Journal of Criminal Law and Criminology

Volume 58 | Issue 1 Article 2

1967

Closing Argument to the Jury for the Defense inCriminal CasesG. Arthur Martin

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Recommended CitationG. Arthur Martin, Closing Argument to the Jury for the Defense in Criminal Cases, 58 J. Crim. L. Criminology & Police Sci. 2 (1967)

THE JOURNAL OF CRIMINAL LAW, CRIMINOLOGY AND POLICE SCIENCE Vol. 58, No. 1Copyright @ 1967 by Northwestern University School of Law Printed in U.S.A.

CLOSING ARGUMENT TO THE JURY FOR

THE DEFENSE IN CRIMINAL CASES

G. ARTHUR MARTIN

For a number of years G. Arthur Martin has lectured at Northwestern University's annual ShortCourse for Defense Lawyers in Criminal Cases. His address on "Closing Arguments to the Jury forthe Defense in Criminal Cases" has always been received with acclaim. We are here privileged to per-petuate it in printed form.

Mr. Martin is one of the world's great defense lawyers in criminal cases. He is also highly respectedfor his integrity and professional ethics by his fellow members of the Canadian Bar, as is evidenced bytheir selection of him to serve as Chairman of the Discipline Committee of the Law Society of UpperCanada. Another testimonial to that effect is his recent (1966) election as a Life Bencher of thatSociety.

Mr. Martin is a Gold Medalist graduate in law at both Toronto University (1935) and Osgoode HallLaw School (1938), and the recipient of an honorary Doctor of Laws degree from Queen's Univer-sity (1962). He was appointed Queen's Counsel in 1945, and he is an honorary lecturer at OsgoodeHall Law School.

An earlier article of Mr. Martin's upon the subject of closing arguments, and of which the presentone is an enlarged revision, appeared in Law Society of Upper Canada Special Lectures: Jury Trials(1959), published by Richard De Boo, Ltd., Toronto.

It is a commonly accepted viewpoint that theaddress to the jury is not as important as cross-examination or as strategy in a criminal trial.

While there may be an element of truth in thisassertion, I am convinced, after practicing in thefield of criminal law for almost thirty years, thatthe address to the jury often exerts a decisiveinfluence on the outcome of a criminal prosecution.It is very seldom indeed that cross-examination,however skilfully conducted, obviously destroys oranswers the case for the prosecution.

A successful cross-examination by defensecounsel may elicit facts that are inconsistent withthe case put forward by the prosecution or it mayelicit facts that support the theory of the defense;it may elicit important contradictions in thetestimony of prosecution witnesses; and it mayhighlight improbabilities in the case for the prose-cution. The total effect, however, may not beapparent to the jury. The function of the closingaddress to the jury is to weave these materialsand the evidence called on behalf of the defense,if any, into a cohesive argument either for thepurpose of destroying the case against the accused,or for the purpose of putting forward an affirmativedefense, or for the purpose of achieving both theseresults.

An effective address must, of necessity, however,have as its foundation a carefully planned andskilfully presented case in order to provide the

material upon which a convincing argument canbe built.

The preparation and presentation of an effectiveaddress may be likened to the painting of a pic-ture by a skilful artist. The artist has certainmaterials with which to work, his paints. Byproper blending, emphasis, and arrangement ofhis colors he can create a picture which will havemeaning, which is capable of arousing certainfeelings in the viewer. It is capable of evoking theresponse which the artist wants to create.

The same colors applied to the same canvas bya person lacking the necessary skill or creativepower will be only a collection of daubs of paintwithout meaning or power to influence.

The lawyer, like the artist, has certain materialsto work with, the evidence. By properly assem-bling the evidence, by arranging it in the mosteffective order, by appropriate emphasis, theskilful lawyer can paint a meaningful picture inwords, which is capable of evoking the desiredresponse, by arousing feelings in a jury that causethem to want to accept the arguments addressedto their reason.

The same evidence presented to the jury in ahaphazard or disjointed way without suitableorder or emphasis has no power to influence andif such a presentation arouses any feeling in thejury it will be a feeling of boredom and theirresponse is likely to be negative.

CLOSING ARGUMENT FOR THE DEFENSE

TE PREPAIRATION

The preparation of a good jury address beginslong before the trial. As the preparation of a caseproceeds, beginning with the initial attorney-client interview, and passing on through thestage of the preliminary hearing and the inter-viewing of witnesses, counsel must inevitably, ifhe is to conduct a successful defense, form atheory upon which the defense is to be conducted.He should constantly be thinking about the case,formulating in his mind how he will explain thisparticular piece of apparently adverse evidence orhow to place this particular fact before the juryso that they will feel its full impact from thedefense point of view. He should, above all, beconsidering the order in which he will marshalthe facts at his disposal for presentation to thejury. This type of thinking should continue upuntil the moment he commences his address.

THE MANNER IN WHICH A JURY ADDRESS SHOULD

B DELIVERED

Each person must develop his own style ofspeaking, the style that is natural for him; but itmust be attractive. The mere imitation of thestyle of some great defense counsel can never beeffective because sincerity will be lacking, althoughthe study of great speeches is instructive. Thereare, nevertheless, certain basic principles whichapply to the manner in which the address shouldbe delivered.

In the first place, you should have made exten-sive notes on the matters upon which you proposeto touch and have settled the order in which youintend to deal with them; to do so will clarify yourthinking and help you to argue the case in alogical order rather than in a disjointed, ramblingfashion. But your mind should be so full of youraddress that by the time you rise and bow to thepresiding judge and to the jury you do not needto consult your notes. Place them on the tablebeside you-they give you a feeling of confidence.You can run your eye over them two or threetimes during your address to make sure you havenot overlooked anything, since your references tothe evidence must be absolutely accurate. Youshould never have anything in your hands whileaddressing a jury (except, of course, where youdeliberately read a short excerpt from the tran-script or from an accurate note to emphasize itsimportance).

The hands, as well as the eyes, can compel at-

tention. Never use a lectern. Always stand in aspot about four feet in front of the jury in thecentre of the jury-box where you can observethem all. Do not pace about in front of the jury;stand in the one place, and always look directlyat the jury. It is a lot harder for the jury to turnyou down when you are looking at them than ifyou are looking down at the floor or up at theceiling or, worse still, at the audience. Neverexceed the limits of good taste in your address tothe jury.'

Advocacy, like architecture has changed greatlyin the last half century. It is more streamlined,more functional, less ornate. Acting has alsochanged. The modern actor loses himself in hisrole. The exaggerated posturing of another era,rather than moving us, strikes a comic note.

A jury address should be, in essence, a man toman talk; its purpose is to convince the jury thatyour client is innocent or that, at least, there istoo much doubt about his guilt to convict him.The jury should enter upon their deliberationwith the feeling that the lawyer for the accusedhas a good case, not that he is a brilliant orator.He has given a perfect performance when thejury are, for the time being, not conscious that heis a professional pleader. That does not mean thatthe address should be dull or tedious; far from it.Counsel should move from one aspect of the caseto another easily, fluently, and without pausingso that the argument gathers momentum as it isdelivered. The simplest language can be the mostmoving and create the greatest drama. In anothercontext consider the effect of the three wordsuttered by General Douglas MacArthur when heleft Corregidor in 1942: "I shall return" or, thewords he uttered in 1944, when he landed onLeyte: "I have returned."

Consider also the words of Sir Winston Churchilluttered when the battle of Britain was raging:

1A number of years ago I was defending a womanwho was jointly charged with capital murder, alongwith her husband. The woman was acquitted but thehusband was convicted of manslaughter. The husbandwas very ably defended and the verdict of man-slaughter really amounted to a victory for his counsel.However, during his closing address to the jury hiscounsel said "Don't try to play God in this case". Oneof the members of the jury came over to speak to meafter the case and told me that every member of thejury was deeply offended by the admonition of counselnot to "play God in this case".

