“It is more
probable that a well tried case will be lost due to a weak, poorly organized
final argument than it is that a poorly tried case will be won by an effective
argument” [1]
1.0 DEFINITION
A closing
argument[2] is
the concluding statement of each party’s advocate, or the party himself,
reiterating the important arguments for the court. Simply put, submissions can
be said to be arguments at the close of the trial or on specific issues that
arise during the trial on what a party believes to be the correct legal or
factual approach in the circumstances.[3]
This is the
stage of the trial where each of the opposing trial lawyers (advocates) or
parties attempt to persuade the court by inviting the latter to consider the
case advanced and hold in his/her favour (will). Therefore, the ability to make
a good speech is key to persuasion in advocacy, with the term ‘advocacy’
deriving from the latin ‘ad vocare’, meaning literally ‘to call towards’.[4]
Advocacy is,
then, the art of winning the listener over to the advocate’s cause by
persuasive speaking.[5] By
and large, lawyers like the Indian pleaders are expected to be good orators. It
is for this reason that they are retained and which art strongly comes to life
when making a speech to the bench, judge or jury.
2.0 THE
AIM/PURPOSE OF CLOSING ARGUMENTS
This is
threefold, namely;
2.1 Persuasion (Rhetorical Dimension of Advocacy).
In an
adversarial system, like ours, the findings of fact and the law are based
almost entirely on the opposing views put forth by the respective counsels. The
judge plays a primarily positive and neutral role therefore highly dependent on
the integrity of the lawyers who appear before them. In that regard, closing
speeches avail to the litigant, the last opportunity to communicate directly
and ultimately convince the court on the propriety (merits) of his approach.
Persuasion
entails the psychological element of the case that benefits from human
interactions (social economic affairs).[6]
In other words, the ability to display the common touch (appeal to emotions)
and communicate effortlessly and politely with people from all walks of
life.
A trial
litigator will therefore develop a case theory[7]
that is convincing, enduring, resilient and consistent with the legal and
factual context as well as the available evidence. Then convert your case
theory into a story told from the client perspective but in a most coherent
(logical) narrative form.
To influence the
intelligence and will of the court, one needs to;
a)
Dispel antagonistic feelings or prejudices which will
prevent his arguments from receiving a fair hearing.
b)
Build favourable feelings by causing the facts to speak
to the will in the same way they speak to the intelligence. The main points to
stick out, the subsidiary ones to strengthen key arguments while weak arguments
to be avoided altogether.
2.2 Dealing with Unfavourable Evidence
Closing speeches
avails an integral platform to essentially deal with evidence that undermines
your case concept and trial strategy. This is by approaching evidence from an
angle favourable to your client’s case and is best achieved by;
a) Sealing
loop holes in your case.
b) Carefully
maneuvering around pot holes, that is by rendering favourable and plausible
explanations for any inconsistencies. Secondly, by contradicting evidence in a
more positive (innocent) manner rather than adopting a mere dismissive and
hostile fashion. In the alternative, one can challenge the admissibility and
relevance of the evidence in question or establish a greater weight of probability
on the facts consistent with the client’s case, or even argue that the overall
standard and evidentiary burden of proof have not been discharged. This is what
is known as toning down weak points by removing their stinging element.[8]
NB.
This helps to
improve your image to the court as one comes out as honest, sincere, gracious,
magnanimous, appreciative of the entire adduced evidence and helps to focus
attention on the real issues to be determined by the court.
2.3 The
Law
Closing speeches
allow one to firmly deal with the legal sufficiency of the case. In that
regard, formulate precise and sound general propositions of the law which the
court is invited to accept.[9] Then offer
an array of all relevant authorities and where necessary distinguish them on
principles, but always avoid cases said to be ‘on all fours’ with that which is
being decided.[10]
In the absence
of decided cases, a trial litigator may employ analogies or illustrations to
drive his/her point home. Then reiterate the appropriate burden and standard of
proof.[11]
In a jury trial,
make your points on law succinct (brief) and explain them in straightforward
terms without belaboring any points. If in conflict with that advanced by the
judge, avoid confrontations for an appeal lies to the appellate court in the
event the judge gets it wrong.
In general, in an effort of proving his
case and to make the last impression on the court a closing argument should
contain the following:
a)
A mastery of the facts and issues of the case.
b)
A reminder of the party’s theory or theme of the case.
c)
A recapitulation of the evidence.
d)
Reference to the standard and the burden of proof.
e)
Reiteration of the relevant law.
To conclude, the
closing address avails a litigant, the final chance for parties in trial to
persuade the court that their collection of facts, the significance of those
facts, and their association with legal principles is to be preferred to that
of the adverse party. It is the opportunity to enhance one’s own case and
highlight the weaknesses of the opponent’s case.
And even if the
decision-maker has already decided the case on the adduced evidence, your
closing is still important for it will form the basis of the judgment. For the
client, the closing argument shows that their case has been well presented, and
if they lose, at least they will comfortably know that a good effort was
made.
