During the Sandusky trial, MaleSurvivor Communications Committee Chair Thomas Hodson (who is himself a former attorney, trial judge, and is now a journalist) will be sharing with us some helpful explanations of the stages of a criminal trial. Our hope is that sharing this information here will help people better understand what is going on behind the scenes, and eliminate some of the confusion and uncertainty that will inevitably come up. Please follow our Twitter (@malesurvivorORG) and Facebook pages for more information and reactions as well.
Sandusky Trial – Closing Arguments
To many trial veterans, closing arguments are viewed as the most dramatic minutes of the trial. It is the last time that the attorneys will be able to talk to the jury before the jury begins its deliberation. The arguments are a mash-up of rhetoric, facts, logic, emotion, drama, and pathos.
The purpose is simple. Each side uses closing arguments to sway the jury to its point of view with logic and rational deductions from the evidence. However, often hyperbole, drama, and emotion reign supreme during closing arguments.
Because the state has the burden of proof, it gets to go first and last – two bites of the apple. The defense only gets one chance to address the jury – sandwiched between the two portions of the state’s argument.
The state first argues that the evidence is overwhelming and that it has proven each element of each count by not merely the “beyond a reasonable doubt” standard of proof but “beyond all doubt.”
The state’s presentation during the first portion of the argument is sometimes methodical and rather dry. The prosecution will go over each bit of evidence and show how each piece meshes with another piece to form the strong, rip-resistant fabric of the case. Then the defense gets its turn.
The job of the defense attorney is a tough one. The defense only gets one shot and the attorney will strive to say something that is memorable to impress the jury. This portion of the trial, however, may be the toughest for people to hear who are pro-prosecution. It may anger you or cause you some emotional distress because the defense will be dismissive of the state’s evidence and the state’s witnesses. It may trigger within you all of the times when you perceived that you were not believed. I am, thereby, giving you a WARNING label as appears on television shows that might be offensive. CLOSING ARGUMENTS MAY NOT BE SUITABLE FOR YOU.
The defense attorney will claim that the state did not prove its cases beyond a reasonable doubt and that the state’s evidence is weak and flimsy. The defense will attack the credibility of the state’s witnesses and say that the “victims” are part of colluded testimony and/or only out to bring down this “saint” of a man (one characterization by a character witness). He will say that some of the young men who testified against Sandusky are only out to “get money” from potential civil suits and their families expect to “get rich” from all of this. The defense also will tout the attributes of the defendant as defined by the character witnesses and his wife.
The purpose behind all of this for the defense is two-fold: 1) to try to convince all 12 jurors that the state failed to prove its cases beyond a reasonable doubt and that they should therefore return a verdict of “not guilty” – OR – 2) convince even one juror that the state failed to meet its burden and have that juror hold out thereby making a unanimous jury impossible.
Remember, if there is NO unanimous verdict either for “guilty” or “not guilty” – then the jury is considered to be a “hung jury” and the judge will declare a mistrial. That means the trial would need to be done again, from the beginning, with a new jury. Everyone would be forced to testify again, if the prosecution wanted a second trial.
Normally, a hung jury enhances a defendant’s chances for a negotiated plea or for a dismissal. Recently, Sen. John Edwards had five criminal counts dismissed after a hung jury.
To get a hung jury, all the defense needs to do is convince at least ONE juror to go against any majority vote for guilty. Therefore, part of the defendant’s closing argument is to target certain jurors who are believed to be less bent toward the prosecution or more bent towards the defendant. Defense arguments are usually emotional and passion packed.
The state then gets one last chance to convince the jury. The final portion of the state’s argument is usually more emotional on behalf of the victims than the first part. The state will rebut the defendant’s argument and try to convince the jury that the defense is frivolous – and without merit.
The prosecutor will claim that the defense raised no credible arguments and presented no credible evidence – that the defense was just smoke and mirrors and that the jury should not be misled by the defense team.
The state will then talk about the impact of these acts of abuse on the victims (survivors). The state will want to touch the heart-strings of the jurors and have them feel for the victims and what they experienced at the hands of this man who “abused his power and position.”
Finally, the state will appeal to the juror’s sense of justice and call for justice to be done by these 12 people.
Once closing arguments are finished, the judge will deliver the jury instructions. We will discuss that in our next installment.
Please note, as of September 2016 I am no longer Executive Director. However due to a bug in UBB software that is still unresolved this label can't be removed.