Lengthy trials are often problematic for prosecutors, who fear that jurors will be unable to recall testimony heard earlier in the proceedings, and for defense attorneys, who are concerned that points scored on cross-examination will wash out of the jurors’ collective memories during the long slog through the government’s case. Mid-trial summaries, then, would seem to benefit both sides by allowing them to lock in their achievements while the testimony or documentary evidence is still fresh in mind.
There is, however, little case law concerning the propriety of such mini-summations in criminal trials. The Second Circuit, in United States v. Yakobowicz, 427 F.3d 144 (2d Cir. 2005), held that argumentative mid-course summaries given after each witness has testified are unconstitutional because they favor the prosecution and unfairly ease its burden of proof. Yet, in a recent opinion distinguishing Yakobowicz, the Seventh Circuit has endorsed a modified form of the practice. United States v. McGee, 2010 WL 2813635 (7th Cir., July 20, 2010).
The trial judge in McGee, a Hobbs Act prosecution of a Milwaukee councilman, recognizing that the trial was expected to be lengthy (although it concluded in just under two weeks), allowed the prosecution and defense to each have one opportunity after the first weekend break to summarize the evidence; these were required to be brief, “non-argumentative” recaps. Apparently, the prosecutor spoke for only seven minutes, in what the Seventh Circuit called a simple “’just the facts’ recap of the sort Joe Friday would have approved.” (The opinion does not characterize the length or quality of the defense counsel’s performance). Such a fairly-applied procedure utilized once during a trial, the court of appeals held, does not present constitutional problems. Like note-taking by jurors and written jury instructions, it is a modern accommodation to the problem of the increase in the length of trials and does not entrench upon the defendant's due process rights.