromide, "The devil made me do it." It's a sad part of human nature, but some folks are always looking for someone else to blame. That's what (name the coconspirator/accomplice) is doing.
Lying accomplice witness - Maybe I'm all wet. Maybe the sun will come up tomorrow night instead of tomorrow morning. Maybe the earth is flat. But as sure as anybody has a reason to lie to you, (name the accomplice witness) does.
False information from witness - bearing false witness - Call it embellishment. Call it falsifying. Call it exaggeration, or call it lying. Any way you look at it, it's not the truth. It's false information. In your presence, (name the falsifying witness) bore false witness against (name the defendant). Where we come from, weren't we taught that whatever your motives, it is wrong to bear false witness against another person.
Jailed witness testifying for government - You are going to have to accept the testimony of the sweepings of the (name the county jail) in order to convict.
Ex-con accomplice dancing to prosecution's tune - (Name the accomplice witness) knows what the inside of a prison looks like, and he doesn't want to go back there. (Name the accomplice witness) knows what kind of trouble he's in it he doesn't dance to the prosecutor's tune.
Nation of informers - Are we turning into a nation of informants? Are we turning into a nation where the government gives rewards for testifying against your neighbor, for making something up against your neighbor?
Motives of accomplice witness - demeanor on witness stand - Now, suppose you were (name the accomplice witness) and someone came to you at a time when you were faced with attorney's fees and a possible conviction and the distinct possibility of your life being shattered, and they say, "Well, you know in the past we have dismissed indictments when people become witnesses." Tempting? That is the same offer they made to (name the accomplice witness). He went for it - hook, line, and sinker. You saw the way he crawled up to the strand and crawled off. I'll bet he's going to have a tough time living with himself. You can see it on his face - the way he sat there in the witness chair and looked down at his shoes and held his head. That is why I told you in my opening statement, at the outset of this case, that it is important to look at the witnesses and observe their demeanor, not just what they say but how they say it. You know as well as I that if you can't trust the messenger, you can't trust the message. This case stands or falls on the testimony of (name the accomplice). When you get down to this case in its simplest form, that's it. If you believe (name the accomplice witness), well then, perhaps they have proved their claim that (indicate the indisputable fact that would be proved by the accomplice's testimony). But even if you accept everything that he says, they still haven't proved (indicate what remains to be proved in order to make a solid case against the defendant).
Motive of accomplice in testifying - get out of jail free card - What is important is what (name the accomplice), in his diseased mind, believes his is accomplishing by testifying in this case. Would (name the accomplice witness) lie to get of of jail? We can all understand his motives. They are plain. He's in jail. He thinks he can get out by saying (indicate the gist of the accomplice's testimony). Testifying against (name the defendant) is (name the accomplice witness) "get out of jail free card." And he's playing it for all it's worth.
Prosecution's power to grant freedom to accomplice witness means more than gold or silver - Now, if I offered $5 to a witness to come up here and testify, I would be prosecuted. I would be convicted, and I should be if I did anything like that. I would probably go to the penitentiary because it is a criminal offense to purchase testimony. But don't you see that (name the accomplice witness) testimony was purchased with a commodity far more precious than gold or silver or money? It was purchased with his freedom. (Recite the accomplice's deal with the prosecution, e.g., "We promise you, you ex-convict, that we will recommend to the court that you be put on probation, and we will dismiss any other cases against you; we promise you that you will not be indicted for any other cases, etc.")
Qui bono? - There was a two-word Latin phrase that they taught us in law school that sums up the way you should evaluate (name the accomplice) testimony. That Latin phrase is "Qui bono?" And it means "Who benefits?" or "Who stands to gain?" That's the question to be answered when you jurors consider whether to believe (name the accomplice). Who stands to gain from the drivel that he spewed from that witness stand?