I was somewhat surprised at the remark of counselwhen it was made, but it had not occurred to methat it would arouse such deep resentment in the jury.

G. ARTHUR MARTIN

"Never was so much owed by so many to so few."

Those words will last forever.Some of the passages in the great jury addresses

of Clarence Darrow, collected in Attorney for theDamned, are worthy of careful study. You willsee that the words used are simple, the sentencesshort, but the language is emotive and the sen-tence construction is dynamic. Above all, besincere, and speak with conviction.

One would be well advised to bear in mind Mr.Edgar Lustgarten's description of Sir EdwardClarke in Defender's Triumph:

Despite his extraordinary catalogue ofachievement, Clarke's place in the hierarchyof advocates is not altogether easy to assess.As a cross-examiner he certainly was notequal to Russell. As a lawyer he was not thepeer of F. E. Smith. As a tactician a goodmany have eclipsed him. But then it was asnone of these that he excelled. Clarke's endow-ment was persuasiveness, and his weapon wasthe speech-not the smooth persuasivenessof wheedling or blandishment, but thatpowerful persuasiveness that springs fromdeep sincerity; not the speech of conventionalcourt rhetoric, but the speech informed withthe passionate eloquence of genius.

In complex, abstruse, or tricky litigationEdward Clarke might not invariably shine.But when he was concerned as a principalparticipant with the terrible simplicities thatgovern life and death, he had it in him toexert an appeal that sometimes bordered onthe irresistible.

2

I venture the opinion that the skill and elo-quence with which Sir Edward Clarke defendedAdelaide Bartlett will never be surpassed. Mrs.Bartlett was a young and beautiful woman,married to a man considerably older than herself.She had conceived an attachment, which wasreciprocated, for the Reverend George Dyson. Mr.Bartlett fell ill in December of 1885. On December27th Mrs. Bartlett asked the Reverend Dyson ifhe could procure chloroform for her. She informedhim that her husband had an internal disorderthat was shortening his life and which sometimescaused him great pain and during such times shewas able to soothe him by the use of chloroform.On December 29th the Reverend Dyson handed

2p. 11.

Mrs. Bartlett a bottle of chloroform. Mr. Bartlettdied either late in the evening of December 31st orin the early morning of January 1st. The post

mortem revealed chloroform in the stomach which

was stated to be the cause of death. Mrs. Bartlett

was the only person present when her husband

died. On January 6th she disposed of the bottle

of chloroform by dropping it from the window ofa moving train. Her statement that her husband

was suffering from some internal disorder wasproved not to be true.

Some witnesses, particularly Mr. Bartlett

Senior, Clarke destroyed by his cross-examination.With respect to other witnesses, where the sub-

stance of their testimony could not be destroyed,

their evidence was made to take on a different

character and did not appear so completely

damning as it had at first impression.

Chloroform when swallowed has a hot and fierytaste and would cause acute pain. The theory of

the prosecution was that Mrs. Bartlett had first

rendered her husband insensible by an externaladministration and then had poured the chloroform

down his throat. Clarke's cross-examination of the

prosecution's medical witnesses was directed to

showing that this was a virtually impossible feat.

When chloroform was inhaled by sleeping adults

they almost invariably woke up. But even if it

could be assumed that Mrs. Bartlett had suc-ceeded in accomplishing this virtually impossible

feat of rendering her husband insensible by

external administration, the second phase of the

operation would be utterly impossible, as only a

skilled anaesthetist would be able to recognizewhen the process had proceeded to a point where

the patient was insensible and yet sufficiently

relaxed, that the chloroform could be poured

down his throat. We shall see later how the

improbabilities inherent in the prosecution theory

were woven into the closing argument of Sir

Edward Clarke.After the acquittal of Mrs. Bartlett, Lord Chief

Justice Coleridge wrote to Sir Edward Clarke

congratulating him on his advocacy. The postcript

to the letter stated: "I hear a good thing at-

tributed to Sir James Paget3-that Mrs. Bartlett

was, no doubt, quite properly acquitted, but now

it is to be hoped in the interests of Science she

will tell us how she did it.'4

3 A noted surgeon.4 SMUT & CLARxE, E., THE LIFE OF SIR EDWARD

CLARKx, 187 (1939).

[Vol. 58

CLOSING ARGUMENT FOR THE DEFENSE

THE FoRm JURY ADDRESS SHOULD TAKE

Every good jury address from the time of Cicerohas had the same construction, namely: (a) Theintroduwtion; (b) The argument; and (c) Theperoration.

TH= INTRODUCTION

The purpose of the introduction is to awakenthe jury to the grave responsibilities they haveassumed, to impress upon them the fact that ifthey erroneously convict the accused it is almostimpossible to correct their error. They should bemade to feel that the presumption of innocenceand the requirement of proof beyond a reasonabledoubt are vital living principles which exist fortheir protection as well as that of the accused.The language used to achieve this purpose mustdepend upon the style and creativity of theparticular counsel.

In the Trial of Madeleine Smith for the murderof her lover Pierre Emile L'Angelier, which tookplace in Scotland a little over a hundred yearsago, her counsel, John Inglis, The Dean of theFaculty of Advocates, opened his dosing addressto the jury in this simple yet highly effective anddramatic manner:

Gentlemen of the Jury, the charge againstthe prisoner is murder, and the punishmentof murder is death; and that simple statementis sufficient to suggest to us the awful so-lemnity of the occasion which brings you andme face to face.5

This opening, although magnificent, would beunwise, if not indeed improper, in any case wherethe death sentence is not mandatory on conviction.

Another purpose of the opening is to overcomeor alleviate prejudices which may exist because ofthe nature of the case, rumors, or stories carriedby various news media. At the same time, how-ever, I do not suggest that you embark on youraddress upon the assumption that the jury areprejudiced against your client or intend to givehim less than justice. Such an approach is offensiveand insulting. It may be appropriate to say:

Gentlemen of the Jury, when you weresworn as jurors in this case each of you prom-ised that you would give the accused a fairtrial, that you would give his case the same

5 41 NoTBrx BaRTisH TRILus, Trial of MaddeineSmith, 233 (Jesse ed. 3d ed. 1927).

anxious consideration and afford him thesame presumption of innocence and the samebenefit of a reasonable doubt that you wouldhave a right to expect at the hands of twelveof your fellow countrymen, and I know youmean to keep that promise.

Where counsel, by the use of peremptory chal-lenges, might have excluded all of the proferredjurors, even though on the "voire dire" theyhad sworn that they were capable of trying theaccused without prejudice and of arriving at averdict solely on the evidence, counsel may find ituseful to tactfully remind the jury that this couldhave been done, and he should do so particularlyin a case where prejudices are deeply rooted, as innarcotics cases. I have sometimes said:

You all swore that you would approach thiscase without any bias or prejudices. I be-lieved every one of you, else I would not haveaccepted you. I chose you as the judges of thisman because I believed you when you saidthat you would presume that he was innocentunless and until the evidence established hisguilt beyond a reasonable doubt.

Don't tell the jury that the accused is entitledto be judged as they would like to be judged. Thatis not his right at all, and it leaves the way openfor Counsel for the prosecution to say:

Gentlemen, the accused is not entitled tobe judged as you would like to be judged. Ifyou were on trial you would like to be acquit-ted no matter how guilty you were. The ac-cused must be judged on the law as the judgewill give it to you, as that law applies to thefacts as you find them from the evidence pre-sented in this trial.

