Massachusetts District Attorneys Association the massachusetts prosecutors’ manual: domestic violence & sexual assault

7.12.CLOSING ARGUMENT

7.12.1. Standards

“A prosecutor is entitled to argue the evidence and fair inferences to be drawn therefrom.” Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 231 (1992). The inferences need only be reasonable and possible; they need not be necessary or inescapable. Commonwealth v. Dinkins, 415 Mass. 715, 725 (1993). Counsel may also attempt to assist the jury in their task of analyzing, evaluating, and applying evidence. Such assistance includes suggestions by counsel as to what conclusions the jury should draw from the evidence. Counsel may “fit all the pieces of evidence together so that they form a comprehensive and comprehensible picture for the jury.” Commonwealth v. Ferreira, 381 Mass. 306, 316 (1980) (citations omitted).

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  O.K. to dramatize an argument by hypotheticals, analogies and metaphors, Commonwealth v. Brownell, 145 Mass. 319, 323 (1887); or imaginary dialogue or situations (but don’t suggest the examples are true in fact), Commonwealth v. Clary, 388 Mass. 583, 590 (1983)
  
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  O.K. to argue general principles, e.g. Commonwealth v. McColl, 375 Mass. 316, 323 (1978) (O.K. to argue public has rights as well as the defendant)
  
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  O.K. to refer to matters of common public knowledge based on ordinary human experience and to matters of which the court may take judicial notice, S.J.C. Rule 3:08.
  
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  O.K. to appeal to common sense or experience, Commonwealth v. Campbell, 378 Mass. 680, 704 (1979)
  
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  O.K. to comment on defendant’s courtroom demeanor such as squirming, smirking, laughing, or making faces, Commonwealth v. Pullum, 22 Mass. App. Ct. 485, 488 (1986)
  
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  O.K. to comment on pre-arrest, pre-Miranda “adoptive admission by silence” -- not responding to a direct accusation, Jenkins v. Anderson, 447 U. S. 231 (1980)
  
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  O.K. to argue, with basis in evidence, that defendant tailored his testimony to the Commonwealth’s evidence, Commonwealth v. Sherick, 23 Mass. App. Ct. 338, 347 (1987)
  
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  O.K. to characterize testimony as “lies,” “con-jobs,” “made-up testimony” or “concocted stories” where supported by directly contradictory evidence, Commonwealth v. Fitzgerald, 376 Mass. 402, 422 (1978), but avoid characterizing a witness’s testimony as perjury, MacDonald, 368 Mass. at 400-401
  
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  O.K. to comment upon witness’s fear, unless done in bad faith or without foundation, Commonwealth v. Fitzgerald, 376 Mass. 402, 422 (1978)
  
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  O.K. to characterize counsel’s emphasis on minor matters as “smoke,” Commonwealth v. Gonzales, 22 Mass. App. Ct. 274, 282 (1986)
  
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  O.K. to comment on experts credibility and fact she’s being paid, Commonwealth v. O’Brien, 377 Mass. 772 (1979), but don’t refer to them as “hired guns,” etc., without basis in evidence they are being paid extraordinarily high fees. Id.
  
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  O.K. to respond to defendant’s argument that the prosecutor works with the police and has an interest in a conviction with assertion that you are interested only in justice (but would be improper if was just an expression of personal belief in the defendant’s guilt), Commonwealth v. Yelle, 19 Mass. App. Ct. 465 (1985)
  

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  don’t comment on the availability of appeal, Commonwealth v. Diagle, 379 Mass. 541, 549 (1980)
  
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  don’t comment on the consequences of the verdict: Counsel may not comment on the sentence the defendant might receive if convicted, Commonwealth v. Ferreira, 373 Mass. 116 (1977); Defense counsel can’t argue that the defendant’s liberty depends on the jury’s verdict, Commonwealth v. Davis, 271 Mass. 99, 100-101 (1930)
  
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  don’t attack the defendant’s character if it has not been put in issue, Id. (that defendant “shouldn’t be allowed on the streets”); Commonwealth v. Borodine, 371 Mass. 1, 10 (1977) (that defendant has shown no remorse)
  
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  don’t comment on the defendant’s failure to testify: Mass. Gen. Laws ch. 233, § 20, including referring to facts as uncontested where the defendant is the only one who could contradict the testimony, United States v. Skandier, 758 F.2d 43, 44 (1st Cir. 1985)
  
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  don’t suggest that controlled, normal courtroom behavior (sitting quietly, reading, taking notes, or consulting with counsel) suggests consciousness of guilt, as it may be an improper reference to the defendant’s failure to testify, United States v. Young, 470 U.S. 13 (1985)
  
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  don’t comment on the defendant’s silence after Miranda rights, Doyle v. Ohio, 426 U.S. 610 (1976).
  
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  don’t provide a detailed argument as to the law of the case; the law must be taken from the judge’s charge; defense counsel has no right to offer a legal definition of reasonable doubt, Commonwealth v. Liebman, 379 Mass. 671, 678 (1980)
  
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  don’t refer to what an absent witness would have testified to, Borodine v. Douzanis, 592 F.2d 1202, 1209-1210 (1st Cir. 1979)
  
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  don’t recount counsel’s personal experiences, Commonwealth v. Shelley, 374 Mass. 466, 471 (1978)
  
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  don’t tell the jury to use its imagination, Commonwealth v. French, 357 Mass. 356, 403 (1970)
  
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  don’t display props that have not been admitted in evidence, Commonwealth v. Hoppin, 387 Mass. 25, 30 (1982)
  
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  don’t express a personal belief in the defendant’s guilt or innocence or the credibility of a witness, or assert personal knowledge of the facts in issue, S.J.C. Rules 3:07 and 3:08, DR 7-106 (c)(1), (3) and (4); avoid “and that’s the truth” or “and you will agree with me”; try to use “I suggest” or “I submit,” as preferential to “I think”
  

7.12.2. Style

You want your argument to be smooth -- to flow well and keep the jury’s attention. If you are succeeding at this, defense counsel may try to interrupt you with objections. Don’t let him get away with this. If counsel has gone beyond one or two irritating interruptions, ask for a sidebar and provide the judge with the following support for stopping such a ruse:

Objections to closing arguments will normally be preserved by requesting curative instructions after the objectionable closing; it is not usually necessary for counsel to interrupt the argument.
Commonwealth v. Cancel, 394 Mass. 567 (1985); Commonwealth v. Johnson, 374 Mass. 453 (1978).

7.12.3. Substance

Your job in closing is well defined: convince the jury the proper and just result is a verdict of guilty.

(1). Tie the case together.

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  repeat the story again, in keeping with your theme
  
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  show how even the defense’s case (if there is one) supports your theme; make each and every defense argument an argument for the Commonwealth
  

e.g. they say the rape victim was a prostitute, and the trick “went bad”; you show how this defendant targeted this woman because she had a history of prostitution, expecting she would get no support from the criminal justice system

e.g. they say “even” the alleged victim in the case doesn’t think the case should proceed against the defendant; you show how this further illustrates the power and control he has over her
e.g. they say look at the warm affection the defendant displayed to the victim, only hours after the alleged assault, look how she accepted him back into her home, this is not the picture of an abusive man, etc.; you say yes this is the illustration of a man who has beaten and abused his wife, and a woman who is in an abusive relationship -- and you show how the patterns of the defendant’s behaviors display a repetitive cycle: tension building, followed by violence, followed by contrition and loving attention

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  weave all corroborating evidence together: from the detailed nature of the victim’s account through all physical evidence, all witnesses, all excited utterances, first complaint, etc. (review section 3.8 to help you compose a list of the types of corroborating evidence the jury now has before it)
  

(2). Attack any biases, prejudices or other improper attitudes towards the victim that have been included -- explicitly or implicitly -- in the defense’s line of questioning or in argument.

(3). Review each element of each offense and show the jury how the burden of proof has been met.

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  in doing so, incorporate key phrases from model jury instructions which you expect the judge will use in his charge; when the jury hears those phrases again during the charge, they will make connections to your closing
  

(4). End with your “theme.”

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