I have previously seen case law stating that when the State tries multiple defendants in the same trial, the defendants are limited collectively to the same amount of time for their combined closing argument as the State is permitted. Unfortunately, I am having trouble locating the relevant case, so I wanted to see if anyone here happens to have the case. Thanks much for any assistance.

I do not know the case to which you refer. The interesting point in your question is the fact that there is no explicit statutory right for either party to even present closing argument. See art. 36.01 and Dang, 154 S.W.3d at 619-20. There is a constitutional right involved, however. The right to effective assistance of counsel encompasses closing arguments of the defense. Yarborough v. Gentry, 540 U.S. 1, 6 (2003).

It would seem to give the defense (which usually has no burden of proof) an unfair advantage to collectively use more time than the State's attorney. Still, the case against each defendant is not the same and each has a right to separate assistance of counsel. But, the right to argue seems to belong to each side of the case and not to specific individuals.

I know the rule in the Eleventh Circuit is that to claim error, any given defendant must show he was denied the opportunity to make all legally tenable arguments and that the government should be allowed argument time equal to all the defendants' time put together. U.S. v. Gaines, 690 F.2d at 858 and U.S. v. Carter, 760 F.2d at 1581.

This message has been edited. Last edited by: Martin Peterson,

I'll take a look at those cases. Thanks.

I prosecuted briefly in New Mexico. There the courts (at least in my jurisdiction) did not put any time limit for final argument. And guess what? The world did not come to an end. Attorneys did not drone on for hours until they dropped dead from exhaustion. In fact, attys made their points and then sat down. The time limit for final argument is a solution in search of a problem.

I talked a judge into adopting this rule, and I did not notice any problem with attys talking until the cows came home. I asked the judge how it worked in his other counties and I think he said he'd only had to ask one atty. to "wrap it up."

See if you can get your judge to try it without any time limits and see how it goes. It's a lot less stressful for everyone.'