I have no way of knowing how important closing speeches are. I know of no research that even begins to throw light on whether they make the slightest difference to the outcome of a trial, or whether, by the time for speeches has arrived, juries or magistrates have usually made up their minds.
So most of what I am going to say is not based on solid evidence.
Nevertheless my feeling, and one that is probably shared by most advocates, is that the closing speech is one of the most crucial parts of the case. It is where you have the chance to marshal your arguments; to make the points explicitly that previously had only been implicit in your questions; and, just asimportant, to deal with the points made by the other side.
It is surprising how little impact technology has made in most court-room speeches. There are some cases in which counsel operate clever computer gimmickry but they remain the exception, usually for very complicated or serious cases, and not the rule.
The ghastly paraphernalia of the “presentation” – Powerpoint, interactive whiteboards and bullet point projections of what the speaker is about to say – have, I am glad to say, made no impact at all. This is probably because such aids actually distract from what the speaker is saying.
That is not to say that a few well chosen props cannot be quite effective. Nothing beats the drama of handling Exhibit 1, the blood-stained knife, and drama makes a jury listen. I was once fortunate enough to be led by Nigel Pascoe QC – who knows more about both advocacy and theatre than anyone – in a baby shaking case. Although he could not produce a baby for his closing speech, he did the next best thing by producing a realistic doll which he then proceeded to manhandle in a vivid demonstration of how a parent should not behave with a crying baby.
But with or without props, only two things define how persuasive your speech is: what you say and how you say it.
Different types of closing speech.
There is of course an important difference between a closing speech for the defence and one for the prosecution. As a rule the defence will be trying to ask difficult questions, while the prosecution will be trying to provide irrefutable answers.
There are also differences between both the technique and the procedure in a Magistrates Court (where generally speaking the prosecution does not make a closing speech) to that in the Crown Court. (where it usually does).
So here are some hints for advocates who have not had much experience. Many of them are, of course, of equal relevance to prosecutors and defenders. But in general the focus will be on representing the defence.
Preparation for the speech starts when the jury panel comes into court
I don’t mean by this that you need to have started to write a speech before the trial starts, although you should, of course, have a strategy and the beginnings of a plan for how you would like to address the jury at the end.
What I do mean is that when you stand up to make your final effort to persuade the jury you must be somebody that they will pay attention to. They don’t have to like you – it is a good thing if they do – but if they don’t take you seriously, and especially if they don’t trust you, there is no way that you will be able to persuade them of anything.
So whenever the jury is in court, and preferably of course even when they are not, you must be sensible, reasonable and straightforward. It is also a great help to be polite. Amongst contemporary politicians few have generated as much vitriol from his opponents as the Education Secretary Michael Gove. Watch the way he deals with it: he is scrupulously polite to all, no matter how rude they are to him. You may or may not approve of his policies but you should copy the way his good manners disarm the fiercest opposition.
A grey and scruffy collar and a rumpled pair of bands creates a very bad impression; as though you can’t be bothered.
On the other hand a battered and balding wig is better than a new white one; It makes the wearer look more experienced.
If you are defending, make a good note of the prosecution opening speech. It is surprising how often prosecutors say something in their opening speech which turns out to be flatly contradicted when the evidence is called. When that happens, what better way to highlight the fact than by quoting from the opening speech in your closing address to the jury?
When you make a mistake, admit it straight away.
When you have taken a bad point, concede it.
When your opponent makes a good point, acknowledge it.
Do not insult witnesses.
Do not interrupt or be rude to your opponent or the judge. Not only does this make for far more pleasant atmosphere in court, it also makes you seem more serious, sensible and therefore authoritative.
Many jurors will have seen American court-room dramas, some may even have watched American court TV (for legal nerds, like`me and probably you if you have read this far, it can make for very enjoyable viewing). They may, as a result, be expecting all sorts of shouts of “Objection!” and “Strike that from the record!” and probably a judge furiously hammering his gavel as grandstanding attorneys approach the bench. To start with they will be disappointed when they see that that is not really the way we do things.