3.0 THE NATURE OF CLOSING ARGUMENTS
The closing
argument occurs after the presentation of evidence and it may not contain any
new information but only use evidence introduced at trial.[12]
Different jurisdictions have different rules regarding the closing arguments
but generally, the plaintiff has a right to address the court first followed by
the defendant with the plaintiff having a right of reply. This is premised on the
rule that the one on whom the onus rests must start the closing argument.
The defendant
usually goes second. The plaintiff or prosecution is usually then permitted a
final rebuttal argument.[13]
Here again the rule is that the argument in rebuttal should be premised only on
the law but in certain times the court may allow the rebuttal argument to be
premised on facts.
Ordinarily, with
reference to the form of delivery, closing arguments are delivered by way of an
oral speech (address) to the court. In Kenya however, the practice is that the
arguments are reduced into writing and served upon the opposing counsel or
party. Then, time allocation is given for an oral highlighting of the arguments
in an open court or at the Judge’s chambers.
This practice
came about due to the congested diary of the courts with the object of saving
time towards expeditious conclusion of matters. Written submissions also
encourage the judge to make notes on your material for further cross reference.
They also help the advocate order their presentation in court in a logical and
systematic manner.
However, the
procedure has been held to be irregular, especially in criminal cases. The case
of Henry
Odhiambo Otieno v Republic[14]
is important in this regard. The Court stated:
“…this case shows the dangers inherent in a
situation where both the court and counsel make shortcuts to finalize matters
they are seized of. It is a good thing when courts and counsel show a desire to
urgently conclude matters. However, where as in this case justice is
compromised, the practice of making shortcuts is to be deprecated.”
In that case,
the defence counsel filed written submissions which the trial court considered
in making its judgment. The Appellate court was doubtful that the Accused had
been given access to the written submissions.
The court relied
on the case of Salim Dean v. Republic[15]
where it was stated that:
“The Criminal Procedure Code provides a
precedent for the making of submissions in the court. In no part of the
legislation is there a mention of written submissions. A presiding officer of
the court is expected to hear orally such submissions as both sides in a
criminal case wish to make and to seek clarification of such submissions as
found necessary, in order to appreciate each side’s case before delivering his
opinion. The accused person is also supposed to hear those submissions and has
the right to clarify any point raised or to object to its being raised where he
considers it necessary for his own benefit. Written submissions deny the
accused that fundamental right. It is fundamental because were it not so the
drafters of the constitution would not have entrenched it in the constitution.”
The form
notwithstanding, submissions are most likely to succeed if properly structured
and well delivered because the judicial officer is likely to be persuaded, if
the argument is delivered in a systematic and logical manner rather than as a
confusing mixture of facts and opinions.
4.0 THE SCOPE OF CLOSING ARGUMENTS
There are
ethical and legal limitations to the contents of a closing address:
·
The closing argument should be limited to the
evidence led at trial- new evidence or information not covered during the trial
cannot be introduced at this stage. This means that counsel may not bring out
any fact not actually mentioned in the pleadings or the evidence of the
witnesses.
·
It is improper for counsel to exaggerate. For
instance, it is improper for counsel to suggest to court that a witness was an
entirely satisfactory witness, in all respects when clearly this was not the
case. It is however proper to make concessions about imperfections in the
testimony of his/her own witnesses. This, because in an adversarial system, the
findings of fact are based almost entirely on the opposing views put by counsel
with the judge playing a primarily passive role with the courts highly
dependent upon the integrity of the lawyers who appear before them.
·
To ensure adequate treatment of the client’s case
by upholding his interests, and in the criminal case, by ensuring that the
prosecution discharges its onus, and not to fabricate any defences, or to
assist the prosecution case in any way whatsoever.
·
Not to inquire into the truth of the client’s
instructions at the trial stage.
·
The advocate has no duty to disclose facts to
the court or to the opposing party which will assist the opposing party but
ought to reveal all relevant case laws and statutory provisions within his
knowledge, because they have sworn allegiance to uphold the law by virtue of
their profession and as officers of the
courts. However, the prosecutor must engage scrupulous fairness in prosecuting
a criminal case.
5.0 THE CONTENT AND STRUCTURE OF SUBMISSIONS
The whole of the
client’s case pivots around the content and structure of submissions with the
various approaches, inter alia,
including;
1. Point of view 2. Issue 3.
Conclusion
Reasons Rule Rule
Evidence Application Explanation
Summary Conclusion Application
Conclusion
The approach in clause 3 is more appropriate for the
structure of a written submission and which will be dealt with in this paper
but the manner and terminologies differs with that of Legal Writing and
Drafting skills. Where as, clause 2
caters fully for legal opinions, clause
1 appropriately suits oral
submissions promptly made during the heats of the trial process.
