The last time that we talked about the performative aspects of closing arguments, we focused on those arguments as examples of framed narration (i.e, as stories within stories). Over the next few pieces of the discussion, we'll look at other literary aspects of closing arguments and the "readerly" expectations of jurors as members of a specialized audience.
Conan Doyle's Sherlock Holmes stories popularized the notion of crime and its detection as a function of "means, motive, and opportunity." In "The Adventure of the Golden Pince-Nez," the young detective, Stanley Hopkins, finds himself (putatively) possessed of the "facts" but lacking an interpretation of those facts that would supply a motive: "I can't put my hand on a motive. Here's a man dead there's no denying that but, so far as I can see, no reason on earth why anyone should wish him harm." Holmes, of course, later makes it all clear.
What is it about a detective story that mandates the supply of a motive? Or, perhaps more to the point, why does the audience of a mystery story require that a satisfactory solution to a crime include proof of a motive?
Legal philosopher Neil MacCormick has suggested that it's part of human nature and thus an expected element of a well-constructed narrative, one that brings nuance to causal sequencing. "Always, we want to know why things happened as they did, and at least part of the answer to the 'Why?' question is a causal explanation."
But a catch comes with the word "part" causation alone can't satisfy our explanatory schemes. As intentional beings, we know that "People acting in real time have reasons for acting, [and] these reasons of theirs become, in narrative, reasons why they did things, thus reasons why things happened, even when that which happened is not exactly the same as was planned." So, when presented with a narrative of "what really happened" at trial, jurors want to know more than this happened, then that happened, then the next thing happened. They want to know the reasons the motivation for why these things happened at all.
Douglas Walton and Burkhard Shafer posit that in the case of narrative argumentation (and I think that's what a closing argument is) "absence of motive is close to a logical proof of innocence." This means that, although motive is not an element of a crime and is of low logical value, it nonetheless has a high rhetorical value in closing argument. Evidence of motive is thus important to both sides at trial. For the prosecution, avoiding an absence of motive is the key rather than setting up a logical justification for conviction.
Returning to an example we examined in an earlier installment, it would have done the prosecution little good in R v. Smith (i.e., the Brides in the Bath case in which the defendant was accused of having drowned three of his wives in bathtubs) to argue syllogistically: All people at risk of losing an inheritance kill to preserve it. Smith was at risk of losing his wife's inheritance. Therefore Smith killed his wife.
The major premise is plainly false. The prosecution's tactic, then, was to state a commonplace motive (namely, greed) and then quickly move to a factual recitation that supplies means and opportunity: "The motive suggested for the alleged crime is love of money, which, we contend, is the prisoner's predominant passion ... The three cases are of such a character that such a large aggregation of resemblances cannot have occurred without design ..."
In recognition that motive will be on jurors' minds (either explicitly or tacitly) during deliberation, courts sometimes instruct them on the issue. Here's the instruction from the OJ Simpson criminal trial, in which Simpson was charged with murdering his ex-wife, Nicole Brown Simpson, and her friend Ronald Goldman:
"Motive is not an element of the crime charged and need not be shown; however, you may consider motive or lack of motive as a circumstance in this case. Presence of motive may tend to establish guilt. Absence of motive may tend to establish innocence. You will therefore give its presence or absence, as the case may be, the weight to which you find it to be entitled."
In that case, the prosecution offered a "lit fuse" metaphor in closing argument to describe Simpson's devolution from domestic abuser to murderer.
"And when I spoke to you back in January, ... I promised you that I would expose to you the private side of him, that part of him, the side of him that was capable of extreme rage, jealously and violence, and I said to you back then, ... when you look at that, you see a motive for killing."
To my mind, this exemplifies a problem with "motive" evidence that Walton and Shafer identify: that it "falls between two main topics of jurisprudence and evidence scholarship the question of intent or mens rea on the one hand, the evidence of character on the other." Here, when the prosecutor lays out a litany of prior bad acts, he's really impugning Simpson's character and suggesting that a murder is consistent with these bad acts.
But is it? And even if so, do these prior acts and character flaws really supply a motive in the same way that evidence of greed suggests a motive for Smith's drowning of his wives?
One of Simpson's lawyers, Johnny Cochran, seized on this infirmity in his rebuttal argument by making the point that the prosecution substituted character evidence for motive evidence. His goal in exposing this flaw was to underscore that although motive is not an element of the crime, it's an element of a story. That's why, I think, that Daniel Petrocelli, the plaintiffs' lawyer in Simpson's civil case, took pains to stress that although he had no legal obligation to show a motive, he nonetheless went on to offer one: "He wants to try to convince you that he wasn't feeling rejected, he was the one who rejected Nicole. Now, why did he want to convince you of that? Because if he's the rejected one, then maybe he has a motive to retaliate."
In explicitly linking Simpson's anger and frustration at a moment and time, Petrocelli embraces the role of the detective in a classic detective story invariably starting with a dead body. A masterful closing argument like Petrocelli's is in the nature of an inquest, which, as Peter Brooks says of detective fiction, "exists in order to realize, to understand, to make present the story that led to the crime, so that the story in the present exists to retrieve the story of the past." Colored in this manner, the lawyer (especially the one with the burden of proof) can be said in closing argument to perform a retracing of an actor's steps, to an end.
Next time, we'll pick up with the idea of an "ending" and return to Sherlock Holmes and discuss why detective fiction rather than fiction in general offers a fruitful model for the construction of compelling trial stories
Randy D. Gordon is the Office Managing Partner of the Dallas office of Duane Morris LLP. He is executive professor of law and history at Texas A&M University. His new book project, "The Performance of Law: Everyday Lawyering at the Intersection of Advocacy and Imagination," from which this series is partially excerpted, will soon be published in August by Routledge.