But jumping up and down and yelling “objection!” is definitely not the way to impress jurors. This does not mean you have to roll over and concede every point: if something is important then of course you will have to contest it. If you are angry for good reason, as occasionally you may be, show it. But do so politely and never lose your temper. Genuine anger will be all the more effective for being deployed sparingly and only when it is actually appropriate.
Try to keep an eye on how the jury are reacting as the trial continues. It is usually very difficult to “read” a jury, but sometimes it is obvious that a particular witness, or a piece of evidence has struck home.
Some advocates have a way of cross-examining witnesses while not looking at them at all, just at the jury. The idea is that you keep in touch with the jurors – they see your face and you see theirs. But to my mind it smacks of rudeness to the witness. You are asking him questions so you should at least pay him the courtesy of attending to his answers. If the focus of your attention appears to be on the jury it gives the impression that you are putting on a show instead of seriously listening to the evidence. To put it bluntly, it can make you look like a slimy lawyer.
Put yourself in the jury retiring room. Whose arguments are going to carry more weight: those of the slimy lawyer or those of a sensible and straightforward lawyer?
Never, ever misquote the evidence
Nothing will lower your credibility with the jury more quickly and more certainly.
It goes without saying that you will not do so deliberately. But in the heat of battle wishful thinking can sometimes play tricks with ones memory. It is easy to miss the crucial word, or worse still, to imagine that something was said when it was not. Before you take a point based on what a witness has said you must be absolutely sure that you are quoting the evidence correctly.
For this reason it is essential that, if it is possible you keep, or at least have somebody behind you keeping, a good note of the evidence. Some advocates are reluctant ever to make a note, but unless you have a remarkable memory you should not be one of them.
Many beginners might think – why bother with notes? After all everything is recorded. And so it is (including, these days, conversations between counsel while the judge is out of court, so be careful what you say, unless you want a Gordon Brown style embarrassment don’t call the judge a “stupid bigoted woman” in the court-room: wait until you reach the robing room); but for practical purposes you will not be able to access the recording except occasionally to check on some particularly important disputed evidence.
You cannot expect to note everything that is said, but with practice you should be able to get the most important bits down, except of course when you are on your feet yourself. If you have no-one behind you to take a note of your cross-examination then, if you have made some progress, as soon as you sit down make a note of at least the most important answers that you received.
Should I write my speech out?
Beginners often worry about this and opinions differ. There is no right answer. My opinion is that in general you should.
Sometimes, of course, – and it is one reason why advocacy in front of the Magistrates can be much harder than in the Crown Court – there is simply no time to prepare a closing speech. You call your client, he cuts a miserable figure in the witness box; and it’s “Yes Miss Bloggins?”. Off you have to go and do the best you can.
But usually you do have at least an hour or so to prepare the speech. It is almost always time well spent.
To deliver a closing speech extempore is not easy. There are those who can do it well, and they can make exceptionally good advocates. Their speeches are likely to be lively, spontaneous and convincing, and the lack of any writing will leave the advocate free to connect with the jury. Think, for example, of Boris Johnson’s speech at the end of the 2012 Olympics. It had all the hallmarks of being beautifully unprepared and was as a result hilarious, joyful and perfectly pitched to the occasion. But only he could have done it. Nobody else could have emulated Boris’s apparently bumbling ramblings and carried the audience with them.
And in fact even bumbling Boris may not have been as unprepared as he seemed. If you watch the speech carefully you will see that he appears to be looking at notes of some sort as he speaks.
There are some criminal advocates who can do something similar but they are invariably individuals with their own inimitable styles. You are almost certainly not one of them.
There are plenty who think they can do it but cannot. Nothing is achieved by rambling on about the burden of proof and drifting aimlessly over a few bits of evidence. You will lose your audience. Remember that unlike a theatre audience they haven’t chosen to come and watch you, they have been forced to do so. They can’t get up and leave, nor can they usually heckle (although occasionally, and very disconcertingly, they write notes and pass them to the usher as you are speaking). Once they get bored with you their main way of showing their displeasure is to give their support to the other side. You will know if you have lost a jury’s attention. It will sit sullenly silent, not smiling, not frowning, just staring vacantly. You will have the devil’s own job to get them listening to you again.
So don’t be afraid of writing out copious notes, or even of writing the whole thing verbatim. Juries don’t mind if you use notes.