That said, a
closing speech generally consists of three parts, namely;
5.1 Introduction/ Exordium/Proomium
It is the
introductory paragraph(s) of the speech, and usually the first sentences carry
the main themes of your case. This however should be a precise and captivating
conclusion of the overall case.
The introductory
part also contains a brief summary (background) of the facts of the case
purposely to pave the way for the statement. One should state the facts he
wants the judge to find but caution should be taken to avoid restating or
reciting facts.[16]
The purpose is
to arouse or cultivate the court’s interest and attention by exciting
favourable feelings (removes prejudices), sets the stage for magnifying issues
by lifting them to a higher plane or reducing their importance and ultimately
making the audience favourably disposed to your case.
5.2 The Statement
This entails the
statement and explanation of what needs to be proved, that is to say, the facts
in issue. The statement should cover the following;
a) The issue:
These are legal
issues that require proof. Brings the judges attention to those issues which
are common cause and those which are not in dispute, due to:
·
Prior arrangements between the parties;
·
Formal admissions made before or during trial;
or
·
Evidence of both parties on the aspect being identical.
Most importantly
set out the factual issues upon which the court is required to make a finding.
b) The onus on the issue:
Draw the
attention of the court to the overall onus and the appropriate standard, but it
may be necessary to highlight any aspects of the case where the evidentiary
burden of proof may have shifted to the other party.
c) The
legal test applicable to the issue:
This is the law
or legal principles applicable to the issue. Distinguish the elements of the
law that are applicable to the issue and which should be proved for the court
to decide on the case. These can be found in case law, legislation or legal
writings on the subject.
d) The Proof
It entails
arguments in support or in refutation of a trial case. Thus, one ought to play
the devil’s advocate by anticipating likely arguments to be advanced,
objections to its validity or setting up a counter argument. The proof
includes;
e)
Agreed facts:
Begin with facts which are not in
dispute and demonstrate to the court that those facts are more consistent with
your client’s explanation of the matters than the explanation put forward by
the other side.
f) Summary of relevant evidence:
Summarize (only
a few lines per witness) the evidence that the court has to consider to decide
the case. Objects, documents and other items of evidence are discussed in
closing argument with reference to the witness through whom they were handed to
court. The essence is to show the actual facts in issue through the tool of
cross referencing.
g) Evaluating the summarized evidence:
This is the
crucial part of the submission. It is an opportunity to persuade the court that
your client’s version of the facts should be awarded preference over that of
the opposing witnesses. First, analyze facts in issue that require proof, and
then discuss the adduced evidence to emphasize the strong points in your case
while highlighting the weaknesses inherent in the opponent’s case.
Highlight and
analyze any instances of contradictory evidence with other witnesses,
corroboration of the relied evidence by drawing the judge’s attention to oral
evidence which has been supported by the documents rather than evidence which
is neither supported nor indeed contradicted by what has been contained in the
documentation or are indications of untruthfulness or exaggeration. Highlight
the inherent probabilities when considering the witnesses’ versions, the
demeanor of witnesses as well as the weight to be attached to objects and
documents handed in by witnesses.
Make an
assessment of the witnesses, their testimony and other evidence as being
truthful, untruthful, mistaken, consistent, reliable or unreliable. It is at
this point that counsel may suggest inconsistencies in the witnesses’ evidence
on crucial aspects such as the explanation of distances, description of
lighting, explanations as to time or description of a person.
Overall, a sound
knowledge of the rules of evidence in respect to the admissibility and
relevance of evidence is very essential to successful advocacy so as to deal
with any objections to your evidence which may be equally un anticipated, and
if unfounded, must be promptly refuted before the court rules that some vital
evidence is inadmissible.[17]
After
successfully tying the facts in issue persuasively to the evidential facts and
proofs (whether from an affidavit or oral evidence), then conclude on the facts
in the case by drawing your conclusions from the evaluated evidence.
h) Apply the legal test to conclusions of
facts and the overall onus of proof
Integrate the
facts found to be proved with the relevant legal principles and determine
whether the onus (burden) of and standard proof has been achieved. Explain how
your facts best fit the legal requirements. Sometimes the law is clear and
settled on a point in issue, but at times the law is unclear, hazy and most
puzzling.
5.3 Peroration/Climax
The part where a
litigant applies a finishing touch, gloss or veneer to the speech by developing
a most convincing rational argument founded in law and the facts of the case
aimed at disposing the case in your client’s favour. It entails asking or
urging the court to make a finding in favour of your client and set out the
relief sought.
The role of the
climax is to bring the speech to an end and drive home the entire essential
arguments while arousing the feelings to which the facts of the case naturally
give rise to. For instance, the desire to see justice done where the accused
person, is proved beyond reasonable doubt to have committed a deliberate
heinous and callous murder.
