Order of Closing Arguments

Order of Closing Arguments

Closing argument is the stage at which each side, with the evidence in, tells the factfinder what the evidence proves. Because both sides speak in turn, the rules have to say who goes when. Rule 29.1 supplies one sequence: the government argues first, the defense argues second, and the government then rebuts.¹ Because the rule states a single order, the order itself is what an examiner can test, and the work lies in spotting a departure from it.

The shape of the sequence follows from who carries the burden of proof. The government must prove its case, so it speaks first to show how the evidence meets that burden, and the defense then answers an argument that has actually been made instead of one it must guess at. The defense speaks once, in the middle, which gives it a full opportunity to respond to the government's case. The final government turn answers whatever the defense raised in its own argument. The government could not have addressed those points earlier, because they had not yet been said. The three turns together make one exchange, in which each side hears the other and replies before the jury.

This sequence belongs with the open-court and presence material because it unfolds at a trial stage, and the presence rules discussed earlier in this chapter require the defendant to be there at every trial stage. The defendant is therefore in the courtroom while the government opens, the defense answers, and the government rebuts. The two sets of rules meet at the end of the trial: Rule 29.1 fixes the order of speech, and the presence rules secure the defendant's place in the room while it happens.

The likeliest error on an exam is to assume that the defense speaks last. The rule gives the last turn to the government through its rebuttal, and it gives the defense one argument, placed between the government's two.⁴ A reversed order, or an order that drops the rebuttal, does not match the rule.