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 - CREATIVE FLAGWAVING: 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. It's even part of the law, as this 30-page bibliography reflects. 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 reflects 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 buffoonery 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-doze.
(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 opposition 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 young 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 witness 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.
He is a man who knows nothing and has contempt for everything he doesn't understand, which is practically everything.
Sharp tongued? Let's just say she doesn't need a steak knife;
she cuts her food with her tongue.
He's a has-been practicing to be a never-was.
Does it surprise us that the word politics is derived from the word "poly," meaning many, and the word "ticks," meaning blood sucking parasites?
He's one of those hypocrites who preaches old-fashioned values and practices old-fashioned vices. He's had a long career as an evader of truth.
If lying were an Olympic event, he would win the gold, silver and bronze.
It's like when you a milking a cow and you have a bucket of foamy white milk and all of the sudden the cow swishes her tail through a pile of manure and splashes it into the foamy white milk. Well, that's what
(name the witness) did to the prosecution's (or defense's) case.
(Name the person) is a man of splendid abilities, but utterly corrupt.
Like rotten mackerel by moonlight,
he shines and stinks at the same time.
Do you get the feeling that if you pried (name the person) head open, toads would crawl out?
He's one of those people who can't be bought, but you sure can rent him.
He's one of those guys who keep you guessing.
Is he going to deliver a sermon or wet the bed?
Trying to get (name the witness) to give a straight answer
was like trying to sew a button on a custard pie.
He's one of those guys who bleeds people. He'll take every drop of your blood and drop you off of a cliff. Then he'll blame you for running out on him.
In your guts, you know he's nuts.
With all due respect, that argument is an army of pompous phrases in search of an idea.
He reminds me of a carpet salesman, promising more than he can deliver with sappy rhetorical baloney.
We must take care not to sink into the miasma of vague fears, horrible imaginings and sugarplum delusions that opposing counsel urges upon us.
When you have a witness like (name the witness) who is presented as an expert but then admits he's a sort of amateur expert, I suggest to you that he's like a guy who claims to be a brain surgeon, but then admits that he's only an amateur brain surgeon. Would you let an amateur brain surgeon operate on you? Should you accept the opinion of an amateur expert? Certainly not!
7. DISCREDIT THE COOPERATING COCONSPIRATOR OR GOVERNMENT INFORMANT IN JURY ARGUMENT (Defense Arguments) :
Some observers of the trial process suggest that jurors, like many of us in our day-to-day lives, tend to decide disputes based on which witnesses appear most believable, irrespective of the precise factual content of the witnesses testimony. If this is correct it behooves defense counsel to develop a methodology of arguing the bias, motive, and interest of cooperating coconspirators and informants. Bias is an unfair predisposition in favor of one side or another. Motive to falsify means the reasons why one might not testify truthfully. Interest involves a stake in the outcome of the case. The content of argument attacking the cooperating coconspirator or informant will be shaped by earlier cross-examination of the witness in which the questioner has developed foundations for arguing motive, interest and bias.
In our society, the prosecution must sometimes resort to using informants or cooperating co-conspirators as centerpiece witnesses to "drop the defendant into the grease." In such cases, the issue of whether the unsavory witnesses are credible becomes the dominant theme of the defense summation. The natural tendency of the human mind is to believe in the goodness of people. We want to accept what people, e,g, witnesses, tell us about events, particularly when they are eyewitnesses. In cases where the witnesses are informants or co-defendants who have "flipped" and are "turning state's evidence," defenders will often argue that the testimonial errors are not those of an average, normal, honest witness. Instead, the defense will typically argue that the witness intentionally or knowingly gave false testimony. To successfully launch an argumentative attack on the informant or cooperating coconspirator in in closing the case, one first establishes an evidentiary basis, often by employing various modes of impeachment during cross-examination. Here are a few examples of what defenders might say regarding the informant/cooperating co-conspirator's motive, self-interest, bias, prior convictions, prior inconsistent statements, character, perception, recollection, mistake, perjury, etc. These examples are taken from Jury Argument in Criminal Cases and The Last Word. You'll find a stellar example of an argument attacking the cooperating co-conspirators' credibility and testimony in an organized crime RICO prosecution presently featured on one of the CCJA Spotlight pages.
