Board opposes closing argument rule.

The Board of Governors declined to endorse a proposed rule of criminal procedure dealing with closing arguments promulgated to replace a rule the legislature repealed last session.

The board voted 30-5 to withhold its support for proposed rules 3.250 and 3.381--written by the Criminal Procedure Rules Committee--that would give the prosecution the closing argument in cases where the defense calls only the defendant to testify and no other witnesses. Instead, the board adopted the committee's minority report as its own. The rule will still be presented to the Supreme Court as approved by the Fast Track Subcommittee by a 7-2 vote--with the board's objection noted--for final action.

This spring, the legislature repealed Florida Rule of Criminal Procedure 3.250, which allowed the defense the first closing argument and a closing rebuttal after prosecutors, if the defense presented no other evidence or witnesses other than the testimony of the defendant--a rule that has been in effect in Florida for more than 150 years.

During legislative debate, questions were raised as to whether the rule is substantive or procedural, and HB 147 was amended late in the process to recognize the Florida Supreme Court has final authority on the issue. The bill passed both chambers by the two-thirds vote needed for the legislature to repeal a court rule of procedure.

(In cases where the defense presents additional evidence and/or witnesses, the prosecution gets the first closing argument and then a rebuttal after the defense closing argument.)

Criminal Procedure Rules Committee Chair William Vose said the panel's proposal conforms the rules of procedure to the new statute.

"We are now at a political point where the legislature has repealed it and left it up to the Supreme Court to either go along with it or not go along with it," said Vose, noting the rules committee voted overwhelmingly in favor of passing its version of the new rule, which was drafted by a judge, not a prosecutor.

"I can't speak for the Supreme Court, but I don't think they want to slap the legislature in the face and re-pass the same rule that they have had since 1850," said Vose, a chief assistant state attorney in Orlando.

The rules committee also noted that in criminal prosecutions, 47 states recognize that the burden of proof carries with it the right to final summation of the evidence, and no legal reason exists for the exception that Florida has created.

Board member Steven E. Chaykin said the issue is "purely political" and is part of an agenda for those who want to "set up a fight" between the court and the legislature.

"From a practical standpoint, do we sit here and make it easier for the Supreme Court by adding our endorsement to the rule, or do we stand on principle and say this is wrong?" Chaykin asked.

Board member Ed Scales of Key West reminded the board that the legislature not only repealed the rule, but also enacted a statute that set out what the legislature thought the rule should be and the committee's proposal implements what the statute requires.

"I think it is incumbent on us to send to the Supreme Court this rule that our standing committee has adopted and not get into the gaming of whether it is constitutional or whether it is unconstitutional--whether it is good or bad," Scales said. "I think that will put us in harm's way with the legislature and the governor."

Board member Ben Kuehne of Miami, however, said if the legislature is right, the Bar doesn't have to do anything because who gets closing argument is a substantive issue.

Kuehne said if the board endorses the rules committee proposal, it tells the Supreme Court the board thinks the legislative solution is appropriate. Without the Bar's stamp of approval, it makes it more palatable for the court to seek comments on the rule from other lawyers and organizations.

Ultimately, Kuehne said, it will be up to the Supreme Court to say "if the legislature was out of bounds or not."

"And if the legislature was wrong, the Supreme Court will be able to hear from the rules committee . . . and other lawyers and other interested organizations that deal with this, rather than hearing the board's position on something that probably doesn't deserve a Bar position," Kuehne said.

Board member David Rothman, a criminal defense lawyer like Kuehne, asked his board colleagues who practice in the civil arena what they would do if the legislature took something away from their civil practice that helped the other side.

"Would you simply say, "Let's not pick a fight here'?" Rothman asked.

Rothman then moved to adopt the rules committee minority report on the issue, which passed on a voice vote.

The minority report states, in part, that while the state may bear the burden of proof, not all defenses are equal.

"In those where the accused puts on no evidence, for example, she has only counsel to convince the jury of reasonable doubt, and thus rebuttal is paramount," the minority report said. "Similarly, where the accused presents an affirmative defense--whether one requiring proof beyond a reasonable doubt or merely 'some' evidence--the final closing argument, when appropriate as a matter of law, too, is essential. Moreover, it is nearly impossible to prove a negative. Yet since it is precisely this that defendants are most often called on to do, they deserve the last word, in turn: to level the playing field--not between defendant and state, as has been argued, but between defendants independently fortified with evidence and those without."

By Mark D. Killian

Managing Editor