by Mike Sharkey
Staff Writer
In criminal trials, the burden of proof is on the State, so it would seem logical that the prosecuting attorney — who, in theory, has the more difficult job — would be allowed to both open and close a trial. However, for the past 153 years, the defense’s argument was often the last impression on a jury.
All that will change if House Bill 147, sponsored by Rep. Dick Kravitz of Jacksonville, is ratified. The bill will change trials procedurally and may change the strategy behind both defending and prosecuting an alleged criminal.
“The rule, as it is now, is that if the defense offers no evidence or if only the defendant is put on the stand, then the defense gets the first and last argument,” said Florida Bar President Hank Coxe, a criminal defense attorney with the Bedell firm here. “If any evidence is introduced, then the State goes last. The new rule says the State will go first and last no matter what.”
Coxe declined to comment any further on the law, citing his desire to remain fairly neutral while he’s the Bar president. But, the new law both pleases and makes sense to State Attorney Harry Shorstein.
“This is so long overdue,” said Shorstein. “We have been one of four states in the United States where the prosecution did not have the final argument. It’s another indication of the courts not giving proper due to the prosecution. The prosecution has the burden of proof in a criminal case, but the defense has no burden of proving innocence. It makes no sense to give the last word to the side that offers little or no evidence while the prosecution has no ability to respond.
“The law leaves the jury with an inappropriate impression that can’t be rebutted.”
The bill is supposed to go into effect Oct. 1. However, Public Defender Bill White said the Florida Supreme Court may rule on the legality of the legislation.
“This is not over yet,” said White, who has been a defense attorney for 32 years. “Rod Smith (a state representative from Gainesville) has filed to amend the language that would, in effect, make the law useless unless the Florida Supreme Court (approves the law). They could say the law isn’t valid and leave the system as is.”
White said the Supreme Court has until November to rule, leaving an overlap of over one month. During that time, White said he intends to remind the court that the law is still being looked at and proceed with criminal cases as usual.
Florida has operated under the current law for the past 153 years and was just one of four states that permitted the defense to have the final argument in many criminal cases.
Shorstein said the new law won’t change his strategy going into a case very much, but it will affect his ability to present a case.
“When the defense goes last, it’s a difficult position for the State to be in,” explained Shorstein. “You can’t get a conviction without proving guilt beyond a reasonable doubt.”
If passed and enacted, Shorstein said the change will be welcome and good for the prosecution, but he doesn’t expect a spike in convictions because of the law.
“I don’t think you’ll see a big change in the percentage of convictions,” he said. “Being a prosecutor is a tough job, as it should be.”