After the defense has completed its case, both the state and the defense have a chance to address the judge or jury in closing argument. Closing argument is different than opening argument two important ways. First, while the defense is not required to give an opening statement (though, as stated in a previous post, it almost always should and does), it is required to give a closing statement. Second, while pure argument is technically forbidden in opening argument, it is the essence of closing. Closing argument is the trial lawyer's last opportunity to tie the facts and evidence that have come out at trial to their theory of the case, whether that lawyer is representing the defendant or the state. Argument is not only permitted, it is essential. For example, if a defense lawyer might state something to the effect of “Mr. Jones is the state's star witness. You should consider the reliability of his testimony closely. As you heard, he's a jailhouse snitch, he has been given a sweetheart deal by the state and has all the reason in the world to lie. Think of him as a kid whose hand gets caught in the cookie jar. He then thinks about how he might be able to get out of trouble. He decides to rat out his older brother by telling his parents that his brother cut school to deflect their attention. It works; his parents forget about the kid with his hand in the cookie jar and start yelling at their school-cutting son. That's not the honorable thing to do. That's not the right thing to do. Those kinds of kids grow up to be people like Mr. Jones.”
That is clearly argument; counsel is making inferences that Mr. Jones's testimony is not credible because he is a jailhouse snitch. That kind of statement may sustain an objection in opening, but is more than appropriate for closing. The state presents its closing first, the defense then presents its closing, and the state subsequently gets a chance to rebut the defense's closing. Even though the burden is on the state (or perhaps, because the burden is on it), the state gets the last word.
As is the case with cross-examination, closing arguments have been immortalized in popular culture. As an illustration, I will point to the first one that comes to my mind; Matthew McConaughey as Jake Brigance in A Time To Kill. During closing argument in a murder trial in Bumfuck, Mississippi, Brigance asks the jury to close their eyes. He then describes, in painful detail, the facts surrounding of the brutal rape of a 10-year-old African-American girl and how it led her father (Samuel L. Jackson) to kill the white rapists. In his final statement to the jury, he asks “now imagine if the girl was white.”
Closing statements can be dramatic, but they are not usually this dramatic. It is the lawyer's final opportunity to appeal to the jury and tie all loose ends together. It can be a critical part of a trial, especially if the trial was lengthy and counsel wants to remind judge or jury of facts and inferences derived therefrom that are particularly significant to his or her case.
At this point, there is nothing more counsel can do. The judge will instruct the jury if there is one. If the trial is a judge trial, the judge will often retire to his chambers to review the evidence, his notes, or to conduct research if necessary. Sometimes, the judge will render a verdict immediately, though this usually happens only in misdemeanors (and usually only in Orleans Parish at that).
If the trial is a jury trial, the jury will retire to the jury room to begin deliberation. As I previously mentioned, Louisiana juries can be composed of 6 people or 12 people. If the jury is composed of 6 people, all must concur to reach a verdict. If the jury is composed of 12 people, only 10 must concur to reach a verdict (except in capital cases, where the vote must be unanimous). The fact that Louisiana allows for non-unanimous jury verdicts in felony cases is a frequently lamented situation by defense lawyers that has been covered previously in this blog. In almost every case, if only 10 or 11 jurors can agree on a verdict, the verdict is typically guilty. Usually, the longer deliberations take, the more helpful it is to the defense.
If the jury arrives at a verdict, they are called back to court to deliver their verdict. As defense lawyers, we always want to hear those two magic words: “not guilty.” If the jury does vote to convict, their verdict can be guilty as charged or a “responsive verdict.” A “responsive verdict” is essentially a verdict of a statutorily defined lesser included offense. For example, for example, first degree rape is an offense punishable by a mandatory life term of confinement at hard labor. The lesser included offenses for first degree rape are attempted first degree rape, second degree rape, attempted second degree rape, sexual battery, third degree rape, attempted third degree rape, and oral sexual battery. The jury could render a verdict of guilty of any of the above offenses in addition to simply guilty as charged or not guilty. This can be sometimes be a big deal for defense lawyers. If I were trying a case for first degree rape, and the jury returned a verdict of guilty of third degree rape, I would be very happy with the result and the job I did, because the client would not be looking at a mandatory life sentence. The client may spend a good deal of time in prison (as, perhaps, he should), but at least he would have a chance at getting out one day.
Also, I would note that not all states have these types of responsive verdicts. I recall that in the Casey Anthony trial, after the jury rendered a not guilty verdict, there was a big hue and cry from the public and especially from blowhards like Nancy Grace. Thoughtful legal commentators mentioned that perhaps the wiser course of action would have been to charge her with manslaughter, which consists of killing another person without the intent to kill that person. If I recall, some of the jurors mentioned post-trial that they may have voted to convict Ms. Anthony of manslaughter. Apparently, the jury in Florida was not permitted to return a guilty of manslaughter verdict in a murder case. They would have certainly been entitled to in Louisiana.
If the jury cannot agree on a verdict (referred to as a “hung jury”), the judge will declare a mistrial and the proceedings end right there. Some people believe that if the jury is hung in a case, the state is forbidden from trying that case again. That is incorrect. Double jeopardy does not apply to mistrials, whether for a hung jury or any other reason.
If the jury returns a guilty verdict, the defendant has a right to allow a certain period pass prior to sentencing. The purpose of this sentencing delay is to allow the defense to file what is known as a “motion for new trial,” which is exactly what it sounds like. If the motion for new trial is denied, the defendant will be sentenced. The defense lawyer has 30 days to file a “notice of appeal,” which is a motion putting the state on notice that the defendant plans to appeal his conviction. That is the end of the trial process and the beginning of the appellate process.
I hope that this has been informative. My goal was to explain how the process of criminal prosecution works in Louisiana, provide some illustrations to concepts that might be unfamiliar with certain people, and to sprinkle in some of my own experiences and experiences of lawyers in Louisiana and elsewhere.
If you have any questions about any aspect of prosecution or have been arrested for or charged with a crime, make sure to call the Law Office of Alex Kriksciun today!