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Elizabeth Holmes- Case Archive
Federal Criminal Trialtrial-daytrial-dayJohn C. BosticKevin M. Downeycharge_conferenceclosing_argumentrebuttal_closingDay 47 - December 17, 2021The defense completed its closing, the prosecution delivered rebuttal, and the court gave final instructions before sending the jury to deliberate. Outside the jury’s presence, the court also addressed whether the defense’s trade-secret argument approached an advice-of-counsel theory.
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Day 47 - December 17, 2021

Defense Closing, Prosecution Rebuttal, and Jury Deliberations

Judge Edward J. Davila
4Proceedings
3Pages
0Witnesses
271Lines
Day 47 of 51
Appearing:
John C. Bostic Kevin M. Downey

The defense completed its closing, the prosecution delivered rebuttal, and the court gave final instructions before sending the jury to deliberate. Outside the jury’s presence, the court also addressed whether the defense’s trade-secret argument approached an advice-of-counsel theory.

Full day summary

Before the jury entered, Judge Edward J. Davila questioned whether the defense’s trade-secret argument could confuse jurors or implicitly approach an advice-of-counsel defense. The defense disclaimed that defense and agreed not to return to it; the court later clarified outside the jury’s presence that its comments about possible prosecution rebuttal were questions, not direction. Kevin Downey completed the defense closing by separating business losses from fraudulent intent and arguing that investor diligence, prospective military and retail projects, laboratory oversight, and the absence of broader patient-error analysis supported good faith and reasonable doubt. John Bostic responded that the evidence showed knowing misrepresentations about Theranos’s existing technology, laboratory performance, commercial relationships, military work, and finances, and argued that future plans did not excuse present-tense claims. After rebuttal, the court instructed the jury on the presumption of innocence, proof beyond a reasonable doubt, conspiracy, wire fraud, materiality, good faith, victim negligence, and deliberations. The court corrected its oral reading of one conspiracy instruction, sent the 12 jurors to deliberate, and kept two alternates on call.

1. Conference on Trade-Secret and Advice-of-Counsel Instructions

Before the jury entered, the court addressed whether the defense's trade-secret discussion could imply an advice-of-counsel defense and ended the conference without announcing a supplemental instruction.

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Charge Conference
Conference on Trade-Secret and Advice-of-Counsel Instructions
124 lines

The court examined whether the defense's trade-secret argument approached an unasserted advice-of-counsel defense; defense counsel agreed not to revisit the subject, and no supplemental instruction was announced.

Highlights

Conference on Trade-Secret and Advice-of-Counsel Instructionsprocedural actionJudge Davila questioned whether the defense's trade-secret argument, after withdrawal of its proposed trade-secret instruction, might confuse jurors or approach an advice-of-counsel defense without the required foundation.Conference on Trade-Secret and Advice-of-Counsel Instructions“WE KNOW THE MUSIC, AND IT SEEMS LIKE YOU'RE DANCING, AND HOW CLOSE ARE YOU GETTING TO THE LINE? ARE YOU WITHIN THE MARGINS OR OUTSIDE OF THE MARGINS?”— Edward J. DavilaThe court memorably expressed concern that the defense's argument might approach an advice-of-counsel theory without naming it.

2. Closing Argument by the Defense — Continued

Kevin Downey continued and completed the defense closing argument, with a jury-out clarification from the court before the final portion.

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Closing
Closing Argument by the Defense — ContinuedKevin M. Downey
28 lines

The defense argued that investor losses and laboratory problems did not establish fraudulent intent, relying on investor-risk disclosures, diligence, real but prospective military programs, financial context, and Holmes's asserted reliance on laboratory directors.

colloquy
Clarification of Court's Rebuttal-Argument Comments

The court clarified that its earlier comments about possible government rebuttal on advice of counsel were questions, not direction or encouragement, and both sides confirmed that understanding.

Closing
Closing Argument by the Defense — ResumedKevin M. Downey
17 lines

The defense challenged the patient and Horizon counts, disputed the prosecution's motive theory, and urged acquittal based on reasonable doubt about Holmes's knowledge and intent.

Highlights

Closing Argument by the Defense — ContinuedotherCounsel argued that Holmes acted in good faith regarding patient testing because laboratory directors validated assays, investigated concerns, paused testing when necessary, and retained authority over patient-result decisions.Closing Argument by the Defense — ResumedotherDefense counsel argued that three patient episodes and scattered communications, without statistical sampling or an error-rate analysis, did not establish that Holmes knew Theranos could not consistently provide accurate and reliable results.Closing Argument by the Defense — Resumed“THERE WAS NO PRESENTATION OF EVIDENCE AS TO THE RATE THAT THOSE ERRORS WERE OCCURRING. THERE WAS NO SAMPLING OF DATA. THERE WAS NO PRESENTATION AT ALL OF ANY KIND OF A STATISTICAL ANALYSIS.”— Kevin M. DowneyEncapsulates the defense's argument that isolated patient examples did not establish a broader reliability problem or Holmes's knowledge of one.Closing Argument by the Defense — Resumedemotional momentCounsel emphasized unanimity and proof beyond a reasonable doubt, then used Holmes's continued ownership and presence at Theranos to make an emotional final appeal for acquittal on every count.

3. Rebuttal Closing Argument by the Prosecution

The prosecution argued in rebuttal that Holmes deliberately misrepresented Theranos's existing capabilities and business, then asked the jury to find her guilty on all counts.

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Rebuttal
Rebuttal Closing Argument by the ProsecutionJohn C. Bostic
65 lines

The prosecution argued that Holmes knowingly presented hoped-for capabilities as present reality, rebutted the defense's good-faith and trade-secret theories, and urged guilty verdicts before the court instructed the jury and sent it to deliberate.

Procedural
Jury Deliberations Begin and Alternate Jurors Are Instructed

The seated jury began deliberations, while the court kept two alternates on call and established notification and return procedures for counsel.

Highlights

Rebuttal Closing Argument by the ProsecutionotherThe prosecution framed the case as a contrast between the successful Theranos described to outsiders and the substantially different company shown by the trial evidence, arguing that the central problem was dishonesty at the top rather than insufficient employee effort.Rebuttal Closing Argument by the Prosecution“A LIE IS A LIE AT THE MOMENT THAT IT IS MADE.”— John C. BosticThis memorable formulation expressed the prosecution's answer to the claim that Holmes hoped future technology would eventually fulfill present representations.Rebuttal Closing Argument by the Prosecutionemotional momentAddressing Holmes's testimony about Ramesh Balwani, the prosecution acknowledged the potential for sympathy but argued that the record did not connect the alleged abuse to the charged representations or business interactions.Rebuttal Closing Argument by the Prosecutionjury eventFollowing argument, the court delivered final instructions on the presumption of innocence, burden of proof, evidence, credibility, conspiracy, wire fraud, good faith, materiality, victim negligence, and deliberations.Jury Deliberations Begin and Alternate Jurors Are Instructedjury eventThe 12 seated jurors left to begin deliberations, while the court instructed the two alternates that they remained on call and that any replacement would require deliberations to begin anew.
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