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The Order of Trial is Important to Remember - Part 6 - Trial Strategy

Posted by attorney Theodore Robinson

By the time the testimony in the trial is complete, it then falls upon the parties to sum up their version or interpretation of what has transpired throughout the trial. Those are the closing arguments. Unfortunately, at this point, the order of things reverses itself and now the Prosecutor gets to go last in state criminal trials. (in federal trials, the government goes first and then gets a chance to rebut anything said by the defendant after the defense lawyer sums up.) I always feel that by letting the prosecutor go last, it gives them the opportunity to leave the last and lasting impression in the juries' minds. That's why I do everything I can to offset it beforehand, which is the subject of this series of articles. To do this, I make sure to point out to the jury that "this is my last opportunity to speak to you" so they know it. I also point out to them that I am not infallible and that I may miss or forget to mention something which they may remember. I point out to them that they have the responsibility to tell all the other jurors what they remember if I miss it. That puts them on my client's side in an insidious manner that nobody ever seems to notice. I then point out throughout my closing what the prosecutor may argue and then I answer those possibilities and take away their power ahead of time. This can be a very powerful technique and works exceptionally well. Anticipate what the DA will say and then mount a defense to it so they have to address it in their closing. That often takes them off their game and they get dragged into whatever you want them to talk about or wherever you want to take them. By doing this, they get pre-empted and often don't know what to do with it except to take the bait and answer whatever you said, which, since its extemporaneous, often doesn't go over very well. Most prosecutors are not great "off the cuff" speakers and would rather know what they're going to say ahead of time. You must gauge each prosecutor to see if you want to risk this or not. All in all, going last has its disadvantages, but if you deal with them correctly, it can turn into an asset for you.

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