OVERALL, the characteristics of a good
speech are threefold;
- To Interest, especially by
striking the right note in the introduction and by vividness in the
narrative, and also by grace of style and delivery;
- To Prove, by clear exposition and
arguments, which appeal to the intellect;
- To Convince, by breaking down the
resistance of the will and rendering it favourable. The process starts
with the note struck in the introduction, is heightened by the narrative,
and brought to a climax in the peroration.[18]
6.0 TECHNIQUES
How does one
give an effective closing argument? There is no universally accepted mode or
technique for the delivery of the closing argument. The techniques are as
varied as advocates themselves. The advocate has more freedom and control over
closing arguments than he has over any other aspect of the case. Consequently,
It should be his favourite task; a task that bears his personal stamp,
reflective of his or her true inner self. The closing argument is when the
artistry of persuasion is marshaled on behalf of the client’s case. Most of the
persuasive techniques used in opening statements can be used in closing
arguments. There are techniques used in closing arguments that make it most
effective.
- Do not
memorize
It is a mistake
to write and read a closing argument. The most effective arguments are
delivered from an outline. It is better to memorize thoughts than words of your
closing argument. If you try too hard to memorize every word of your closing,
you will have a hard time surviving fifteen minutes. Judicial officers will be more persuaded if
you are more relaxed. In addition, you
will not have to worry if you missed certain words or sentences because you
will be able to focus on the larger picture of your argument. You may bring notes, but you will want to keep
them to a bare minimum.
- Movement
It is important
to use a certain amount of body and hand movement. These capture and sustain
the attentiveness of the judge. Gestures can be used for emphasis especially on
the salient features of your case. Body movements can also be used for
transition. For example, pausing and taking a slight break will alert the judge
that you are about to change subjects.
- Verbal placing
Delivery is a
matter of elocution and voice development. The effective control of the pace,
pitch, tone, inflection and volume of the closing speech forms an imperative
persuasive tool. Also avoid speaking too quickly and too loudly. Pacing of
speech can be used to convey passage of time, distance and intensity.
- Emotions
There are varied
opinions abut the use of emotions during closing arguments. Many lawyers are
for the use of emotions, while many others are not. The best approach is to
save it for the times you are discussing the many dimensions of your case.
There will be instances in trials that virtually call out for an outward
display of feelings because the absence of emotions may be taken to mean the
lack of belief in the righteousness of your client’s case.
Overall be
pleasant, accept criticism and don’t be quick to lose your temper However,
avoid personal opinions and uncalled for humour as this may not only irritate
the court but as well trivialize your client’s case.
- Visuals
These are hardly
employed in Kenya despite being very effective during closing arguments. The
advocate is free to create visual displays for vivid and illuminative purposes.
Physical evidence other than documents can be used during final arguments to
recreate the investigation process, more so crime scenes in criminal cases. The
only restriction on using visual aids is that they must be derived from the
evidence adduced during the trial.
- Headlines
These may take
the form of a simple statement, rhetoric questions or short enumerations. These
can be more effective when used with visual aids. This technique helps bring out
coherence and unity in a closing argument.
- Simple, Active
language
This should be
used in argumentative form. There is a strong temptation during final argument
for using judgmental or conclusory terms like brutal, deceptive, unfair, naïve
etc.
- Themes and
Theories
A closing
argument is logic, evidence, and emotion brought together. It is important to
develop a theme or theory of the case earlier on in the trial and which are
amplified in the closing argument in such a manner that the court accepts it and
sees it as what really happened. It is important to adopt and commit to a
theory. Then argue the theory
persuasively and with conviction. However, do not develop hypothetical
standards but unique standards for the judge to apply in the case.
9.
Appearance
Your
appearance is an important part of the impression you create as an advocate. It
can add or detract from your credibility. Make the court interested in what you
are submitting on and not your appearance. Be modest.
10.
Communication
and organization skills
Artistry is a
combination of tacit knowledge (tact, personal knowledge shaped by experience,
knowing in action), technical knowledge of the law (knowing what-classroom
experiences) and cognitive skills (practical skills or experience carved out of
experience). However, all these will come to naught if the advocate lacks the
necessary communication and organization skills in case preparation, management
and presentation.
Communication is
the life blood of a trial lawyer; therefore a sound command of the English
language both spoken and written is a must. Therefore, a litigant ought to
select and employ a simple, clear, unequivocal, authoritative, forceful and
persuasive language but within an orderly presentation of the salient points of
the case.[19] Communication
also entails knowing the court terminologies, use of courteous language like:
if it may please this honorable court; as the court pleases; it is my humble
submission, etc.
Mould the
content of your speech to be as pleasing to the court as possible and it is a
sound rule to be as brief as possible as is consistent with a full preparation
of your arguments.
11.
Style
of delivery
An accurate and
varied style of delivery will most likely captivate the attention of the court.
Careful use of original figurative speech, similes, pace, metaphor, repetition
and the adoption of powerful imagery is vital to the advancing of your themes
and creating a lasting and interesting picturesque.[20]
Use the
narrative tool to explain issues and advance themes and strategies in a most
vivid, illuminative and imaginative way that brings out the character and
emotional behavior of the chief actors. Charming Varied, graceful style and
pleasant and varied delivery relieves the monotony of every day’s language. And
the employment of transitory words or introductory phrases ensures a smooth
well balanced speech.