SAMPLES OF JURY ARGUMENT SEEKING TO INSPIRE
AND/OR ELEVATE THE DECISION-MAKER (JURY) BY MAKING EACH JUROR FEEL A SENSE OF PRIDE, POWER, AND OBLIGATION IN PERFORMING HIS/HER JOB
Lead in to discussing the role and duty of jurors and the importance of their decision-making power - The judge told you at the beginning of the case that you shouldn't be offended if the attorneys don't speak to you as you come and go. The law prevents me from speaking with you outside the courtroom. I hope you understand that why we have had to remain aloof. If we have passed in the hallways or if we shared an elevator and I seemed to avoid recognizing you, it's because the law requires it, not because I enjoy it. There was never any disrespect intended. Indeed, now that we are at a point in this trial when I can speak directly to you, I'd like to say a few things about how important you are and the sense of pride, power and obligation you should feel in doing your job as a juror.
Lead for discussion of purpose, power, and obligation entailed in being a juror - Soon, you ladies and gentlemen will go into the jury room to decide whether or not the evidence has removed each and every reasonable doubt about whether (name the defendant) did what the prosecutor claims. I wish I could be be there with you when you go over the facts of this case. During all these years as a lawyer, I have never had the opportunity to be a juror. I don't know what goes on in a jury room or how you will go about deciding this case. But if I were with you as a sort of thirteenth juror I would put my two cents worth in and raise the points I am going to discuss with you in a few minutes. But before I talk discuss the evidence, I want to take just a moment and visit with you he about your purpose as jurors, the power that you have, and the obligation that being a juror carries with it.
Buck stops here - Up to this point, you've all played a passive role in this trial. We've had a few laughs -- some on the witnesses, some on us lawyers. But as President Truman said, "The buck stops here." It stops with you ladies and gentlemen. Now, each one of you must assume one of the most awesome responsibilities of citizenship in a free society - the obligation of deciding the fate of a fellow human being.
Right to trial by jury as unique - I don't want to sound corny, but let me say this. You don't get a jury trial in Iran, Communist China, or Castro Cuba. Criminal cases in France and Germany aren't decided by juries of citizens. We are unique. We have a Sixth Amendment to our Constitution that gives every one of us the right to trial by jury. I am so thankful that we have the right to present our case to you, rather than leaving it up to the police or the prosecutor to decide whether (name the defendant) is guilty or not guilty. I am glad that we live in a country where your accuser is not also your judge.
Trial by jury valued - It is good that we have trial by jury. We don't have trial by commission or trial by police officer. We have trial by jury, by citizens.
Jurors akin to earthly Gods -To some extent, being chosen to sit in judgment of another person places you above that person, almost as if you were an earthly God.
Magna Carta -The jury system got its start in England under King John. It started in 1215 with the Magna Carta. But the Magna Carta didn't guarantee a jury in the way we think of it today. When the Magna Carta was written, women didn't have a right to jury. Working class citizens had no right to a jury. It was only the nobleman that was given the right to a jury.
Old as Scriptures and clear as the Constitution - It's as old as the Scriptures and as clear as the American Constitution.
History of jury system - derived from American Revolution - One of the main reasons that our country broke away from England was so we could have trials where the decisions would be made by a group of residents of the community. There were two other reasons. One was freedom of religion. The other was freedom of speech. King George infringed on the American colonist's right to a jury trial. That is one of the reasons for the American Revolution. In our day-to-day lives where we worry about our house payments or the cost of gasoline, we have a tendency to forget what this country is about. Recently, I had the opportunity to be in Philadelphia. It's a visit that will rekindle your belief in our system. After you practice law for a while, you can become a little jaded. I went through Independence Hall which is probably the most historic building in America. I saw where Thomas Jefferson sat down and wrote the Declaration of Independence. When I saw the room where patriots from all thirteen colonies came, sat, deliberated, and wrote the Constitution of this country, I was overcome by a feeling of quiet reverence. That simple room in Independence Hall had no heat. There were no ceiling fans. It was a laborious task to write the Constitution. There was much debate about it. They had four people carry Benjamin Franklin, eighty-one years old with gout, into the room. He was the mediator. The very principles we are talking about - the presumption of innocence, the burden of proof beyond a reasonable doubt, and the right of an accused person to a lawyer and to a trial by jury - all these fundamental concepts go back to our Constitution and Bill of Rights that were written by the founders of our country. This may sound like a history lesson, but I am doing this for a purpose. I want you to know how important you, in your role as a juror, are to democracy and to (name the defendant), because his future is in your hands. [Note: The Constitutional Convention of 1787 did not seek to create a guarantee of any fundamental rights or liberties except to ban bills of attainder (a legislative act that allows imposition without a judicial trial) and ex post facto laws and to preserve the writ of habeas corpus. The Bill of Rights, the first ten amendments to the Constitution, was proposed by Congress in September of 1789. Upon ratification, the Bill of Rights became effective on December 15, 1791, some four years after the enactment of the Constitution.]
