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 [...]