Finally, Final Closing Argument For the Defense


The Court withdrew the Beaty opinion, substituting it for a new opinion where they hold that they do not have authority to change the rule on order of closing, the only rule is that order of closing must comply with due process, and that, even if the prosecution is sandbagging, it’s not a due process violation and it is harmless error.

In State v. Beaty, the S.C. Supreme Court decided that in closing argument, when requested by the defense, the state must open in full on the law and the facts and their reply must be limited to new material brought up in the defense’s closing arguments.  This goes both ways – when the defense goes first, if requested by the state, the defense must open in full on the law and facts but then will have the opportunity to reply to new information brought up by the state.

[We] hold that in a criminal trial where the party with the “middle” argument requests, the party with the right to the first and last closing argument must open in full on the law and the facts, and in reply may respond in full to the other party’s argument but may not raise new matter.

When the Defense Has Final (Now Middle) Closing Argument

At the end of a trial, the lawyers give their closing arguments.  Who gets to give the last closing argument has always been kind of a big deal, because 1) that is the last argument that the jurors will hear before they go into the jury room to deliberate; and 2) prior to this decision, the other side does not have the opportunity to reply to new arguments that are brought up.  If the defense does not call witnesses or introduce any evidence at all, then the defense gets to give the final closing argument.  If the defense calls a witness or enters any evidence in the record, the defense loses final closing argument and it goes to the state.

Following this decision, if the defense calls no witnesses and enters no evidence, upon request by the defense, the state can be required to open fully on the law and facts.  The defense is then allowed to reply to any new arguments that the prosecutor makes in their closing argument.  This effectively gives the state final closing even when the defendant does not put up any evidence, but that final closing is limited to a reply that addresses only new material that was brought up by the defense in their closing.  This prevents the prosecutor from sandbagging in their closing, waiting for the defense to close, and then springing new arguments on the jurors when the defense has no opportunity to reply to them.  The prosecutor must make all of their arguments on both facts and law in their first closing argument, and the defense has the opportunity to reply in the  middle argument without worrying that the prosecutor will bring up new information in their reply.

When the Prosecution Has Final (Now Middle) Closing Argument

When the defense calls witnesses or puts evidence into the record, the final closing goes to the prosecutor.  Now, the defense will have the opportunity to reply to the prosecutor’s closing argument even if they have called witnesses or entered evidence into the record.  Like the first scenario, the defense now cannot sandbag or bring up new material in their reply, but they will have the opportunity to respond to new information that the prosecutor raised during their middle argument.

The Court found that it was error not to require the state to open fully on the facts and the law and limit the state’s reply.  They also found that there was no prejudice to the defendant in this case and that it was harmless error, so the murder conviction is not reversed.  However, they clearly laid out what the rule is and what is required in future cases.

. . . we hold that in criminal cases tried after this opinion becomes final, if requested by the party with the right to second argument, the party with the right to open and close will be required to open in full on the law and the facts, and be limited in reply to addressing the other party’s argument and not permitted to raise new matters.

Kudos to Rauch Wise and Charles Grose from Greenwood, S.C., for great work on an appeal that will affect every criminal trial in the state and that makes the process more fair to all sides.

3 Responses to “Finally, Final Closing Argument For the Defense

  • (Pardon me if this is a repost of mine. I tried from my phone and it said that it lost the connection.)

    Thanks for the great post.

    What does it mean “to open in full on the law and the facts”?

    Thanks again,

    • Hi Chaz – to open in full on the law and the facts means that the prosecutor (or defense if they are going first) must give their entire closing argument when they go first. They cannot save information about the law or the facts of the case for rebuttal. Rebuttal can only contain responses to new information that was raised by the second attorney to argue. Closing (not opening statement) consists of: 1) attorney 1 opens with their full closing argument including law and facts; 2) attorney 2 gives their closing argument; 3) attorney 1 is permitted another closing argument but is only allowed to address new information raised by attorney 2. I hope that helps!

      • Lacey,

        Great job explaining that. Thanks.

        On a side note; in law school, or ‘out in the field’, are lawyers taught to scrutinize the definitions that define the legal terms used in the code as a way of defending a position?
        If so, can you give me an example of when that was done for success?

        Thanks again,

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