228.1Closing Arguments

Order and Number of Arguments

The court generally has wide discretion and latitude to regulate closing arguments, but per statute both the state and the defense are entitled to make two “addresses” to the jury in their closing arguments for all non-capital trials in superior court. See G.S. 7A-97 (formerly, G.S. 84-14). There is no statutory limit on the number of arguments in capital cases, but the court may limit the total number of attorneys allowed to argue for each side, as described below. Id. 

Additionally, Rule 10 of the General Rules of Practice states that the right to “open and close” the arguments belongs to the defendant if he does not introduce evidence, but if the defendant (which means any defendant in a multi-defendant case) does put on evidence, then the final argument belongs to the state. See N.C. Gen. R. Prac. Super. & Dist. Ct. 10; see also State v. Battle, 322 N.C. 69 (1988) (“if the defendant introduces evidence the State will have the opening and closing arguments”); State v. Gladden, 315 N.C. 398 (1986); State v. Pickard, 107 N.C. App. 94 (1992).

Therefore, in order to give effect to both the statute and the rule, one party essentially has to make both of its “addresses” in immediate succession (i.e., as a single argument), while the other party will be allowed to make the first and last argument, as follows:

If any defendant does put on evidence:

1.   State’s opening address (can be waived)
2.   Defendant’s addresses (combined)
3.   State’s closing address

If the defendant does not put on evidence:

1.   Defendant’s opening address (can be waived)
2.   State’s addresses (combined)
3.   Defendant’s closing address

As long as the correct order of arguments is followed, and subject to the time limitations discussed below, more than one attorney may argue on behalf of the state or defendant. See State v. Eury, 317 N.C. 511, 517-18 (1986) (holding that upon retrial for non-capital murder, a defendant who does not present evidence “may have one lawyer make the opening argument and one the closing or she may waive one argument and have both lawyers address the jury during the remaining argument”) In capital cases, the court may limit the number of attorneys who address the jury to three on each side. See G.S. 7A-97. Also note that in capital cases, these rules only apply to the guilt-innocence phase - the defendant is always given the final argument at the sentencing phase, even if the defense presents evidence. See G.S. 15A-2000(a)(4); State v. Wilson, 313 N.C. 516, 538 (1985) (defendant has statutory right to final argument at capital sentencing, but “neither this statutory provision nor any other gives a defendant the right to make both the first and last arguments”) (emphasis added).

If there is a question as to which party should have the final argument, the “court shall decide who is so entitled, and its decision shall be final.” N.C. Gen. R. Prac. Super. & Dist. Ct. 10; but see State v. Barrow, 350 N.C. 640 (1999) (court’s error in denying defendant the final argument was per se prejudicial error).

What Counts as “Introducing Evidence” by the Defense?

As noted above, the order of final arguments depends on whether or not the defense “introduced evidence” during the trial. Obviously, if the defense calls witnesses and offers evidence during its case in chief (or formally offers exhibits into evidence during cross-examination of a state’s witness, if the court allows that practice), then the defendant has met the standard for introducing evidence and forfeited the final argument. See, e.g., State v. Skipper, 337 N.C. 1 (1994) (defendant lost final argument when the defendant introduced a photo into evidence to illustrate the testimony of a state’s witness during cross-examination); State v. Hinson, 310 N.C. 245 (1984); State v. Baker, 34 N.C. App. 434 (1977).

A more difficult question arises when the defense elicits testimony about new and unrelated topics on cross-examination, or uses exhibits on cross-examination of the state’s witnesses, but does not formally offer them into evidence. In some cases, the defense nevertheless may be deemed to have “introduced evidence” on cross-examination, particularly when counsel presents a new exhibit to the jury or uses a report or prior statement to question a witness about matters not relevant to an issue in the case. See e.g., State v. Macon, 346 N.C. 109 (1997) (defense counsel had a testifying officer read out loud from a different officer’s notes, and the notes were marked as an exhibit and counsel moved to introduce them, although they were not formally introduced – trial court did not err in finding that the defense had introduced substantive evidence for Rule 10 purposes); State v. Lindsey, 249 N.C. App. 516 (2016) (defense counsel introduced evidence in a DWI trial when he played the entire video of a traffic stop during cross-examination of the charging officer, and video included matters beyond the testimony offered on direct, such as defendant’s exculpatory statements, and introduced matters not otherwise in evidence, such as the presence of flashing lights).

