Closing Argument Initial and Rebuttal Nancy C. Jacobs Chief Deputy Prosecuting Attorney 91 st Judicial Circuit Switzerland County

Always Be Closing…

Evaluate Facts of Case

Facts Prove; Values Persuade Strong Facts Corresponding Value Battery victim is elderly Intoxicated driver was three times the legal limit Home improvement fraud victim’s home was in need of repair due to tornado damage Protection of those less able to protect themselves Safety on streets Helping those in need

Develop a Theme  Should be value based  Draw from strong facts  No more than a few words  Easy to remember

The Opening Act Voir Dire

Classic Structure  Attention step  Discussion of theory/elements  Key issue statement  Argument  Exit line

Attention Step  Engage the jury  Concise and memorable articulation of a key fact or argument  No longer than 1-3 sentences  Incorporate theme  Memorize for effective delivery

Discussion of Theory  Identify elements of offense  Consider use of elements chart  Explain legal terms  Dispose of uncontested elements

Key Issue Statement  Thorough discussion of contested element(s)  Heart of the argument  Logic and organization is critically important  Relate important facts to widely held community values

Argument  Rule 27, Indiana Jury Rules – Must disclose all the points relied on in the case  Focus on disputed element(s)  Acknowledge and address weaknesses  Reflect back on voir dire discussions

Exit Line  Sentence or two  Incorporates theme  Memorized  Eye contact  Call to action

Litigators Are Teachers, Too! Concepts of adult education  Primacy and Recency  Use effective visuals Tell a great story  Use powerful action words  Use active voice  Vary your volume and tone Eliminate distractions

Rebuttal Argument  Rule 27, Indiana Jury Rules  Reference to any new point or fact not disclosed in the opening (initial close) gives the Defendant the right to reply and CLOSE THE ARUGMENT  If defense declines closing argument, state gets no further argument

Effective Rebuttal Argument  Attention step/Transition  Refocus the jury’s attention and transition back to State’s argument  Plan in advance  Argument  Limited – 2 or 3 points  Correct defense misstatements and dismantle theory  Exit Line  Final minute  Motivational call to action

Ethical Considerations  Rule 3.4, Indiana Rules of Professional Conduct A lawyer shall NOT: …(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused;….

Ethical Considerations - Caselaw  Ryan v. State, 997 N.E.2d 357 (Ind. App. 2013), superseded by Ryan v. State, 9 N.E.3d 663 (Ind. 2014)  Nichols v. State, 974 N.E.2d 531 (Ind.App. 2011)  Brummett v. State, 10 N.E.3d 78 (Ind. App. 2014)  Reynolds v. State, 797 N.E.2d 864 (Ind.App. 2003) and Thomas v. State, 9 N.E.3d 737 (Ind.App. 2014)  Lainhart v. State, 916 N.E.2d 924 (Ind. App. 2009)