Closing Arguments in Disorder

We all watch the movies, television. We have all seen the dramatic scenes where the "good" lawyer moves the other characters, or even you, to tears, rage, or joy because of their well-selected phrases, and their ability to build a logical argument that is so persuasive that it is impossible to deny.

However, have you ever thought about what order these arguments are made in? I mean, everyone knows the prosecution goes first, the defense next, and then the prosecution closes. Why is that?

Well, it hasn't always been that way, and as I discovered recently, it still isn't necessarily a given that it always will play out that way. The case law has many examples of prosecutors or defense lawyers trying to game the system to get in the last word, unrebutted.

Here's how things are supposed to work now. (Refer to Federal Rule of Criminal Procedure 29.1). The prosecution opens. They say their piece, state their case in chief. This is their version of what happened. Then, the defense goes. They get to tell their version of the story, and this is the defense's opportunity to rebut the arguments made by the State. Then, the prosecution goes again--but this time only in rebuttal of the defense's case in chief. This is not the time for them to add new evidence, make new theories, etc.

This makes sense. Necessarily someone has to go first. Whichever party that is HAS to get another chance, or else they'll have no chance at rebuttal. So, if the state goes first, then they also get to go 3rd (last). It is important to limit this second argument to only rebuttal however, or else the prosecution would get a chance to say things that the defense could not counter.

Why do I bring this up? Well, this just happened in court last week. In a case I am involved in, the prosecution essentially sand-bagged. They made a very limited opening statement, and saved all of their meat & potatoes for their second argument. They were effective. They targeted the defense's arguments where they were weak, and then presented a whole new line of logic for HOW they think the case happened--a story that had not been told before that moment.

Sadly, the defense attorney did not object. Suggestions that the defense should move the court for surrebuttal went unheeded. The jury is still out, so it remains to be seen whether this issue is moot, or whether the defendant may have been prejudiced by the state's strategy.

In any case, the moral of this little story is: pay attention. Closing arguments may not be evidence, but they can still make a huge difference in the outcome of the case. Be aware that the other side may NOT be looking to play be the rules, and be prepared to object if they cross the line...