Q&A – Why The Prosecution Presented Closing Arguments Last In Trump’s Case

Q&A of the Day – Why Did the Prosecution Present Closing Arguments Last In Trump’s Case? 

Each day I feature a listener question sent by one of these methods.     

Email: brianmudd@iheartmedia.com    

Social: @brianmuddradio   

iHeartRadio: Use the Talkback feature – the microphone button on our station’s page in the iHeart app.      

Today’s Entry: Is Trump right that this is unusual? https://truthsocial.com/@realDonaldTrump/posts/112515377085251810 

Bottom Line: The listener sent a link to former President Trump’s Truth from Monday, in advance of closing arguments, that said this: WHY IS THE CORRUPT GOVERNMENT ALLOWED TO MAKE THE FINAL ARGUMENT IN THE CASE AGAINST ME? WHY CAN’T THE DEFENSE GO LAST? BIG ADVANTAGE, VERY UNFAIR. WITCH HUNT! DJT – so therein lies today’s question. Is something fishy with the order with which closing arguments were presented? Is it unusual for the defense to present closing arguments first and for the prosecution to present closing arguments last? Let’s take a look...  

According to legal encyclopedia Nolo, it is unusual for the defense to present closing arguments first. Quoting Nolo: Usually, the prosecution first makes a closing argument, then the defense attorney. The prosecutor, who has the burden of proof, frequently gets the chance to respond to the defense's final argument. That sentiment is also shared by the American Bar Association which states: The lawyer for the plaintiff or government usually goes first. The lawyer sums up and comments on the evidence in the most favorable light for his or her side, showing how it proved what he or she had to prove to prevail in the case. After that side has made its case, the defense then presents its closing arguments. The defense lawyer usually answers statements made in the plaintiff's or government’s argument, points out defects in their case and sums up the facts favorable to his/her client. 

Because the plaintiff or government has the burden of proof, the lawyer for that side is then entitled to make a concluding argument, sometimes called a rebuttal . This is a chance to respond to the defendant’s points and make one final appeal to the jury. 

On that note Florida, and most other states, present this order for closing arguments.  

Florida law states: 

(1) The prosecuting attorney shall open the closing arguments. 

(2) The accused or the attorney for the accused may reply. 

(3) The prosecuting attorney may reply in rebuttal. 

So, at first glance, it would appear that Trump has a point. If it’s unusual for the defense to present closing arguments first, why did it happen in this case? Judge Merchan explained this at the beginning of yesterday’s proceedings. Quoting Merchan: Under our law, defense counsel must sum up first, and the prosecutor must follow. The lawyers may not speak to you after that. So, is that true? Is it in fact New York’s law that the defense presents closing arguments first? The answer is yes.  

Under New York law what are known as the “Pre-Summation Instructions” for judges are these: 

• Members of the jury, you will now hear the summations of the lawyers. Following the summations, I will instruct you on the law, and then you will begin your deliberations. Under our law, defense counsel must sum up first, and the prosecutor must follow. The lawyers may not speak to you after that. Summations provide each lawyer an opportunity to review the evidence and submit for your consideration the facts, inferences, and conclusions that they contend may properly be drawn from the evidence. 

You’ll notice that the language Merchan used is verbatim what New York law directs. While it might be unusual for the defense to present closing arguments first, it’s the law for jury trials in New York.