Accomplice witnesses who will throw themselves on mercy of court seek to curry favor with the judge who sentences them - Let's talk about the way things work. It's in evidence. Here's what I want you to think about when you are judging whether these people told you the truth. Any one of them that is going to plead guilty and throw themselves on the mercy of the court, so to speak, without any prearranged deal with the prosecutor, as (name the accomplice witness) would have you believe he's going to do, will have to sit down and talk with a probation officer. The probation officer is gonna write a presentence report about them. The probation officer makes a background check of them, and, as part of the background check, the probation officer will talk to the arresting officers and the prosecuting officers. The probation officer is kind of like Santa Claus. He's going to find out whether the witness has been naughty or nice to the government. He's going to find out if the witness performed for the government. Each one of these accomplice witnesses wants that report to be favorable. When the judge reads their presentence report, they want it to show that they have cooperated with these prosecutors. They want a toy in their stockings, not a lump of coal. And they'll do whatever takes if it will take time off their sentence.
Purchasing testimony of coconspirator witness - threat of prosecution and its negative implications - carrot and stick - Let's examine, just for a minute, the tactics of purchasing testimony. When I say "purchasing testimony," I do not mean because of money - not for some consideration as simple as money. You know, you can make more money. You can never makes another day of your life. What the prosecution offered (name the accomplice witness) was years of his life. Think about that for a moment. What would you do if someone told you, " In the palm of my hand with the power that I have as prosecutor, I have got just about the balance of your life in my hands?"
Anyone, including innocent people, can be prosecuted. Think for a minute what prosecution means. Prosecution means hiring a lawyer. Lawyers don't come cheap. Prosecution means being indicted by a grand jury. Think of what you tell your friends or relatives, your neighbors. Think about your next job application. Prosecution means that your name may be in the paper: a headline with your name saying, "Indicted today by jury for serious violations of (name the violation, e.g the Gun Control Act, conspiracy, obstruction of justice)." How would you explain that to your son or daughter? Prosecution means months, perhaps years, of uncertainly, of wondering whether the prosecution is going to be able to pull the wool over some jury's eyes, of anxiety over the real threat of going to prison for something you didn't do.
Now, think about someone coming to you and saying, "You can be prosecuted." Now, you may be innocent. You may think you are innocent, and you may be able, as they say, "beat the case." But as an old law enforcement saying goes, "You may be able to beat the rap, but you can't beat the ride."
I would hope and I have faith from the information that we got about you, that every one of you has more character and intestinal fortitude and respect for yourself than to be cowed by all those risks. But wouldn't the threat of being prosecuted cause each and every one of you to stop and think about how you would handle the threat of prosecution. You must admit it to yourselves: what would you do if a prosecutor or a police agent came up and arrested you or came to you and said, "You can be prosecuted. You can beat the rap, but you can't beat the ride. However, if you tell us what we want to hear - if you'll just sign this statement implicating (name the accused) - why, we'll just let you go free." Tempting? That's the old carrot- and-stick routine; you hold the carrot out in front of the mule to make him go, but just in case he doesn't go, you have something in your hand, a big stick, to hit him with. The carrot - that's your freedom; that is your reputation; that's the right to return to your normal life. And the stick - that's prosecution in case you don't agree to become a witness for the prosecution.
It's clear from the information we have about each of you that none of you would stand for that. But do you think the same thing about (name the accomplice witness)? No. Why, because he's a man that could be broken with a carrot and a stick!
Desperate accomplice witness - history teacher analogy - Some people will say anything when they are desperate. Some of you may have heard the story of the out-of-work history teacher. He was desperate for a job. The school board asked him, "Do you teach your students that the world is flat or round?" He replied, "I'll teach it any way you want me to." Now there's a man compromising his integrity out of desperation. That's really what (name the accomplice witness) is doing. He's teaching the lesson the way he think's will benefit him most, and damn the truth if it interferes with his own self-interest.
Female accomplice witness - sick or evil - It gets to be a question of where you draw the line between sick and evil. We are looking at (name the accomplice witness), a cooperating accomplice, with the benefit of hindsight. We have seen her in a courtroom under cross-examination.But at the time this conduct transpired, she could probably have sold her story to you and me. We now know that she is a mistress of deceit, a person who can take a thread of truth and turn it into a patchwork quilt of lies. Of course, she was able to sell her story to (name the person duped by the accomplice witness). We are dealing with an inventive, resourceful person, a person devoid of conscience. We are dealing with a person who had a story and can tell it so well. Sociopathic people like (name the accomplice witness) begin to believe their own lies. They become accomplished. Thanks to the right of cross-examination, you know how this witness can distort the truth. You know what this witness can do with a grain of truth.
