Who Goes Last?

In my previous post, I wrote about who goes first when presenting evidence at a suppression hearing or trial, and the circumstances under which the normal order of presentation could be changed. This post addresses the obvious follow-up question: who goes last?

In a routine (non-capital) jury trial, which side gets the all-important final word with the jury before they start deliberating?

The rule itself is simple and straightforward. If the defense offers any evidence, then the state gets the final argument (plus an opening address); if the defense does not offer any evidence, then the defense gets the final argument (plus an opening address). See G.S. 7A-97; N.C. Gen. R. Prac. Super. & Dist. Ct. 10.

That sounds pretty clear. But what exactly does it mean to say that the defense “offered evidence” at trial? That’s where things start to get a little more interesting.

Did the Defense Offer Evidence?

Under Rule 10, if there is any question about whether the state or the defense should have the final argument “the court shall decide who is so entitled, and its decision shall be final.” However, if the trial judge mistakenly rules that the defendant offered evidence and forfeited the final argument when in fact he did not, it’s reversible error on appeal. See State v. Hogan, 218 N.C. App. 305 (2012). With that in mind, let’s look at how the appellate courts have decided this issue in a few different scenarios.

1.  The state rests, and the defense puts on a case.

This is the most basic example, and obviously the state gets the final argument under Rule 10. If the defendant testifies, introduces exhibits, calls witnesses on his behalf, etc., then he has presented evidence and lost the right to the final argument. See State v. Hinson, 310 N.C. 245 (1984); State v. Curtis, 18 N.C. App. 116 (1975).

2.  Defendant A doesn’t offer any evidence, but Co-defendant B does.

The state gets the final argument. Rule 10 expressly provides that if there are multiple defendants in a criminal case and any one of them introduces evidence, the final argument belongs to the state. See State v. Alston, 80 N.C. App. 540 (1986) (“Nor did the court err in permitting the state to argue last to the jury, since his co-defendant McCloud introduced a tape recording of Jenkins’ statement during his cross-examination of Jenkins”).

3.  The defense tenders an exhibit into evidence during cross-examination of a state’s witness.

Although the defense is not entitled to introduce evidence during cross-examination of a state’s witness as a matter of right, the trial judge has the discretion to allow it. If the judge permits the defense to introduce evidence during the state’s case, and if the defense does so, then the defense loses the right to the final argument. See State v. Skipper, 337 N.C. 1 (1994) (defendant lost right to final argument by introducing an exhibit into evidence during cross-examination of state’s witness); State v. Baker, 34 N.C. App. 434 (1977) (“defendant lost his right to conclude the argument to the jury when he introduced the photograph of the defendant.”).

4.  The defense uses an exhibit to cross-examine the state’s witness, but never formally offers it into evidence.

This is where the analysis becomes more complicated….

The Basic Test:  The test for whether a party has introduced evidence is if the party has offered it: (1) as substantive evidence in the case; or (2) so that the jury may examine it and determine whether it illustrates, corroborates, or impeaches the testimony of a witness. See State v. Hall, 57 N.C. App. 561 (1982). A party also introduces evidence, even if the evidence is not formally marked or tendered to the court, if a “new matter is presented to the jury during cross-examination and that matter is not relevant to any issue in the case.” State v. Shuler, 135 N.C. App. 449 (1999); accord, State v. Bell, 179 N.C. App. 430 (2006) (“evidence may be found to be ‘introduced’ during cross-examination, within the meaning of Rule 10, when: (1) it is ‘offered’ into evidence by the cross-examiner; or (2) the cross-examination introduces new matter that is not relevant to any issue in the case”).

