§ 3.05 Order of Trial Proceedings
| Jurisdiction | United States |
Neither the procedural rules nor the evidence rules specify the order of proof at a federal trial. Civil Rule 43(a) provides that "the witnesses' testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise." It also provides that for good cause in compelling circumstances testimony may be presented by contemporaneous transmission from a different location—provided there are "appropriate safeguards." The Criminal Rules also provide for testimony in open court.89 Nevertheless, both procedural and evidence rules implicitly assume the traditional order of proceedings:90
(1) Opening statements
(2) Plaintiff(prosecution) case-in-chief
(3) Defense case-in-chief
(4) Plaintiff (prosecution) rebuttal
(5) Defense surrebuttal
(6) Closing arguments
(7) Jury instructions
(8) Jury deliberations
[A] Opening Statement
A case formally begins with opening statements. Its purpose is to outline the case to the jury—informing the jury of the issues involved and the evidence that will be introduced. It is black letter law that an opening statement, unlike closing argument, is not supposed to be used to "argue" the evidence, which, of course, has yet to be intro-duced.91 Nevertheless, a good attorney will use the opening statement as an opportunity to influence the jury. In some jurisdictions, the defense has the option of deferring its opening statement until after the plaintiff (prosecution) has completed its case-in-chief and rested. Do not do it. The jury will begin to think about the case on the first day of trial, and the opening statement should be used to attempt to convince the jury not to rush to judgment.92
[B] Case-in-chief
The case-in-chief is the stage when evidence is first introduced: testimonial, documentary, or real evidence. The plaintiff (prosecution), as the party with the burden of production, goes first because if that burden is not met, the trial can end with a directed verdict for the defendant. The defense case-in-chief follows. A defense attorney will typically attempt to introduce affirmative defenses through the other side's witnesses. If that attempt fails, this evidence, along with impeachment evidence, will be proffered in the defense case-in-chief.
The trial court has inherent authority to alter the order of proceedings.93 For example, the trial judge is authorized to change the sequence in which witnesses testify, subject only to abuse-of-discretion review.94 This discretion may be abused if the judge refuses to grant a party the opportunity to present crucial witnesses out of the customary order.95There are also constitutional constraints on this authority. In Brooks v. Tennessee,96 the Supreme Court held that requiring a criminal defendant to testify prior to other defense witnesses violated the Self-incrimination and Due Process Clauses.
Recalling witnesses. The court's authority to alter the order of proof includes the power to permit a witness to be recalled.97
[C] Rebuttal and Surrebuttal
Rebuttal is usually confined to refutation of evidence introduced in the defense casein-chief, and surrebuttal is similarly confined to refutation of evidence admitted during rebuttal.98 The court's authority to alter the order of proof also includes controlling the extent of rebuttal evidence. There are, of course, limits to this discretion. For example, a party has a right to present rebuttal testimony on matters raised for the first time on redirect.
Reopening the case. The trial court has authority to reopen a case and permit the introduction of further evidence. The relevant factors for determining whether to reopen include: "(1) timeliness of the motion, (2) whether a proffer is made, (3) the character of the proffered testimony, (4) the effect of granting the motion, (5) existence of an explanation for failing to present the evidence during the movant's case-in-chief, (6) whether the explanation is reasonable, and (7) whether the proffer is relevant, admissible, technically adequate, and helpful to the jury in ascertaining the guilt or innocence of the accused."99 If the case is reopened, the opposing side must be given an opportunity to offer rebuttal evidence. Reopening the case after jury deliberations have begun raises additional concerns. Given the substantial risk of prejudice to a defendant, it should be done with "extreme reluctance."100
[D] Closing Argument
Closing arguments are a critical part of the trial. Indeed, in Herring v. New York,101the Supreme Court held that a denial of the opportunity for final summation even in a nonjury trial deprived the accused of the basic right to present his defense as guaranteed by the Sixth Amendment right to counsel.
Closing arguments typically involve three stages, with the plaintiff (prosecutor) going first and last because that party has the burden of persuasion.102 The arguments of counsel are not evidence, and the jury is so instructed.103 Moreover, the trial court has discretion in controlling the propriety and duration of final arguments.104
There is a "law of closing arguments."105 First, the argument must be based on the evidence adduced at trial.106 However, the attorneys are given great latitude in drawing inferences from that evidence in order to present their most convincing positions.107
Second, attorneys are prohibited from stating their personal opinions in closing argument.108 "[I]mproper suggestions, insinuation and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none."109 Implying that the prosecutor has personal knowledge of litigated facts is also improper.110
A prosecutor's improper comments during closing argument may violate due pro-cess.111 In Berger v. United States,112 the Supreme Court condemned a prosecutor's summation, commenting:
The United States attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense a servant of the law, the two fold aim of which is that guilt shall not escape or innocent suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to provide a wrongful conviction as it is to use every legitimate means to bring about a just one.113
The Court went on to find that the "prosecuting attorney's argument to the jury was undignified and intemperate, containing improper insinuations and assertions calculated to mislead the jury."114
Appeal to emotions. A prosecutor's argument intended to inflame the passions or prejudices of the jury is improper and may violate due process. Describing the defendant as a "maggot" is "unprofessional and is deserving of a stern admonition."115 The terms "thugs" and "goons" are also improper.116 Labeling the defendant an "animal", however, is not per...
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