Is informer witness in danger of prosecution for perjury? - Let's assume for a moment that (name the informer witness) is lying to you and to this court - committing perjury. Who would prosecute him for it? Would (name the prosecutor and indicate him/her by gesture) , the prosecutor who has relied so heavily upon this informer's testimony to make his case, prosecute his own witness for testifying exactly as the prosecutor desired? You have seen the prosecutor stand up and speak up for this witness. You have seen him rely on and support this informer. Do you seriously think that (name the informer witness) is in any danger of being prosecuted for lying as long as he testifies like the prosecutor expects?
Accomplice witness with lawyer - didn't need his lawyer present - We know from his own lips that (name the accomplice/coconspirator witness) has a lawyer. Did you ever see his lawyer over here watching to protect his rights while he testified? Of course not. He doesn't need his lawyer over here. Whatever deal he has got, it's a done deal. If he doesn't have it in writing, if he doesn't have it as a matter of a hand shake, then he has it as a matter of honor with the prosecutor. (Name the accomplice/coconspirator witness), that character, would not get up on that stand and confess to (name the crime) if he didn't know what was going to happen to him. You can bet your boots that (name the accomplice/coconspirator witness) wouldn't get up there and confess to a (name the crime) and just wonder what was going to happen to him. Now, you haven't heard a word from the prosecutor about that. The only thing you've heard is their claim that - "Well, I don't know what is going to happen." How is it going to make you feel if five days from now or a week from now or a month from now you find out that the case against (name the accomplice/coconspirator witness) has been dismissed or that he got probation? Do you think he testified because he wants to be a good citizen? Do you really think (name the accomplice/coconspirator witness) wants to be a good citizen?
Danger of granting witness immunity - This case has shown us the dangers of dangling immunity before someone who is scared. Now, there is a valid argument for the use of immunity, but there is a great danger to it because, if you dangle freedom in front of someone who knows he is guilty of many crimes - and (name the coconspirator/accomplice) is guilty of (indicate the number) felonies if he is guilty of one, the danger in offering him freedom is that he will tell a lie to save his own skin.
Impropriety of immunity for prosecution witness - Now, there is an argument in favor of immunity and in favor of coaxing or coercing testimony from unindicted coconspirators. What is the argument in favor of this sort of practice? It's called the "law enforcement argument." The argument goes like this: "We need law enforcement. Unless we were able to get the Mafia member to spill his guts to the Senate Committee, then we wouldn't know anything about the Mafia." All right. Granted. But do you think it is valid when it comes to using (name the witness) in order to prosecute (name the defendant)? That may be legal, but it isn't right. I want you to think about this: As citizens of this country and this state, how do you feel about the propriety of police going to one of your neighbors or your friend or to someone that works alongside you and saying, "We are going to prosecute you unless you can help us prosecute old Joe Blow here."? Do you think that is right?
Limited immunity granted to prosecution witness - (Name the coconspirator/accomplice witness) received immunity. His testimony was purchased with his freedom. It was a limited immunity. The limitation was that he wouldn't be prosecuted for any of what his testimony revealed. Other than that, he says to us, "Well, I made no deals." But don't you know that he's aware that the very people charged with the responsibility of prosecuting him and charged with the responsibility of making a recommendation of appropriate punishment in his case if he decides to plead guilty are the people who sit at that table , right there (gesturing to the prosecution table), the prosecution. Don't you know in his own mind that he thinks that he can please them by testifying in the manner he believes they want him to testify, in the manner that he ironed out in his story in that little meeting with them that he let slip.
Multiple snitches - lack of credibility due to inducement by prosecution - In order to convict (name the defendant) in this case, you would have to believe the testimony of (name the cooperating coconspirators / accomplice witnesses) beyond a reasonable doubt. Yet, you know each of these individuals is not worthy of belief. You heard them admit that (indicate the instances of falsehood that are in evidence, e.g., they lied to their probation officer, they lied to the pretrial release officer, and at various times they lied to the case agent). They even impeached each other's testimony. They even impeached each other's testimony. You heard (name the case agent) testimony. He also contradicted parts of the testimony of (name the cooperating coconspirators). You learned that both (name the cooperating) were facing a possible sentence of (indicate the severe sentence, e.g., three consecutive life terms). Now, they are facing (indicate the less severe sentence, e.g., a ten year cap, zero to ten years).