However, if the defense only uses the exhibits or prior statements for a limited purpose on cross-examination, such as impeachment or corroboration of the witness’s testimony on direct examination, then the judge will likely hold that the defendant did not introduce evidence and forfeit the final argument. See State v. Matthews, 218 N.C. App. 277 (2012) (defense counsel did not introduce evidence by marking officer’s report as an exhibit and using it to question him on cross-examination about an alternate suspect discussed in report -- questions did raise a ‘new issue’ regarding the other suspect, but they were relevant to the investigation discussed in officer’s own report, which was elicited on direct examination); State v. Hogan, 218 N.C. App. 305 (2012) (not introduction of evidence when defense counsel read aloud portions of witness’s prior statements on cross-examination to point out and impeach inconsistencies with trial testimony); State v. Wells, 171 N.C. App. 136 (2005) (defense counsel did not introduce evidence when he cross-examined a state’s witness about inconsistencies between two prior statements, had one of the statements marked for identification but not formally introduced, and read the entire statement out loud and asked the witness if he agreed with each sentence); State v. Shuler, 135 N.C. App. 449 (1999) (defense counsel questioned witness about statements she heard defendant make, and read out portions of a transcript of her earlier interview about those statements, as well as other matters not raised on direct – court held this was not introduction of defense evidence); State v. Hall, 57 N.C. App. 561 (1982) (defense counsel used an article of clothing to cross-examine a state’s witness, but did not tender the item into evidence as substantive evidence such that the jury could examine it themselves, so court held the exhibit was not offered into evidence).

Time Limits on Closing Arguments

1. Misdemeanors

Trial judge may limit time to not less than one hour for each side. G.S. 7A-97.

2. Non-Capital Felonies

 Trial judge may limit time to not less than two hours for each side. G.S. 7A-97.

3. Capital Cases

Trial judge may not limit the time of arguments, other than by consent. However, as noted above, trial judge may limit the number of counsel on each side who may argue to the jury during the guilt-innocence phase to three, but those three attorneys may address the jury as many times as they wish, for as long as they wish. G.S. 7A-97; State v. Barrow, 350 N.C. 640 (1999). If the defendant presents evidence, all defense addresses must be made before the prosecutor’s closing argument during the guilt-innocence phase. If the defendant does not present evidence, all three defense counsel are permitted to make closing arguments as often and as long as they wish, even if opening argument is waived. G.S. 7A-97 (formerly, G.S. 84-14); State v. Barrow, 350 N.C. 640 (1999); State v. Mitchell, 321 N.C. 650 (1988); State v. Eury, 317 N.C. 511 (1986); State v. Gladden, 315 N.C. 398 (1986).

Use of Exhibits and Visual Aids

The regulation and control of closing arguments, including the use of exhibits or other visual aids, is left largely in the discretion of the trial court. See generally State v. Soyars, 332 N.C. 47 (1992) ("Trial counsel are granted wide latitude in the scope of jury argument, and control of closing arguments is in the discretion of the trial court"). Attorneys may “properly display items during closing argument where the item was actually introduced into evidence and is not used in an improper manner.” State v. Call, 349 N.C. 382 (1998) (rejecting defendant’s argument that prosecutor “improperly attempted to reenact the crime during his closing argument by repeatedly swinging objects through the air to simulate the force of an attack and by dropping heavy items on counsel table to simulate each blow” – instead, court found that prosecutor only “attempted to show the premeditation and deliberation necessary to commit the crime”), citing State v. Oliver, 302 N.C. 28 (1981) (displaying a revolver); State v. Holbrook, 232 N.C. 503 (1950) (displaying a rifle).

Additionally, counsel will usually be permitted to use prepared illustrative aids during closing argument (Powerpoint slides, charts, maps, photo enlargements, etc.), as long as the presentation and any accompanying argument is based on “facts in the record and any reasonable inference that may be drawn from any facts in the record.” State v. Cummings, 361 N.C. 438 (2007) (affirming trial court's refusal to allow defense to use a prepared exhibit during closing argument that contained an inaccurate statement of law); quoting State v. Allen, 360 N.C. 297 (2006) (no error where trial court overruled defendant’s objection to prosecutor’s use of a chart regarding aggravating factors during closing); see also State v. Oliver, 309 N.C. 326 (1983) (no error in state’s use of photos of victim’s bodies and crime scene during closing arguments “to argue the facts and circumstances of the murder”); State v. Johnson, 214 N.C. App. 436 (2011) (state was permitted to play an enlarged, frame-by-frame version of a video during closing argument and jury deliberations since the original video had been presented in the state’s case); State v. Jolly, 230 N.C. App. 145 (2013) (unpublished) (allowing defense to use Powerpoint slides during closing, but excluding two slides which referenced false accusations that started the Salem witch trials as being “outside the scope of the evidence in the case”).

Recording Arguments

Pursuant to G.S. 15A-1241, a motion to record the jury arguments must be made before the beginning of any argument and, if one argument is recorded then all must be. However, on suggestion of improper argument, if recordation has not already been requested or ordered, the judge may order the remainder to be recorded. G.S. 15A-1241(b).