How I Give a Closing Argument in a Massachusetts Criminal Trial

By Attorney Joe Serpa | Georgetown University Law Center | Massachusetts Criminal Defense Since 1995

The closing argument is the only time in a Massachusetts criminal trial when I get to say what the evidence means. Everything before it is questions. This is the one stretch where I speak in complete sentences to twelve people about a case they have now watched for two or three days, and where what I say has to survive a prosecutor who speaks after me.

What follows is how I build it: why going first matters, what the rules permit and forbid, the arguments I have to ask permission to make, and what I do while the prosecutor is closing. The general doctrine appears on the post about opening statements and closing arguments.

I Go First, and That Changes the Whole Argument

In Massachusetts the defendant closes first. Mass. R. Crim. P. 24(a)(1) requires it, the sequence is mandatory, and I have never seen a judge depart from it. The prosecutor speaks last and answers whatever I have said, and I do not get to reply.

Appellate courts have declined to treat this as a constitutional problem, on the reasoning that while there are advantages to the last word there are countervailing advantages to the first. Commonwealth v. Seminara, 20 Mass. App. Ct. 789, 799 (1985). As a matter of trial practice, the order changes how I write.

Concretely, it means I do not build an argument that depends on a point the prosecutor can dismantle in the eight minutes after I sit down. Anything fragile gets cut. What stays is the material that gets stronger, not weaker, when somebody argues against it, because I will not be there to defend it.

It also means I try to predict her closing and answer it inside mine. If I know she will argue that my client’s account changed, I address the change myself, on my terms, before she frames it. An argument the jury has already heard explained is much harder to land the second time.

What the Closing Is For

A criminal defendant has a right to a closing argument, and the reason is the chance finally to marshal the evidence and to sharpen the issues for the jury. Herring v. New York, 422 U.S. 853, 859 (1975). It is not a courtesy that a busy session can trim.

The right has content. A judge may not prevent relevant arguments that remain within the bounds of the evidence and the fair inferences from the evidence. Commonwealth v. Foreman, 101 Mass. App. Ct. 398 (2022), quoting Commonwealth v. Cutty, 47 Mass. App. Ct. 671, 675 (1999), and Commonwealth v. Pettie, 363 Mass. 836, 840 (1973).

That matters in a District Court session moving fast. If a judge tells me in advance that I may not argue a particular inference, and the inference is supported by evidence in the case, I make the objection and I make the record on the spot. The right to make the argument is a real one, and the record is what preserves it.

What I Am Allowed to Say

Counsel may argue forcefully from the evidence and from inferences that may reasonably be drawn from the evidence. Commonwealth v. Kozec, 399 Mass. 514, 516 (1987). Forcefully is the operative word. A closing delivered as a series of polite suggestions invites the jury to treat the argument as tentative.

Credibility is fully available to me. Where the believability of a witness is in issue, counsel may argue from the evidence why that witness should or should not be believed. Commonwealth v. Bol Choeurn, 446 Mass. 510, 522 (2006). So I can argue that an officer’s account changed, that a complainant had a reason to shade the story, or that a memory formed nine months later is worth less than a note written that night.

What I cannot do is turn that into a personal opinion. I never say that I believe a witness lied. I say what the witness said on Tuesday, what the same witness said in the report, and I let the jury supply the word. The version with my opinion in it is both improper and weaker.

What I Am Not Allowed to Say

The limits are not vague. Counsel may not misstate the evidence or refer to facts not in evidence, may not appeal to racial, ethnic, or religious prejudice or to the jury’s sympathy or emotions, and may not comment on the consequences of a verdict. Kozec, 399 Mass. at 516 to 517. An argument that is not supported by the evidence is speculative and conjectural, and therefore improper. Id. at 522.

The consequences limit is the one defense lawyers violate most, usually by accident. Telling a jury what a conviction would do to a young man’s life is a natural thing to want to say and it is not permitted. I keep it out, and if the sympathy is going to do any work it has to come from the facts rather than from me asking for it.

There is also a practical reason to stay inside the lines that has nothing to do with appeals. An improper defense argument does not help my client on appeal from the prosecutor’s closing, because however inappropriate my argument was, it has almost no effect on where the limits of her argument sit. Kozec, 399 Mass. 514. Going over the line costs me something and buys me nothing.

The Argument I Have to Ask Permission to Make

If the Commonwealth had an obvious witness available and never called that person, I may want the jury to draw the natural conclusion. That is the missing witness inference, and it is not something to spring in the middle of a closing.