Don't return the verdict that "the King awaits" - story of the trial of William Penn - Last night, while I was thinking this case over in anticipation of what I would say to you today, I thought to myself, what can I tell these twelve (or six) people that will cause them, when they go back into the jury room, to give some consideration to what I have said and to recall the points I have tried to make in my summation. The it dawned on me that I have read this very case before, and why don't I share that with this jury: Years ago in England, a trial of an English citizen occurred which reminds me of this prosecution. That trial, unlike this one, was for the crime of speaking out against the king. There, the king was very upset because he had been advised that one of his loyal subjects had spoken out against him. The king summoned his prosecutor who, in turn, secured an indictment for sedition that brought the defendant into court. Then the king ordered the judge to convene a trial and to have the clerk bring in some jurors to try this defendant for sedition, this man who spoke out against the king. The prosecutor was instructed, "You are to get the verdict that the king awaits." The prosecutor put on his evidence and after that was done he looked over at the jurors and said, "Members of the jury, it is now your obligation to return the verdict that the king awaits." The last voice the jurors heard was the judge who told them, " Members of the jury, you have heard the testimony and now it is your duty to return the verdict that the king awaits." That jury went into the jury room and stayed there for several days. Finally, there was a knock at their door. The bailiff went over and inquired whether the jury had arrived at a verdict. The foreman, in those days only men could serve as jurors, advised that the jurors could not oblige because their consciences would not let them return the verdict that the king awaits. The judge called them back into court and instructed them again that it was their obligation to return the verdict that the king awaits. With that the jury went back and began their deliberations once again. Arguments went on among the jurors, but still their consciences would not permit them to return the verdict that the king awaits. Finally, the foreman wrote a letter to the judge asking that they be released because their consciences would not permit them to return the verdict that the king awaits. That letter, that piece of paper, became famous because it because the first writ of habeas corpus. The judge in that case granted the jury's request and released them. The defendant was not convicted of sedition. He left England and came to the American colonies. We thought enough of him to name a state after him. It's called Pennsylvania. The saga I just told is the true story of the trial of William Penn. The hero of that story is not the defendant, William Penn. The hero is not the foreman of the jury who drafted the first writ of habeas corpus. It's not the judge who granted the writ. The heroes are those twelve earnest people, the members of the jury, who refused to return the verdict that he king awaits. I ask you to show the same strength of character. Speak your conscience. Your conscience will not permit you to return the verdict that the king awaits.
David and Goliath - (Name the defendant) is an ordinary citizen who has found himself under the weight of a prosecution for the serious offense of (name the offense). He is the target here. Don't let there be any confusion about who is David and who is Goliath. The prosecutor has (name the government agencies, e.g., FBI, Customs, Justice Department) behind him. (Name the defendant) is not without protection. As a sword, he has truth on his side. And as his shield against injustice he has the right to an unbiased and fairminded jury.
Defendant's day in court - This is (name the defendant) only day in court. His Honor, Judge (name the judge presiding), the prosecutor (name the prosecutor), and myself may try other cases. But (name the defendant) will remember what happens in this courtroom today as long as he lives. This is his day in court, certainly one of the most important days in his life. And I know you recognize its importance to him as well as your obligation and responsibility to treat his case fairly.
Wars fought to ensure right to trial by jury - This jury represents the progress of over two hundred years of living and dying for the rights guaranteed by our United States Constitution. In the beginning, we fought another nation to secure these individual rights. Since our beginning, we have fought other nations to protect these rights. We have fought all over the globe. We have fought two World Wars, and someday we might be called upon to fight a third. You took an oath that you would a true verdict render, according to the law and the evidence - the law, ladies and gentlemen, the law. Not just the law in the United States since 1776, but going back to that day in in June of 1215 when the people won the Magna Carta from King John. Whether those who came before us died at Bunker Hill or at Pearl Harbor or at the Alamo, whether they died at Valley Forge, at Corregidor or on the beaches at Normandy, these people who came before us suffered and spilled their blood so that each of us could live in a land that gives a person accused by the government the right to a jury trial.
Juror's assurances during voir dire jury selection - During the jury selection stage of this case, I asked each of you (state the matter about which you received a pledge. promise, or agreement from the jurors). Each of you told me (indicate the juror's pledge, e.g., "no matter how horrible the facts of this case, you could and would follow the law of reasonable doubt.") I am asking you to hold yourself to that promise which you gave under oath. If you are not able, in good conscience, to resolve the conflicts in the evidence, you have no greater duty than to return a not guilty verdict.
Don't be "summer soldiers" and "sunshine patriots" - In the formative days of the American Revolution, the American hero Thomas Paine made some comments that were directed at people who would help in the struggle for freedom from England only on given occasions that were to their liking. Thomas Paine referred to these folks as "summer soldiers" and "sunshine patriots" -- people who only wanted to help on good weather days when it was warm and sunny. They weren't willing to slug it out during the cold winter weather of Valley Forge. I urge you, don't be sunshine patriots when it comes to following our law, our Constitution, and our Bill of Rights. Don't be summer soldiers and sunshine patriots in following the law of reasonable doubt.
Jurors not rubber-stamps of police or prosecutors - I anticipate that the prosecutor may get up here in a few minutes and argue that good law enforcement requires conviction this case. Her job is to persuade you as she bids. But your job is not to heed the prosecution's beck and call. You don't work for the prosecutor's office. Nor do you work for the police department. We all advocate good law enforcement. There's no dispute about that. Good law enforcement and justice occurs only when two things happen: First, when only those who are proven guilty beyond any and all reasonable doubt are convicted. Second, when everyone who hasn't been proven guilty are found "not guilty." That is justice. There are no losers when justice is done. Good law enforcement by this jury is not simply rubber-stamping every act of the police or every request of this able prosecutor. You have no duty to rubber-stamp what the prosecution wants you to rubber-stamp. Your duty, and what we ask of you, is to impartially weigh the evidence and the lack of evidence and apply the burden of proof to it.
Jury not arm of prosecution - The jury system was created not be an arm of the police and the prosecution, but rather to check the excesses of government. Historically, in England, where we got the idea for the trial jury, people learned how easy it is to suffer injustice if you let the accusers also be judges.
Why jury is here - Before turning to the merits of the case, I'd like to address another aspect of this proceeding. Why are you here? You know why the judge and lawyers are here. Why are you summoned from your home and your job to come spend time in your courthouse? Your names come from the driver's license records and the voter registration lists. Serving on a jury puts you at the heartbeat of the operation of the laws that govern all of our lives. I know you want to do it right. The laws that hear the judge describe are your laws. That's why you are here - to weigh the facts and the credibility of the witnesses and to apply your laws, well and truly.
Why accused in calling upon jurors - think what it's like to be charged with a crime you didn't commit - one phone call - right the wrong done to accused -I want you to imagine what it's like being charged with a serious crime that you didn't commit. You are arrested by the police, handcuffed, placed in a squad car, and taken to a local jail. You're booked and fingerprinted. You have your mug shot taken. You are taken before a magistrate, told of the crime you are accused of committing, and warned of your rights. You tell them you are not guilty. And then, for the first time, you hear those magic words, "You are entitled to make a phone call." Who would you call? Obviously, at this point you would want to call someone that had two things to offer: first, someone who cared enough about what had happened to you, and, second someone who could do something about your predicament. Ladies and gentlemen of the jury, (name the defendant) is making his call to you. He is calling upon you because you have been selected to examine the allegations against him and because you, by your verdict, are the only people who can do something about the unjust predicament he's in. You are the only ones who can right this wrong and set the matter straight
Jurors as equalizers - It's obvious that (name the defendant) and I don't have the resources to compare with the prosecution, the government, if you will. In any sort of contest of strength, they have more manpower, more money, and more investigators than we can even imagine. Yet, I tell you that we are equal to the might of the government. Why? Because of you. You are the equalizers. You have the discretion to do what you feel is right. You have to answer to no one. That is the good thing, the honest thing, about the jury system. The American trial jury doesn't operate under those kinds of political influences and pressures that are usually present when people are forced into government service.
Wisdom and virtue - I've learned over the years that wisdom and virtue can't be coaxed from a jury like eggs from a chicken under electric lights. Wisdom and virtue won't automatically flow from the collective intelligence of the group. There is no such thing as collective wisdom and virtue. There is only the personal wisdom and virtue of each individual juror communicating itself to other persons of wisdom and virtue.
Jurors are the ones that make system work - There was a time in my career when I thought, through an unjustified lack of humility, that defenders like myself were the ones who make the system work. I thought that those of us who choose to defend the citizen accused are the ones who breathe the breath of life into the Constitution. I know now that I was wrong. Lawyers aren't the ones who make the system work. You are. (Indicate the jurors with unfurling open hands). If you don't do it, it doesn't get done.
Two sacred rights - voting for the candidates of your choice in elections and serving on a jury - There are two sacred rights that you enjoy as a citizen - the right to vote and the right to serve on a jury that will decide the fate of a fellow human being.
Small acts of courage shape our history - It is from small acts of courage that our history as a just people is shaped. Every time a good jury man or woman stands up for an ideal or strikes back against injustice, s/he sends forth a ripple of hope in the fairness of the American jury system.
Jury service as only conscriptive service - With the abolition of the military draft, jury service is the only conscriptive service that is imposed on the citizens of our land.
Sacrifices of jurors - You have made sacrifices to serve as jurors. You could have begged off jury service. But each of you made the sacrifice. I won't thank you for being jurors because that is part of a citizen's duty. However, for myself and on behalf of (name the defendant), may we express our heartfelt respect for the way you have served, for your patience, and for your kind attention.
Assuming responsibility for judging another person - crossing the street - When you were first summoned as a juror or when you were first questioned out here and heard a little bit about this case, you may have said to yourself, "Wait a minute, I'm not a lawyer. I have never been in a court trial before. What am I doing here? I'm not experienced enough." You might have said to yourself, "This is too big a decision. A person's life, a person's liberty and freedom is at stake. What am I doing making those kind of decisions without any experience?" But you see, you do have experience. In fact, each of you is probably better suited to make the kind of decision you have to make than the judge, the police, the prosecutors or myself. The reason for this is because we are involved every day in this business. It's a business, disposing of cases in the courts. And when you are involved in something every day, you get calloused. You naturally tend to get calloused. If you are a prosecutor for years, you will naturally tend to see only the prosecution side of it. If you are a defense lawyer for years, you naturally tend to see only the defense side of it, and it you are a judge you sit up there and it seems like everything just repeats itself. But you people are good sensible members of society. You are also individuals. You don't owe anybody any favor. You don't owe me anything. You don't owe (name the defendant) any favor. You don't owe the prosecutor anything. You're independent people. Every day of your life you make the kind of judgmental decisions you are going to make today. It's the kind of decision you have to make every day. You make this kind of decision when you cross the street. If you have a reasonable doubt about whether traffic might run you over, you don't walk out in front of car. You look both ways to make sure its safe before you cross the street. You look at the facts, and you make an important decision. You are doing the same thing here, except it's (name the defendant) welfare that is on the line instead of yours. But you use the same common sense and decision-making skills that you make for you and yours when you sit in judgment of (name the defendant).
Jurors selected based on ability to be fair and honest -We talked to (indicate the number) people in selecting the jury for this case. We selected you because you are fair and reasonable people. Once you passed that railing to take your place as jurors in this trial, your duty became to treat (name the defendant) as fairly and honestly as you would expect to be treated in a court of law.
Assessing credibility - gold/sand analogy - Your duty is to assess the credibility of the witnesses and to determine the facts from the evidence. It's you job as jurors to sift the gold from the sand.
Jurors' right to draw inferences and make logical deductions from the facts in evidence - The law gives you jurors the right to draw reasonable inferences from the evidence. You can conclude the existence of one fact from proof of another fact. For example, suppose when you left home this morning you know your mailbox was empty. When you get home this evening you find it contains mail. The logical inference you can draw from the facts you know is that the carrier delivered your mail while you were gone. Even though there is no direct proof that the carrier delivered your mail, you could draw the reasonable inference that it happened. You can also make logical deductions. Basically, this means that you can use your common sense and education. A logical deduction is where you have two known facts that always lead to the same conclusion. It's like two and two is four. Two and two will always be four. If someone gives you two apples and someone else gives you another two, you logically know you have four apples. So if the evidence gives you two and two, you have the right to put that together and conclude that you have four.
Jurors may pick and choose evidence - You, as jurors, may choose to believe all of the testimony you heard or you may disregard all of it or you may believe some of it and disregard the rest. That is your right. That is your obligation. That is your job, your duty and your function as judges of the facts.
Verdict does not have to be explained to anyone - The decision that you render in this case is yours and yours alone. You don't have to justify it to anybody. When you walk out of here, no one will require you to give any sort of explanation for your verdict. It is strictly a matter of your own conscience.
Jury's job not to decide morality - One thing you are not here to decide is the morality of anyone. It's not your job to decide issues whether (name the person) is a good person. The trial is not about judging (name the person) moral character.
