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Closing Arguments

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In a jury trial, closing arguments occur at the very end - when both sides are given the opportunity to pursuade the jury as to how the evidence should be viewed.

In the State of Florida, the state gets two closing arguments - a first closing, and a rebuttal closing. The defense gets "sandwiched" between the two. While defense attorneys would love to get the last word, this is the state of the law. The prevailing wisdom for giving the state "close-close" is that it is their burden of proof, thus they should be given the chance to rebut the defense's closing.

A closing argument is when an attorney explains to the jury how the evidence should be viewed. Specifically, what the evidence showed and what it did not show.

There is no calling of witnesses or introduction of exhibits during closing arguments. The evidentiary portion of the trial has concluded at this point. Attorneys can, however, show exhibits that have been entered into evidence to the jury. Attorneys may also use demonstrative aids, such as poster boards and PowerPoint presentations.

The state (prosecution) gets the first close. An assistant state attorney (ASA) will present to the jury their argument as to how the evidence should be viewed and why it shows that the accused is guilty of what they are charged with. The ASA will recount testimony of witnesses, pieces of evidence, and use them to try and prove their point to the jury. They may also read the applicable law to the jury - the law that explains the elements of the criminal charge the accused is facing - and incorporate the facts of the case, showing how the evidence proves the elements of the crime.

After the first close, the defense attorney will get their chance to make their argument. A defense attorney will discuss the weaknesses in the state's case, how the state's burden of "proof beyond a reasonable doubt" has not been met. A defense attorney will discuss witnesses and their testimonies, namely shortcomings and inconsistencies in the testimonies. Maybe the witnesses testimonies did not agree with each other? Maybe one or more witness had made prior statements that were not consistent with their trial testimonies.

If the defense put on a case (called any witnesses), the defense attorney will discuss what the defense witnesses stated and how their accounts differ from those of the state witnesses.

After the defense's closing argument, the state gets their rebuttal closing. This is not another chance to repeat what they already said in their first closing. A rebuttal closing is to address the issues and arguments set forth in the defense's closing.

After the state's rebuttal closing, the judge will read the jury the jury instructions. The jury will then deliberate and return with a verdict. A jury can find an accused guilty as charged; guilty of some offenses, not guilty of others; guilty of lesser-included offenses; or not guilty of all charges. If the jury cannot reach a unanimous decision, there may be a mistrial.

Eric Matheny is a criminal defense attorney serving Miami-Dade and Broward.