I wonder, increasingly, whether we lawyers overstate our importance at trial. I realize that this is counter intuitive to those who view lawyer's as the star of the show. But trials are supposed to be about fact-finding under the rule of law. Do lawyers get in the way?
I tried something yesterday that I had only done once before in my career: I waived closing argument in a criminal case. The stakes in the case are high. My client faces seven counts alleging various acts of sexual misconduct with a child. The allegations took place eight to ten years ago.
In a criminal case, the prosecution gets two chances to argue to the jury; the defense gets one. The theory goes something like this: The state argues what it thinks it has proven. The defense then gets a chance to argue its case, and to rebut the state's claims. The state then argues one last time to rebut the defense.
In fact, many prosecutors save all their best stuff for their last argument, giving the defense no opportunity to address the jury on the state's more controversial claims. It is common for prosecutors merely to recite the law governing the case and to lay out a simple narrative rehearsing the barest bones of their case in their opening argument. Hiding their major theme until the final act is a sound tactic.
Yesterday, the prosecutor in my case gave a textbook example of hide-the-ball opening argument. The first three minutes of his "argument" was merely a repetition of the complaining witness' testimony with simple declarative sentences about what other witnesses said: a sort of TV Guide version of the trial condensed into uncritical and bland prose that were not intended to persuade. He spent the balance of his time merely reciting the law the judge was about to read. He ended with a simple request for a guilty verdict. The state failed in its opening to address any of the weaknesses in its case. It was not really argument at all.
The argument lacked any persuasive force at all, and was not designed to persuade. As the jury had heard two weeks of evidence already, the state did not inform either. And as the judge was about to charge the jury on the law, the state's presentation really did nothing at all. As the state sat down, I wondered why it had bothered to speak.
My client and I were stunned. All the drama and stress of trial for this? My client and his witnesses and had just testified. There was no need to remind the jury of what they had just said. And the themes we hoped to argue were already set in the cross examination of the state's witnesses and by our witnesses. If by arguing we really were going to do nothing more than give the state a final shot at what we had already laid before the jury, what, frankly, was the point? We picked a smart and self-confidence jury. We trust that group.
So we waived closing argument. The last evidence the jury heard was my client. The state never commented on his testimony or the testimony of our other witnesses in its closing statement. By failing to critically engage our case at all and merely repeat in the most bare bone terms possible the accusations against my client, the state's closing statement did a far better job of presenting our case than I could have done: In bringing this case the state heard what it wanted to hear and ignored all the rest.
Of course, I worry that I made the wrong call in waiving argument. But part of that is sheer ego. I argue well. Like most defense lawyers I harbor deep fantasies of setting men free with the power of my voice and my skill as a rhetorician. But trial is not about the lawyers. I part company with those who argue that it's all about the lawyer: when Narcissus fishes he hopes to catch something more than his own reflection.
The jury went out yesterday and resumes deliberations on Monday. They heard the evidence and the law. I doubt any argument any lawyer would have made would really change the outcome. A well tried case should leave nothing undone by the time the case is given to the jury; this case was well-tried by both sides.
I went to sleep wondering last night whether closing arguments are really necessary. Some part of me imagined that they are really counterproductive, transforming trial into something other than a search for the truth. I wonder how I will feel after the verdict is returned in this case?