There is some tension between the closing argument and admissibility rules. See, e.g., Samuel Gross, "Make-Believe: The Rules Excluding Evidence of Character and Liability Insurance," 49 Hastings L.J. 843 (1997). One of the recognized functions of the closing argument (or summation) is storytelling. In general, however, the rules regulating the admissibility of evidence at trial pay scant attention to storytelling. But cf. Old Chief v. United States, 519 U.S. 172 (1997). One of the recognized functions of storytelling, or narrative, in closing argument is to tell a persuasive story -- or even a gripping one -- and in this way (as well as in other ways) arouse and appeal to the sentiments and passions of the trier of fact (particularly a jury). But the language of the admissibility rules as well as the language that courts usually use to explain and interpret them usually characterizes "passion," "sentiment," and "emotion" as dangerous. See, e.g., Evidence Advisory Committee's Note on Federal Rule of Evidence 403 ("The case law recognizes that certain circumstances call for the exclusion of evidence which is of unquestioned relevance. These circumstances entail risks which range all the way from inducing decision on a purely emotional basis, at one extreme, to nothing more harmful than merely wasting time, at the other extreme."; "'Unfair prejudice' within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.") Sometimes it seems that the law of evidence and "effective trial advocacy" [live in] parallel worlds. Cf. P. Tillers, at A Sickening Closing Argument (blog post) (August 21, 2009)....
There is a large body of literature (much of it in bar journals) on the art of the closing argument and on the role of appeals to emotion for effective oral advocacy in the closing argument. See, e.g., Ronald J. Matlon, Opening Statements - Closing Arguments (2009); Robert P, Burns, A Theory of the Trial 67-72 (1999, paperback 2001); Jacob A. Stein, Closing Argument: The Art and the Law (1969).
Wednesday, January 06, 2010
Admissibility Rules and Closing Argument: Parallel Worlds?
In Spindle Law's evidence module, I comment: