- Parties have the right to offer rebuttal evidence in response to matters raised during the other party’s case in chief – and to offer surrebuttal evidence in response to a rebuttal.
- The court has the discretion to allow new evidence at any time, including after the close of evidence or even after jury arguments, but the court may choose to limit such evidence to matters that could not previously have been raised and that will not prejudice the other party by coming in at such a late point.
“Each party has the right to introduce rebuttal evidence concerning matters elicited in the evidence in chief of another party.” G.S. 15A-1226(a). For example, the state might wish to offer evidence on rebuttal which disproves to the defendant’s claims of alibi or self-defense, or which rehabilitates and bolsters some other aspect of the state’s case that came under attack during the defendant’s case. See, e.g., State v. Torain, 316 N.C. 111 (1986) (state properly allowed to recall rape victim after close of defendant’s evidence – witness testified she recognized defendant’s voice after hearing him testify during defense case in chief); State v. Lowery, 318 N.C. 54, 70 (1986) (trial judge did not abuse discretion in allowing a new state’s witness to testify on rebuttal).
Under the statute, the trial judge may even permit a party to offer new evidence during rebuttal that could have been offered during the party’s case in chief, or during a prior rebuttal – but if new evidence is allowed under this provision, then the other party must also be permitted further rebuttal (“surrebuttal”) in response to the new evidence. See State v. Ellison, 213 N.C. App. 300 (2011), aff’d on other grounds, 366 N.C. 439 (2013) (trial court did not abuse its discretion by allowing state to recall its witness in drug trafficking case on rebuttal to identify the substance as an opium derivative); State v. Quick, 323 N.C. 675 (1989) (trial judge had authority to allow state to introduce exhibit during cross-examination of defendant and reintroduce exhibit on rebuttal); State v. Clark, 128 N.C. App. 87 (1997) (defendant was not entitled to present evidence on surrebuttal because state did not present any new evidence on rebuttal).
Offering Additional Evidence “Any Time” Before Verdict
G.S. 15A-1226(b) provides that a trial judge may permit any party to introduce “additional evidence at any time before verdict.” For example, the judge may allow the state to introduce additional evidence after the state has rested its case. See State v. Revelle, 301 N.C. 153 (1980) (state allowed to introduce stipulated evidence on results of medical exam after state had rested, in response to defendant’s motion to dismiss based on insufficient evidence), overruled in part on other grounds, State v. White, 322 N.C. 506, 517 (1988). The judge may even permit the state to recall a witness and elicit additional testimony after the closing arguments. State v. Jackson, 306 N.C. 642 (1982) (no error in allowing state to reopen evidence after jury arguments and recall a witness to present additional testimony); State v. Stroud, 78 N.C. App. 599 (1985) (judge did not abuse discretion in allowing state to offer additional testimony after presentation of evidence and arguments of counsel at a suppression hearing).
Of course, the judge can also decline a party's request to recall a witness or offer new evidence after the close of the evidence. See, e.g., State v. Wilson, 263 N.C. App. 567 (2019) (no abuse of discretion where judge refused to allow defendant to change his mind and testify after the defense had rested); State v. Shelton, 53 N.C. App. 632 (1981) (trial judge did not err in refusing to allow defendant to call additional witness after defendant had rested case). North Carolina’s appellate cases have not formulated a specific test for when such additional evidence should be allowed, but courts in other jurisdictions have held that there are three relevant factors to be considered when ruling on a motion to reopen evidence: (i) whether the moving party offers a reasonable explanation for not offering the evidence during its case in chief; (ii) whether the evidence is relevant, admissible, and helpful to the jury; and (iii) whether re-opening the case at this point would infuse the evidence with distorted importance, prejudice the opposing party’s case, or preclude the opposing party from meeting the evidence. See United States v. Abbas, 74 F.3d 506 (4th Cir. 1996).
Without specifically enumerating the three factors listed above, several North Carolina cases on this issue seem to be generally applying these same principles in reaching their ruling. See, e.g., State v. Riggins, 321 N.C. 107 (1987) (new evidence was properly allowed where it was presented in response to a question by the jury, the defense did not object, and it related to an incidental aspect of the case); State v. Perry, 231 N.C. 467 (1950) (motion to reopen properly allowed where state did not know of evidence before resting, there was no prejudice to defendant, and defense was given an opportunity for rebuttal). But see State v. Hoover, 174 N.C. App. 596 (2005) (defense motion to reopen properly denied where testimony from new witness would only have been cumulative of other evidence already introduced); State v. Mutakbbic, 317 N.C. 264 (1986) (defendant’s motion to reopen during jury deliberations and introduce a DSS report was properly denied where defense knew about report beforehand but chose not to offer it at trial).
Don’t count on it
If the defense has made a motion to dismiss at the close of the state’s evidence because the prosecutor forgot to formally introduce the lab results into evidence, or failed to ask the key witness to identify the defendant in court, etc., then by all means the prosecutor should cite to G.S. 15A-1222 (and relevant case law) and make a motion to reopen the evidence. But prosecutors must also be mindful of the fact that the court has the discretion to say “no” to such a request, particularly if it relates to something that the state could have and should have introduced during its case in chief. Therefore, prosecutors should never attempt to “sandbag” a case by intentionally holding back evidence in the hope that the court will allow it into evidence later.