Churchill used to do it. In fact he would spend hours changing a word here, a paragraph there and would even practise out loud until he was satisfied.
Nelson Mandela’s famous speech in the Rivonia treason trial (strictly speaking it was an unsworn statement from the dock) was written out more or less verbatim, and fortunately his notes have been kept for posterity so we know that he always intended to end with this magnificent, courageous peroration:
During my lifetime I have dedicated myself to this struggle of the African people. I have fought against white domination, and I have fought against black domination. I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die.
Margaret Thatcher was writing her conference speech at 2.45 a.m. when the Brighton bomb exploded. She re-wrote it and delivered it later that day.
There have been many other great political orators and very seldom do they simply stand up and speak. Their speeches have almost invariably been painstakingly written, often over several drafts. And many, many first rate advocates routinely write and re-write their closing speeches.
Remember, though, that you are writing a speech not an essay. Keep your sentences short and your points – as far as you are able – reasonably simple. There is nothing worse than constructing an argument that might be perfectly good on paper, which is too complicated to explain to a jury. You will get lost, the jury will get lost and your client will pay dearly for your mistake.
If you have written down what you want to say you will at least have a structure and argument of sorts, and this will make it far less likely that you will lose your direction.
However, it is one thing to write it: it is another thing altogether to read it. You absolutely must not do that. Nor should you try to memorise it: you don’t have time, and even if you did a speech recited from memory is unlikely to work very well. You will sound like a ham actor delivering a soliloquy.
The point of writing the speech is rather different. You will find that the act of committing it to paper, or even to a computer screen sparks thoughts in a way that does not happen when you simply stand up and speak. Arguments present themselves, connections suddenly make sense. You can check the evidence to ensure you do not misrepresent it. If you are lucky useful turns of phrase and helpful analogies will occur to you.
All this will be of enormous assistance when you actually address the jury. If you have written it down you will know exactly where you are going and soon you will find that you seldom need to look down at your notes at all. You almost certainly won’t say exactly what you wrote down. That doesn’t matter a hoot. In fact it probably means you will sound more natural; it is easy to write something down that sounds awkward when spoken out loud. But the fact that you have written it will be a comfort. You will know that if – and it happens to almost everyone – you somehow get lost or forget where you are going you can glance down and get yourself back on track.
What do I do with my notes?
You need them to hand, but the typical court room desk or table in front of counsels’ row is far too low for most people to be able to read their notes easily when they are standing up. So you will have to prop them up with something if you are going to be able to use them. Different advocates favour variously a pile of lever arch files, an empty cardboard box or a couple of Archbolds.
Of course a lectern would be ideal but a ridiculous etiquette has it that only silks are allowed to use lecterns. As a result at many courts they are not even supplied, and at the more conservative venues you, as a mere junior, will face stern judicial disapproval if you try to use one. A notable exception is Guildford Crown Court where the legacy of a popular local barrister Frank Gillibrand has been used to purchase lecterns for every court-room. Silks are rare birds in Guildford and the lecterns are gratefully used by all.
In neighbouring Winchester a well-intentioned designer incorporated them into the structure of the 1970s court-rooms, Unfortunately, he was not a very good designer, or at least not very good at designing lecterns, and they are so awkward to use that you are almost better off without them.
What is the best time of day for my speech?
The answer is, as with so many things in advocacy not at all clear. My view is that 10.30 in the morning is usually the ideal time.
There are those who prefer last thing in the afternoon. The theory is that jurors then leave the building with your arguments ringing in their ears and reverberating around their cerebella all night long. I disagree. When jurors are tired or bored they want to go home, or start their weekends; they don’t want to listen to you. And unless they listen it does not matter how good your arguments are, they will be in vain. Most advocates would do a great deal to avoid having to address a jury on a Friday afternoon. The advantage of having the last word before a weekend is far outweighed by the fact that the jury will subconsciously resent you for delaying its start.
So the sensible advocate will generally try to ensure that his or her speech is heard first thing in the morning. Not only is that when the majority of people are most alert, it also gives you the evening before and, if necessary, the morning before to prepare your speech.
Of course whether you can speak in the morning all depends on the evidence and the flow of the trial, but there are ways of improving your chances.
