Closing Addresses

Closing addresses are of utmost importance for counsel to be successful in jury trials. This is the one and only opportunity counsel is permitted to bring all the evidence together in an effort to persuade the jury to view the case favourably to the side that counsel represents. Over the years I have come to know the best closing addresses are brief. Ideally, a closing address should be under 30 minutes, no matter how lengthy the trial that preceded it. Long-winded persons are generally found to be boring. The maxim holds true, especially true, for lawyers delivering a closing address.

Generally, the best closing addresses are positive in nature. They emphasize the strengths of counsel’s case, not just the weaknesses of the case for the opponent. This should not be understood to mean, however, that counsel should pass on any opportunity to exploit weaknesses in the opponent’s evidence. The aim is to have the strength of your case and the weakness of the opponent’s case to convince the jury of the rightness of them deciding in your favour.

The best advice is to keep your address simple. Be diligent in referring to the facts or evidence with impeccable accuracy. Inaccuracies will create suspicion and distrust. Better to concentrate on 5 or 6 very important facts or factors than to focus on many more under the mistaken notion that you are obligated to “cover everything”.

Closing addresses to juries win and lose cases. Winning addresses answer the questions in the minds of the Judge and the jury. Although counsel’s closing address is made to the jury, the Judge’s charge to the jury, advising them of the law and reminding them of the important aspects of the evidence is to follow. The Judge listens to the jury address with the same careful attention as the jury. Counsel may face the jury, but counsel’s address is to both Judge and jury. The Judge is entitled to comment on counsel’s closing address during his charge to the jury. An effective closing address must provide the answers to the questions raised by the evidence. The questions counsel must answer are: “who,” “what,” “where,” “why,” and “when.” These questions must be answered now. This is the only opportunity to answer them directly.
One effective way to demonstrate to the jury that counsel appreciates their position and intends to help them in their decision-making role, is to ask the questions rhetorically, then answer them specifically with precise reference to the evidence that supports the answers given. For example:
Did John Smith intend to cause the death of Jim Jones? You will have to ask yourself this question. We say he did not. Here is the evidence that we suggest supports that conclusion.

The words used by counsel are important. Every effort should be made to eliminate reference to unimportant evidence. Focus on the big picture. Avoid dense legalistic language. Concentrate on answering the obvious questions in clear, concise and unambiguous language. Eschew the use of the passive tense and legalistic phrases. Avoid phrases and words such as:‘It is suggested’ ‘It would seem apparent’ ‘Notwithstanding’ ‘It is alleged’ ‘Hereinafter.’

Efficiency, accuracy and precision should be the goal of counsel’s address. But the ultimate goal is persuasion. Persuasive language should be the art form of trial counsel. The words chosen should have impact. They should be memorable. Advertisers know this. They create catchy, memorable jingles that last in the mind of their audience long after the commercial has been viewed. Impact phrases and sentences are to be found everywhere, from great statesmen, master poets, the Bible and great authors such as Shakespeare and Hemingway. Why not rely upon pithy, memorable phrases and comments to please and persuade?

One powerful prosecutor summed up his comments on the life of the deceased alleged to be cut down prematurely by the actions of the Defendant in this way:

You are engaged in the grizzly audit of Mr. Smith’s death. His family deals with it daily. The sixth chair at the dining room table is always empty. They wonder who will teach his son how to ride a bike, throw a baseball or say his prayers. You are asked now to decide how and why his life ended prematurely.

Those who embrace the art of advocacy know that its essence is the art of storytelling. The task is to persuade. The most effective method is to use words and phrases that are memorable, lasting and powerful. Good lawyers remove the fog and shine a bright light on the answers that should persuade the jury. It requires thought and preparation. The final address should be delivered from immediately in front of the jury, unobstructed by podiums or lecterns and without use of notes to maximize eye contact and enhance connection with each member of the jury. The closing address presents to the lawyer the ultimate opportunity to demonstrate the art of persuasion.

A jury that is focused on your main arguments is a jury more likely to be persuaded to your side. There is no harm in telling the jury that you do not intend to cover every aspect of the evidence that they have heard, but intend instead to cover those aspects of the evidence that you hope they will find most important in making their decision. Simplicity means concentrating on the main issues and permitting the jury to handle the rest.

Wherever possible invite the jury to consider the possible motives of any of the witnesses. The plain truth is that members of the jury are just like any of us, they wonder what motivates a witness to tell their story in a particular way. When you can appropriately suggest a motive, jurors are invariably interested.

Section 651 provides the order of closing addresses by counsel. Where an accused, or any one of several accused that are tried together, calls any evidence, then counsel for the accused must address the jury before the Crown. There is no right of reply. Argument should be devoid of inflammatory remarks. Counsel should not express any personal opinions.

Argument is to be made only on the evidence that the jury has heard. Counsel should also avoid any expanded reference to the law. It may be necessary to refer to the law in order to make an argument. References to the law should be brief. This, after all, is the job of the Judge.
In closing addresses, counsel are afforded greater latitude. While counsel must at all times conduct themselves with dignity and fairness, they are entitled to advance their position forcefully when making closing submissions.

The Crown should not, however, engage in inflammatory rhetoric, demeaning commentary or sarcasm, or legally impermissible submissions that effectively undermine a requisite degree of fairness.

