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How to Laugh your
Way to an Acquittal

 

By Kevin D. Adams

 

These materials were originally written for a Continuing Legal Education (CLE) presentation given by Mr. Adams for the Tulsa County Bar Association in November of 2003. These materials are written for lawyers; however law students and non-lawyers may find them interesting as well. Nothing in these materials is meant to be legal advice.

 

 Overview

I like to call the method of closing argument that I have been successful in using the TRIPLE L .

First I use the pure simple L ogic. I want to give the jurors who are on my side the logic that they need to go back to the jury room and fight for my client. The Logic is the 1 st L.

When it is appropriate I break the logic down to the level of absurdity to show the absurdity of the Government’s position, this brings the L aughter. The Laughter is the second L

And then I support my Logic and Laughter with the Law. The L aw is the 3 rd L.

The Triple L

The L ogic

The L aughter

The L aw

THE LOGIC

The heart of your closing argument should be argument. Closing argument is not a time to just recap the evidence. Do not just state conclusions about the evidence, use logic to prove that your conclusions are the proper ones to draw.

 

Example —I heard a defense lawyer say once in a closing argument that the government’s case is like trying to put a square peg in a round hole. Then that lawyer moved on without explaining why.

 

You just can’t make a statement like that without explaining it. Otherwise you look like a jerk that is just attacking the government. You need to carefully explain why the government’s case is like putting a square peg in a round hole.

 

This lawyer could have used this square peg in a round hole theme quit effectively, but the lawyer never used logic to explain it. In the case the defendant was on trial for first-degree murder. He was accused of killing a store clerk during a robbery. At the crime scene the police had recovered a .25 caliber shell casing. From the defendant the government had recovered a .357 revolver. The police never recovered the murder weapon.

 

During the trial the prosecution asked one of the government’s witnesses whether you could fire a .25 caliber bullet from a .357 revolver. The government wanted to cast the inference that the gun recovered from the defendant could have been the murder weapon. This was a ridiculous position for the government to take. Even if it was possible to shoot a .25 caliber bullet from a .357 gun, the gun recovered from the defendant was a revolver. Revolvers do not eject the shell casings when they fire. And therefore the discovery of the shell casing at the crime scene did not fit with the government’s theory that the .357 revolver recovered from the defendant was the murder weapon. The gun that killed the store clerk was most likely a semi-automatic that ejects the casings after being fired.

 

The lawyer who said the government’s case is like trying to fit a square peg in a round hole was absolutely right, because the government was trying to convince the jury that the gun recovered from the defendant was the murder weapon and that did not fit with the evidence, just like a little kid who tries to put a square peg in a round hole. But that lawyer never used the logic to explain to the jury why they were right.

 

When arguing you have to break the evidence and the testimony down to show why it fits into your theory or why it does not fit into the prosecutor’s theory. Don’t just say it, show the jury why.

The “logic” that you use in your arguments does not have to be as logical as the example given above. The logic used in a closing argument does not have to be based on science, it can be based upon commonly held beliefs and strong feelings that jurors may hold.

Whenever I am preparing a case I always ask my self questions like; “What does the average person think about _________”, “How does the average person feel about _____________.”

If you can figure out what the average person feels about a subject that affects your case you may be able to use that to your advantage. You do this by talking to your friends and your family. If your friends and family are a bunch of lawyers go talk to other people too. Because lawyers are not average people and most often they do not think like average people.

Once you have thought about and discovered how the average person feels about certain topics in your case you can use that to your advantage.

For example. I once I represented a client who was charged with 1 count of sexually abusing minor and 3 counts of injury to a minor child.

 

My client had come home and discovered his home full of neighborhood children. His children were not supposed to have friends over unless one of their parents were home. My client slapped and then whipped each of his 3 step-children for having their friends over, without a parent present. My client then went back to work. One of the neighborhood children called the police because he had heard at school or somewhere that you were not supposed to whip children. The police show up and they are not impressed with the merits of the call so to speak.

 

The oldest child is mad and embarrassed that she was whipped and is trying to convince the police that her step-father was wrong. When the police are getting ready to leave she tells them that 3 weeks earlier when they lived in an apartment in Tulsa, that her step-father raped her. By the time she gets to the “ Justice Center” the story is 3 months earlier when they lived in New Mexico that her step-father raped her. I was confident that I could beat the sex abuse charge but I was worried about the 3 injury counts.