You can, of course simply ask:
The traditional way is to say, perhaps disingenuously:
“I could do my speech now, but I suspect be that it will be considerably shorter if I could have a little time to focus it on the main issues.”
There is no reason why a well prepared speech is necessarily shorter than an unprepared one. In fact the opposite is often the case, so this sounds a little insincere.
So it is better to be blunt:
“I would like a little time to sharpen my thoughts. I wonder whether Your Honour would be prepared to rise a little early this afternoon, and perhaps make the time up by starting half an hour early tomorrow morning?”
It would be a harsh judge who rejects such a reasonable request.
But harsh judges do exist. Such a judge will almost certainly have started sitting half an hour earlier than usual anyway. These days they are all under constant pressure to cut delay and get through their lists as fast as possible. From the point of view of the public, and indeed other litigants that may be desirable. But you do not represent the public or other litigants, you represent the defendant: you certainly do not want to cut corners if the result is that your client is even slightly more likely to go to gaol.
If you have the misfortune to appear before one of these troublesome Ministry of Justice enforcers, do not allow yourself to be bullied.
A good way of dealing with such a judge is to time your legal submissions carefully. There are few cases in which there is not some sort of discussion about the law at some point between the end of the evidence and the judge’s summing up. Indeed, the Court of Appeal strongly encourages the practice. Even if the law seems to you entirely straightforward you need to be sure that the judge thinks so too. Maybe he has missed something, maybe you have. Anyway it can get boring sitting on the bench just observing the trial. Some judges are delighted to be given a chance to play a bigger part by wrestling with a legal issue.
So you are always entitled to make legal submissions, and half past three in the afternoon, after all the evidence has been called, is a very good time to make them. By the time the jury has been sent out and a check-list of directions sorted out it should be getting on for 4 o’clock, even if there isn’t much to argue about.
Perhaps there is time for the prosecution to make a speech then, but probably not for the defence too. That, in fact, might be the perfect outcome from a defence point of view.
The Defence Closing Speech in the Crown Court
Your simple objective is to raise at least one fundamental doubt about the prosecution case.
If that is done then it will be impossible to be sure of your client’s guilt and you will be acquitted.
Broadly speaking defence arguments fall into four categories.
First, and probably most common, are those cases where the prosecution witnesses’ reliability is challenged; typically, perhaps an identification issue, or a self-defence case turning on “who threw the first punch.”
Secondly: cases where the witnesses’ honesty is challenged. Historic sex cases, for example, often leave little scope for mistake or misunderstanding: one or other party must be lying.
Thirdly: cases which depend upon disputed expert evidence. An example might be a “baby battering” case where, relying upon evidence of broken ribs, bruises and brain damage the prosecution experts assert that a baby must have been shaken, even though no-one has seen it happening.
Finally cases where the prosecution evidence is accepted but the prosecutor’s interpretation of the evidence is disputed: for example a conspiracy to supply drugs where the telephone and observation evidence is agreed, and the argument is over whether it does in fact prove a conspiracy.
Of course these categories overlap a lot. A drugs conspiracy, for example, may involve surveillance officers who are mistaken in their observations, a “supergrass” lying to save his own skin, forensic scientists making mistakes in an analysis of drug residues on bank notes and a prosecutor drawing unwarranted conclusions from the telephone evidence.
In other cases, perhaps particularly street or pub fights, it may be possible to argue that the witnesses are either unreliable or dishonest.
But identifying which type of case you are dealing with should help you to concentrate your fire where it is needed. In a sex case, for example, if the dispute is whether the incident took place at all the issue is almost certainly honesty. If so, there is no point in wasting time demonstrating that perhaps the complainant was unreliable on some of the surrounding details.
“Members of the jury this woman couldn’t even remember if the defendant was wearing a red top or a blue top?”
It invites, in fact demands the response:
“So what? If that’s your best argument we’re against you.”
How long should my speech be?
As so often, Churchill was right. “A good speech should be like a woman’s skirt: long enough to cover the subject and short enough to create interest.”
Typically, in a 3 – 5 day trial this means 30 to 45 minutes; if the trial has lasted a couple of weeks then perhaps up to an hour.
What should I say?
