Structuring Rebuttal: The “Anti-Sandbagging Rule,” Avoiding Improper Arguments, and Crafting a Strong Rebuttal

Authored by: Howard J. Zlotnick

Abstract:

Rebuttal provides prosecutors with a powerful tool. It gives the prosecutor the last word and arms allies on the jury with the testimony and exhibits to rely upon in deliberations.  If jurors see the rebuttal as unfair, the prosecutor loses credibility with the jurors.  Therefore, prosecutors must avoid “sandbagging” and keep their rebuttal arguments within legal bounds regardless of the provocation from the defense.

The word “rebut” is defined by Black’s Law Dictionary as “to refute, oppose, or counteract (something) by evidence, argument or contrary proof.”  The issue confronting a prosecutor preparing for rebuttal is how far he or she must go in rebutting and answering the defense arguments.

During rebuttal, the potential for prejudicing the jury is risky because the prosecutor’s argument is the last thing they hear before deliberations with no opportunity for the defense to respond.  Consequently, the rebuttal is a sensitive time for the trial and the wrong place for improper remarks.  Too often, at this stage of the trial, prosecutors jeopardize their cases and, at times, their reputations by misconduct.

This Article describes the scope of a federal prosecutor’s rebuttal argument, the prohibition against “sandbagging,” and how to avoid three common improper arguments in rebuttal.  These improper arguments involve denigrating the defense function, improper vouching, and unfair inflaming of the jury.  The Article also addresses the limitations of the “invited response” doctrine.  Finally, this Article provides some strategies for preparing and delivering an effective rebuttal.