Thursday, July 21, 2011
Daniel S. Medwed (University of Utah - S.J. Quinney College of Law) has posted Closing the Door on Misconduct: Rethinking the Ethical Standards That Govern Summations in Criminal Trials (Hastings Constitutional Law Quarterly, Vol. 38, No. 4, 2011) on SSRN. Here is the abstract:
Closing argument is a pivotal moment in a criminal trial. It represents the last opportunity for prosecutors to convince jurors of the defendant’s guilt and for defense lawyers to show reasonable doubt. As a result, criminal lawyers may be tempted to conclude with sweeping arguments that pull at the heartstrings of their target audience, the jury. Scholars dating back to Aristotle have warned that the most persuasive arguments often contain an appeal to emotion – and that emotionally laden rhetoric can distract people from making rational choices.
Legal ethicists have struggled with the issues surrounding closing arguments, trying to reconcile the need to stamp out overly-emotional appeals with the desire to empower advocates to summarize the evidence as forcefully and creatively as they wish. These efforts have fallen short. The American Bar Association (“ABA”) Task Force to Revise the Prosecution and Defense Standards has set out to change this circumstance. The Task Force has submitted proposed revisions to the Standards Committee of the ABA (“Proposed Standards”). The Standards Committee has responded to the Task Force’s proposals related to prosecutors’ summations, and plans to address the defense standards in the near future.
Part I of this Essay discusses the ABA’s ethical standards governing closing arguments as they currently stand, highlighting their advantages and disadvantages. Next, Part II analyzes the proposed amendments to those standards. Part III then considers some questions that remain unanswered.