Treat job of judging as though it were an important decision in your own life - (Establish eye contact with the jurors with a Z-gaze) Every one of you ladies and gentlemen has had to make an important decision from time to time in your own life - major decisions - like quitting one job and taking a new one, transferring from one city to another one, buying a new home, deciding to have elective surgery, marrying, or divorcing. I am asking you to extend to the decision you make about (name the defendant) the same serious consideration that you would give to an important matter in your own life.
Jurors should not approach job as machines - Mankind has invented machines that assume much of the responsibility in our society. Robots make our cars. Air conditioners keep us cool. We press a button and a machine gives us a cup of coffee. We press another button and an elevator takes us to our floor. The President can issue an order and buttons could be pressed that would a destroy the civilized world. Computers keep track of how much we make and how much we owe. But there is one machine we have yet to devise. We don't have a machine that can judge people. There is no computer that can take the facts of a trial and render a fair decision. Why is that? It's because machines don't have humanity. They can't feel. They have no emotions. If it was intended that you approach your job as though you were a machine, don't you think we would have a computer in here instead of you? No, you are judging (name the defendant) precisely because you are a thinking, feeling, sensitive person and not a machine.
Hard work of court personnel - There are a lot of people who have worked hard on this case - the judge, the clerk, the bailiff, the court reporter. They have worked hard and done their duty to make one thing possible - a fair verdict based only on the law and the evidence. All of the work done by these people means nothing if you decide this case on anything but the law and evidence.
Knowing what is right - No jury ever has a problem doing what is right. The big problem in knowing what is right.
Right of each individual juror to maintain his/her opinion - Each person on this jury has the duty of making up his or her own mind as to whether the prosecution has proved the accused blameworthy beyond a reasonable doubt. A juror with an abiding belief that there is a reasonable doubt cannot compromise this duty merely because someone else on the jury disagrees with that abiding belief.
Uncomfortable case - At some time during this trial, you perceived that this was not an ordinary trial. You perceived that this type of case was one that you were going to have to wrestle with. It's the type of case that can make you uncomfortable.
Horrific facts hard to hear - Some stories are hard to hear. But stilling the witnesses' tongues or stopping our ears won't make this tragedy go away. For justice to be done, the details of this awful crime had to be shared with you. Indeed, the first step in doing justice when a wrong has been committed is to have a group of courageous jurors who are willing to listen to horrific facts.
Duty to resist publicity and peer pressure - This case has received quite of bit of publicity. It's been something of a media event. A great many of your friends may think they know what happened. You must walk out of here and say, "Yes, I found him not guilty, and I based my verdict on the trial evidence and the trial evidence alone. You weren't there in court. You only read a newspaper story or watch a TV report."
Case with media coverage - don't try cases in newspaper - (Name the defendant) is not here to be tried by the media. The evidence in this case is not just the evidence that the newspaper journalists and television personalities chose to report. We all believe in freedom of the press, and we are not here to fault our friends in the media. But they are not under the duty that you are. You are here in court and, unlike reporters, you can't get up and walk out whenever you want to get a drink of water or call in a story or check on what's going on in another courtroom and miss part of the testimony in this case. You are here for the whole shooting match. Each of you knows what this case is about. You have paid attention. So regardless of what is said about this case in the papers or on TV, regardless of what your friends and neighbors think from following the media coverage, it is what's in your heads and hearts that this trial is about.
Trial by media - phone in verdict - Under our system of government, we can't convict on suspicions or what newspapers on TV commentators say. Some people say, "Where there is smoke their is fire." Well, if that were our system, we'd just allow people to pick up their newspaper, read about the case, and phone in their verdict.
History of trial by jury - Your role as jurors was defined nine centuries ago in England when the citizens wrested from King John certain rights of citizenship. Those rights were contained in the Magna Carta. The Magna Carta embodied the first human rights doctrine of western civilization. It contained a very important provision. That provision is that the sovereign, the king, the government, can't take the liberty of a person unless that person is found guilty by a jury of their peers. We fought a revolution in this country to be free of the British, but we incorporated this basic right of citizenship into our own Constitution. We said that the citizen is protected from arbitrary or abusive acts of the sovereign, the government. We established a system that requires twelve (or six) jurors to (unanimously) agree upon guilt of an accused person before he can be turned over for punishment.
Jurors as human shield around the defendant - You ladies and gentlemen of the jury are, in one sense, impartial arbiters of the facts, but in another sense, and by virtue of your historical role, you are a very crucial part of the defense. You form a human shield around (name the defendant). You say to the prosecutor, "Ms. Prosecutor, (name the defendant) is our peer. He is a citizen (or resident) of this country. He is one of us. He may look different than we do. He may dress differently than we do. He may have a different skin color or different hair than we have. But he is one of us, and we are not going to allow you to take him from our midst - we are not going to let you take this person, this citizen, unless or until you prove to us that his guilt has been established beyond a reasonable doubt. Our country was founded by people who guaranteed this fundamental right to each of us." Folks, you are here to say (gesturing to the prosecutor), " Ms. Prosecutor, we are the jury. We are the jury, and we are here to see that the right to a fair jury trial is protected."
