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In the U.S., rules of court have the prosecutor in a criminal trial giving the first opening statement, followed by the defense's opening statement; and then the final closing statement, after the defense's closing statement.

Giving the prosecution both the first and the last word seems like obviously tilting the scale of justice in its favor, and against the accused. If so it would seem to violate the legal principle in dubio pro reo and associated customs and practices to assume an accused is innocent unless proven guilty beyond a reasonable doubt. At the very least an outsider might think it more fair to have opening and closing statements in the same order: I.e., if the defense speaks last at opening then it also speaks last at closing.

What are the origins and reasons for this custom of giving the prosecution the first and last word at trial?

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    The originators might not have shared your opinion that it's better to have the first opening argument and the second closing argument. They might have thought having the first argument was advantageous in both phases (you get the jury's attention while they're fresh); or that having the second argument was advantageous in both phases (you get to rebut the other side and have the last word). Under either of those theories, the existing rule would be closer to fair, and your proposed rule would be less fair.
    – Nate Eldredge
    Commented Dec 16, 2020 at 19:39
  • I think this procedure came to the US from the UK, and dates from the period when procedure was designed to make things harder for the accused, but I will need to find a source before putting that in an answer. Other former procedural hurdles: the accused was not allowed to have a lawyer; the accrued was not allowed to testify under oath. For both of those I have a source.
    – David Siegel
    Commented Dec 16, 2020 at 20:16
  • What rules of court do you have in mind? The Federal Rules of Criminal Procedure provide for the prosecution to close first. I think this is the norm throughout the common law world. While the prosecution can rebut after the defense closing address, this is limited in scope and not equivalent to a second closing address.
    – sjy
    Commented Dec 17, 2020 at 7:53
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    @sjy interesting find: I can't see a clear limitation on the scope of the "rebuttal" in FRCP 29.1, and I'm not sure I have read or observed any federal criminal trials to see how the rebuttal is used in practice. But I have read at least one appellate case affirming that the prosecution has great leeway in its use of "rhetorical flair" during closing. I'm more familiar with U.S. state rules like PA Rule 604 that give each party one closing and require the prosecution go last.
    – feetwet ♦
    Commented Dec 17, 2020 at 14:06

1 Answer 1

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This mirrors the motion-response-reply formula used in motion practice and appellate briefing and in appellate oral arguments, in which someone asking for relief makes their case, someone opposing it responds, and the person seeking relief may rebut the reasons raised in the response.

In most applications of this rule (although not necessarily closing arguments at trial), it is balanced by the rule that no new arguments raised in a final reply will be considered unless the other party is given an opportunity to present a sur-reply to remedy the expanded scope of the reply.

The formula reflects the fact that the person seeking relief has the burden of proof which if not overcome, results in no relief, by preventing the ability of a party to overcome the burden of proof from being thwarted in obtaining relief by a weak argument that is not rebutted even though it easily could be rebutted.

This said, it is a low level custom for how arguments should be made and not a hard and fast entrenched and codified rule in most cases. A court could (but rarely does) vary this rule on a case by case basis.

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  • unless the other party is given an opportunity to present a sur-reply What does given the opportunity mean? Does it mean that the reply is submitted with enough time before the actual hearing so that the opposing party has time to file a rebuttal or do you mean the opportunity during the oral hearing? Thanks for your response.
    – S.O.S
    Commented Jan 12, 2023 at 22:34
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    @S.O.S Usually, in motion practice, if someone raises something major and new beyond the scope in a reply, the other party would move the court for leave to file a surreply illustrating how the reply went beyond the scope.
    – ohwilleke
    Commented Jan 13, 2023 at 3:34
  • Thanks. If the other party does not file a surreply are they essentially giving up their rights to rebuff the new arguments raised by the initial Motion filler?
    – S.O.S
    Commented Jan 13, 2023 at 4:50

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