Massachusetts State House.
Boston Bar Journal

Point/Counterpoint: Commonwealth v. Nova

April 26, 2023
| Spring 2023 Vol. 67 #2

Why the Government Gets the Last Word

By Hon. Richard E. Welch III (ret.)

Appeals Court Justice Peter J. Rubin wrote both the decision and a concurrence in the case of Commonwealth v. Nova, 101 Mass. App. Ct. 1 (2022). In his concurrence, Justice Rubin suggested revisiting Mass. R. Crim. P. 24, which requires the defendant to argue first and the prosecutor to argue last. Justice Rubin recommended allowing the defendant “to respond to the government’s closing” either by adopting the federal approach allowing the prosecutor to argue first, the defense second, with an opportunity for the prosecutor to rebut the defense closing, see Fed. R. Crim. P. 29.1 or, alternatively, “retaining our current rule and simply allowing rebuttal.”

The Massachusetts Lawyers Weekly editorial board was quick to praise Justice Rubin’s concurrence and likewise expressed hope that Mass. R. Crim. P. 24 be revisited. At best, Justice Rubin’s concurrence and the small groundswell it produced are the proverbial tempest in a teapot.  At worse, they represent an ill-considered invitation to change to a balanced, well-tested, and just legal system.

Massachusetts is hardly alone in its order of closing arguments. For example, Pennsylvania, New Hampshire, Texas, and New Jersey mandate that the defense closes first, followed by the prosecutor. This is a system that has worked for over two hundred years. See John B. Mitchell, Why Should the Prosecutor Get the Last Word?, 27 Am.J.Crim.L. 139, 141, n.5 (2000) (order of closing arguments dates from before 1823).

The prosecution gets the “last word” for two very commonsense reasons. First, the prosecution bears the burden of proof beyond a reasonable doubt, the heaviest and most difficult burden recognized in the law. See Commonwealth v. Russell, 470 Mass. 464, 477 (2015) (the burden is “the highest degree of certainty possible in matters relating to human affairs”). The defendant has nothing to prove at a trial and the burden of proof never shifts. Thus, only the prosecution has to persuade the jury that the evidence meets the high burden. Second, the prosecution properly has the right to rebut any improper defense argument by going last, as it has no right to appeal any possible error—unlike the defendant, who has a plenary right to appeal and to file unlimited motions for new trial. To argue that the defense may be surprised by the prosecutor’s argument fails to recognize the realities of a criminal trial. By the time all the testimony and exhibits are in evidence, competent defense counsel should be able to anticipate what aspects and elements the prosecutor will emphasize in a closing. Any errors in the prosecution’s closing are addressed by the judge (often the most credible and authoritative voice to a jury) after argument.

Although Justice Rubin argues that defense counsel should have the ability to respond to improper prosecutorial argument, the defense in Nova did not even object to most of the prosecutor’s errors. The advantage of our current system is that the defendant can always raise even unpreserved errors on appeal, whereas improper arguments by a defendant would never be subject to review. While Justice Rubin’s judicial service has seen many cases where the government’s closing has generated an appealable issue, Nova, 101 Mass. App. Ct. at 12 (Rubin, J. concurring) those cases, indeed, demonstrate that the defendant’s rights are being protected by that very review.  To permit the defendant’s final word to go unrebutted would create a system in which an inappropriate closing statement by a defendant would be, de facto, unreviewable.

Any zealous advocate finds it frustrating not to get the last word in an argument. But, after all, someone must argue last and, with the possible exception of Vermont, every state and federal court in the nation gives the “last word” to the prosecution.

While at least ten states follow the federal practice of allowing the defense to argue second, including California, North Carolina, Florida, Virginia, Minnesota, Georgia, and Colorado, they also provide that the prosecution gets the last word with a rebuttal. So, this may be a distinction without a difference. In either system, the prosecution gets the “last word.”

Although defense counsel occasionally assert that they should get the last word, such a tactical advantage is based on the view that every advantage should be given to the defendant “even at the expense of the truth.” Mitchell, supra, at 141. This argument is premised on the belief that a criminal trial is not a “truth system” but “screening system which protects the defendant against overreaching governmental power.” Id. at 142-43. But one hopes that this is entirely a false premise. Of course, any defendant is entitled to valuable constitutional protections such as the Fourth and Fifth Amendments, which force the government to independently and fairly gather and present evidence. And the government always should shoulder the heavy burden of proof which encompasses “the highest degree of certainty.” Russell, 470 Mass. at 477.

Nevertheless, a criminal trial remains a search for the truth. See id., at 479, n. 10. That, after all, is the reason for discovery and cross-examination. The term “verdict”, loosely translated from Latin, means to speak the truth. Because the prosecution shoulders the heavy burden of proof beyond a reasonable doubt, the present order of closing argument is fair and just. While we should be open to improvements to the Massachusetts criminal justice system, permitting defendants to have the last word is not one of them.