The reason I was worried about the 3 injury counts is because my client had left striped linear bruises on each child. These were deep bruises and I was afraid the jury was going to convict my client because of the bruises.

 

When I thought about the case and what average people think about spanking children I concluded that many average people believe that the child protection movement has gone too far. Many people believe that you can’t whip your children anymore. And a lot of people believe just what is in the bible “Spare the rod and spoil the child”. And that part of the reason we have trouble with the youth of today is because they are not whipped like we were when we grew up. I decided that many people did not like all of these doctors telling them how to raise their children.

 

In my closing argument I told the jury that “Growing up my father’s belt wasn’t just for holding up his pants. I come from one of those ‘go pick you switch type of families’.” I went on to talk about how you can’t whip you kids anymore like you could when I was growing up. I told the jury “if you whip your kids like my daddy whipped me than someone might just show up and put you in jail”. Then I talked about how when I was growing up we did not have all the problems with gangs and violence. That when I was growing up that we did not have 7 th grader’s taking guns into middle schools and shooting kids.

 

I went on to say “But they can just get my cell ready, because my wife is pregnant with our first child and that child is not even out of the womb yet and I can tell you that at some point in that child’s life that child is going to do something that requires my to take off my belt and whip that child the way my daddy whipped me.” I then said”I don’t need somebody with a sociology degree to tell me how to raise my kids, I don’t need to talk to Dr. Spock, I’ll raise my kids the way my daddy raised me and the way his daddy raised him.” After a little more than 3 hours of deliberation the jury acquitted my client of all charges.

 

These are closely held beliefs, I don’t know if science would support these beliefs but they are strongly held. For the purpose of closing argument I may as well been arguing the rule of gravity. And of course in jury selection I tried to find jurors who were more likely to hold these beliefs.

Now in the prosecutor’s rebuttal he stood up and said “I guess defense counsel is saying it is human nature to beat your kids.” That was a great thing for him to say, great for me and my client. Because he just adopted a position that is contrary to a closely held belief of the jury. He lost major credibility with that statement because he had not thought about how a jury really feels about the subject.

 

In your closing argument you need to express the facts and circumstances of your case in the way that the jury can relate to. I always try to break down the facts and use examples that the jury might see in their own life. You want to find experiences that the jurors have likely experienced and build your arguments around that experience. Often times I will come up with an idea based on what I believe to be a common experience and then I will test it out on my friends and family.

The experience does not have to be something that the jury feels strongly about. It can be something simpler.

 

For example: Everyone knows someone who is an exaggerator. Everyone knows someone who always has to stretch and embellish the truth. I was able to use this common experience to my advantage in a recent trial.

 

My client was charged with conspiracy to manufacture and posses with intent to distribute methamphetamine. They had witnesses that testified that my client took chemicals used to manufacture methamphetamine to a location where the methamphetamine was being manufactured. They had witnesses who testified that my client was present during the manufacture of methamphetamine. They had a document that showed my client had purchased 2 pounds of iodine crystals and took those crystals to the location that the methamphetamine was being manufactured.

 

My theory of defense was that my client was a drug addict just hanging out so he could get high. The problem was that the government had a witness who was going to testify that he saw my client manufacture methamphetamine and sell methamphetamine. If this was believed the jury was certain to convict my client.

 

After reviewing this witness’s statements I found three or four clear instances where this witness had exaggerated facts. Based upon the other evidence in the trial I knew that the jury would believe this witness exaggerated these facts.

 

I set up my closing argument in my cross examination of this witness. First I carefully walked him through the motive that he had to lie. I carefully explained how much time he was facing if he did not cooperate and carefully went through all he had at stake. Then I elicited his testimony regarding the facts that he had previously exaggerated. Based on the testimony of the other witnesses I knew the jurors would believe he was exaggerating. Then I went through and accused him of exaggerating those facts. He of course denied it.

 

Later in my cross examination I highlighted his testimony that was harmful to me and once again accused him of exaggerating. I then accused him of being an exaggerator generally and having a reputation as an exaggerator. When I accused him of being an exaggerator I used examples of his exaggeration that everyone could relate to. Exaggerates/brags about how much money he makes, exaggerates/brags about the women he gets, exaggerates/brags about how tough he was. He denied all of these as well.

 

Now I knew I had to deal with this guy in my closing argument. And when talking about him I told the jury you know this guy he is the “Exaggerator” he is the guy who always brags about how much money he makes but he is always broke, he is the guy who has a beautiful girlfriend that you never see, he is the guy that used to have a really nice car.

