22 October 2012


While you are in law school you are taught that the way that evidence is presented in court is simple: Evidence then Counter then Rebuttal. This occurs both in macro and micro formats. In the macro format it is prosecutor's case in chief then defense's case in chief then prosecutor's rebuttal. In the micro it occurs during questioning and argument. For example, in argument the moving party argues its motion, the other side offers counter argument and the moving party gets to argue in rebuttal.  However, there is this thing which isn't talked much about in law school (if at all), surrebuttal.

Surrebuttal is a fourth step in the courtroom dance.  It allows the party who has just seen his evidence or argument rebutted to present more evidence.

Surrebuttal is something that I'd not thought much when I first started practicing law. The courts wherein I practiced looked upon surrebuttal with strong disfavor.  An attorney had to ask for it and (I am fairly certain) had to have pictures of the judge in a compromising situation in order to get surrebuttal.  I only actually saw it asked for a few times and can't remember ever seeing a judge allow it.

Then I moved to a different area of the Commonwealth and learned how differently courtroom procedure can be even in the same State.  Routinely, the pattern in this area of Virginia the judges allow back and forth until the attorneys exhaust themselves. In other words questioning of a witness goes like this: prosecutor questions, defense attorney cross examines, prosecutor asks rebuttal questions, defense attorney asks surrebuttal questions, prosecution asks more questions, defense attorney asks more questions, prosecutor asks even more questions, defense attorney asks even more questions, and prosecutor asks even more questions, &cetera.  Usually the number of questions winnows down until one side or the other runs out of things to ask.  The attorneys don't even have to ask permission to keep questioning; they just stand up and start questioning.  In fact, I've seen judges prompt attorneys until one side finally admits he can't think of anything else to ask.

Now, surrebuttal is at the trial judge's discretion and a judge never allowing it isn't correct, but always allowing it isn't either.  The answer is somewhere in the middle.  It's difficult to suss it out because it is not addressed anywhere in either Virginia's statutes or Virginia Supreme Court's Rules.  There are a lot of gaps like this in Virginia's procedure; it's a rather large flaw which means the courts have to fill the gaps.  So, we have to look to case law and the pickings are slim.

The cases which address surrebuttal address the same situation: After the Commonwealth has presented its rebuttal when can the defense present surrebuttal? The rule from the two whole cases which address this procedure is:
If the prosecution introduces evidence for the first time during its rebuttal then the defense can introduce evidence that contradicts or alters the import of that evidence as long as the defense's evidence is not cumulative.  Quintana v. Commonwealth, 224 Va. 127 (1982).  However, if the defendant's evidence has touched upon the topic the defendant is not entitled to surrebuttal.  Hardyman v. Commonwealth, 153 Va. 954 (1930).
So, that's the extent of Virginia's law on this procedure. The key elements are that the prosecution must have introduced new evidence and the defense isn't entitled to surrebuttal if it brought the topic up first.  While there will always be arguments as to whether the prosecution introduced new evidence or if the "new" evidence introduced by the prosecution is in rebuttal to evidence first introduced by the defense, this rule would seem to limit rebuttal to a specific circumstance and thus make it less common.

No comments: