Order of Presentation at Trial

The order of evidence in an adversary proceeding has an important effect upon the final determination of guilt or innocence.This effect is complicated by the fact that the adversary process is ordered in two distinct ways: a "gross order" of presentation by each party; and, within this gross order, an "internal order" for the presentation of each party's case.Gross order is determined by statute and judicial decision for the three parts of the traditional adversary process: opening statements, presentations of evidence, and closing arguments.The prosecution or plaintiff usually has the right to make the first opening statement, present evidence first, and make both the first and the final closing arguments.The usual justification for this ordering is that the party with the burden of proof should have the advantage of making the first and last presentation. 1 There is, however, no established internal order for adversary proceedings; such ordering is typically left entirely to the participants.Nevertheless, most practitioners normally save their strongest, most convincing evidence for last.The usual justification for this strategy is that it is the most dramatic way to present one's case and that the jury or fact-finder will remember the strongest evidence more vividly.One trial specialist suggests, for example, that the order of witnesses be arranged to "lead up to a climax with no anticlimax." 2