In R. v. Mallory1 Crown counsel overstepped her bounds. The Crown’s closing address, delivered over a five-day period, from January 10, 2000 to January 14, 2000, included controversial phrases and imagery that demeaned the defence position by suggesting that it was nothing more that an evasion of the truth designed to divert the jury from its sworn duty. Among the many objectionable passages cited by the court are the following:

We listened to [defence counsel] make their arguments to you, and as charming and able and articulate and even passionate and skilled as they are, as beguiling an argument can be, neither of them is a magician. Based on the evidence that you’ve heard in this case their clients are guilty and regrettably for counsel there’s nothing they can do about that simple fact.

It doesn’t matter how many times they call witnesses liars and evidence lies, they are still not magicians. There is too much evidence that they are asking you to just put aside and ignore. I’ve yet to meet anyone who can convince twelve reasonable people that black is white and white is black, and neither [defence counsel] is that person despite all the other obvious skills that they possess. When you consider what the defence has ultimately offered you, I would ask you to bear in mind this description of the octopus, I didn’t write it, it’s an old prosecutor’s standby, a prosecutor’s old standby, we’ll go that way, which comes from Victor Hugo and he writes: “The octopus is an animal that doesn’t have a beak to fight with like a bird, and it doesn’t have claws like a lion and no teeth like an alligator. All it has is an ink bag. When the octopus is attacked what it does is it releases a dark fluid into the waters making them dark and murky, enabling the octopus to escape in the darkness.”

I would ask you whether there is any similarity between that line of defence and the one you’ve observed in this courtroom. Has the defence shown you any real, valid, legitimate defence based on the evidence or have they simply approached this like the octopus and tried to obscure things by making everything around them dark, trying to escape back into the darkness? Is this not a defence that relies on obfuscation, of skewering the issues, keeping their fingers crossed that maybe you weren’t too insulted by what Mr. Mallory tried to fly by from the witness stand? What was that that Mr. Mallory gave you?

This trial for the Crown is a question of demonstrating to you beyond a reasonable doubt the factual and legal truths behind the charges that are facing the accused. We bear that legal burden throughout this trial and all trials. Let us be clear, however, that that is not what it is about for the defence in this trial or any trial and they’ve already told you that. The trial for the defence is not about demonstrating the truth; it is about raising a reasonable doubt. Raising a reasonable doubt is the sole objective of the defence and it is their only obligation. As they said, they don’t have to demonstrate anything. In order to raise a reasonable doubt they’ve tried to direct your attention from the evident into speculation. When we clear the waters, which the defence have tried to muddy …

There’s another standard prosecutorial analogy for this defence approach that you observed and it goes like this: The defence needs your faculties to be limited as though you were twelve blindfolded people trying to figure out what an elephant is using with only your sense of touch. One person touching the elephant’s trunk might think it’s a snake, someone else feeling the leg might think “Well this is a tree.” That’s what I’m dealing with. Another person feeling the tail might think it’s a rope. If the defence can prevent you from seeing the whole animal then you may well fail to reach the right result, you may not identify exactly what you’re looking at. They want you to stay blindfolded and focus only on certain details in isolation, out of context, and then at the end of it they’re better able to argue and convince you that perhaps it is a snake or a tree or a rope, but clearly, ladies and gentlemen, given that perspective, they would feel that they’re in a better position to say to you that you must have a doubt as to whether it’s an elephant.

The very suggestion that Denis Gaudreault fabricated his evidence and conscripted Jamie Declare and Jamie’s mom and Rhonda and Garrett Nelson, Gaudreault’s own mother, Sylvie and Richard Gravell, to corroborate him, that suggestion that Gaudreault could do that speaks more loudly of the desperation in the defence position than anything I could have conceived of on my own.

Following the Crown’s submissions, defence counsel objected to the rhetorical excesses in the Crown’s closing. Defence counsel asked for a mistrial, a corrective instruction, or an opportunity to reply (the defence had called evidence and the Crown had the last word before the jury). The trial Judge refused to declare a mistrial and declined to allow a right to reply. With respect to providing corrective instructions, the trial Judge said he would first have to read the written materials. The trial Judge began his charge to the jury and in the end failed to provide any corrective instruction on this issue.

The Court of Appeal for Ontario, however, described these comments by the Crown as demeaning and denigrating the role of defence counsel. The court also decided that the trial Judge improperly failed to redress her inappropriate comments. Her address was inflammatory.

The Crown’s role in the prosecution of criminal offences has long been recognized as quasi-ministerial. Success for the Crown is not measured in wins and losses. The words of Rand J. in R. v. Boucher3 are apt:

The role of the prosecutor excludes any notion of winning or losing; his function is a matter of public duty … It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.
Also, as Kerwin C.J. noted, the Crown’s role is to assist the jury:

…but he exceeds that duty when he expresses by inflammatory or vindictive language his own personal opinion that the accused is guilty, or when his remarks tend to leave the jury an impression that the investigation made by the Crown is such that they should find the accused guilty.

Even more recently, the Supreme Court acknowledged in R. v. Cook that while “it is without question that the Crown performs a special function in ensuring that Justice is served and cannot adopt a purely adversarial role towards the defence” it is also “well recognized that the adversarial process is an important part of our judicial system and an accepted tool in our search for the truth”. Within the adversarial process the Crown is permitted to act as a strong advocate.

2022 Criminal Trial Strategies - Patrick J Ducharme

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