Apr 10, 2009 When may a prosecutor reopen the case in chief?
In the Fourth Circuit, "[t]he reopening of a criminal case after the close of evidence is within the discretion of the trial judge. See United States v. Walker, 772 F.2d 1172, 1177 (5th Cir. 1985); United States v. Molinares, 700 F.2d 647, 652 (11th Cir. 1983)." U.S. v. Paz, 927 F.2d 176, 176 (4th Cir. 1991).
The District of Columbia Court of Appeals allows the prosecution to reopen to introduce other crimes evidence where the defense waits until closing argument to contest an issue that the prosecution could have countered through other crimes evidence:
"We have pointed out that, as a matter of fairness, if a defendant defers contesting an issue, such as intent, until after the government has rested, the government is entitled to have the case reopened to put on other crimes evidence (if more probative than prejudicial) under a relevant Drew exception. See Murphy, 572 A.2d at 439 n.8; Thompson, 546 A.2d at 424 n.17; Graves, 515 A.2d at 1142. Accordingly, the trial court properly administered the proceedings by reminding defense counsel of this rule up front, after the defense had rested but before closing argument, so that counsel could decide whether to controvert specific intent in closing or instead continue to keep Drew evidence out of the case simply by arguing, in general, that the government must prove every element of the crime. Counsel chose the latter alternative — a fair trade-off, we believe, wholly in accord with the Graves-Thompson-Murphy line of cases." Jefferson v. U.S., 587 A.2d 1075, 1079 (D.C. 1991).
What is the law and practice in your state concerning allowing prosecutors to reopen their cases in chief after they rest?