You know these are deceptive, desperate, manipulative people. They will do whatever is necessary to avoid the consequences of their criminal behavior. Imagine if I, as counsel for the accused, could have gone to them after they were arrested and offered them such a bargain. Imagine if I had been able to say to them: "If you give substantial assistance to the defense, I can promise you (indicate the comparison, e.g., less than ten years instead of three life sentences)." Of course, you must tell the truth. Is there any doubt in your mind that they would have been here testifying for the defense? Of course not, because you know their testimony is for sale. Their testimony is available to the highest bidder - the person who can offer them the greatest benefit. Of course, the defense is not allowed to participate in that auction. We couldn't offer them 25 cents as an inducement to testify. Yet, the prosecution offers them the opportunity to avoid years and years in prison.
Analogy of manipulative drug-dependent child asking for further money - It is sad but true that people who are drug dependent are adept at manipulating situations to their own advantage. This crowd of drug abusers needed to point the finger at someone so they could argue for lesser sentences and avoid spending ten or fifteen or twenty years behind bars. They pointed fingers at (name the accused) , and by doing so they are hoping to manipulate you. They are hoping that you will find (name the accused) guilty so they can take the credit and get shorter sentences.
You know what manipulation is? It is when someone plays on your legitimate hopes and dreams for their own selfish purposes. Let me give you an illustration of what I mean by manipulation. If you had a drug-dependent child who came to you to borrow money and told you that she needed it to pay community college tuition, would you trust her with the money? Before you gave the money, wouldn't you want some proof that she was actually registered? Wouldn't you suspect that your money would be used to buy drugs rather than pay tuition? In a case such as that, your child might attempt to manipulate you, playing on your love and your hope that she would get off drugs and get and education.
Isn't that same thing happening here? These government witnesses are trying to manipulate the legal system. They know we have a strong dislike of drug dealers and a strong desire to wipe out this blight in our society. But what they really want is to put the blame on an innocent man so they can get light sentences and get right back on the street to start using and dealing drugs again. Moreover, in this case we're not dealing here with money to pay tuition, as in my example. In this case the stakes are much higher. We're dealing with a person's liberty. You should insist on more proof of their truthfulness than what the prosecution presented here. Don't allow yourselves to be manipulated.
Motive for coconspirators to cooperate with the prosecution - Do you really believe for just one moment that (name the cooperating coconspirators) aren't really expecting a break in exchange for their testimony? Do you really think that these people aren't going to be back on the streets a lot quicker than they would have you believe? And, make no mistake, they are gonna hit the streets of our community. Do you think when they get there they're going to be the law-abiding citizens they would like you to think they've become? Do you buy this mea culpa song and dance of repentance and contrition they tried to sell you - "I deserve the time I'm doing, I'm doing the right thing, I have to tell the truth"? The truth is - they have to tell you what the government wants you to hear if they want to get out on the streets.
Defendant as informant's scapegoat - scapegoat defined in Bible - You've heard the word "scapegoat." The dictionary defines it as "one who bears the blame for others." The book of Leviticus in the Old Testament tells of the innocent little goat upon whose head were symbolically placed the sins of the people, after which the little goat is sent into the wilderness. [Author's Note: Though I am not of the Jewish faith, I believe this story is part of the biblical ceremony for the Jewish Yom Kippur.] The defendant is (name the coconspirator) scapegoat.
8. INSPIRE, ELEVATE, AND MOTIVATE THE JURORS: Jurors are asked to perform a very special task - sit in judgment of a fellow human. Jurors need inspiration and motivation. They need to be elevated, to visualize the importance of their role in a democratic society where citizens are allowed some voice in the administration of the laws. Before delivering a message designed to satisfy and persuade your jurors, you may find it useful to package the message with a description of the purpose and obligation of jurors. The idea of these uplifting arguments is to give the jurors courage, not hell. Think how you can construct an argument that moves or exhorts your jurors based on affection, e.g., for their country, love, e.g., for their family, honor or some other universal value, hatred, vengeance, empathy or commiseration.
