Closing arguments provide an opportunity for each side to marshal and present to the trier of fact evidence in support of their case and to argue reasonable inferences drawn from the evidence. They are an integral and indispensable part of the adversarial system.1
The party sustaining the affirmative in a civil case has the right to make the initial closing argument to the jury. The argument may be nominal or real and, if time limits are set by the court, may consume all or part of the allotted time. Thereafter, the opposing party has the right to address the jury, and then the opening party has the right to make a reply.2
In criminal cases, by rule of court, after the closing of evidence, the prosecutor must open the argument. The defendant then must be permitted to reply, after which the prosecutor must be permitted to reply in rebuttal.3 The order of presentation set forth by this rule is mandatory, and variation from that order can be grounds for reversal on appeal.4
In closing arguments, the parties are not limited merely to a repetition of the evidence presented at trial. Rather, they are allowed and expected to explain all legitimate inferences that flow from the evidence.5 The party having the affirmative may, in making its closing argument, develop the points and matters presented. The opposing party may then answer such argument and develop all the points that party considers important. The opening party may then reply and counter any argument the opposing party has made. This final argument should be in the nature of a rebuttal, i.e., limited to meeting the arguments made by opposing counsel.6 It is improper and unfair for the party who has the right both to open and to reply to “sandbag” an opponent by omitting or treating in a perfunctory manner an important point or feature of the case only to raise the matter in rebuttal, after the opposing party has arguably been induced to avoid or limit his or her arguments on the subject. The party making the initial closing argument must set forth in its opening, and may not reserve for rebuttal, any significant aspect of its case.7 If a party starts to do so, opposing counsel should interrupt and object vigorously.
1. Spence v. State, 129 A.3d 212, 223 (Del. 2015); Waters v. State, No. 393, 2008, Steele, J. (Del. May 20, 2009) (ORDER), disposition reported at 974 A.2d 858 (Del. 2009) (TABLE).
2. Chandler v. Miles, 193 A. 576, 589 (Del. Super. 1937).
3. Super. Ct. Cr. R. 29.1; Comm. Pls. Ct. Cr. R. 29.1.
4. Waters v. State, No. 393, 2008, Steele, J. (Del. May 20, 2009) (ORDER), disposition reported at 974 A.2d 858 (Del. 2009) (TABLE).
5. Burroughs v. State, 988 A.2d 445, 449 (Del. 2010); Derose v. State, 840 A.2d 615, 620 (Del. 2003); Walls v. State, 560 A.2d 1038, 1050 (Del. 1989), cert. denied, 493 U.S. 967 (1989); De Shields v. State, 534 A.2d 630, 641 (Del. 1987), cert. denied, 486 U.S. 1017 (1988); Michael v. State, 529 A.2d 752, 762 (Del. 1987); Burke v. State, 484 A.2d 490, 499 (Del. 1984); Hughes v. State, 437 A.2d 559, 567 & 573 (Del. 1981); Hooks v. State, 416 A.2d 189, 204 (Del. 1980).
6. Bailey v. State, 440 A.2d 997, 1002 (Del. 1982); Chandlery. Miles, 193 A. 576, 580 (Del. Super. 1937).
7. Forrest v. State, 721 A.2d 1271, 1281 (Del. 1999); Waters v. State, No. 393, 2008, Steele, J. (Del. May 20, 2009) (ORDER), disposition reported at 974 A.2d 858 (Del. 2009) (TABLE); Forrest v. State,721 A.2d 1267, 1281 (Del. 1999); De Shields v. State, 534 A.2d 630, 645 (Del. 1987), cert. denied, 486 U.S. 1017 (1988); Bailey v. State, 440 A.2d 997, 1002 (Del. 1982). See also Chandler v. Miles, 193 A. 576, 580 (1937).
© 2016 David L. Finger