Verdict communicates jurors' notions - By your verdict as judges of this case, you are communicating to all the citizens of this community your notions of right and wrong (or how far the government can go in its wrongheaded quest to convict a person for a crime s/he didn't commit).
Jury as embodiment of popular will - We spent a great deal of time trying to select a jury that could fairly judge this case. Traditionally, jurors have been the protector of individual rights. They have reflected what is the popular will in the community. The name of this case is (state the style of the case, e.g., State, People, Commonwealth, United States of America) versus (name the defendant). One thing needs to be clear - you, not the prosecutor, represent the will of the people in this community. You are the judges. You, not the prosecutor, are going to decide this case.
Jurors as mirrors of society's values - A jury has been described as "a mirror of society" and its verdict as "a reflection of society's values."
Jurors as soul and conscience of community -You are the soul and conscience of this community.
Jurors as chosen ones - You ladies and gentlemen truly are "the chosen ones." We spent quite a bit of time in selecting you. The reason for that is that you must be the embodiment of fairness. You are the ultimate cornerstone (or bulwark) of liberty and justice.
Jurors as officers of the court - You have become "officers of the court" as much as Judge (name the judge) and as much as the lawyers.
Special jury for special case - counsel wanted jurors with a particular trait - You should know that you are not on this jury by accident. You weren't selected at random. Each and every one of you was questioned carefully about (indicate the issue of importance). You are special in the sense that you are (indicate the trait of importance, e.g., an exceptionally intelligent jury). This is what we wanted in this case. We wanted (indicate the trait of importance, e.g., a very smart jury) because you have before you (indicate the nature of case that is relevant to the trait, e.g., some complex testimony), the likes of which this courtroom may not have seen in a long time.
Wanted fair, intelligent, concerned jurors - When we started this case and picked this jury, I looked for one thing. I looked for people who could be fair. With that, I looked for two characteristics in your personality. I wanted jurors who were intelligent, and I wanted jurors that were concerned. If you are fair, if you are intelligent, if you are concerned, as you all are, there can be no confusion about what happened in this case.
Four categories of persons not fit for jury service - Selection of a jury in a case of this nature is not an easy task. My experience and observations have taught me that we have in this country four types of jurors who are not equipped to do their duty. First, we have the type of juror who is honest and conscientious but lacks the moral courage to do what is right in the jury deliberation room. In his or her heart the juror knows that the defendant is not guilty, but at the moment of truth falters and fails to stick to his or he belief. Next, in type two, we have a juror who only follows a law if that juror personally believes in that law. That type of juror overlooks the fact that we have fought two world wars to preserve our system of laws - all of them. In the third category, we have the jury who is always in sympathy with the prosecution. This is the juror who considers the prosecution as the home team and himself or herself a fan of the home team, pulling for the prosecution from the get go. Some people are that way because they have been brought up to believe that the king can do no wrong. Lastly, in the fourth category, we have, and I hesitate to mention them in front of you, the juror who with padded feet would slip into the jury box for improper purposes. There is no expression in the human language to describe and depict the dark and deceitful nature of such a juror. I have never forgotten the historical fact that when George Washington selected his loyal lieutenants to fight the battles of the revolution, he found in the darkest hour of the country a Benedict Arnold to prove a traitor and surrender the army. These are the four types of people who, I suggest, are unfit for jury service. We have full faith and trust that there are no such persons on this jury.
Jurors as persons of intellect - Human beings are special. No other species decides its disputes in courts of law with judges and lawyers. Some of us may view the power of human intelligence as a divine creation. But I think all of us would agree that we humans have been gifted with a special power to distinguish between right and wrong, between truth and lies, between what makes sense and what doesn't. Each of you brings a lifetime of human experience to that table in the jury room. I know each of you will listen with respect to the reasoning and opinions expressed by your fellow jurors. Whatever judgment is expressed by your group is likely to be as close to the truth as anyone has a right to expect.
Jurors see through smoke and clouds - If my years of law practice in this courthouse have taught me anything, it's this: The law is wise because it lets jurors decide the issues in a criminal case. You jurors have a wonderful way of seeing through the smoke and the clouds and determining what is the right thing to do.