One of the defender's jobs in jury argument can be to enlighten the jurors concerning the importance of their role and duty. The theory is that the members of the jury will understand just how important the exercise of their decision-making power is, not only to the defendant, but to each one of them as a person. The purpose of this oratory or rhetoric is to uplift and elevate. Your argument must be straightforward and direct but it must be delivered with intensity and energy born of belief in the importance of what you are saying. It's not a civics lesson, but rather a homage to the role that the jury plays in the unique U.S. system of administering justice. In preparing for your uplifting message, psych yourself to the point where you truly believe that the jurors you are addressing are good people who will do justice if given correct guidance.
Here are a few samples of primarily defense-oriented argument that seeks to inspire the jurors based on love of country and respect for ideals of justice and liberty. During the uplifting speech, try to feel the emotions that you want the jurors to experience about their role in the trial.
famous last words II
SAMPLE JURY ARGUMENTS #4-8
final arguments from
copyright © 2001 Ray Moses
all rights reserved
SAMPLE SELF-REFERENCE IN JURY ARGUMENT: After all these years of trying cases, I never thought I'd come up against a witness like (name the witness). The most striking traits of (name the witness) are his shamelessness, his evident lack of conscience, his proclivity for lying, his self-absorption, and his apparent belief that the end justifies the means.
SAMPLE JURY ARGUMENT EXPLAINING LEGALESE: We've heard a lot about the requirement that the prosecution's proof must remove all reasonable doubt that the accused is innocent. What does that mean? It means that you are not to convict if you have a reasonable doubt. But what is a "reasonable doubt"? Suppose you've just learned that the school bus driver, who drives your child to school, takes several shots of vodka and a snort of cocaine every morning before taking the wheel of the school bus. The school bus honks and is waiting for your child to board. Would you hesitate before trusting that bus driver to drive off with your child? If you would think twice about letting your child drive off with that guy at the wheel, you've just had a reasonable doubt.
6. USE LEVITY ,E.G., RELEVANT HUMOROUS COMPARISONS, IN JURY ARGUMENT TO INVOLVE THE JURORS WITHOUT BEING A JOKESTER OR COMIC: A criminal trial is no place for off- color laugh-out-loud jokes (1), gallows or blue humor (1), blasphemy, or slapstick levity that is better left for home movies. Normally lawyers speak in a serious and dignified manner that proves and persuades. Still, we can't deny that vulgarity is part of life. As they say, "You have to have a pig to show you where the truffles are." Many of us swear in private - Mark Twain said, "Let us swear while we may, for in heaven it will not be allowed." But the courtroom is not the appropriate arena for lawyer vulgarity. It's also not a place for "terminal seriousness." Humor makes life more enjoyable. And humor can sometimes spice up your courtroom presentation, but only in very small portions, like a touch of garlic in a spinach salad. Levity can be used in argument, not for a laugh but to reflect the amiable manner of the speaker. You will humanize yourself in the minds of the jurors without being a comic if you can use language that lets the jurors know that you have a sense of humor, i.e., that you see the humor in your story of the case. However, if humor is unsuitable to your own character or that of the jurors, don't go there. Avoid levity when you think it is unbecoming.
Don't tell a joke. Never use levity in argument just to be funny. Jurors may chuckle at the lawyer who amuses them with a belly laugh, but they don't respect that lawyer. Laughter should never usurp the emotion you are driving for. If you use humor, it must be in good taste. For example, there are instances where you must disparage or ridicule a witness in argument. Try doing it with language that disparages or ridicules in a novel, unexpected, and agreeable manner, often metaphorical, that relects polite or civil restraint. The butt of ridicule, e.g. a co-defendant who turn state's evidence against your client to save his own skin, must deserve to be the object of your lyrical levity. Use ridicule sparingly, never to the point of bufoonery or comedy and never in a petulant manner. Humor has to be somewhat amusing, but it doesn't have to draw a smile to be amusing. Most important, for it to work, it has to make your jurors think. Use levity in argument only to make a point, to involve the jury, to create an enduring mental image that lasts through jury deliberation. In other words, the humor in your jury speech must relate to the topic of your argument, your purpose in conveying a message, and/or the mood you want to establish.
