Still No Rule for Order of Closing in SC Criminal Trials

The SC Supreme Court, this week, in a well-written and carefully drafted opinion about the order of closing arguments in criminal cases, decided… nothing.

That’s right.

In State v. Beaty, the SC Supreme Court carefully laid out the history of SC’s rules (or lack of rules) on the order of closing, carefully explained why the state should be required to 1) open fully on the law and the facts and 2) be limited to rebuttal in their reply, and then told SC judges they are free to handle it however they would like.

What is SC’s Rule Governing the Order of Closing in a Criminal Trial?

There are several rules. And there are none, depending on whether the defendant presents any evidence during trial.

When Defendant Presents No Evidence

In cases where the defendant does not present any evidence during trial, the defense is entitled to both open and close during closing argument with the state’s argument in the middle, or simply replying to the state’s closing argument.

What if a Co-Defendant Presents Evidence?

If a co-defendant introduces evidence during trial, both defendants lose their right to final closing. On the other hand, if neither defendant presents evidence, both are entitled to final closing argument (and opening closing argument if they choose, with the state’s closing argument in the middle).

What if the Defendant Does Present Evidence?

Here’s the scenario where SC currently has no rule. When the defendant presents evidence, the state is entitled to final closing argument. They are also entitled to the opening-closing argument if they choose, with the defendant’s closing argument in the middle.

The SC Supreme Court, however, declined to announce a rule that requires the state to 1) open (first closing argument) fully on the law and the facts, and 2) limit the state’s final closing argument to rebuttal of the defendant’s closing argument.

Why Does It Matter if the State is Not Limited to Rebuttal?

To the layperson, this may sound like a trivial detail that doesn’t have much effect on the trial. Not true – the problem is that it allows the state to “sandbag,” holding back key arguments until the final rebuttal when the defense has no opportunity to reply to new arguments.

The rule that we should have, which is acknowledged by the Supreme Court in Beaty, would require:

  • The state to make their complete argument on both the law and the facts in their opening closing argument; then
  • The defense makes their closing argument and can respond to the state’s closing arguments; then
  • The state gets to give the final closing argument and respond to any new arguments or facts that the defense brought up in their closing.

Sounds fair?

The Supreme Court went to great lengths to outline the history of SC’s rule (or lack of rule) on the order of closing, then explained that they don’t think they have the authority to change the rule and left it to individual judges to make their own rules in criminal trials.

They punted the issue to the legislature, as they also pointed out that the legislature has already declined to adopt the rule.

They held that any error in allowing the state to sandbag at trial was harmless error and that it did not violate due process, thereby guaranteeing that every prosecutor in the state of SC will take the advantage and sandbag in every closing argument.

Criminal Defense Trial Lawyer in Charleston, SC

Lawyers who try criminal cases need to keep making this argument in every trial and preserve the issue for the record in every case. Appellate attorneys who handle criminal appeals in SC need to continue raising the issue on appeal and look for new ways to frame it until the SC Supreme Court revisits the issue, or the SC legislature fixes it.

If you have been charged with a crime in Eastern SC, including Charleston, Monck’s Corner, Georgetown, and Horry County, contact Charleston criminal defense attorney Grant B. Smaldone now for a free consultation and review of your case by calling at (843) 808-2100 or by filling out our online contact form.


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