By Laurie R. Kuslansky, Ph.D.
A trial lawyer can have all the facts, but unless he or she can weave them into a story that makes sense and doesn’t leave unanswered questions in the closing argument, the facts aren’t likely to add up to the result the lawyer seeks at trial.
For example, in the recent Jodi Arias murder trial, in which Arias was convicted in an Arizona court of murdering her ex-boyfriend Travis Alexander, prosecutor Juan Martinez left several critical holes and questions:
1) Why would the defendant have sex all afternoon with the victim and then kill him?
2) How could her killing him not be in the heat of passion or the result of an argument after they had sex that day?
3) Why would she have sex with the victim if she headed to his home with the premeditated plan to kill him?
4) Why not kill him when his back was turned?
5) Why use a knife if she had a gun?
6) Why take photographs and create evidence if you’re planning a murder?
The evidence pointed to the notion that the defendant’s Plan A was winning the victim back:
Arias brought CDs and the couple watched photos of good times they’d had together on trips
They had sex twice that afternoon
Arias “relented” and agreed to have Alexander take nude photos of her to “please him”
The defense claimed she snapped and that “something happened in this moment in time between 5:29:20 and 5:32:16.” “Something happened” just before the victim was killed, i.e., something different than the sexcapades that preceded it, but what was it?
The answer could have been that Plan A, which was reconciliation, did not work, so Arias resorted to Plan B, to kill him and spin it as self-defense. The evidence points to this common-sense story, but the prosecutor didn’t tell it to the jury.
The story of what really may have happened with Plans A and B leads to confusion of another sort: reconciling them with the legal instructions, also unanswered by the prosecutor in summation.
1) Could it be premeditated and heat of passion at the same time? If the murder was solely premeditated, she wouldn’t have had sex with him before killing him. If it was in the heat of passion (when Plan A failed), how could it be premeditated?
2) The crime clearly shows high emotion and overkill (28 stab wounds, a gunshot, a slashed throat), not a well-planned method. Why? If it was planned, wouldn’t it have happened earlier upon her arrival and been “neater”?
3) Doesn’t Plan A (winning him back) undermine premeditation? Doesn’t Plan B require an argument (related to his refusing to take her back/to Cancun)?
4) If there was an argument, doesn’t that cancel out premeditation?
It is a serious oversight for a litigator not to explain a defendant’s actions in closing argument and close the gaps in light of the legal instructions. Although the prosecutor reviewed Arias’ actions for the jury, he did not tie them directly to the full story. He did not educate the jury on how it was possible that both plans were premeditated, and that not winning Travis Alexander back with Plan A could have caused an argument and passion, yet could have been in Arias’ plan all along. This could have been an example of premeditated murder for just that reason. His solution was potentially risky – to offer that the premeditation occurred at two different times and circumstances: 1) at the end of May, after the break up, in advance of planning her trip to see Travis Alexander AND/OR 2) at the time of the crime.
The prosecutor did yeoman’s work trying the case solo, rarely using notes, and doing his summation after a marathon in court the prior day. This article is not intended as criticism, but as a lesson to learn to reduce the risk of failure.
Ultimately, the 12 jurors determined that the defendant was guilty of premeditated first-degree murder: 7 of them finding premeditated felony murder.
However, so much hard work can be left on the cutting-room floor if the story is not told in a manner that satisfies tough questions. Jury research has shown that when questions are unanswered and gaps are not filled, jurors do so themselves, which is very risky and often inaccurate. While in the Arias case in Arizona, one of the few states that permits ongoing juror questions, jurors revealed their questions and counsel was able to answer them before it was too late. In most other states, it is up to counsel to anticipate and address jurors’ questions.
It is better to try to have more control over how such questions and gaps are handled by addressing them at the very latest, in your closing argument, if not earlier.
Other resources and articles on A2L Consulting's site related to closing argument and storytelling:
- Free Download: Storytelling for Litigators
- How to structure and opening statement, closing argument or presentation
- Analysis of the Jodi Arias expert witnesses and a discussion of the importance of witness preparation and why do televised criminal trials get so much attention?
- How litigation consultants and jury consultants help with closing arguments