The best style
to adopt in making a speech is your own. While there is nothing wrong with
picking useful techniques and phrases from other experienced advocates, an attempt
to imitate the style of another is doomed to fail-cultivate your own style
rather than ape others in order to impress the court. This brings you out as
sincere and unaffected.
Sincerity not
necessarily to believe what your client has told you but to suspend any
disbelief he has once he has clear instructions about the way the case should
proceed and must present his case in a manner which makes it clear that it is a
version of events sincerely put forward to the court.
All in all,
allow the facts to speak for themselves but do avoid hyperbole or exaggeration.
There
are other factors that would also contribute to an effective closing argument:
·
Prepare
your case file: label your notes of each witness’s evidence and file them
in the sequence that the evidence was given. Bring any case authorities you may
need to rely upon to court and make enough copies to be supplied to the judge
and your opponent during the submissions. Paginate the submissions (if written)
for quick reference by the judge.
·
Anticipate
your opponent: Where there has been adverse evidence, you must deal with
it. Present the facts and evidence favorable to your position, but also embrace
the bad facts while addressing your weaknesses. Expect your opponent to focus
upon any and every limitation in your client’s case. Expertly package the
weaknesses so that they seem relatively unimportant. Bad facts will not simply
go away, but explaining them away defuses the opponent's arguments and
reinforces your credibility.
·
Interact
with the judicial officer: Aim at involving the decision- maker in your
closing arguments so that you are responding to their concerns rather than
talking at them, in the hope that your priorities and theirs are the same. Be
alert to any spoken or unspoken hints about what the decision- maker wants. It
is not good persuasion to make a closing address as though the judge was an
empty bottle into which you can pour your arguments, which finally float above
any other arguments put by opponents.
By
the time you utter the first word of your closing, the judge has learnt all
about the case. Undoubtedly, the judge has made decisions, if not about the
final outcome, then about much of the evidence. It would be a wasted effort to
be eloquent about matters where the court’s mind is made up. It is better to be
eloquent about those issues where the judge is wavering. Only the judge can say
what those unresolved issues are: so ask.
·
As the plaintiff’s
advocate or the prosecutor save some of your best one-liners and most telling
points for the last when the defendant lawyer has sat down and can no longer
rebut what you are going to say.
·
Damages
- After completely discussing the elements of the case and your client's right
to prevail in the lawsuit, move on to discuss damages. This is extremely
important and cannot be rushed or discussed in a haphazard or unorganized way.
Conversely, if representing the defence, the argument should focus more on the
liability aspect of the case.
6.1 A CLOSER LOOK AT THE CIVIL AND CRIMINAL
ASPECTS
6.1.1
Criminal
Cases
a) The Prosecution Case
Simply put, this
is the case of the Republic (State) as against the accused person who is
alleged to have committed criminal offences.[21]
The essential
elements of the offence are contained in the charge sheet. For example, the
offence of theft would allege the defendant as having; a. dishonestly b.
appropriated c. property d. belonging to another e. with the intention of
driving of depriving the other of it permanently.
The prosecutor
has to probe legal issues that require proof, anticipate possible defences or
loopholes in his case and analyze facts that he must prove to obtain a
conviction or to impinge the defence case.[22]
This will allow
the prosecution to focus its mind on the facts to which the evidence must be
directed by identifying evidence to prove facts in issue.
b) The Prima Facie Case
This happens
where the prosecution adduces, with respect to each essential element of the
charge, evidence on which the court would be entitled to find such element
proved if the accused person was not entitled to his defence. That
notwithstanding, the establishment of a prima facie case is not enough to
secure a conviction, because the defence is entitled to argue that the overall
burden of proof has not been discharged or establish possible defences
consistent with the accused person’s innocence.
However, once
the prosecution has established a prima facie case, the defence runs a serious
tactical risk in not calling evidence to rebut it, not because the defendant is
called upon to prove his innocence (which would be contrary to the rule in Woolmington’s case) but because the
court may exercise its entitlement to accept the uncontradicted prosecution
evidence.[23]
c) The Submission of No Case to Answer
A submission of
no case to answer is made at the close of the prosecution case, that is, before
the presentation of the defence case. At this stage, the bench determines
whether the prosecution has discharged its burden of proof. And if the
prosecution closes their case without adducing any evidence capable of proving
an essential element of the offence charged, the bench will uphold a submission
of no case to answer, because the burden cannot be discharged. A submission of
no case to answer may also rest on a point of law.
However, a
litigant ought to exercise great caution because a hopeless ill-founded
submission may unnecessarily irritate the judge and thereby adversely affect
the client’s case. In that regard, always plan for the possibility of the
submission failing in whole or part for you are likely to face a difficult
trial having antagonized the bench. Even so, the decision is a question of
judgment that will become much easier with experience.
The procedure is
for the Defence counsel to move the court on a matter of law, and in the case
of a jury trial, the jury retires. The
Defence counsel then outlines the submissions citing relevant authorities but
based on the insufficiency of the adduced evidence. The prosecuting counsel
responds to the submission, Defence counsel replies, with the judge set to
deliver a reasoned ruling.
d) The Concept of Ideal Closing Speech
This is the closing speech which you, as the
Defence attorney, would like to make, if the evidence given in your case were
actually to justify it. Even though this concept sounds premature, it is
nonetheless most effective in criminal cases, because the prosecution have no
right to a closing speech, except for the limited purpose of responding to
points of law.
The object of the ideal closing speech is to
compose the strongest possible closing speech; the most persuasive argument to
the court that you can imagine on the basis of your client’s instructions
thereby serves to focus your mind on the evidence which would be required to
put you in a position to make it. One should however create room for
flexibility because the concept of ideal closing speech does not imply that a
litigant should strictly follow it to the letter by blindly making it the
ultimate closing speech. It merely serves as a useful guide or summary on the
direction in which your trail preparation would take for effective presentation
and delivery of your case.
This is in terms of focusing your thoughts, inter alia, on how to approach the
prosecution’s case, evaluation of the evidence to be adduced, what witnesses to
call and which ones to cross examine, and how to actualize your strategies and
themes. In that regard, when amended to factor in what transpired in court, the
technique provides an excellent framework for the speech you will make. This
bearing in mind that the nature of most defences appears quite clearly from the
path taken in cross-examination. Most importantly, one thing that should emerge
with some clarity from your ideal closing speech is a picture of the witnesses
you will need to call at trial.
Conversely, the opening speech is the best
opportunity for the prosecution to be persuasive by making a speech of brevity
proportionate to the simplicity of the case.
e) The Plea-in-Mitigation
A plea in
mitigation is an appeal to the court to exercise favourably its discretion in passing
sentence. This submission is made by Counsel to reduce the expected severity of
the punishment to a lenient one. The aim of an advocate during plea-in
–mitigation is to present the circumstances of the offence and the background
of the offender in such a manner as to minimize the penalty or better still
acquit your client. On the aspect of the background of the offender, you can
present facts that would exude the
court’s sympathy to your client.
For instance that your client is the sole bread winner for his family or
that they are of old age or sickly.
Therefore, it is
part of the Defence attorney’s duty to persuade the judge to sentence the
accused in more lenient terms than the judge had prior resolved to. Persuading
a court to hand an appropriate sentence requires the same approach as that of
contested cases. Evidence may be called
with both examination-in-chief and cross-examination. There can be exhibits,
such as diagrams, photos and character references and, there can be competing
arguments from the Prosecution and Defence.
Defence counsel
should always be prepared to deliver a plea-in-mitigation no matter what the
plea is. If the accused pleads guilty, the counsel has to do everything
possible to reduce the expected severity of the punishment by negotiating with
the prosecution for a lesser term (plea bargaining) or in the alternative,
preparing and delivering an effective plea-in-mitigation. If the accused pleads
not guilty, the lawyer must also be prepared to deliver a plea-in- mitigation
in the event of a conviction.
There are a
number of factors that the court takes into consideration in passing sentence
such as the goals of sentencing, specific circumstances of the offence and the
offender, and public opinion. In addition to these factors, are the key
elements of contrition and remorse.
If the offender demonstrates to the sentencing court that they have a real
sense of guilt and regret their criminal actions or omissions, then the penalty
will most likely be lesser than if the offender lacks any such sense of
contrition and remorse.
However, to
merely tell the court that your client is sorry states no more than the
obvious. Of course your client is sorry – sorry that they got caught! Being
sorry reveals nothing about their understanding of the wrongness of their
conduct or their need to express regret. Real contrition and remorse is shown
by the responsible actions taken by the offender before the plea is made.
A persuasive
plea-in-mitigation is one which does
not gloss over points. By setting out both the elements and the
supporting evidence you can avoid the common error in which bare assertion is
asked to be both argument and evidence. Consider the following submission based
on the issue of contrition:
‘My client is very sorry for what she did.
It was out of character and she realizes she has done the wrong thing.’
Compared with:
‘My client is a young professional who
forgot her own condition as she tried to persuade a friend not to drive. She
has learnt her lesson: when she has a friend in need, she calls a taxi and
refuses to let the friend leave until the taxi arrives.’
The second version is more persuasive because it goes into the detail. It
isn’t simply a ‘heading’ but rather paints the picture. It gives the judge the facts
that demonstrate contrition. The first version sounds more like an excuse. Of
course, in some situations the devil is in the detail and it is wiser to skim
over that detail and not go into depth; for example, as to particular aspects
of your client’s criminal history.