The most important part of your speech is that which deals with the burden and standard of proof. You simply cannot take it for granted. And given its importance you should usually deal with it near the beginning of the speech; and at the end; and in the middle.
Don’t forget that being “sure” means the same as being “sure beyond reasonable doubt”. The latter is a well-known phrase with a solemn ring to it and I rather like it. One does not want to make too much of the analogy but the difference is rather akin to that between the poetic language of the Authorised Version and the more prosaic words of the New English Bible.
Unfortunately, once you have addressed ten or twenty juries on the subject of the standard of proof, it can get rather boring and mechanical. It is impossible every time to think up a new way of saying much the same thing. On the other hand, remember that what may bore you, just because you have said it all before, will not necessarily be boring to the jury.
I am regularly heartened by the seriousness with which juries take their task. Many will remember the superficially foolish sounding questions asked by the jury in Vicky Pryce’s first trial for perverting the course of justice. One of the questions it asked was “what is reasonable doubt?” The jurors were widely castigated for asking such an apparently stupid question: but plenty of our senior judges over the years have proved themselves equally baffled by it.
The answer, according to the trial judge Mr Justice Sweeney, is that a reasonable doubt is “a doubt which is reasonable.” That was a very straight answer. Other judges have attempted more detailed elucidation, usually by saying what it does not mean. It does not mean proof “beyond a shadow of a doubt”1 Nor does it does it mean “a doubt for which you could give reasons….”2 On the other hand it might mean “the sort of doubt that might affect the mind of a person in dealing with matters of importance in his own affairs.”3 So the jury’s question was not actually stupid at all; it simply revealed that the jurors were quite properly agonising over the meaning of a phrase, something that is, indeed, difficult to pin down. It is hardly surprising that they asked for help.
So, what do you say to the jury about the need to be sure before convicting?
As judges have found, it is much easier to define what being “sure” is not than to say what it is. For this reason many advocates give some such explanation as this:
“Being sure does not mean you saying to yourself: “I think he did it”, or “he probably did it”, or even “I’m almost sure he did it.” If the prosecution have made you almost sure then they have not proved the case to the high standard that the law requires. If there is a possibility that you could be mistaken then you are not sure, and the proper verdict is one of not guilty.”
To some extent the way you pitch this part of the speech depends on how strong the case against you is.
If it seems a very strong case then the standard of proof is probably one of your only points. You can afford to devote quite a lot of your speech to it.
On the other hand, if you have plenty of other good points to make they can seem a little devalued if you stress the burden of proof too much. There is always the danger that a jury will think:
“Why is he going on about the burden of proof? It must be because all the evidence supports the prosecution and he is hasn’t got anything better to say.”
Of course, if you haven’t got anything better to say, then so be it. But it is remarkable how in most cases good defence points do tend to emerge as the case plays out.
Generally speaking it is best to concentrate your fire on attacking the main prosecution points rather than trying to shore up your own witnesses. It is not, after all, your job to prove a case but to show that the prosecution case is unsafe.
Make sure you are realistic in what you say. If you take silly points the jury will think you are silly.
If you have followed my advice the jury will regard you as a straightforward, honest and sensible person. They rightly expect you to articulate the defence answer to the best prosecution points. So identify the best prosecution points and answer them as best you can.
All the best speeches have a central backbone, a spinal column to ensure that the speech stands up: the witnesses have motives to lie, the witnesses were drunk, the witnesses all contradict each other. The possibilities are endless but if you can build your speech around a theme of this sort it will be far easier to follow.
Of course exactly how you structure your speech is up to you. It will vary from case to case. But a good pattern is this:
State your argument early on.
Illustrate the argument with examples from the evidence.
Conclude by stating it again.
Make it easy for the jury to return the verdict you want
This is a principle that you should bear in mind throughout your speech.
Let me give an example: your client alleges a vast police conspiracy to convict him of assaulting his neighbour, after a dispute over noise from a drunken party. He may even be right; fact can indeed be stranger than fiction. Nevertheless, it is exceedingly improbable. The jury will consider it far more likely that both parties were drunk and lost their tempers. If your speech leaves the jury with the idea that a not guilty verdict depends upon the existence of a police conspiracy, your client will love the speech but will be convicted. On the other hand if you suggest a more mundane explanation in which both parties are as bad as each other so that you cannot be sure who is telling the truth, that will be much easier for the jurors to agree on. Your client may not enjoy the speech, but he will like it when he is acquitted.