Don't make a direct appeal for sympathy. Thatgives the prosecution a chance to say somethinglike this:

My learned friend has made an appeal toyou for sympathy. I am sure we all feelsympathy for a man in the position of theaccused, but you have taken a solemn oathto try this case on the evidence, and you mustnot be swayed by sympathy for the accusedany more than you must allow yourself to beswayed by sympathy for the deceased, a finestrong young man cut down in the prime oflife. Nor must you allow yourself to be swayed

G. ARTHUR MARTIN

by sympathy for the deceased's widow or hisfive children who are now left without a father.

Assemble your facts in such a way that thedefendant is placed in a sympathetic light. Dwellon the terrible provocation your client enduredbefore reacting to it, how hard he worked to sup-port his wife and family. But emphasize thosethings in the appropriate part of the address, notat the beginning. The appeal to the emotions ismuch better made not at the beginning but lateron in the address as you deal with topics calcu-lated to arouse the feelings of the jury: the ac-complice trying to escape the consequences of hiscrime by shifting the blame to the accused; thefather trying to give his children sound moralinstruction and schooling while the unfaithfulwife that he killed in the heat of sudden provoca-tion was neglecting her sacred obligations.

During your address it is advisable to refer toyour client on occasion as "Tom Jones", or "Mr.Jones", rather than continuously as the "prisoner",or "the accused". In that way you personalizehim; he is then associated with the man who hasthe nice little wife and of whom the five neighborsspoke so highly. It is harder to hang Tom Jonesthan to hang "the prisoner". In your peroration,however, it is better to refer to your client as"this man", "this woman", or "the defendant".

In your opening remarks you should define withgreat clarity and simplicity the issues before thejury-the elements of the offense with which thedefendant is charged, and which the prosecutionmust prove beyond a reasonable doubt. Forexample, where the accused is charged with acrime involving a specific intent, point out that itis not enough for the prosecution to prove thatthe accused did the act or that he did the actcarelessly, but that the prosecution must provethat he did it for the express purpose of bringingabout the consequence charged in the indictment.

RIGHT TO DEAL WITH THE LAW APPLICABLE

The rule which prevails in most jurisdictions isthat although counsel may not quote from decidedcases he may state the principle of law which hedeems applicable insofar as it is necessary to doso to make clear what the defense is.6

6 In Pianosi v. C.N.R., (1944) 1 D.L.R. 161, Robert-son CJ.O. said: "No doubt, there are occasions when,to make his summing up of the evidence understand-able and to the point, it is proper enough that counselshould make some preliminary statement of a principleof law governing the case in hand, a statement that,

IMPROPRIETY OF EXPRESSING PERSONAL OPINION

It is improper to express a personal opinion asto the innocence of your client or your belief inthe truthfulness or otherwise of a witness. Thereason for this is obvious. If it were permissiblefor defense counsel to express his opinion that thedefendant was innocent, it would equally be properfor prosecuting counsel to express his opinion thatthe accused was guilty. The verdict of the jurymight thus depend not on the evidence but onthe prestige or stature of counsel making thedeclaration. It it were ever to become acceptedpractice for defense counsel to express a personalopinion as to the innocence of the defendant, thefailure to express such an opinion on any occasionwould be construed as an admission on the part ofcounsel that he believed his client guilty.7

when made, it is customary to say is subject to thegoverning direction of the presiding judge."

Also see Busch, LAW AND TAcTICs IN JuRY TRIALs987 (1949).

7 Reg. v. McDonald (1958) 0. R. 413; 6 Wigmore,Evidence § 1806 (3d ed. 1940). In the trial of WilliamPalmer for murder, Sergeant Shee (afterwards Mr.Justice Shee) in his speech for the defense said:

I commence his defense, I say it in all sincerity,with an entire conviction of his innocence.

The Attorney-General, Sir Alexander Cockburn, in hisaddress said:

Gentlemen, you have, indeed, had introduced intothis case one other element which I own I thinkwould have been better omitted. You have hadfrom my learned friend, the unusual, and I thinkI may say unprecedented, assurance of his con-viction of his client's innocence... I can only sayI think it would have been better if my learnedfriend had abstained from so strange a declaration.What would he think of me if, imitating his exam-ple, I at this moment stated to you, upon my"honour", as he did, what is my internal convic-tion from a conscientious consideration of thiscase. The best reproof which I can administer tomy learned friend is to abstain from imitating sodangerous an example.

In his charge to the jury in that case, Lord ChiefJustice Campbell said:

Witnesses very properly have been brought fromall parts of the kingdom to assist in his defense;and he has had the advantage of having his caseconducted by one of the most distinguished advo-cates at the English bar. Gentlemen, I moststrongly recommend to you to attend to everythingthat fell so eloquently, so ably, and so impressivelyfrom that advocate, with the exception of hisown private personal opinion. It is my duty totell you that that ought to be no ingredient inyour verdict. You are to try the prisoner uponthe evidence before you, according as that evi-dence may be laid before you upon the one sideand on the other, and by that alone, and not byany opinion of his advocate.

14 NOTABLE BRITSH TaiAs, Trial of William Palmer,128, 295, 297 (Knott ed. 3d ed. 1912).

[Vol. 58

CLOSING ARGUMENT FOR THE DEFENSE

THE ARGumN

In my early years at the Bar I would spendabout forty minutes of a forty-five minute speechon the introduction and the last five minutes onthe facts. I traced the history of the jury systemback to a period before the Norman Conquest andI dwelt at length on the sad fate of my clientpacing up and down in a prison cell for years ifthe jury found against him. Experience has taughtme that jury verdicts are won by a convincingargument on the facts, the specific facts; they arenot, as a general rule, swayed by broad sweepingdeclamation. I am consequently of the opinionthat after dealing briefly with those fundamentalsof justice that should be called to the attention ofthe jury, and after outlining the issues beforethem, counsel should then commence his argu-ment.

One of the most effective ways of commencingthe argument of the case is by stating, or ratherre-stating, the case for the prosecution. The state-ment must be absolutely accurate, but the prose-cution's case is stated in such a way as to highlightany improbabilities in the case and to bring withinthe statement every fact favorable to the defense.This technique was used with superb skill by SirEdward Clarke in his dosing argument on behalfof Adelaide Bartlett:

It is a marvellous thing that you are askedby the prosecution to accept-you are asked-and when I use that phrase I do not meanthat you will be urged, but what I do meanis, that this is what you must accept if youaccept the idea of guilt or the contention ofguilt-you are asked to believe that a womanwho, for years, had lived in friendship andaffection with her husband; who during thewhole time of his illness, had striven to tendhim, to nurse him, and to help him; who hadtended him by day, who had sacrificed herown rest to watch over him at night, hadspent night after night without going to herrestful bed, simply giving to herself sleep atthe bottom of his couch that she might beready by him to comfort him by her presence;who had called doctors, who had taken allthe pains that the most tender and affectionatenurse possibly could, that by no possibilityany chance should be lost of the doctors as-certaining what his trouble was, and havingthe quickest means to cure it-that woman

who had watched over him, had tried tocheer him, had talked of going away, hadtalked lightly when they were togetherbefore the doctor in order to give spirits tothat husband-you are asked to imaginethat that woman on New Year's Eve wassuddenly transformed into a murderess, com-mitting crime, not only without excuse, butabsolutely without any object-you are askedto believe that by a sort of inspiration shesucceeds in committing that crime by theexecution of a delicate and difficult operation,an operation which would have been delicateand difficult to the highest trained doctorthat this country has in it.8

This kind of argument lends itself to any casewhere there are improbabilities in the prosecu-tion's case which can be exploited, and it has theadvantage of putting them before the jury at anearly stage of the argument. Counsel can thenreturn to this theme for fuller treatment later inhis argument when he devotes a separate part ofhis address to a discussion of the subject of prob-ability.

