Tuesday, June 30, 2009

Argumentative interim summations in criminal trials

United States v. Yakobowicz, 427 F.3d 144 (2d Cir. 2005) (in this interesting case a panel of the Second Circuit discusses at length interim summaries or summations in criminal trials and explains, at length, why it thinks such summaries are in general suspect in criminal cases; why the argumentative interim summaries in this case were impermissible on various legal grounds; why they deprived accused of his constitutionally-guaranteed right to a fair trial; and why they amounted to "structural error," requiring an automatic reversal; Sotomayor, J., dissented on the question of whether allowing such argumentative interim summaries by the prosecution error was a "structural" error but said, "I agree fully with the majority that the use of interim summaries in criminal trials is suspect at best. District courts should avoid this practice in light of the significant pressure the procedure can place on a defendant's Fifth Amendment right to remain silent and to put the government to its burden of proof before deciding whether and how to respond.")

I wonder if there is a general agreement out there with the idea that arguments by counsel should be prohibited until after the submission of evidence because juries must keep an open mind.

The Second Circuit panel said: "The traditional order of events at a criminal trial-opening statements, presentation of evidence, summations, and jury instructions-has numerous purposes. Among these purposes is to enable juries to avoid forming opinions before the close of evidence and deliberations. This is reflected in trial courts' repeated instructions to juries to keep an open mind until deliberations."

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