Closing Arguments During a Criminal Trial

The defendant is entitled to present a closing argument in a criminal trial. The defendant's right to give a closing argument has been deemed by the United States Supreme Court as a basic element of the adversary factfinding process.

The closing argument differs from the opening statement in that the closing argument is indeed an argument. During the opening statement, both sides give a preview of the evidence and facts that they intend to prove. The opening statement should be clear and concise. The goal of the closing argument on the other hand is to hit hard on issues that either side believes that they succeeded on well during the trial. For example, if the prosecution had a great witness that was able to identify the defendant as the perpetrator of a crime and the defendant was unable to shake the identification, the prosecution would want to remind the trial judge or jury of that fact during closing argument.

Trial Judge's Duty During Closing Argument

Although the trial judge is given broad discretion to permit or preclude certain arguments during the during the closing argument phase of the trial, the trial judge should:

• Give wide latitude in controlling the duration of the closing argument.
  
• Give wide latitude in the scope of closing argument.
  
• Ensure that either side does not attempt to argue evidence or a point of law that was not admitted during the trial or overruled by the trial judge.
  
• Ensure that the closing argument of each side is given in a fair manner.

Order of Closing Arguments in Federal Court

In federal court, the prosecution gives its closing argument first. The defendant gives his closing argument second. The prosecution is then permitted to reply in rebuttal.

Order of Closing Arguments in State Court

Generally, as with in federal court, the prosecution is the first party to deliver its closing argument. Thereafter, the defendant presents his closing argument. The order that the closing arguments are given are within the trial judge's discretion. However, depending upon the jurisdiction, the defendant's right to present a closing argument may be deemed waived if the defendant waived his right to counsel.

Scope of Closing Arguments

During closing arguments either side may argue certain points of the evidence and may make fair inferences about the evidence. Either side may present inferences that are most favorable to their theory of the case. The inferences made must be fair and reasonable manner. It is within the trial judge's discretion to determine whether the inferences made are of a fair and reasonable nature.

Generally during closing arguments, counsel must refrain from making remarks outside the record. Counsel is prohibited from making statements that may:

• Inflame the jury.
  
• Prejudice the jury or trial judge.
  
• Mislead the jury.
  
• Be incorrect or knowingly inaccurate.

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