The manager of a bank was charged withknowingly receiving stolen bonds which he hadcashed for persons who were not customers ofthe bank. When it was subsequently ascertainedthat the bonds were stolen, the manager, uponbeing questioned, said that he had cashed thebonds for three different persons. The procedureof the bank required the person in the bank whocashed the bonds to obtain a receipt, called abond suspense voucher, for the cash from theperson to whom it was paid. The manager pro-duced three receipts which purported to bear thesignatures of three different persons. The ad-dresses on the three receipts placed there by themanager were all fictitious. The manager said hewas given the addresses by each of the threepersons cashing the bonds and wrote them downin good faith. A handwriting expert called as awitness by the prosecution stated that all threesignatures written on the receipts were written' byone person and that each signature was in the hand-writing of the accused's co-defendant, one R, againstwhom there was a considerable amount of evi-dence of dealing or attempting to deal in stolenbonds.

8 40 NoTABLm BlTnsH TLAs, Trial of AdelaideBartlela, 294-5 (Hall ed. 3d ed. 1927).

19671

G. ARTHUR MARTIN

The cross-examination of the employees of thebank established that the accused had made allproper entries in the records of the bank and hadsent the bonds to the Bank of Canada for can-cellation; and, also, that he would know that theBank of Canada had a master list of all bondsreported to have been stolen.

Counsel for the defense commenced his closingargument in this way:

Now what is the charge made against Mr.M.? In substance it is this: he is charged thathe did, knowingly, have in his possessioncertain bonds which he knew were stolen.

It is conceded, of course, that Mr. M.cashed these bonds, so the element of pos-session is not important. It has been proventhat these bonds were stolen. The crucialquestion for you gentlemen to decide is, didhe know that the bonds were stolen. And theCrown must prove to your satisfaction andbeyond any reasonable doubt that Mr. M.knew that these bonds were stolen. Merecarelessness is not enough, mistaken judg-ment is not enough, even recklessness is notenough. The Crown must prove that he knewthat these bonds were stolen.

What is the theory of the prosecution inthis case? It is this, that Mr. M. knew thatthese bonds were stolen; that R, without anyeffort to disguise his handwriting-becausethat is the evidence [of the Crown's hand-writing expert]-handsigned Exhibits 23, 24,and 25; that Mr. M., who had been with thebank for thirty-eight years, it being the onlyjob he ever had, and with the kind of characterthat he has earned in fifty-four years of living,knowing that those bonds were stolen, tookthem into the bank, had the usual recordsmade in accordance with the practice of thebank, that is, the bond suspense vouchers;had them entered in the ledger, the serialnumbers copied down on the shipping listand the bank cancellation stamp applied onthose bonds; that he, knowing that they werestolen, knowing that the Bank of Canadawould have a list of those stolen bonds so thatwithin a matter of hours, or days, or at themost a week it would become known thatthey were stolen; with that knowledge andwith the certain knowledge that the source ofthose bonds as to their being taken into the

bank would be directly traced to him-andhe further made sure of that by putting hisown handwriting on the original receipts,put in the date, the maturity and the ad-dresses, made sure that he could be identi-fied as the man who took them in-that withthe knowledge they were stolen, he took thosein knowing that inevitably the responsibilityfor taking them in would come back to him.

Now that is what the prosecution asks youto believe in this case. Any theory of guilt onthe part of Mr. M. necessarily involves yourfinding that this man deliberately committedan act of suicide, social, economic and moral.That is, must be, has to be, any theory ofguilt in this case as far as Mr. M. is concerned.

And for what? So that the bank could getpayment of a thirteen hundred dollar over-draft which R. owed and for which Mr. M.was in no way responsible. That does notmake sense.

If the case is a comparatively simple one ordoes not lend itself to the kind of argument pre-sented above you may prefer to begin yourargument by simply saying:

Now, gentlemen, let us examine the evi-dence upon which you are asked to findbeyond a reasonable doubt that my client isguilty of this serious crime.

There are several ways in which argument maybe presented:

(a) By stating the facts and submitting thatcertain conclusions should be drawn from thosefacts;

(b) By stating the facts and inviting the juryto draw the desired conclusion;

(c) By stating the facts and asking the jurywhat conclusions they draw from them. (This,however, is a rare art. The facts must be accu-rately stated but marshalled in such a way thatthe only conclusion the jury can draw is thedesired one.)

All three methods of argument are usuallyused at different times during the address. Youshould never attempt to force your conclusionsupon the jury, but rather lead them to come tothe desired conclusion by their own effort. Iwould like to give you an example of what I con-sider a superb style of jury persuasion, althoughthe argument was not made before a jury in theordinary sense.

[Vol. 58

CLOSING ARGUMENT FOR THE DEFENSE

In the year 1910 Senator Benn Conger, a mem-ber of the New York Senate, charged that Sena-tor Jothan P. Allds demanded and received fromConger a bribe of one thousand dollars to influencehis legislative conduct. The charges were investi-gated by the Senate convened as a Committee ofthe whole house. Martin W. Littleton, acting forthe defendant Alds, developed at length that insuch a proceeding the defendant was entitled tothe common law presumption of innocence. Helikened the presumption of innocence to thetestimony of a living witness, and referred to thatwitness as a venerable witness who had existedin the common law for centuries.

The following are some passages from the argu-ment of James W. Osborne, counsel for Conger,in reply:

On the 5th day of January, 1910, this de-fendant was informed by two reputable wit-nesses that Conger charged him with havingdemanded and accepted $1,000 in bills inorder to influence his legislative conduct. Thattook place on the 5th of January, 1910. Oldpresumption of innocence comes in and slapshis hand on Jo's shoulder and says: "You areinnocent of that charge."'9 I leave it to every-body within the sound of my voice to saywhat Innocence would have done under thosecircumstances. I say that Innocence wouldhave found Benm Conger if he was within theUnited States and said "I demand from you,Bein Conger, an explanation of this chargeyou make against me."

I say that if you assume that Jo Allds wasinnocent at that time, his immediate conductjust after the charge was made in itself willdrive that old Presumption of Innocenceshrinking and shamefaced out of this room.

Imagine you, Mr. Senator, or you, Mr.Senator, or any man within this chamber,who has blood in his veins, being charged withhaving accepted a bribe of $1000 to influencehis legislative conduct. Imagine you beingcharged, and what do you do, nothing.

You know so well and I know so well thepower of innocence; you know so well theforcefulness of innocence and the eloquence

9In my view this otherwise splendid argument issomewhat marred by this facetious way of dealing withMr. Littleton's argument. Mr Osborne could simplyhave said '"y all means let us commence by assumingthat Senator Allds is innocent but let us also examinethe facts."

of innocence. You know that if Jo AUds hadwalked up to Benn Conger and said "Conger,on what ground do you charge me, an innocentman, with taking $1,000?" Conger wouldhave shrivelled up; he would not have daredface Innocence....

... Jo Alds treated that charge with asmuch indifference as if you charged a frogwith swallowing a fly. He was as absolutelycalm, as absolutely cold-blooded about it.Where was that spark of righteous indignationthat Innocence is expected to show. Wherewas that overwhelming passion, that awfulindignation that every honest man shows whenhe is falsely charged with crime. Show me theslightest trace of it....

Now, I ask you what Guilt would have doneunder those circumstances, and I say, thatGuilt would have done just exactly what JoAilds did. Guilt would have nursed thatcorruption fund; it would have kept its mouthshut; it would have made peace....

I ask you to give this man the benefit ofevery reasonable doubt, but I ask you, whenyou argue this case, to say to yourselves:

What would Innocence have done under asimilar set of circumstances,

What would Guilt have done,What did Jo Allds do?"

This kind of argument can be just as readilyused for the defense. For example, in manyprosecutions for fraud, embezzlement, and con-spiracy, the prosecution is forced to rely on recordsseized in the possession of the accused under awarrant. Frequently the doing of the acts allegedis not capable of being controverted; the onlyissue is the criminal intent of the defendant. Insuch a case an effective argument can be madeon the basis that the only evidence before thejury are records kept by the accused which theprosecution concedes are accurate.

