Since 1875, Minnesota defense attorneys have had the final say during the closing arguments of any criminal trial. Every other state, as well as the federal government, allows the prosecution to make the last presentation. Bringing Minnesota into line with the rest of the nation, however, will only shift the disparity to the other side. Current bills in the Minnesota House and Senate that would bring parity to the system by giving prosecutors an opportunity to rebut the defense’s closing argument should be instituted as an equitable resolution of the problem.
Minnesota attorneys have pushed for years to change the closing portion of criminal trials. With a new governor and attorney general, prosecutors decided the time is right to re-open the issue. Minnesota House and Senate committees have passed similar bills that would allow prosecutors to argue last. The bills were sponsored by Rep. Tim Pawlenty, R-Eagan, and Sen. Randy Kelly, DFL-St. Paul. Both bills now await action on their respective floors.
Under the current system, a prosecutor does not know the final statements that will be made by the defense. As a result, the prosecution must prepare for an unknown attack in its closing statement. If the prosecutor were allowed to rebut the defense’s argument, he would be able to focus on the facts of the case during his own concluding argument, rather than attempting to second guess every conceivable argument the defense might use and argue against them.
During closing statements, the defense is allowed to reiterate arguments supporting the innocence of the defendant. Given an opportunity for rebuttal, prosecutors would be able to redirect misstatements of fact and law or to respond to prejudicial statements, thus ensuring the defense does not use persuasive methods of dubious rationality.
Some might argue that prosecutors with the ability to rebut would wield too much power in the courtroom; allowing them to speak twice at the end of a trial gives them an unfair advantage. However, granting them this power seems only logical given that they have the more difficult task. Our system of justice places the burden of proof upon the prosecution. Defendants are presumed innocent until proven guilty so they automatically have the benefit of the doubt. This warrants prosecution the advantage of rebuttal at the end of a trial.
As long as prosecutors are restricted to rebuttal in their last word, the rights of citizens will not be trampled. Prosecutors must not be allowed to introduce new facts or arguments during this phase of the trial; they should be permitted to directly respond to the content of the defense’s closing argument.
Our state legislature should work in a bipartisan manner to pass these bills that would bring greater equity to the judicial process. Allowing the prosecution a chance to rebut the defense’s closing statements is a logical and efficient reconstruction of a system that makes the successful enforcement of the law unreasonably difficult.