Chapter 4

• Jurisdiction: United States

Chapter 4 Closing Argument Visuals

"Don't tell me the moon is shining; show me the glint of light on broken glass."

Anton Checkhov, Russian playwright and short story writer

A. Argument Visuals

In closing argument, counsel is given great leeway in terms of the visuals that can be shown because at this stage counsel is allowed to employ the tools of argument, such as analogies, that can be transformed into an image that can be shown to the jurors. For instance, counsel could show the jurors a picture of a scales of justice slightly tilted more to one side than another as an explanation of the meaning of "preponderance of evidence" (provided the law as expressed in the court's instructions supported such an argument). If argument visuals were offered at earlier stages of trial, they would be inadmissible because they are indeed argumentative.

Closing argument is your opportunity to persuade the jurors that when they apply the law as expressed in the judge's jury instructions to the evidence, they should render a verdict in your client's favor. Therefore, the closing should be consist of these components: (1) an identification of the issue or issues that the jury need to decide; (2) a clear explanation of the law; (3) a summary of the evidence; (4) a description of how the jurors should apply the law to that evidence; and (5) a refutation of the other side's arguments. Argument visuals can assist counsel in tackling each of these components of a successful summation. Additionally, argument visuals can help jurors show how they should deliberate on the issues in the case, which can fundamentally shape the outcome of the case. After all, a verdict is a product of what the jurors choose to talk about when in deliberation. Later in this chapter, we will explore types of visuals that can be persuasive for each of these five elements.

The visuals that can play a role in this final stage of trial are comprised of the exhibits that have been admitted into evidence along with electronic and conventional argument visuals.

B. The Value of Argument Visuals

Visuals can be the source of a powerful argument. Return now to the Michael Peterson trial, which we discussed in Chapter 3. In his summation prosecutor James Hardin sought to drive home his theory that the number of blows to Kathleen's head could not have come from an accidental fall and that Michael Peterson had bludgeoned his wife to death. In his closing argument, he showed the jurors an individual autopsy photograph of Ms. Peterson and other photos mounted on a board on an easel. By displaying the same photographs in his summation that he had used in opening statement, Hardin provided symmetry to the state's presentation of the case.

First, holding a single photograph for the jury to see, Harden argued:

Ladies and gentlemen, this is the first photograph of Kathleen Peterson on the autopsy table. It shows the graphic brutal nature of this killing. Ladies and gentlemen, a picture is truly worth a thousand words. This photograph at least speaks a thousand words. (Gesturing toward another photograph of her on the board) This picture speaks a thousand words. Look at all of these photographs that show that this woman was beaten. I was thinking if a picture is worth a thousand words and if we only knew what Kathleen Peterson knew at the time of her death. And I started looking around the scene and that stairwell and asked myself, "What if those walls could talk? What would they say?" Ladies and gentlemen, these walls are talking. Kathleen Peterson is talking to us through the blood on these walls. She is screaming at us for truth and for justice. It's all in these photographs. Ladies and gentlemen, they have said that Kathleen Peterson died of an accident. We say she died of murder. And we ask that you return that verdict.

Visuals can also be used to emphasize key points in your case during closing argument. You may recall the opening-statement visual in Chapter 3 (see page 37) that showed a series of poor decisions made by the plaintiff who was suing the railroad company. That visual could also be used in closing argument because it emphasizes the number of opportunities the plaintiff had to be warned of the oncoming train. By organizing them into a single graphic, it helps jurors appreciate just how careless the plaintiff was at the time of the incident. It might be too easy for jurors to lose sight of just how many opportunities he had to be warned if they were just going by memory of the testimony and listening to counsel list them off in closing argument. However, seeing them is different, especially when seeing them stacked as they were in that graphic. Visually, it creates a sense of his negligent acts stacking up. The goal of that visual was to cause jurors to conclude that any additional warning would not have changed plaintiff's conduct because so many warnings had previously failed to do so.

C. Computer Software

When you address the jury either in opening statement or closing argument, we recommend that you use either PowerPoint or Keynote, which we previously discussed at pages 22-23. These are our preferred software programs because they are linear in nature, and, therefore, they lend themselves to situations where you are addressing the jury in what is like a lecture. If you are like some attorneys who do not like the linear nature of PowerPoint or Keynote, meaning that the user must move from slide 1 to slide 2, and then to slide 3, you can avail yourself of software that allows the user to pull up visuals in a nonlinear way. This software is discussed in Chapter 12. Also, in Chapter 12 we discuss how to use PowerPoint's hyperlink feature to permit a nonlinear progression while using PowerPoint (see pages 268-70).

D. Catalog of Persuasive Visuals for Closing Argument

Visuals that are well suited to closing argument will help counsel communicate his or her argument during summation. Although we cannot possibly examine all potential visuals, this section provides many that can be either modified to fit your case or serve as springboards to assist you in creating appropriate visuals. One thing all these visuals have in common is that they are designed to persuade the jurors to apply the law expressed in the jury instructions to the evidence in a way that will compel them...