Would a man who was perpetrating a fraud orengaged in a conspiracy keep accurate records ofthe transactions? Would he employ qualifiedaccountants to check the accuracy of the books?Would he be filing accurate income tax returnsas to his profits?

What would a dishonest man do? Wouldn't hefalsify records to conceal what he was doing?

1HxcKs, FAMous ArRiucAN Juiy SPExcnxs, 606-607, 612, 657 (1925).

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Wouldn't he try to divert cash into his ownpockets to evade payment of income tax on theprofits? Ask yourselves: What would a guiltyman do? What would an innocent man do? Whatdid the defendant do?

The usual order of argument in defending acriminal case is:

(a) The destruction of the case for the prosecu-tion;

(b) The marshalling of the evidence for thedefense.

It is inevitable and sometimes desirable thatthere should be some intermingling of both partsof the argument. This is done by exposing theinherent improbability of the testimony for theprosecution, attacking the credibility of prosecu-tion witnesses, scrutinizing their motives, pointingout inconsistencies in their evidence, and thendirecting the argument to assembling the factswhich support the defense. I have found thatsometimes in difficult criminal cases it may bepreferable as soon as the opening remarks areconcluded to summarize what the defense is andthen proceed in the usual manner. Lawyers oftentalk about the "theory of the defense". Youshould not do this before a jury. The jury is liableto equate "the theory of the defense", with some-thing the defense lawyer has concocted in hismind.

Let me give you an example of a case wherethe defense was summarized near the beginningof the dosing argument.

Dr. Blank is charged with using an instrumenton Miss X with intent to procure a miscarriage.Miss X testified that Miss Y, a friend of hers, whowas a nurse, recommended that she see Dr.Blank. Miss X testified that she went to see Dr.Blank at his office at 4:15 p.m. on August 31st.She stated that she paid him $250 to perform theoperation. She later became ill and had to go tothe hospital. On being questioned at the hospitalshe said Dr. Blank had performed the operation.The police arrested Dr. Blank and took a state-ment from him in which he denied that Miss Xhad ever been in his office or that he had evertreated her or seen her. The police seized Dr.Blank's office diary and they found Miss X'sname down in the diary recording an appointmentat 4:15 p.m. on August 31st. Dr. Blank's explana-tion for the presence of the name in the diary wasthat sometimes a person might call and make anappointment and then not show up; that this iswhat must have occurred, and since there was no

patient with whom to associate the name theentry left no impression. Counsel said in openinghis argument:

Ladies and gentlemen of the jury, I wantat the very threshold of my address to you toplace fairly and squarely before you what thedefense in this case is. It is this. The com-plainant, Miss X, with the assistance of herfriend Miss Y, a nurse, attempted to bringon a miscarriage. She became ill. Miss Y toldher to call Dr. Blank for medical attention.She did call Dr. Blank and he made an ap-pointment for her to come. She then panickedand decided not to go, fearing that questionsmight be asked which would lead to an investi-gation and sought to see the matter throughwithout medical attention. She became so illthat she finally had to go to the hospital. Shewas interrogated. She denied she had doneanything to bring on the miscarriage. Whenthat was not believed she had to say somethingto shield herself and her friend Miss Y andshe said the first thing that came into herhead, that Dr. Blank had done it, perhapshoping there would be no more to it. Fromthat time on she was stuck with her story.All the circumstances point to this.

Counsel thus gave an explanation, at the outset,of the two most difficult things to answer:

(a) Why would Miss X single out Dr. Blankfrom among all the doctors in a city of two millionpeople to accuse?

(b) The presence of Miss X's name in the diary.

The argument then proceeded to attack theevidence of Miss X and Miss Y by showing thatit was not consistent with the facts proved byother witnesses, that their story was inherentlyimprobable, and that they had a strong motiveto lie. Then counsel proceeded to marshal theevidence in support of the defense advanced.

There is an old saying among defense counselthat every fact has two faces. Sometimes whatappears to be a most damaging fact can be turnedinto a fact favorable to the defense. You shouldexamine every item of adverse evidence to see ifsome argument in favor of the defense cannot bebased upon it. This is the way counsel dealtwith the fact that Miss X's name was in the diary:

There is one fact that proclaims the inno-cence of this man more than anything else.The name of Miss X in the book; if he had

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done anything to this woman, would he leavethat name there? It was in pencil; wouldn'the obliterate it?

If he were engaging in activity of this type,would he use that kind of permanent bookin the first place? Would he not make a memoon a scratch pad and destroy it, or carry theappointment in his head? Yet there it is forall to see, available to the whole wide world.

Do not forget this: two experienced policeofficers, one of twenty-nine years' experience,experience in investigating charges of thistype, went there looking for some instrumentthat could have performed the operation,described by this girl, in an office where obvi-ously no attempt to conceal or obliterate any-thing had taken place. They found no suchinstrument. They brought nothing to thiscourtroom except this book which cries forthis man's acquittal.

The presence of the diary supplied a basis fortwo arguments. Firstly, it showed that the ac-cused had no consciousness of guilt since he hadnot destroyed it or concealed it. Secondly, thefact that the diary was not destroyed or concealedsupported a conclusion that nothing in the officehad been concealed or destroyed. Since nothinghad been concealed or destroyed and no instru-ment was there which could have performed theoperation described it was impossible for thedefendant to be guilty.

In the trial of Madeleine Smith, the prosecutionproved that the deceased was stricken withattacks of illness on the following dates: Thursdaythe 19th of February 1857, Sunday the 22nd dayof February, and Sunday the 22nd day of March.He died on Monday, March 23rd. The cause ofdeath was arsenic poisoning. The symptoms of allthree illnesses were similar, and it was the casefor the prosecution that arsenic had been ad-ministered on all three occasions by the accused.

The accused purchased arsenic quite opendy onSaturday February 21st, March 6th and March18th. The first illness of the deceased [Mr. L'Angelier], therefore, had preceded the firstknown purchase of arsenic by the accused.

The dosing argument to the jury by DefenseCounsel, John Inglis, is brilliant.n Let us see whatuse he makes of these facts:

You have it proved very distinctly, I think-to an absolute certainty almost-that on1141 NoTABrx BRirsn TzAm, Trial of Maddeine

Smilh, 245-246 (Jesse ed. 3d ed. 1927).

the 19th February the prisoner was not inpossession of arsenic. I say proved to a cer-tainty for this reason-because when shewent to buy arsenic afterwards, on the 21stFebruary and the 6th and the 18th March,she went about it in so open a way that itwas quite impossible that it should escapeobservation if it came afterwards to beinquired into. I am not mentioning that atpresent as an element of evidence in regard toher guilt or innocence of the second or thirdcharges. But I want you to keep the fact inview at present for this reason, that if she wasso loose and open in her purchases of arsenicon these subsequent occasions, there wassurely nothing to lead you to expect that sheshould be more secret or more cautious onthe first occasion. How could that be? Why,one could imagine that a person entertaining amurderous purpose of this kind, and con-triving and compassing the death of a fellow-creature, might go on increasing in cautionas she proceeded; but how she should throwaway all idea of caution or secrecy upon thesecond, and third, and fourth occasions if shewent to purchase so secretly upon the first,that the whole force of the prosecutor has notbeen able to detect that earlier purchase, Ileave it to you to explain to your own minds.It is incredible. Nay, but, gentlemen, it ismore than incredible; I think it is disprovedby the evidence of the prosecutor himself. Hesent his emissaries throughout the wholedruggists' shops in Glasgow, and examinedtheir registers to find whether any arsenic hadbeen sold to a person of the name of L'Angelier.I need not tell you that the name of Smithwas also included in the list of persons to besearched for; and therefore, if there had beensuch a purchase at any period prior to the19th February, that fact would have beenproved to you just as easily, and with as fulldemonstration, as the purchases at a subse-quent period. But, gentlemen, am I not strug-gling a great deal too hard to show you thatthe possibility of purchasing it before the 19this absolutely disproved? That is no part of mybusiness. It is enough for me to say thatthere is not a tittle or vestige of evidence onthe part of the prosecutor that such a pur-chase was made prior to the 19th; and, there-fore, on that ground, I submit to you withthe most perfect confidence as regards that

G. ARTHUR MARTIN

first charge, that it is absolutely impossiblethat arsenic could have been administered bythe prisoner to the deceased upon the eveningof the 19th of February.

Now, see the consequences of the positionwhich I have thus established. Was he illfrom the effects of arsenic on the morning ofthe 20th? I ask you to consider that questionas much as the prosecutor has asked you;and if you can come to the conclusion, fromthe symptoms exhibited, that he was ill fromthe effects of arsenic on the morning of the20th, what is the inference? That he had arsenicadministered to him by other hands than theprisoner's. The conclusion is inevitable, ir-resistible, if these symptoms were the effectof arsenical poisoning. If, again, you are tohold that the symptoms of that morning'sillness were not such as to indicate the pres-ence of arsenic in the stomach, or to lead tothe conclusion of arsenical poisoning, what isthe result of that belief? The result of it is todestroy the whole theory of the prosecutor'scase-a theory of a successive administrations,and to show how utterly impossible it is forhim to bring evidence up to the point of anactual administration. I give my learnedfriend the option of being impaled on one orother of the horns of that dilemma, I carenot which. Either L'Angelier was ill fromarsenical poisoning on the morning of the20th, or he was not. If he was, he had re-ceived arsenic from other hands than theprisoner's. If he was not, the foundation ofthe whole case is shaken.

The logic is irresistible. Since the accusedmade three purchases of arsenic openly it wouldbe illogical to suppose that she made an earliersecret purchase. If the deceased was stricken witharsenic poisoning on February 19th and 20th itwas administered by a hand other than that ofthe accused because she had no arsenic in herpossession at that time, having made her firstpurchase on February 21st.

In your argument to the jury you shouldendeavor to explain every adverse fact. Youshould endeavor to answer the arguments thatyou feel sure will be made by the prosecution.Tell the jury that under the law [if it be so inyour jurisdiction] once the accused says oneword in his own defense or calls a single witness totestify on his behalf the prosecution has the right

to address the jury last and you will have no op-portunity to answer him. Therefore you must, asbest you can, anticipate the argument he maymake having regard to the line of cross-examina-tion he has pursued and the questions he has putto his own witnesses. You see it is well to suggestyou are using his conduct of the case as a meansof anticipating his probable arguments, otherwisethe jury may think you are able to anticipate hisarguments because you recognize the weaknessesin your own case.

It is always a good thing to have some one toattack in a criminal case. It takes the spotlightoff the accused. It does not usually pay to attackthe prosecutor unless he has done somethingmanifestly unfair, which would be rare. Some-times the conduct of the police merits an attack,but do not attack them unless it is warranted.The motives of important prosecution witnessesshould be scrutinized with care and wheneverpossible made the subject of attack. This isparticularly true of accomplices.

AccoMPLICEs

You should not merely content yourself withadvising the jury that the court will instructthem that it is dangerous to act on the uncor-roborated evidence of accomplices; you shouldexplain why this rule developed. Explain to themthat a man caught red-handed in a crime maytry to buy immunity or a lighter sentence bytrying to shift the blame on someone else, or hemay want to drag someone else down with himpurely from malice. You usually cannot proveany bargain between the accomplice and thepolice, but you can still argue that that was hismotive. Sometimes you can bring out that hishope of a light sentence seems to have beenrealized. I sometimes say:

Gentlemen, why should you, with the re-sponsibility for this man's fate resting onyour shoulders, convict him when the lawitself from the wisdom of experience, thesame law that you have taken an oath touphold, says that it is a dangerous thing todo? Why should you convict a fellow humanbeing on evidence which the law itself says isdangerous to act upon?

Most accomplices are pretty hard to shake oncross-examination unless you are fortunate enoughto get hold of an earlier statement that is incon-

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sistent with present testimony. You should antici-pate an argument by the prosecution that theaccomplice was not broken down in cross-examina-tion, that he gave his evidence frankly and with-out inconsistencies. You might deal with thatargument somewhat along these lines:

Now, counsel for the prosecution may saythat this witness was not broken down incross-examination, that he could not tell sucha consistent story or give such accurate evi-dence as to the details of the crime if he werelying. Why, of course he can give you accuratedetails of the crime; he knows them; he com-mitted it; he is guilty of it. No doubt ninety-nine percent of his testimony is true. All hehad to do was add one lie that my client toldhim to do it. That one lie would not be hardto remember. It would not be hard to be con-sistent about that one lie.

You may also argue, of course, that the accom-plice is merely substituting the defendant for anassociate or friend whom he wants to protect.

ARGumENT FROM PROBABirTIES

In arguing a case to a jury, one of the strongestarguments is that which is based on probability.People will believe that which accords with theirown experience and the recorded experience ofothers. They will be reluctant to believe thatwhich they regard as improbable. If there areany improbabilities in the prosecution's case youshould marshal those improbabilities to the fullestextent. Let me give you an example.

A man was charged with arson; it was allegedthat he burned down his own factory. The principalwitness was a man against whose character nothingcould be proved. He said he was sitting on hisveranda on a warm Saturday evening in August,across from the accused's factory. He heard anexplosion, the glass in the windows shattered. Hecould see the flames in the building. At the sametime he saw the accused, who was the owner ofthe factory, come out the front door, get into hisconspicuous green Volkswagen station wagonand drive away. The accused was a man of ex-cellent character. His business was good. Thebuilding was not overly insured. The witness'story, however, could not be broken down exceptthat it could be shown that he was pretty vagueabout most things except hearing the explosionand seeing the accused come out about the same

time. Now, this is the way the case was argued:(1) Was it probable that a man of the accused's

character would commit this crime?(2) If the jury could bridge that gap, is it prob-

able that he would set fire to this building resultingin loss to himself with no possibility of profit?

(3) If the jury could imagine the first two eventshappening, was it conceivable that, when asowner he could set fire to the building in themiddle of the night, he would pick 7:30 P. M. ona warm Saturday evening when he would knowall the neighbors would be sitting on their frontporches watching?

(4) Even if you could imagine him picking thattime to do it, could you imagine him leaving bythe front door in a conspicuous car, known bythe whole neighbourhood to be his, when he couldhave gone out the side entrance down a lane andbe seen by no one?

The jury thought that the Prosecution's casewas too improbable.

Another persuasive type of argument is basedupon what the prosecution has not proved. Some-times you do not have too much to go on in theway of affirmative argument. In that case youlist all the things the prosecution should havebeen able to prove if your client was in fact guilty.The failure to prove those things is an indicationthat they have the wrong man. For example,your client is charged with theft. None of themoney has been traced to him. There is no evi-dence of undue spending by him since the date ofthe crime. He was not pressed for money, andhence had no motive to commit the crime. Thusyou establish the improbability of his committingit.

MOTIVE

It is, of course, trite law that if the case againstthe accused is fully proved the failure to prove amotive is not fatal. There may be a motive whichis not known. Nevertheless, where the case de-pends on circumstantial evidence, proof of amotive strengthens the case for the prosecutionand, conversely, the apparent absence of a motiveraises doubts as to the guilt of the accused.