Stick to your decision - Your role and responsibility is to listen to the evidence and analyze it in your mind. Discuss it among yourselves. Once you have decided in your own mind, stick to your decision. You and you alone will decide whether your doubts are completely removed from your mind. Don't compromise your belief for someone else.
Jury's attitude toward the poorest of us - I don't want to wave the flag, but let me say this: The quality of a jury system is judged by how the poorest of us is treated when he comes before the bar of justice.
Examine conscience - all men have equal rights - I hope that every one of you will stop and examine your conscience. This nation was founded by men of many nations and backgrounds. It was founded on the principle that all of us are created equal, and that the rights of every eah of us are diminished when the rights of one person are threatened.
Extend same sort of virtuous effort you would want - We ask only that you extend to (name the defendant) the same virtuous effort to judge him as you would expect an American jury to extend to you. Judge him with the same sort of even-handedness and fairness as you would be judged.
Jury service - passing the torch analogy - You are much like the Athenian runners who carried the Olympic torch. You are carrying the torch of justice. It is a torch that is passed from one jury to another.
Pride in being a lawyer in system that uses a jury to apply legal principles older than our country - I'm proud to be a lawyer. I'm proud to be able to stand in front of jurors such as you. I'm proud because we have the kind of system that we have, one that allows someone who accused of a crime to present his case to twelve of his fellow citizens. Because, as you know, in legal systems other than ours, usually a magistrate, sometimes a policeman, always someone connected with the government decides if you are guilty or innocent. If this case were simply to be decided by a magistrate or a police officer or some individual connected with the prosecution, you wouldn't be here and (name the defendant) wouldn't stand a chance, nor would you, if by some quirk of fate you were charged with a crime you didn't commit. But our system gives us the right, and gives you the right, to have a fair and impartial tribunal of honest, decent citizens decide whether you are guilty or innocent. I thank the Lord that we have that system. The way you make that decision is by following rules that have existed for hundreds of years. Some of these rules are older than our country, because our system of jurisprudence is based upon the English common law system, and many legal principles were decided years before we were even a nation. They give guidance in your duty as jurors.
Jurors have had trouble of others cast in their laps - You each have troubles enough of your own without having to borrow anyone else's. But you are here, and you have had the troubles of strangers cast in your lap for decision. You have endured (state the length of the trial) of listening and watching witnesses, lawyers, and the judge. Now comes the hardest part - deciding the case and doing the right thing. We are confident that you will not merely endure, you will prevail. You will right the wrong that has been done to (indicate who was wronged, e.g., the complainant, the defendant)
Jury verdicts shape community - It is by the verdicts of juries, common judgments of good people using their common sense, verdicts rendered every day in this courthouse, that our community is shaped.
Jurors as lynchpins of law enforcement - prosecution argument - You are the lynchpin in our system of law enforcement. Without enforcement of its laws against crime, our society can never become that better, safer, and more law-abiding world waiting out there on the horizon.
Jurors as society's protection against evildoers - prosecution argument - If we, as members of the community, can't depend on trial juries to safeguard us from wrongdoers among us, then who will protect us from us and who will act for us against evildoers. Folks, you are society's instrument of moral restraint and wisdom. We trust in you.
Job of juror invested with majestic power - This job of being a juror - it invests you with a kind of majestic power. It can make you understand the rights and responsibilities of being a member of society and your role in protecting society. It allows you to take part in our form of government, where we, the people, are given the power to govern ourselves.
Last words - Well, I'm done. I tried to protray the true facts. I've told you the honest story of this case. I hope that I've said enough to refresh your memory of the evidence and what the evidence means. I lift my heart in gratitude for your patience and kind attention.
Find force to do right thing - Find the force inside you, ladies and gentlemen. Find the force to do the right thing here.
5. REDUCE COMPLEX LEGAL TERMS TO UNDERSTANDABLE EXAMPLES IN JURY ARGUMENT: We lawyers love legalisms. Jurors don't. Reduce the legal concepts, e.g., the law of parties (vicarious liability for the acts of others), the operative culpable mental state, reasonable doubt, etc., to understandable examples.
4. REFER IN JURY ARGUMENT TO YOUR OWN PROFESSIONAL EXPERIENCE AS A TRIAL LAWYER:If the jury has come to respect you during the preceding portions of the trial, you can tap these ethical reserves by using yourself as an unsworn authority to underscore an important issue of witness reliability or highlight the weight of a particular item of evidence. Be subtle. Don't go overboard and make yourself an unsworn character witness giving unsworn opinion.