 

Everyone knows someone who is like that and they can’t stand him. The idea is to relate this case to the jury’s everyday experiences. The idea is to use beliefs and ideas that have already been formed by the jury to your advantage. It is easy to convince someone of something they already believe. What you have to do is figure out what the jurors already believe about a subject that is related or can be related to your case and convince them that the facts before them are the same as their previous life experiences.

I had a case where my client was accused of sexually abusing his step-daughter. I lucked out in jury selection and got a good jury. My client was poor and black and I had two poor black guys on the jury that were in their twenties. I thought about the case and talked to a lot of my friends and concluded that one of the things that guys worry about is being falsely accused of rape or sexual assault. I felt particularly strong that these 2 young black guys would harbor those fears. So I decided to use that to my advantage. During the closing argument I said the following.

 

You better be careful out there fellas. It’s rough out there. Man you better be careful. You get hooked up with some girl who has some young kids, things go bad, before you know it her kids are making an accusation against you, next thing you know they are leading you off in handcuffs You better be careful. After I said that these two black guys looked at each other and smiled.

The Laughter

For the most part the laughter is an extension of the logic. When it is appropriate you break the logic down to the level of absurdity to show the absurdity of the government’s position or of the witness’s testimony.

 

For Example In my first jury trial my client was accused of sexually abusing his step- daughter. The step-daughter was 16 years old and claimed that my client had been having sex with her for years. She said my client had sex with her approximately 100 times. The step-daughter was not on birth control, she never got pregnant, that she claimed my client never used a condom and I was able to establish through expert testimony that my client was capable of fathering children. In her testimony the step-daughter said that when my client had sex with her that it took an average of 10 minutes per time.

During my closing argument I said “Now we all heard her testify that during the trial that when her step-father would have sex with her that it would take about 10 minutes. Now I don’t want to get into the logistics of it and I don’t want to gross anybody out, but we all know that is a lie. If I was sitting next to you in a bar and told you that I took 10 minutes you wouldn’t believe me, If a girl told you that her boyfriend took 10 minutes you wouldn’t believe her. 10 minutes! I should be so lucky 10 minutes my wife should be so lucky, don’t get me wrong it is possible but not very likely.”

 

I went on to talk about the testimony that he had unprotected sex with her all of those times and never got her pregnant. I reminded the jury of what she said and told them “there are guys out there who try that one time and pay child support for the next 18 years.”

 

The things I say may be a little outrageous but they are funny because they are true. When you listen to comedians most of what they say is a bit outrageous but it is funny because it is true. And because they are so true the jury can relate to what I am saying.

 

Example: In the federal drug conspiracy trial I was involved in one of the government’s star witnesses, Coni Johnson, had numerous aliases, she had been arrested for writing bad checks and she had fraud convictions. When I am attacking the credibility of the government’s witnesses I always like to us examples that the jury can relate to in their own life. For example in the federal trial I went through the following argument.

 

Are the government’s witnesses the types of people that you would rely upon for some of the less serious decisions in you own life? Would you take a check from Coni Johnson, would you take a hot stock tip from her, would you buy a used car from the woman , would you loan her your car. I usually like to end this barrage of questions by asking the jury” would you let her walk your doggie?” I then finish the argument by say if you wouldn’t rely upon her for some of the less serious decisions in your own life than how can you possible rely upon her for the most serious decision in my client’s life.

 

Example: In this same trail I had elicited all the evidence that I could about my client being a bad drug addict. During the trial experienced drug addicts had testified that they tried to get my client, Jimmy Ritz, to slow down on his drug use. One witness testified that his drug use got so bad she actually stopped hanging out with him because of it. My theory of defense was that me client was a drug addict just hanging out trying to get stoned. I was concerned that the government would get up on its rebuttal and concede that my client was a drug addict but claim that he was a drug addict who got involved in a conspiracy to manufacture drugs so that he could get stoned. So I argued the following ”Jimmy Ritz is the last person that you would ever want to enter into a drug conspiracy with. You wouldn’t make any money. Talk about don’t get high on your own supply.” I went on to say “Jimmy what happened to all of those drugs Jimmy, Jimmy we were supposed to sell that, Jimmy if you keep using all the drugs we are not going to make any money Jimmy” I then told the jury that entering into a drug conspiracy with Jimmy Ritz would be like opening a buffet with a Sumo Wrestler. It’s really going to eat into the profits.