State Gets the Final Argument:  If the defense uses an exhibit to raise a new matter during cross-examination of a state’s witness that is not relevant to an issue in the case, the trial court should view that as “offering evidence,” even if the defense never formally marks or tenders it as an exhibit. See, e.g., State v. Macon, 346 N.C. 109 (1997) (defendant offered evidence for Rule 10 purposes by asking state’s witness to read notes into the record from another officer’s report about the defendant’s statement to the police “before the State had presented any evidence regarding defendant’s post-arrest statement” and “the jury received the contents of defendant’s statement as substantive evidence without any limiting instruction, not for corroborative or impeachment purposes, as defendant did not testify at trial and the statement did not relate in any way” to the testifying witness); State v. Lindsay, __ N.C. App. __, 791 S.E.2d 496 (2016) (defendant offered evidence by playing the entire video of a traffic stop during cross-examination of officer, because “playing of the video of the stop allowed the jury to hear exculpatory statements by defendant to police beyond those testified to by the officer and introduced evidence of flashing police lights, that was not otherwise in the evidence, to attack the reliability of the HGN test”); see also State v. Wolfe, 205 N.C. App. 324 (2010) (unpublished) (trial court correctly determined that playing a voicemail during cross-examination of the investigator would have been offering new exculpatory evidence, rather than just illustrating the witness’s testimony)

Defense Gets the Final Argument:  On the other hand, if the exhibit is only being used to impeach or question the witness about matters that are relevant to an issue in the case, then it does not constitute “offering evidence.” See, e.g., State v. Bell, 179 N.C. App. 430 (2006) (defendant did not offer evidence by cross-examining state’s expert with additional graphs and lab reports that the witness brought to court, because the questioning was relevant to the witness’s direct examination); State v. Shuler, 135 N.C. App. 449 (1999) (defendant did not offer evidence during cross-examination of witness by reading transcripts of a prior interview because it related to matters raised in her testimony on direct); State v. Hall, 57 N.C. App. 561 (1982) (defendant did not offer evidence by showing a sweatsuit to witness in court for the purpose of impeaching witness’s testimony about its color, where the sweatsuit was never formally offered into evidence or given to the jury for examination).

5.  The defense doesn’t use any exhibits at all, but extensively cross-examines the state’s witness about several “new” matters that were not raised on direct examination.

Cross-examination is generally open to questions about any matter, limited only by relevance, a good faith basis for the question, and the judge’s discretion. See State.v Locklear, 349 N.C. 118 (1998); State v. Bates, 343 N.C. 564 (1996); State v. Stanfield, 292 N.C. 357 (1977); N.C. R. Evid. 611(b). So the fact that a “new” matter might be raised on cross-examination is neither unusual nor dispositive for Rule 10 purposes. To determine whether cross-examination about the new matter will impact the order of closing arguments, the judge must evaluate whether the new matter is relevant to an issue in the case:

New matters raised during the cross-examination, which are relevant, do not constitute the ‘introduction’ of evidence within the meaning of Rule 10. See N.C.G.S. § 8C-1, Rule 401. To hold otherwise, ‘would place upon a defendant the intolerable burden of electing to either refrain from the exercise of his constitutional right to cross-examine and thereby suffer adverse testimony to stand in the record unchallenged and un-impeached or forfeit the valuable procedural right to closing argument.’

State v. Shuler, 135 N.C. App. 449 (1999) (internal quotation marks and citations omitted). See also State v. Matthews, 218 N.C. App. 277 (2012) (eliciting testimony on cross-examination of officer about a possible alternate suspect mentioned in his report, which was not discussed on direct examination, did not constitute offering evidence for Rule 10 purposes because even if it was new it was also relevant to an issue in the case).

So What’s the Bottom Line?

Just because defense counsel stands up and says “no evidence for the defendant, Your Honor,” that doesn’t necessarily mean there wasn’t any. Having the final jury argument is a powerful persuasive tool, and if the state is entitled to it then the prosecutor should claim it. But prosecutors should also bear in mind that “relevance” is a very broad concept, and a majority of the cases on this issue have held that even if a matter raised by the defense on cross-examination was “new,” it was also relevant to an issue in the case, so the defense did not lose the final argument.

In other words, prosecutors have to be careful what they ask for. If it’s a close call and the Court of Appeals sees things differently than the trial judge did, the case may be coming back for a new trial. As a very wise and experienced trial attorney once told me, “pigs get fed and hogs get slaughtered.” Good luck.

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