One way of adding humor or levity to an idea is to make your point concerning witnesses and/or items of evidence by comparing the witness or evidence with something that is familiar and mildly humorous in everyday life. Though sarcasm ,and cynicism normally have no place in discourse, their biting affect may be appropriate in argument when talking about opposition evidence and/or witnesses. Hyperbole (exaggeration for the sake of emphasis) can be humorous. So can ridicule, derision, mockery, and satire. Contempt can be mingled with humor. A dash of sarcasm - what some call "the last refuge of the defeated wit" - can be used sparingly when mixed with humor. A number of the examples provided below involve hyperbole. A novel turn of phrase can be amusing. Avoid trite cliches; you know the sort, predictable as Christmas dinner and just as indigestible. Look for unique ways of expressing a thought in a way that reflects a sense of humor compatible with your audience (the jurors). Sometimes an ironic statement or a euphemism will make your point in a humorous way.
I've listed over a hundred samples of mildly amusing, sometimes wry and sometimes caustic, comparisons that seek to make a point. Many of these samples could be included under other sections of examples, e.g., analogies, metaphors, and similes, discrediting accomplice witnesses, etc. The contents of this list suit my, some might say "lymphatic," sense of humor. It's quite possible that none of them may qualify as what you want to serve up to your jurors. Humor is a matter of what works for you. Notice that many of these comparisons create concrete images expressive of a moral value. All were taken from the 5500 samples in Jury Argument in Criminal Cases and The Last Word. With a little investigation and an open ear, you can certainly gather up more novel and apropos examples of levity suitable your ability to connect to your jurors' senses of humor and, at the same time, underscore a message of your case. [One Note of Caution on When to Smile at Courtroom Jest: Humor should never be at a juror's or the jury's expense. When you smile at jest in court, the jury as a whole should be doing the same or, at least, feeling the humor of the situation. Otherwise, the humor is wholly misplaced and misappropriate.]
SAMPLES OF HUMOR & LEVITY IN JURY ARGUMENT :
Some kids steal second base. Some kids steal cars. (Name the defendant) steals cars.
(Name the witness or defendant) was, to coin a phrase, acting "crazier than a duck in thunder."
If (name the witness) was able to see as much as he claimed he could see, he'd have more eyes than an Idaho potato.
(Name the witness or describe the evidence) was like a maggot in a meatball. His (or its) presence makes all the other prosecution (or defense) evidence unfit for human consumption.
The defendant was caught like a monkey with his fist in a bottle. All he had to do was let go of the goodies. But he couldn't. Why? Not because he was entrapped , but because he was greedy.
If this were Alice in Wonderland, (name the police officer witness) would be the Queen of Hearts because he likes to lop heads off first and ask questions later.
When the police arrived, this gang dispersed like cockroaches running for cover.
(Name the person) used drugs like table salt.
(Name the person) was like a hitchhiker caught in a hailstorm on a West Texas highway. She couldn't run! She couldn't hide! And she couldn't make it stop!
(Name the witness) told enough "white lies" to ice a wedding cake.
Half of what (name the informant) said were lies, and the other half wasn't true.
From that day on, (name the person) was a stone in (name the person) sling.
29 Assorted Humorous Similes and Metaphors
(Indicate the subject or person) was: hotter than donut grease; like shooting wooden ducks; on the wrong side of right; no more a causative affect than a pebble thrown in the ocean; busier than a pea picker's goat; untrue, unsupported, and unfounded; like putting lipstick on a pig; like putting putty on a bullet hole; like putting whipped cream on a hot dog; like a waterbug on the surface of life; dead as fried chicken; harder than a coffin nail; a taffy pull; sitting like a spider in the middle of the web, feeling the quiver of every strand; deaf as wood-pecker in a hailstorm; flatter than the shadow of a clam; up the creek without a paddle; a rock that won't roll; a puppet master who could make (indicate the person) dance; so mean he made medicine sick; a cross between Judas Iscariot and Benedict Arnold; as subtle as a cinder block through a picture window ; the keystone to the prosecutor's (or defenders) arch; one, two, three strikes your out, at the old ball game; misguided and undecided; pompous, prissy, and platitudinous; a leaky boat; a flat tire; jumpy as a squirrel on no-doz.
(Name the person) was as naive as the dog bragging to the other dog that his master was taking him to get "tutored."
(Name the witness) thought he was a pretty smart bird, but we got some salt on his tail when we cross-examined him.