 

In trying a case, one of the most important things to remember is be yourself. Closing arguments are no different. Being yourself builds credibility. The jury can tell if you are not being genuine. To that end if you are not funny do not try to be. If people generally do not laugh at your jokes a jury probably will not either. In fact juries are very likely not to laugh at your jokes. You can tell if a jury thinks you are funny or not because you will catch a few of them smiling. But they are unlikely to laugh out loud in the courtroom. Below is an example of an instance where I got a couple of jurors to laugh out loud.

 

My client was on trial for sexually abusing a minor child. My client’s step-daughter had been removed from the home because my client’s wife had whipped the child too hard. While in her foster home the child who was eight was found in a rather compromising position. On Valentines Day Night the foster mother walked into the child’s room and found her asleep with her pajamas and panties down around her knees. The foster mother began to question the child about what she was doing. The child told the foster mother that she was pretending that she had a boyfriend. The foster mother continued to question her about what was going on and began to tell her that she needed to know whether someone had touched her inappropriately. The child denied it and the foster mother continued to question her telling her that she needed to know what was going on.

 

The foster mother asked specifically about whether her step-father had touched her inappropriately. The accusations against my client grew out of this improper questioning of the child.

 

In my opinion one of the most important ingredients of a successful defense in a sex abuse case is a motive for the child to lie. It is not enough to show inconsistencies you must show motive. I believed that the child was caught in a bad situation and after the repeated questioning by this foster mother the child made a statement to get the foster mother to leave her alone and then could not take it back.

 

In my closing argument I told the jury that if my mother would have walked in on me playing with myself when I was a child and started questioning me about what was going on, telling me that she needed to know what was going on that she had to know what was going on I would have told her that Santa Clause had molested me if I thought it would get her to leave me alone. And if she would have kept questioning me I would have told her Rudolf was involved.

 

Do not say outrageous things just to be funny. The goal is not to be funny it is to win the case. Think about the things you say before you say them. Make sure that they help your case and not hurt your case by offending the jury.

 

The Law

I generally believe that most jurors make decisions off of their personal belief and not the Jury Instructions. There are all types of decision makers and different arguments appeal to different people. Also if you can argue the law you can give those jurors who are on your side the ammunition they need to go back into the jury room and fight for you.

Arguing the law helps in almost any case. In preparing my case and again before the closing I always read over the expected jury instructions and look for themes that can help my case.

If you have a complex legal idea or defense you should always argue the law. For instance the case where my client was charged with abusing his 3 step-children because he had left bruises, my client testified that he had whipped his children and that he left the bruises. We had to admit this, but my client testified that he did not intend to injure his children that he only intended to discipline them. My client was charged with a specific intent crime. He had to commit the acts with the intent to injure his children in order to be guilty. If my client whipped his children with the intent to discipline his children and the injuries were an unintended result than my client was not guilty. In this case I used an example of shooting with intent to kill to explain the difference.

In the case where my client was charged with drug conspiracy I carefully went through the instructions that were favorable to me. Conspiracy is difficult to understand and I want to make sure the jury understands the legal requirements of a conspiracy.

In the case where I had painted the guy as an exaggerator the judge gave an instruction that said.

You should consider the testimony of witnesses testifying in exchange for reduced criminal liability with more caution than the testimony of the other witnesses. They may have had reasons to make up stories or exaggerate what others did because they wanted to strike a good bargain with the government in their own case.

 

I read this part of the instruction to the jury. I pointed it out. I reminded them of what the witness exaggerated about. I called it the “exaggerator instruction”.

The judge also gave an instruction on reasonable doubt that defined it as;

Proof beyond a reasonable doubt must be proof of such a convincing character that you would be willing to rely and act upon it unhesitatingly in the most important of your own affairs.

 

I used this to support the argument I made about whether or not you would rely upon these people in some of the less serious decision in your own life.

Conclusion

I hope my experiences will help you in your cases. This is certainly not the only way to give a closing argument. It is just what has worked for me. If I can be of any assistance to you or you would just like to bounce some ideas off of another attorney feel free to give me a call.

 

 

 

Copyright ©2003 Kevin D. Adams

Disclaimer: Kevin D. Adams only provides legal advice after having entered into an attorney client relationship, which this website specifically does not create. Only after having entered into a representation agreement with Kevin D. Adams will an attorney-client relationship have been created. It is imperative that any action taken by you should be done on advice of legal counsel.* Because every case is different, the descriptions of outcomes and cases previously handled are not meant to be a guarantee of success.

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