VI. TRIAL

217

Rule 29.1: Closing Argument.

(a) State’s First Closing Argument; Waiver.

(1) State’s First Closing Argument. At the close of the evidence, the state has the right to make the first closing argument to the trier of facts.

(2) Waiver. If the state desires that all closing argument be waived, it may offer to waive such argument. If the defendant agrees, then no argument will be made. The state may not waive the first closing argument unless all closing argument is waived.

(3) Scope of State’s Opening Argument. The state's first closing argument shall cover the entire scope of the state's theory.

(b) Defendant’s Closing Argument; Waiver.

(1) Defendant Argues after State. Each defendant shall be allowed to make a closing argument following the state’s first closing argument. If the defendant waives this closing argument, the state is not permitted to make a final closing argument.

(2) Scope of Defendant’s Argument. Defendant's closing argument may address any relevant and proper subject and is not limited to matters actually argued by the state.

(c) State’s Final Closing Argument.

(1) State’s Final Closing Argument. The state shall be allowed a final closing argument following the defendant’s closing arguments, unless the defendant has waived closing argument or the state has waived all argument or its final argument.

(2) Scope of State’s Final Closing Argument. The state's final closing argument is limited to the subject matter covered in the state's first closing argument and the defendant's intervening argument.

(d) Court’s Discretion to Control Closing Arguments.

(1) Discretion to Regulate Arguments. The court has discretion to set:

(A) the number of closing arguments permitted on behalf of the state beyond the first and final closing arguments;

(B) the number of closing arguments in excess of one permitted each defendant; and

(C) the order and length of closing arguments.

(2) Policies. The court shall allow adequate but not excessive time for closing arguments to make a full presentation of the theory of the case. If more than two arguments are made for the state, the court shall ensure that no defendant is deprived of the opportunity to answer a new argument made by the state against that defendant. It is the purpose of this rule to ensure that all argument be waived only with the consent of both sides; that the defendant shall be permitted to waive all remaining argument after the state’s first closing argument; and that while the state, having the burden of proof, has the right to open and close the argument, this right shall not be exercised in such way as to deprive the defendant of the opportunity to fully answer all state argument. The court, on motion, shall enforce this purpose.

Advisory Commission Comment.

This rule reflects the generally-followed philosophy of controlling summation in this state. However, the commission is aware of variances in local practice and therefore deems it necessary to spell out both the philosophy and the mechanics in order to assure fairness and uniformity of procedure.

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