The Honorable Richard E. Welch, III is a retired Associate Justice of the Superior Court of Massachusetts.  He is also an Adjunct Professor at New England Law | Boston and serves as a Senior Advisor to the District Attorney of Essex County Paul F. Tucker. The opinion and the views expressed in this piece are solely those of the author.

Defendants Must Be Able to Actually Defend

By Madison Bader

In his concurrence in Commonwealth v. Nova, 101 Mass. App. Ct. 1 (2022), Appeals Court Justice Peter J. Rubin suggests revisiting Mass. R. Crim. P. 24. While current Massachusetts practice is for the defendant to argue first and for the government to have the last word, the time has indeed come to revisit this long-standing practice. Allowing criminal defendants the last word, even if it is as short as a simple rebuttal, will help criminal defendants achieve the justice they deserve.

In his concurrence, Justice Rubin recognized what criminal defense counsel have long argued—the unfairness of defense counsel’s inability to respond to unanticipated (and, many times, improper) arguments by the government. Id. at 13. Given that a defendant’s liberty is at stake, justice demands that a defendant be given the opportunity to, at the very least, respond to the government’s closing argument.

Some may argue giving defense counsel the last word could give them a “tactical advantage.” In reality, however, it merely attempts to even a playing field that largely favors the prosecution, which already holds substantial discretion at every phase of a criminal trial from the powers to accuse, to request bail and detain, to offer pleas, and more. Allowing defense counsel the opportunity to, at least, rebut the government’s closing argument will in no way diminish the government’s far-ranging authority. Further, claiming that giving defendants the last word would come “at the expense of truth” is precisely backward; not allowing a defendant to respond to the government’s argument undermines the effort to give the defendant every opportunity to present their case.

Having the last word at trial is clearly of the utmost importance. Closing argument is a “vital part of the adversarial process that forms the basis of our justice system,” and “can be a critical part of winning a case.” State v. Jones, 355 N.C. 117, 135 (2002). It is the “last clear chance” for the defense to persuade the trier of fact of the defendant’s innocence or lesser culpability. Herring v. New York, 422 U.S. 853, 862 (1975). Denying defense counsel the opportunity to at least rebut the government’s closing statement prevents defense counsel from responding to assertions made against their client at this critical moment. Further, while it has been suggested that any errors in the prosecutor’s closing statement can be addressed by the judge (either after argument or in their charge), such instructions are oftentimes inadequate. Most of the time, the proverbial cat is out of the bag and the jury is left with the last words of the prosecutor, with no response from defense counsel. A defendant’s “plenary right of appeal” and ability “to file unlimited motions” are in no way comparable to having the ability to correct prosecutorial errors and misstatements at the time they occur, and before the case is submitted to the jury.

A further argument advanced by those supporting the current order is that because the system has worked well for 200 years, it should not be tampered with. But this is an argument against progress in the criminal justice system, and could be said about many of our procedural protections. Had that rationale prevailed, we would have no Miranda warnings, no right to counsel for all criminal defendants, no evolution of search and seizure law, no establishment of the federal defender service and, most recently, no recognition of the role of implicit bias. In short, simply because this is the way that things have always been done, does not mean it cannot be changed—especially where the change seeks to protect the rights of criminal defendants, who are literally fighting for their lives.

Under the Sixth Amendment, defendants have a right to present a defense. They are also entitled to give a closing argument. Herring, 422 U.S. at 858. The trial judge cannot deny the defendant this right, no matter how strong the prosecution’s case may be. Id.; see also State v. Eury, 317 N.C. 511 (1986) (the right to make a closing argument is a substantial legal right of which the defendant cannot be deprived by the exercise of a trial judge’s discretion).

Closing arguments are the last thing a jury hears from counsel, and if the very last thing a jury hears is unrebutted, incorrect, or mistaken facts by the prosecution, this will clearly influence the jury’s decision. The intentionally high burden is on the government to prove a defendant’s guilt beyond a reasonable doubt. Affording a defendant the opportunity to have the final word, at the very least, in rebuttal to the government’s case, holds the government to its burden, and is one more way to ensure that a defendant’s constitutional rights to a fair trial are protected. Justice Rubin’s suggestion of permitting rebuttal furthers this vital goal.

Madison F. Bader is a trial attorney at Todd & Weld LLP in Boston, Massachusetts. Attorney Bader started her career as an Assistant District Attorney prior to moving into private practice doing criminal defense. Attorney Bader represents clients in all aspects of criminal defense and civil litigation matters, in both state and federal courts in Massachusetts and Rhode Island.