But do be careful about being rude about your client in your closing speech. Sometimes it may be in his best interests to describe him in unflattering terms, but if you are going to do so it is always tactful to tell him first and if possible obtain his agreement. Once they have heard the evidence many defendants will surprisingly often be happy to agree that they are stupid, drunk or even nasty individuals. The jury do not have to like the defendant to acquit him and if he is thoroughly unlikeable then it is better to face the fact rather than deny it and look like an idiot. Tell the jury that the fact that he’s nasty does not mean that the evidence proves his guilt.
Generally speaking the points that you must get over to the jury are:
The presumption of innocence means that the defendant is not guilty. You should find him guilty only if the prosecution evidence is so overwhelming that it allows of no other explanation.
The standard of proof is such that a “not guilty” verdict does not mean that the complainant is lying. You may in fact be “almost sure” that she is telling the truth, but that would still require a verdict of not guilty. On the other hand in most cases a “guilty” verdict cannot be returned unless you are sure that the defendant was lying.
It is much easier for a jury to accept that a witness is mistaken than that he is deliberately lying. Don’t allege that a witness is dishonest if his unreliability is equally explicable by an honest mistake.
A similar principle may well apply to the defendant’s evidence as well, but in reverse. Unless you are sure that he is lying, he is not guilty. Only if you are sure that he is lying must you find him guilty.
Cases can be laughed out of court. But it takes the right case and a very special advocate to achieve that. It also helps to have an interfering judge or a galumphing nincompoop for an opponent. Such a happy concatenation of circumstances comes together almost as rarely as a total solar eclipse.
A little gentle teasing of your opponent can be fine, but be careful you do not appear as a sort of David Cameron style smoothie-chops, mocking a less polished colleague. This is of course a special danger for those – and they do exist in the legal profession – who already have a tendency towards smoothie-chops snootiness.
And there are some types of cases in which humour should never, or hardly ever, be attempted. Homicides, most sex cases and serious assaults need to be taken seriously and to be seen to be taken seriously. As a rule, if someone cracks jokes during such a trial no-one laughs and the joker looks like a fool.
This mistake was made in his opening address by Don West, defense attorney for George Zimmerman the Florida Neighbourhood Watch representative on trial for shooting dead Trayvon Martin, a harmless teenager walking through his gated community. The case excited huge controversy. As reported by Richard Luscombe in The Guardian
“West began his opening statement with a joke, poking fun at the two weeks of jury selection that delved deeply into what prospective panel members knew of the case. “Knock, knock,” he said. “Who’s there? George Zimmerman. George Zimmerman who? Good, you’re on the jury.”
There was little reaction in the courtroom and West acknowledged that his joke had fallen flat.”
Nevertheless, West went on to win the case but it was in spite of, not because of his sense of humour.
On the other hand in less serious or emotive cases humour can be a very powerful weapon. No-one can teach you to be funny, least of all me, but if you can make the jury laugh with you, they will often happily do most of what you ask. If the case allows it then you should try to make the jury at least smile once or twice. It won’t win you the case on its own but it will help.
Most comedians will tell you their best jokes are often the result of careful preparation: this is just as true for jokes in your closing speech.
It is, of course, much easier to be serious than to be funny, and fortunately juries appreciate a proper seriousness too. There is much to be said for emphasising the importance of the jury’s role and reminding them of how seriously they should take their task. Although one reads the occasional horror story about how a jury has arrived at a verdict through a ouija-board and so on, my experience is that most do seem to approach their solemn task with great care.
Sometimes you will need to take a jury through a complex argument. Don’t worry, they will follow it as long as they are listening. Tell them it is important, tell them that they need to concentrate and do not patronise them. They will listen.
It is a serious issue but you are not allowed to comment on what punishment may be meted out on the defendant if he is convicted.
1Miller v. Minister of Pensions  2 All E.R. 372
2R v. Stafford & Luvaglio 53 Cr.App.R. 1
3Walters v. R.  2 A.C. 26