Closing ArgumentInitial and Rebuttal

Nancy C. Jacobs

Chief Deputy Prosecuting Attorney

91st 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 wasthree times the legal limit

•Home improvement fraud victim’s home was in need of repair due to tornado damage

•Protection of those lessable 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 ConductA 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)