A break to prepare a reply in closing arguments

Positions of the trial and appellate courts: the lower courts found the defendant guilty and convicted him under Article 307(3), Article 311(3), Article 15(2) read with Article 311(3), Article 28(3) read with Article 317(2), Article 307(2) and Article 309(2) of the Criminal Code.

In the cassation appeal, defence counsel argued that the trial court had violated adversarial proceedings and equality of arms by refusing the defence time to prepare a reply after the prosecutor’s closing speech, although the prosecutor had been given two days to prepare that speech.

Position of the Criminal Cassation Court: the appellate ruling was set aside on other grounds stated in the cassation judgment, and a fresh appellate hearing was ordered.

Reasoning of the Criminal Cassation Court: the panel explained that a reply is a brief statement by a participant in closing arguments objecting to points made in another participant’s speech or reply. Neither the prosecutor, defence counsel nor others entitled to speak in closing arguments should regard a reply as an opportunity to supplement their main speech. Leaving an issue unaddressed in the main speech in anticipation of a reply is inappropriate, because there may be no reply. Delivering one is a right, not a duty.

The procedural purpose of a reply therefore differs from that of the main closing speech. The main speech is where a party should set out its position on the charge, the evidence examined and its assessment, and other matters relevant to deciding the case. A reply provides a brief response to arguments advanced by other participants.

In these proceedings, the defence had sufficient time to prepare closing arguments. At counsel’s request, the court adjourned for almost three weeks, after which all defence lawyers could present their positions in full. The defence was therefore not restricted in preparing and communicating its principal legal position on the charge.

Accordingly, refusal of an additional break to prepare a reply did not, in itself, amount to depriving the defence of participation in closing arguments or violating equality of arms.