Did you notice that we didn't waste your time with a long cross-examination of (name the witness)? There was nothing to be gained in getting into a spitting contest with a cobra.
Opposing counsel wants you to make a big thing of the fact that (name the witness) didn't know (indicate the subject). That reminds me of the story of the teacher who asked little boy "Billy , what's 3/4ths of 5/16ths?" The youngster pondered and said, "I don't know,,but it's not enough to worry about."
I try not to be too curious about what's boiling in the other person's pot, but I have to comment on the opposition's claim that (indicate the unfounded claim).
This fact could survive nuclear winter.
(Name the oppositon witness) testimony changed incrementally,
or should I say "excrementally."
We all should smell a skunk in that woodpile.
Like the old bromide says, "Denial ain't only a river in Egypt."
Wouldn't you have expected (name the person) to be more upset? We've all seen seen people more upset losing change in the candy machine than
(name the person) appeared to be about (indicate the subject).
Opposing counsel is trying to blame (name the person) for everything from ringworm to declining Sunday school attendance.
Let's take a hard look at the opposition's claims.
It's time to undecorate their tree.
(Name the opposition witness) had the personality of a garden pest.
(Name the opposition witness) doesn't have the sense to pound sand down a rat hole.
(Name the person) is the Napoleon of crime. There he sat like a spider in the middle of the web, feeling every quiver of every strand.
There's a message here: If you can't fight , don't growl.
Trying to pin (name the witness) down was like chasing
feathers in a windstorm.
This was one of those promises that's made with a wink and a nudge.
(Name the witness) talked in circles. There are no right angles in that testimony. It's like she was singing "Polly-waddle-doodle all day."
This is not a case of crying wolf. This is a case where
there are wolf tracks in the snow.
This is too shallow a puddle to dive into.
The evidence is all in. The proverbial tide has gone out,
and we now find out who's wearing a bathing suit and who's not.
He was like the guy who mails a postcard to the fire department telling them that his house is on fire. He knew help wouldn't arrive in time.
That testimony was as predictable as Christmas dinner
and about as indigestible.
Their story had a theme, but this case is not about themes.
It's about people.
The witness had all the subtlety of a jackhammer.
The prosecution's evidence is rather less than watertight.
Giving (name the opposition witness) the benefit of the doubt is like
turning a yong woman (or your daughter) over to a pimp.
(Name the opposition witness) was like a homeless dog that needs to be petted; you give him a dog biscuit and a pat on the head and
hope maybe he'll go sit in the corner somewhere.
(Name the opposition witness) was the weak link in a two-link chain.
(Name the opposition's police investigator) had the blank singlemindedness of a tortoise on a lettuce hunt.
(Name the opposition's witness) cried so much, I got the feeling that her tear ducts must be near her bladder.
This guy is a testicle with legs.
She came into court dressed like an exotic wedding cake.
He was trouble looking for a place to happen.
Examine this evidence before you buy it.
Squeeze all the Charmin you can.
If you were one of the informant's brain cells, you'd be lonely.
The witness was pumped full of information. But as daddy said "If you load the wagon up too much, the wheels come off."
The witness had all the warmth of a service station at
2 o'clock in the morning. There was no feeling there.
He blows his own horn in the shrillest manner.
Undeterred by the minor accident of being totally ignorant of the facts, the witness was anxious to express his expert opinion. But folks, "guesstimony" is not testimony.
I could hardly get a question in edgewise.
(Name the opposition witness) could talk the hind legs off a donkey.
Listening to him try to explain his theory was like watching a chicken
try to fly. You wish it would just stop or else turn into a swan.
To catch the critter, sometimes you have to drain the swamp.
That claim is the vocal equivalent of carbon monoxide - tasteless, colorless, and odorless. And it'll put you to sleep, permanently.
Trying to cross-examine a witnes like (name the opposition witness)
is like trying to cross-examine your reflection in a window.
The shelf-life of that story is somewhere between fish and milk.
This guy had a vanity that makes Donald Trump look like a human being.
Every word she uttered was a lie, including "and's" and "the's."
The relationship between truth and the witness is like the relationship between the color orange and the number three. Occasionally, you may see the number three written in orange, but you don't expect it. Same thing with (name the opposition witness) and the truth. If you get truth from him, it's just a coincidence.