It is more probable that men are killed bythose who have some motive for killing themthan by those who have not. 2

In the previously discussed trial of MadeleineSmith the prosecution established that the ac-

12 MAcRA ON EvDENCE, 67 (2d ed. 1952).

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cused had written many letters to the deceased,L'Angelier, her former lover, which were surpris-ingly indiscreet for a young woman especially inVictorian times. After her ardor cooled she be-came engaged to another man and pleaded withL'Angelier to return her letters, since the exposureof the letters would ruin her. L'Angelier refusedto give them up and threatened to reveal themto her father. The prosecution argued that hermotive for murdering L'Angelier was to preventhim from exposing her. The argument of hercounsel with respect to the alleged motive is amodel. After referring to certain letters writtenby the accused to L'Angelier pleading for thereturn of her earlier letters her counsel said:

The thing is preposterously incredible; andyet it is because of her despair, as my learnedfriend called it, exhibited in that and similarletters, that he says she had a motive to com-mit this murder. A motive. What motive? Amotive to destroy L'Angelier? What doesthat mean? It may mean, in a certain impropersense of the term, that it would have been anadvantage to her that he should cease to live.That cannot be a motive, else how few of usare there that live who have not a motive tomurder some one or other of our fellow crea-tures. If some advantage, resulting from thedeath of another, be a motive to the com-mission of a murder, a man's eldest son mustalways have a motive to murder him that hemay succeed to his estate; and I suppose theyoungest officer in any regiment of HerMajesty's line has a motive to murder all theofficers in his regiment; the younger he is thefurther he has to ascend the scale; the moremurders he has a motive to commit. Awaywith such nonsense. A motive to commit acrime must be something a great deal morethan the mere fact that the result of thatcrime might be advantageous to the personcommitting it. You must see the motive inaction-you must see it influencing the con-duct before you can deal with it as a motive;for then, and then only, is it a motive in theproper sense of the term-that is to say, it ismoving to the perpetration of the deed. But,gentlemen, even in this most improper andillegitimate sense of the term, let me ask youwhat possible motive there could be-I mean,what possible advantage could she expectfrom L'Angelier ceasing to live, so long as theletters remained? Without the return of his

letters she gained nothing. Her object-hergreatest desire-that for which she was yearn-ing with her whole soul, was to avoid theexposure of her shame. But the death ofL'Angelier, with these letters in his possession,instead of ensuring that object, would havebeen perfectly certain to lead to the immediateexposure of everything that had passedbetween them. Shall I be told that she did notforesee that? I think my learned friend hasbeen giving the prisoner too much credit fortalent in the course of his observations uponher conduct. But I should conceive her to beinfinitely stupid if she could not foresee thatthe death of L'Angelier, with these docu-ments in his possession, was the true andbest means of frustrating the then greatobject of her life.13

Not only is the alleged motive for murderingL'Angelier, thus discredited, but his death isshown to be of no possible advantage to theprisoner; whereas the death of L'Angelier withthe letters in his possession would inevitablylead to the exposure of her previous relationshipwith him and bring to light the letters. She,therefore, had a motive not to murder him.

GooD CHARACTER

Evidence of good character is cogent evidenceof the improbability of the accused being guilty.You should explain to the jury what character is.You might say something like the following:

What is character? Character is the sumtotal of a man's habits. Habit is one of thestrongest forces in the world. That is whyparents are at such pains to teach their chil-dren the good habits of honesty, decency andtruthfulness. They know that those habitsonce formed will govern the course of theirlives. It takes years to build good habits;they cannot be changed in a day. You haveheard from the testimony of his neighborsthe kind of character this man has for honesty.Do you think it probable or even possiblethat he would suddenly depart from thatcharacter, from those settled habits ofhonesty and decency and commit this crime?14

1NoTABLE B~iTisH TRIALs, Trid of MaddeineSmith, 265-6 (Jesse ed. 3d ed. 1927).

14 The above is based, in part, on a passage in anAddress to the jury by U. S. Lesh in defense of Dr.Millard F. Keiter, reproduced in BRUmBAUGn, LEGALAND PUBLIc SPEAKING, 803 (1932).

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ThE DEFENCE OF ALIBI

Where a defense of alibi is put forward it isusually made the subject of a strong attack bythe prosecution. Normally the accused's alibi isonly supported by members of his family or byhis friends. The evidence of such witnesses isusually viewed with caution by the jury, becauseit does emanate from family and friends whohave an interest in the outcome of the proceedings.Well, with whom would the accused likely be,but with his family or friends?

The prosecution may seek to minimize thetestimony of a wife by saying:

I have no doubt that under ordinary cir-cumstances Mrs. Jones, the prisoner's wife,is a very estimable woman, but she has a verygreat interest in the case; naturally she doesnot want her husband to go to jail. I cer-tainly think that if I were ever in trouble mywife would want to defend me just as loyallyas Mrs. Jones did her husband, whether I wasinnocent or guilty.

You might deal with such an argument bysaying something like this:

Well, gentlemen, I cannot help it if myclient as a law-abiding citizen was home inbed where he ought to be at 3 o'clock in themorning, and consequently the only personwho can prove that is where he was is hiswife. If any of you gentlemen were chargedwith having committed a crime at 3 o'clockin the morning, is there anyone who couldprove where you were at that hour butyour wife?

FAILuRE TO CALL THE ACCUSED

One of the difficult questions upon whichcounsel has to make up his mind in his address tothe jury is whether to endeavor to explain hisfailure to call the accused when he has not doneso, or whether to make no reference to it. Now,there are different views upon this subject. Myown view is that it is better to make no referenceto the fact that the accused has not been called,with one possible exception. The exception applieswhere the prosecution has put in a statementmade by the accused which contains his defense.It then might be appropriate to say that sincethe accused has given his explanation there isnothing more he can say. You can enhance thevalue of that explanation by pointing out that it

was given by your client at the earliest oppor-tunity he had to give it, namely, when the policeinterviewed him. His explanation is not somethingthat he thought up long after.

Under normal circumstances, to mention yourclient's failure to testify merely magnifies thatfailure, and if, in addition, the reasons advancedby counsel for that failure are not convincing tothe jury, they are apt to assume the worst. Myinstinct tells me that this is so, although othershold different views and they may be right. 5

Moreover, if counsel does attempt to explain hisfailure to call the accused he must avoid doing soin a way that amounts to giving unsworn testi-mony.

AN ACCUSED WITH A PREVIOUS CRIMINAL RECORD

Where an accused who has a prior criminalrecord has testified on his own behalf, with theresult that his criminal record is disclosed to thejury, obviously counsel must endeavor to over-come the prejudice this will almost inevitablycreate in the minds of the jury. It may be well toadvise them that if this trial were taking place inEngland, which is the source of the American andCanadian legal systems and where the administra-tion of justice commands the admiration of theworld, they would not be allowed to know ofthose previous convictions for fear they wouldattach to them a value that they do not have indeciding whether the accused is guilty.

Counsel might also point out that the Goddessof Justice is always depicted wearing a blindfoldwhile holding the scales of justice in her hands.That is so that her decision will not be improp-erly influenced by extraneous factors and preju-dices.

If, of course, the prior convictions are manyyears ago and there has been an interval of honesteffort, much sympathy can be gained for theaccused by the efforts he has made in the intervalto live down his past record.

In the Mancini murder case the great advocateSir Norman Birkett (afterwards Lord JusticeBirkett) used the criminal record of the accusedto advantage to explain away apparently in-criminating behavior on the part of the accused.Mancini had a criminal record. He was living atBrighton with Violette Kaye, a prostitute, whoseearnings were used, in part at any rate, for hissupport. There was evidence of a quarrel between

's Mr. Arthur Maloney, in his able address, Address-ing the Jury in Criminal Cases, presents the oppositeviewpoint. See 33 CAN. BAR REv. 373 (1955).

