The Florida Supreme Court says the prosecution should have the last word. If prosecutors need the help because their cases are so weak or their trial skills are lacking, we say give the poor schlumps a fighting chance.
In Federal Court the prosecution has always had the last word at closing argument. The theory behind this is that the prosecution has the burden of proof and therefore should have the last word.
We have often felt that good and solid defense evidence is more than worth losing the rebuttal at closing argument. An experienced defense attorney can handle the prosecution's rebuttal argument in their closing argument by asking questions and challenging the prosecution to answer them. There are other tricks of the trade, so if you are concerned, just ask around.
The real issue here is the Judge (you know- those individuals who leave the courthouse at 2pm lugging a set of golf clubs.)
If the Judge can stop reading the blog during closing argument and pay close attention to the closing argument by the defense attorney, then the Judge can issue (heaven forbid) an intelligent ruling when the defense objects that the prosecution's rebuttal is outside the scope of the Defendant's closing argument.
We have been involved in cases where we have never mentioned one particular piece of evidence, yet over our objections, the Judge has allowed the prosecution to argue the issue during rebuttal. To make this fair, Judges need to be vigilant and keep the prosecution's argument at rebuttal to only issues that the defense argued.
Perhaps this will help our robed readers:
Rebuttal: n 1: the act of refuting by offering a contrary contention or argument.
From: legal-explanations.com : (n) Rebuttal is the negation of a proof, argument, evidence or documents provided in a proceedings by introducing counter evidence.
So as long as our robed readers hold the prosecution to actual rebuttal arguments, we think the prejudice will be negligible.
Do not despair fellow defense attorneys. We win cases all the time in Federal Court and in State Court where we did not have the last word.
Remember: Your goal is to make sure that the very last words uttered by the clerk in reading the jury verdict begins with "NOT".
See You in Court. Sandwiches are fattening anyway. Try salad.
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