As a tactical plan avoid stating the plea
when the court is expecting its daily share of usual excuses from offenders,
which the court has heard time and time again. It would be better to tell the
court in advance that the plea will take a bit longer than usual and that you
will be calling evidence. The need for extra time means that your case will be
put at the end of the list, thus availing enough time for the court to
appreciate ‘how’ and ‘why’ the case is distinct from the rest.
Importance of a Plea-in-Mitigation.
- It can be called to avoid potential disqualifications
or to reduce the number of penalty points or periods of disqualification.
- It assists the court to determine the seriousness of
the offence and reconcile the public safety by reflecting on any relevant
personal information or past record of the accused with the discretion of
reducing the sentence.
An effective plea-in-mitigation will
entail the following:
a)
The Advocate must understand the theory of sentencing
and the importance of researching on any applicable sentencing guidelines. For
instance, researching on the sentence the client is likely to face.
b)
The Defence attorney must have in mind a realistic
sentencing objective, having regard to the theory behind sentencing and having
considered any applicable sentencing guidelines.
c)
The advocate ought to have good advocacy skills.
Preparing a Plea-in-Mitigation
The advocate
will need the full instructions from the client, as there are a couple of
things you must attend to before making your plea-in-mitigation.
·
You must check if your client has a criminal
record. The prosecutor will have a copy of that record, and the court will
get a copy during the sentencing. Check with the prosecutor as early as
possible. Do not take your clients word that s/he has no criminal record
because a plea that is largely based on your clients good character will
quickly sink without a trace, the moment the prosecutor refers the court to an
earlier occasion when that good character slipped away.
·
Also, explore your client’s ability to pay a
fine or make a donation to a charity. Is your client able to pay
immediately or only by installments over several months? Be prepared to tell
the court of your client’s capacity to pay.
During the
arguments in mitigation, the advocate should also:
i)
Concede the
aggravating features of the case.
The counsel will
need to look at the law and at the prosecution evidence to decide whether any
charges can be made good by the prosecution. Counsel must be aware of the
prosecutor’s version of the facts having considered the pretrial disclosure or
evidence and having listened to the prosecutor’s submission to the court
outlining the circumstance of the offence.
ii)
Balance the
theme of the case
The advocate
must be aware of the sentence the court can impose for a particular offence. He
should therefore be in a position to assess the balance of aggravating and
mitigating features in the offence and arrive at an assessment of the
seriousness of the offence. Put yourself in the position of the court and
consider what sentencing objective the court is likely to follow and this will
help the advocate arrive at a realistic sentencing objective which gives you
the basis upon which to build your plea-in-mitigation.
iii)
Negotiating
the lowest charge.
Negotiations can
begin in a number of ways. In the
superior court, the defence will often send a written submission to the
Director of Public Prosecution suggesting that a lesser charge should be given.
This is called plea bargaining.
Structuring a Plea-in-Mitigation
There is no
predetermined structure of a plea in mitigation. The following are the possible
factors an advocate might have regard to;
a)
If your client has pleaded guilty, introduce yourself
to the bench and introduce your client
b)
Acknowledge the
Prosecution’s outline and presentation of facts. Further highlight the
prosecution facts you disagree with.
c)
Use a pre-sentence report. This outlines the personal
history of previous convictions, circumstances of the present offence, details
of the Defendant’s response to and insight about his situation (usually based
on an interview with the convicted person) and a recommendation in relation to
appropriate sentencing
From decided
cases, it is paramount that the court considers the plea in mitigation in
passing sentence. In the case of Ismael Juma v. Republic,[24]
the High Court sitting as an appellate court, found that the trial magistrate
had not taken the plea in mitigation into account when passing sentence and
accordingly reduced the sentence from seven years to four years.
In another
related case of Ali Iregi Githinji v Republic[25],
the court also upheld the ruling that the court is mandated to consider
material factors in mitigation before passing sentence. The court stated thus:
“I have perused the record of the trial
court and nowhere did the learned magistrate give recognition of the fact that
the Appellant had pleaded guilty to the charge therefore saving the court’s
time. The learned trial magistrate did not recognize that the Appellant was a young
person. The court gave more weight to the seriousness of drug cases generally.
In doing so I find that the learned trial magistrate overlooked material
factors and that these factors dictated a less severe sentence than the one
imposed. In those circumstances I find that the sentence of 50 months
imprisonment was excessive and manifestly harsh having considered the Appellant
pleaded guilty, was a first offender and that the amount involved was 19 rolls
of bhang and therefore not enormous…”
However, sentencing
upon a plea in mitigation remains the discretion of the trial court which ought
not to be interfered with by an appellate court unless it is evident that the
lower court has acted upon some wrong principle or overlooked some material
factor or the sentence is manifestly excessive in the circumstances of the
case.[26]
Where a party
omits to give a plea-in-mitigation, he has himself to blame. In the case of Musa
Juma Simiyu v Republic[27],
the Appellant when asked what he had to say in mitigation, stated that he had
nothing to say and was thereafter handed a ten year sentence. On appeal he
contended that the trial court had not considered his mitigation of pleading
guilty to the offence. The appellate court dismissed the appeal noting that as
the appellant had not put in a plea-in- mitigation, he could not prove that the
trial court had failed to take into account some relevant factor in handing
down the sentence.