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Mancini and his mistress on May 10th, 1934.Shortly thereafter Mancini sent a telegram to hersister purporting to be from Violette saying shehad gone abroad and he told others the samestory. Mancini moved away from the flat wherehe and his mistress had been living and moved toa new address, taking with him a trunk. AboutJuly 15th he left Brighton and was later arrested.A search of his apartment revealed the decom-posed body of Violette Kaye in the trunk. Shehad been killed by an injury which fractured herskull. There were blood stains on Mancini'sclothes. There were many other apparently in-criminating circumstances. Evidence was givenby a young woman that he had asked her to setup a false alibi. He was alleged to have said toanother witness that he had hit her with a hammerand a charred hammer was found among the rub-bish at the address where Mancini and the de-ceased had lived together. Much of this evidencewas weakened or destroyed by cross-examination.A sensational and irresponsible press had publishedstories, which were completely false, to the effectthat he had assaulted and wounded other women.Mancini testified that he had returned to theapartment where he lived with the deceased andfound her dead. He was afraid that because of hisrecord and his mode of life the police would notbelieve his story. Sir Norman Birkett stressed inhis argument that none of Mancini's prior con-victions were for crimes of violence and arguedthat fear engendered by his criminal record andnot guilt was the reason for the lies, the flight,and the horrible means of hiding the body.

AN ACCUSED TESTIFYING ON HIs OWN BEHALF

Where the accused has testified on his ownbehalf, you should make the most of that fact inyour argument. You should point out that ac-cused has told the jury in the only way he canthat he is innocent, namely, by taking the witnessstand, giving his evidence under oath and sub-mitting to cross-examination. Point out that is allthat any member of the jury could do to provehis innocence under like circumstances. If he hasbeen a good witness you will, of course, infer thatonly an innocent man could have withstood theskillful cross-examination to which he was sub-jected. If there are flaws in his testimony you willpoint out the strain that even an innocent mancharged with a serious crime is under; perhapsthe strain is even greater in the case of an inno-

cent man. You will thus explain any shortcomingsin his testimony.

THE PERORATION

The purpose of the peroration is to bring thespeech to a climax and to appeal to the emotionsof the jury in a way that will strengthen the argu-ments addressed to their intellects. The perorationor conclusion of a good jury address should not bestereotyped; it should fit in with the nature of thetrial, the issues involved, and the mood that youbelieve has been created in the courtroom. Aperoration which might be suitable in one kind ofmurder case might not be suitable in another. Aperoration which might be suitable in a murdercase might be quite unsuitable in a case of re-ceiving stolen goods.

The stately eloquence of Sir Edward Clarke'speroration in the Trial of Adelaide Bartlett wasentirely suitable for that particular case, thetimes, and the particular genius of the defensecounsel:

There are trivial incidents sometimes aboutthe conduct of every case, but we, the minis-ters of the law, are ministers of justice, and Ibelieve that, as a case like this goes on fromday to day, there comes into your hearts adeep desire which is in itself a prayer thatthe spirit of justice may be among us, andmay guide and strengthen each one to fulfilhis part. That invocation is never in vain.The spirit of justice is in this Court to-day tocomfort and protect her in the hour of herutmost need. It has strengthened, I hope, myvoice; it will, I trust, clear your eyes andguide your judgment. It will speak in calmand measured tones when my lord deals withthe evidence which aroused suspicion, andalso with the evidence which I hope and be-lieve has demolished and destroyed thatsuspicion, and that spirit will speak in firmand unfaltering voice when your verdict tellsto the whole world that in your judgmentAdelaide Bartlett is not guilty. 16

In a case where the accused, an elderly man,was charged with murdering his wife by beatingher to death with a hammer the defense was thatthe fatal injuries were inflicted while the accusedwas in a state of automatism brought on by

1640 NOTABLE BRiTIuS TRIALS, Trial of AdelaideBartlett, 343 (Hall ed. 3d ed. 1927).

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anxiety over his wife's failing health; that sincehis behavior was unconscious and involuntarythere was no criminal liability.17

Counsel concluded his argument in this way:

This man was not the cause of the tragedythat brings us here to-day. He was the victimof it. All the evidence points to this. I askyou to send him out of this courtroom in thetwilight of his life with the consolation thattwelve men among whom he has lived honor-ably all his life have announced to the wholeworld that he is not guilty of any crime.The dramatic peroration of Sir Edward Marshall

Hall in the Greenwood murder case emphasizesthe dreadful finality of a jury's verdict in a murdercase:

Your verdict is final, necessarily final.Science can do a great deal; these men withtheir mirrors, multipliers, and milligrams,can tell you to the ten-thousandth or themillionth part of a grain the constituents ofthe human body. Science has enabled us totalk from here to thousands of miles awaywithout any intervening wire or visible meansof communication. Science has enabled us tokill thousands and tens of thousands byobnoxious gases, and can enable us to blowCarmarthen to pieces with one little explosive.But science cannot do one thing: that is, tofind the vital spark which converts insensateclay into a human being. Once the life is goneout of a man, be it as a result of a Jury's ver-dict of murder, or be it by any other cause,life is at an end, and no power of science canreplace it...

I ask you to remember the scene in"Othello", where the jealous Moor made uphis mind to kill Desdemona:

Othello enters Desdemona's chamber,makes up his mind to kill her relentlessly, forhe believes her to be unchaste, and seeing herlying there he thinks of the effect of killingher as compared with putting out her light,and he says: "Put out the light", and thenhe puts out the light.

If I quench thee, thou flaming minister,I can again thy former light restore,Should I repent me: but once put out thy

light,Thou cunning'st pattern of excelling nature,I know not where is that Promethean heat,That can thy light re-lume.Are you by your verdict going to put out

that light? Gentlemen of the Jury, I de-mand at your hands the life and liberty ofHarold Greenwood.u8

Pre-eminent among modern perorations is thatof Sir Norman Birkett in his defense of the ac-cused Mancini, whose trial we discussed earlier:

Defending counsel have a most solemn task,as my colleagues and myself know only toowell. We have endeavoured, doubtless withmany imperfections, to perform that taskto the best of our ability. The ultimate re-sponsibility-that rests upon you, and neverlet it be said, never let it be thought, that anyword of mine shall seek to deter you fromdoing that which you feel to be your duty.But now that the whole of the case is laidbefore you, I think I am entitled to claim forthis man a verdict of not guilty. And, mem-bers of the Jury, in returning that verdictyou will vindicate a principle of law-thatpeople are not tried by newspapers, not triedby rumour, not tried by statements born of alove of notoriety, but tried by British juries,called to do justice and decide upon the evi-dence. I ask you for, I appeal to you for,and I claim, from you, a verdict of not guilty.Stand firm.9

17 Regarding this defense, consult Fain v. Common-wealth 78 Ky. 183 (1879); Regina v. Minor, 112 Can.C.C. 29 (1955); Regina v. Charlson, 39 Cr. App. Rep.37 (1955); Bratty v. A. G. for Northern Ireland, 3W. L. R. 965 (1961); Bleta v. The Queen, S. C. R. 561(1964); Somnambulistic Homicide, 5 REs JUDIcATA 29;Automatism and Criminal Responsibility, 21 MOD. L.REv. 375 (1958); WiLmAms, AuromATism, ESSAyS iNCRIBENALs ScIENcE 345 (Mueller ed. 1961).

18 NOTABLE BaRisn TIriAs, Trial of Harold Green-wood, 238-239 (Duke ed. 3d ed. 1930).

"9LusTGARTEN, DEFENDER's Tmusn'R 237 (1951).See, also, HYDE, NoamrAxr BnumT, TuE L= oF LoRBIPXExTT OF ULVERSTON 394-418 (1964).