Under Texas law, can a prosecutor "waive" his first closing argument and simply use all of his time to deliver his second closing argument, responding to the defense? A student asked me this question and I can't find anything in the Code of Criminal Procedure or the case law that addresses this in Texas. From an advocacy standpoint, I don't think it's a good idea to waive first closing. This is more of an academic inquiry.

From a prosecutor-turned-academic ...

Larry Cunningham
Assistant Professor of Law
& Director of the Criminal Prosecution Clinic
Texas Tech University School of Law

That is a common practice here in Dallas County. I am unaware of any statutory or case law on the issue.

Your colleagues (Dix and Dawson) at UT state: "The State's final argument may be a full argument. The State may make a short opening argument, or even no opening argument at all, and make a full final argument, thereby precluding rebuttal argument by the defense." Nelson, 828 S.W.2d at 187 says the court could require the State to make a full argument prior to requiring the Defendant to complete his arguments, but no statute mandates any opening by the State.

A few years ago in our county, an eccentric (now retired involuntarily) County Criminal Court Judge refused to allow the prosecutor to waive his "open close." Dutifully, the prosecutor stood up and said,"Guilty, guilty, guilty! More on that in a minute."

That was the best laugh I had all week. I think you should identify that person so I can buy them a beer if I ever meet them.

It reminds me of an opening argument made by Patrick Wilson, now in Ellis County, in a DWI trial with Randy Taylor. It was something like, "While listening to the defense argument, I just want you to think of one thing: Jiffy Pop Popcorn." Taylor practically had a stroke, and spent 15 minutes in his apoplectic closing argument sputtering "Jiffy Pop Popcorn! Jiffy Pop Popcorn!" Maybe Patrick is lurking and can supply the rest of the story.

I have found that waiving the right to open and reserving the right to close works great in certain trials. I did it recently, knowing that the defense would be totally thrown off by me waiving opening. When I stood up and announced I was waiving the right to open, the defense attorney looked stricken, sputtered around, and frantically asked her co-counsel, "What do I do?" to which he whispered, "Go, go, go!" She was quite flustered, and I leaned over and said to my court partner, "Guess it worked." I don't know that I'd do it in a trial with a complicated jury charge, but in one where the law is clear, go for it. They do it all the time in Harris County, too.

I seldom do more than a minute or two in the first opening. Had one defense attorney object that the state "did not open fully", whatever that means, but the judge didn't buy it. Beware one issue. Some judges believe that if the state waives the first part and the defense then waives, there is no right for the state to close. You may lose your right to argue at all if the defense decides it would be better off without argument.

John, you probably know him already. The prosecutor was David Finn, later County Criminal Court Judge in Dallas and unsuccessful candidate for DA in the last election cycle. Inasmuch as he tried to defeat Mr. Hill, I hope I haven't ruined the story.

What a great story! I may steal that some day. Forever to be known as the Jiffy Pop closing.

I love it! Now if I just have the guts to do a Jiffy Pop-Cheesecake closing myself someday...

I agree with Tim Cole and Patrick Wilson: Don't waive opening argument. Say "Jiffy Pop" or something, however brief. A couple of years ago in a jury trial, I waived opening argument announcing that I would, however, reserve the right to close. The defense also waived argument. The visiting judge then refused to let me close, saying the closing argument is a "rebuttal" argument and, as the defense waived, there was nothing for me to rebut.

Under that Judge's theory, wouldn't you still be prohibited from making a "rebuttal" if the defendant made no arguement? You would leave the jury wondering what in the heck "Jiffy Pop" means.

If nothing else, you needed to rebut the judge's misapprehension of the law.

I've heard, in theory, that you risk your whole argument by doing this, but in reality, I've never met a defense attorney (or prosecutor) who could just sit quietly and not give a closing argument. We like to hear ourselves talk too much. You have to assess your opponent. But I've never lost this bet when I've waived opening. I don't do it every time, though.

The defense is most likely to do this in punishment argument, I have found. Had a murder case once where we waived the first part of punishment argument, defense waived and the judge then gave the case to the jury. Worked out ok, since the guy got 99 years anyway, but if it had been a case where argument was critical we would have had a problem. It's your call since you know more about your defense attorneys and judges than I do, but I will not take the chance in the future. I like to try and focus the jury on something during that first argument. Just one small point to either make them think while the defense is giving argument, or make the defense attorney answer the point. It could be something as simple as, "What's the real purpose of punishment? Why are we here? I want you to think about that as you listen to the defense argue for leniency." I just think it's important for the jury to hear from us first and last. Just me, I guess.

1) My all time favorite closing - by a Bexar County Prosecutor - "She did it. I proved it. Find her guilty."

2) Once, long ago in what seems like a prior lifetime, I was told by a judge in Smith County the same story about "opening" and "rebuttal." I was then informed that there might actually be something in the "local rules" prescribing the method of argument. Now if someone could just tell me where to find them . . . .