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    • 1.

      Highlighting weaknesses in the prosecution's case;

    • 2.

      Describing favorable inferences to be drawn from the evidence;

    • 3.

      Incorporating into the argument:

      • a.

        The theory and the theme(s) of the case;

      • b.

        Helpful testimony from direct and cross-examination;

      • c.

        Verbatim instructions drawn from the jury charge;

      • d.

        Responses to anticipated prosecution arguments; and

      • e.

        Visual aids and exhibits; and

    • 4.

      The effects of the defense argument on the prosecution's rebuttal argument.

  • E.

    Counsel should consider incorporating into counsel’s closing argument summation of the

promises of proof the prosecution made to the jury during its opening.

F. Whenever the prosecution exceeds the scope of permissible argument, counsel should consider objecting, requesting a mistrial, or seeking a cautionary instruction unless tactical considerations suggest otherwise. Such tactical considerations may include, but are not limited to:

  • 1.

    Whether counsel believes that the case will result in a favorable verdict for the client;

  • 2.

    The need to preserve the objection for appellate review; and

  • 3.

    The possibility that an objection might enhance the significance of the information in the

jury's mind.

  • A.

    Counsel should file proposed or requested jury instructions before closing argument.

  • B.

    Counsel should be familiar with the local rules and the individual judge’s practices concerning ruling on proposed instructions, charging the jury, use of standard charges, and preserving objections to the instructions.

  • C.

    Counsel always should submit proposed jury instructions in writing.

  • D.

    When appropriate, counsel should submit modifications to the standard jury instructions in light of the particular circumstances of the case, including the desirability of seeking a verdict on a lesser included offense. When possible, counsel should provide case law in support of the proposed instructions.


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