6.1.2
Civil Cases
There are no
unique features concerning submissions of a civil nature save for due regard to
the standard and burden of proof.[28]
Nonetheless, an
effective closing argument is an essential tool for the plaintiff’s trial
attorney to maximize damages for his client. During the summation, all of the evidentiary pieces should be
brought together and the case should be presented in a strong, fluid, and
persuasive manner. All points that help prove the elements establishing the
theory of the case must be fully explained. The closing should be performed
in a simple, yet precise way
7.0 CONCLUSION
In conclusion, as earlier alluded to, there is no one way
of delivering submissions or closing arguments. The techniques involved are
varied and therefore ought to bear the advocate’s own stamp. He should own it.
The discussion contained in this paper however can hugely assist a litigant to
deliver his arguments. The importance of the closing argument cannot be over
emphasized. This is a huge factor in the final determination of the case. The
closing argument goes a long way in either making or breaking the case and as
such, careful consideration should be given to it.
[1] Joseph V. Guestaferr: Obtained from <http://docs.google.com/gview?a=v&q=cache:yPUtfI2ED_IJ:www.wisspd.org/html/publications/WdefFall2005/ClosingArgument.pdf+aim+of+closing+arguments&hl=en&gl=ke>
as at 10th August 2009.
Viewed this way, submissions should be formulated
on the same lines of thought as the Judge would, for they form the foundation
of the judgment of the court.
[3] Submissions are not limited to
the closing of the case; there are other opportunities before, during and after
trial. For instance, in civil cases, submissions are also made when there are
interlocutory applications.
172. (Paraphrased.)
[5] Ibid.
[6] Examples include cultural
traits, attitudes, forensic taste, the mood of the court, etc.
[7] This while bearing in mind
that there shouldn’t be a lot of divergence between your client’s case and that
of the opponent’s.
[8] For instance, one can
challenge the relevance (‘if it is logically probative or disprobative of some
matter which requires proof’ per Lord Simon of Glaisdale in DPP
.v. Kilbourne [1973] AC
729), admissibility
(qualities which evidence must posses as a matter of Evidence Law), and weight
(cogency of the admissible evidence) of evidence, failure to meet the required
evidentiary burden of proof (does evidential facts tie to inferences that
proves the facts in issue?), or by tendering a vivid picture of a reasonable,
realistic and practicable possibility consistent with your client’s innocence.
[9] Avoid restating verbatim the
laws as laid down in the statute save where necessary.
[10] Use cases that enunciate
principles for the court is not concerned with the facts of the cases however
similar except where they throw light on principles.
[11] The burden of proof lies on
the party who must prove an issue in the court. In civil cases, it lies on the
one who alleges a fact and who must prove it in order to succeed in
establishing his claim or defence while in criminal cases; the prosecution
bears the burden of proof (Woolmington .v. DPP [1935] AC 462 HL(E)). The standard of proof, on
the other hand, defines the degree of persuasiveness which a court must attain
before a court may convict a defendant or grant relief in respect of a cause of
action, as the case may be. The standard of proof in civil cases, and in the
words of Lord Mansfield, is based on a superior number of probabilities
(preponderance of probabilities) while that of criminal cases, is beyond
reasonable doubt (not beyond the shadow of doubt, i.e. certainty, but must
carry a higher degree of probability. See Lord Denning’s judgment in Miller
.v. Minister of Pensions [1947]
2 All ER 372;). (For
a detailed explanation, see generally; P. Murphy & D. Barnard, supra note
3, at pp.3-7.)
[12] Obtained from <http://en.wikipedia.org/wiki/Closing_argument>
as at 10th August 2009
[13] ibid
[14] [2006] eKLR.
[16] Also,
avoid dwelling too much on facts. Deal with the real issues and capture the
whole case.
[17] Trial preparation is certainly
necessary to deal properly with all the problems which can be foreseen or
unanticipated.
[18] See;
John H Munkman. (1999). The Technique of Advocacy.
New Delhi: Universal Law Publishing Company, , p.152
[19] The
choice of diction plays an integral part in a closing speech.
[20] However, be very careful
because dead and worn out figurative speech may irritate a listener whose taste
is critical.
[21] See the Penal Code, Chapter
63, Laws of Kenya.
[22] The required
standard and burden of proof in criminal cases have been discussed earlier;
supra note 11.
[23] The words of Murphy and Barnard,
supra note 3, at page 4.
[24] [2005] eKLR
[25] [2006]eKLR
[26] Sayeko v Republic [1959] KLR
306
[27] [2007] eKLR
[28] Supra, note 11.
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