Because the inference suggests that a party deliberately withheld significant evidence, it should be invited only in clear cases and with caution. Commonwealth v. Figueroa, 413 Mass. 193, 199 (1992). The practice is to obtain the judge’s permission before making the argument. Commonwealth v. Smith, 49 Mass. App. Ct. 827, 830 (2000).

So I raise it at the charge conference, with the foundation laid out: the witness was available to the Commonwealth, the witness would naturally have been friendly to the Commonwealth, and the testimony would have been of real importance. If the judge says no, I do not make the argument, and I have lost nothing except an argument that would have drawn a sustained objection in front of the jury.

Reasonable Doubt Is the Argument

Most defense closings I hear are a list of problems with the Commonwealth’s case. Mine is one question asked eight different ways: what would you have expected to see if this happened the way she says, and where is it.

That framing does the work that a list does not. A list invites the jury to weigh my problems against her evidence, which is a comparison my client loses, because the burden quietly becomes shared. A question about what is missing keeps the burden where the law puts it and makes the absence of proof the subject rather than the background.

I also give them permission. Jurors want to do the job correctly, and a person who suspects the defendant did it needs to be told, plainly, that suspicion is not the standard and that acquitting is not the same as declaring him innocent. Jurors who have not heard that said out loud will sometimes convict on suspicion because they believe they are supposed to.

Usually I know exactly who in the box needs to hear it. A juror who said something careful during empanelment about how hard it would be to let someone go is the person that part of the closing is written for, and I have had three days to think about how to say it to him.

Where my client did not testify, I say so directly and I say why it means nothing. The decision to stay off the stand is his and the judge will instruct the jury that no inference may be drawn from it, but the instruction lands better if the jury has already heard the same thing from me without apology in it.

What I Do While the Prosecutor Closes

I write. Every sentence that goes past what the evidence showed, and every sentence that touches something a prosecutor may not touch, goes on the pad with a note of where in the argument it came.

The list of things she may not say is longer than most people expect. She may not argue that my client tailored his testimony because he sat through the Commonwealth’s evidence, and she may not suggest that only guilty people call a lawyer. Commonwealth v. Person, 400 Mass. 136 (1987). Neither of us may argue anything from the fact that he sought legal advice. Id.

I do not interrupt her. Objection at the conclusion of the prosecutor’s argument is sufficient to preserve the defendant’s rights. Person, 400 Mass. 136, citing Kozec, 399 Mass. at 518 n.8. Interrupting a closing costs credibility with both the jury and the judge, and the rule makes the cost unnecessary.

The same discipline that governs my objections during testimony applies here, with one difference: the closing is the last thing the jury hears from a lawyer, so an improper passage that goes unanswered is the version the jury takes into the room.

What I Ask For at Sidebar

When she finishes, I go to sidebar with the list. I state each improper passage, I state the ground, and I ask for a specific curative instruction rather than a general reminder that closing argument is not evidence. A general reminder repairs very little.

The reason to be specific is what happens afterward. In deciding whether an improper argument requires a new trial, courts consider whether the defendant seasonably objected, whether the error went to the heart of the case or to a collateral issue, what the judge told the jury that may have mitigated it, and whether the error possibly made a difference. Kozec, 399 Mass. at 518; Commonwealth v. Kater, 432 Mass. 404, 422 to 423 (2000).

Three of those four are things I influence at that sidebar. I control whether the objection was made, I control how clearly the record shows the passage went to the heart of the case, and I have a great deal of influence over what the judge says next. The fourth is out of my hands.

Where nothing is said, the standard is far worse. An unpreserved claim about a closing argument is reviewed only for a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). Two minutes at sidebar is the difference.

What I Cut

My closings are shorter than the ones I hear from other lawyers, and they have gotten shorter every year I have practiced. Most District Court closings I give run twelve to fifteen minutes. Beyond that the jury stops listening and starts waiting.

What gets cut is every point that is merely true. A contradiction that does not matter is a contradiction that makes my important contradictions look like more of the same. I would rather make three arguments the jury can repeat to each other than eleven they cannot.

What survives is what I told them at the beginning. If the closing does not land on the same fact I gave them in the opening statement, then either the trial went somewhere I did not expect or the opening promised the wrong thing. Both happen. Neither is a reason to keep arguing a theory the evidence did not support.

The closing is also where the work done during cross-examination finally gets used. I do not argue during cross, and I do not cross-examine during the closing. The answers I collected on Tuesday become the argument on Wednesday, and if I did the first part properly, the second part is mostly reading the jury back what they already heard.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995 and tries cases in the District Courts and Superior Courts of Greater Boston. Serpa Law Office can be reached at 617.936.0201.