Averting an Attempt to Blunt a Rebuttal Argument

Is there anything more powerful and gratifying than a good rebuttal closing argument? It’s rightfully called the “hammer.” When you have the rebuttal, you can expect that opposing counsel will attempt to deflect the hammer blows. Here is a transcript of just such an effort:

Defense counsel used this time-worn (for good reason) argument: “Now, I’m pretty much through. . . I must sit down and keep my mouth shut and Mr. Clark is going to argue again. . . I will be sitting there thinking of things I would say in response. The questions that I would ask him, I will be thinking of them. But, I will have some relief, I think I take great relief knowing that each of you is capable of asking the same questions and holding him to the same burden.

“So I may be sitting over there clenching my fists or writing notes. But I know that each of you, because you are reasonable jurors, because you are people we have on this panel, can ask the same questions, can have the same questions, can have the same reasonable doubts. . .”

In rebuttal, the prosecutor turned to defense counsel and offered an opportunity to ask those questions that counsel was musing over during the prosecutor’s rebuttal. Defense counsel asked a couple and then sat down.

The defendant was convicted, and, in a motion for new trial, defense counsel argued that he should not have been given time during the prosecutor’s rebuttal argument to ask the prosecutor questions. In his motion, defense counsel conceded, “. . . no case in Washington comments on the precise tactics employed by the prosecutor in this case. . .”

The prosecutor’s brief in response to the motion for new trial (which was denied) stated, “In a generous gesture, the prosecutor gave the defendant’s lawyer what he complained of not having: additional time to speak so he would not have to sit there mute, clenching is fists. He was given a chance to ask those questions that he had been thinking of while the prosecutor spoke. Defense counsel not only never objected to this offer but also willingly ceased the opportunity to question the prosecutor. Because the defense never objected during the prosecutor’s closing argument, he waived his objection. . .”

The rebuttal was unorthodox but a proper response to the invitation by defense counsel and within the latitude of proper argument. Besides, it was what makes trial work so enjoyable and fulfilling. What unorthodox but effective rebuttal arguments have you made?