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Clearing the obstacles to opening and closing in the first person at trial

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Oct 21, 2016 Clearing the obstacles to opening and closing in the first person at trial

One of the most persuasive ways for a criminal defense lawyer at trial to open or close before a jury is to present the persuasive story of the case in the first person. Doing so puts the lawyer in the moment of persuasion; can transport the jury to the scene, time, sense and feelings being discussed; and eliminates talking in legalese.

Of course, the lawyer must be ready for a prosecutorial objection to first person opening statements and closing arguments, and the risk of the judge getting on board. Here is a brief discussion of those possible obstacles.

In 2006, a Maine federal trial judge forbade doing opening statements in the first-person of the criminal defendant, in part because the prosecutor cannot cross-examine a criminal defendant who asserts the Fifth Amendment right not to testify. U.S. v. Lemieux436 F.Supp.2d 130 (D.Me. 2006). At least, though, Lemieux confirmed that a prosecutor may not take on the role of a crime victim in the opening statement, either.

When a judge prohibits the first person, a skilled lawyer will move right into the third person as if s/he is playing back a film. For instance, instead of the criminal defense lawyer’s saying in the first person “The police are now questioning me without letting me [the defendant] take a bathroom or sleep break,” in third person, the lawyer can say: “The police are now questioning Slim without letting him take a bathroom or sleep break.” 

A counterpoint to the foregoing Lemieux decision is the unpublished People v. Barsotti, 1997 Mich. App. LEXIS 526 (Mich. Ct. App. February 4, 1997), which confirms that: “A prosecutor [and, therefore, the criminal defense] is not required to state his arguments in the blandest possible terms…In addition, the prosecutor’s use of a vulgarity while cross-examining defendant, although perhaps crude, was not legally improper.” In other words, prohibiting first-person openings hamstrings a party’s right to present a persuasive case.

I have experienced firsthand the power of my presenting closing argument storytelling to the jury in the first person of my client. Doing so in the right circumstances transports me outside my lawyer role into the very person of my client, in the moment in a persuasive way.

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