No Rule for Order of Closing – State v. Shands

In January of 2017, we thought the SC Supreme Court had finally fixed the problem of prosecutors sandbagging in their closing arguments in State v. Beaty.

Then, they changed their minds, punted, and said, “so what.” The original opinion in Beaty was withdrawn and they substituted a new opinion that undid everything that the original opinion fixed.

Last month, in State v. Shands, the Court of Appeals addressed the issue, confirming that “anything goes” is now the law of the land when it comes to the procedure for closing arguments in South Carolina.

What is the Problem with Closing Arguments in SC?

When the defense introduces no evidence, the state argues first, and the defense argues last. Or, the defense opens on the law, the state replies, and then the defense argues last.

When the defense introduces evidence or calls a witness, the defense argues first, and the state argues last. The state should be required to open on the law and the facts, then the defense argues, and then the state is permitted to rebut the defense’s argument.

What often happens in practice is the state will open on the law only, the defense argues, and then the state will argue “new” facts that the defense does not have an opportunity to rebut in argument – sandbagging.

What Did the Original Beaty Opinion Say?

At first, the SC Supreme Court held that, when requested by the parties, the state or defense (whoever is going first) must open in full on the law and the facts, and their reply must be limited to new material brought up in the other party’s “middle” argument – a decision that has long been awaited by SC’s defense bar.

Then, they changed their minds and substituted a new opinion…

What Does the New Beaty Opinion Say?

The new opinion decided nothing.

The rule is that there is no rule – the Court held that they do not have the authority to change the rules (really?) and left it up to each judge to make their own rules in different cases.

The only requirement is that the rule decided on by each judge cannot violate a defendant’s due process rights. Sandbagging by prosecutors, apparently, does not violate due process and is harmless error on appeal…

Confirmed by State v. Shands

In Shands, the prosecutor held back an argument on their theory of kidnapping, arguing it for the first time in their reply and preventing the defense from replying to the argument.

As instructed by the Supreme Court in Beaty, the Court of Appeals dutiful applied a due process analysis, confirming that Shands’ due process rights were not violated. The defendant could have anticipated the state’s arguments, Shands did not suffer any prejudice from the state’s argument, and who cares anyway?

It appears that the defense bar’s hopes for a level playing field in the order of closing arguments are as dead as the original Beaty opinion…

SC Criminal Defense in Columbia, Lexington, and Myrtle Beach SC

Lacey Thompson is a criminal defense attorney with offices in Myrtle Beach and Columbia, SC If you have been charged with a crime or think that you may be under investigation, call now at 843-444-6122 or send us an email to talk with a criminal defense lawyer today.

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