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For more than 150 years, Florida defense attorneys have had the last word with juries in noncapital criminal trials when their client was the only defense witness. But the Florida Supreme Court has sided with prosecutors and revised procedural rules to give the state the last word. In a 5-2 vote, the state high court amended the rules of criminal procedure. The new rule states that “in all criminal trials, excluding the sentencing phase of a capital case, at the close of all the evidence, the prosecuting attorney shall be entitled to an initial closing argument and a rebuttal closing argument.” The per curiam opinion said that the change “brings Florida procedure into accord with the procedure in the overwhelming majority of jurisdictions.” In making the decision, the court sided with the Florida Bar’s criminal procedure rules committee, which recommended the change, and went against the Florida Bar board of governors, which voted not to support the change. Justices Peggy A. Quince and Harry Lee Anstead dissented. In her one-paragraph dissent, Quince said that giving the defense the final say helped “to level the field in these criminal cases.” The repealed rule, which had been in effect since 1853, mandated that in criminal trials in which the only testimony on the defendant’s behalf is given by the defendant, the defense attorney got the final closing argument. North Carolina and South Carolina are the only states that still give the defense the close-close in such cases. Prosecutors always have had the final say in cases when the defense puts on witnesses other than the defendant. Now, the only way defense attorneys will get the final closing argument is if prosecutors forgo their closing statement. But the defense still will be able to make the final closing in the sentencing phase of capital cases. William C. Vose, a former state prosecutor and chairman of the Florida Bar’s criminal procedure rules committee, said that the change brings Florida in line with commonly accepted procedure derived from English common law. “It’s an accepted practice in common law that whoever has the burden of proof, which would be the state in criminal trials, gets the final closing argument,” Vose said. Request for hard evidence Miami-Dade County State Attorney Katherine Fernandez Rundle said the rule change will reduce defendants’ post-trial claims of ineffective assistance of counsel. “Previously, we’d see a lot of that, where defendants would say ‘I told my attorney to put on this witness or that witness, but they didn’t because they wanted to have the final argument,’ ” Rundle said. The Supreme Court heard oral arguments on the closing issue in February. During the hearing, justices repeatedly asked advocates of the rule to offer evidence that defense lawyers were not presenting witnesses for the sole purpose of having the final argument. “Tell me what statistical evidence has been submitted that demonstrates to us that this rule has been abused and therefore you’ve got lawyers out there committing malpractice,” Anstead asked. Buddy Jacobs, who was arguing for the Florida Prosecuting Attorneys Association, admitted that there were no data supporting the claim, according to the Florida Bar News. Attorney Scott Fingerhut, arguing against the rule change, warned that criminal trials would become longer because the change would remove defense lawyers’ incentive not to call witnesses. But Justice Raoul G. Cantero III argued for changing the rule anyway: “Why not conform to the 47 other states that have the common law rule?”

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