After the defense has finished presenting all if its evidence and rests its case, the prosecution has the opportunity to present rebuttal evidence, although the prosecution is not required to do so. The admission of rebuttal evidence is at the discretion of the trial judge. Rebuttal evidence is limited to that which explains, refutes, or contradicts evidence offered by the defense during the presentation of its case. For example, if the defense calls a witness to testify about the defendant's alibi, the prosecution may call a rebuttal witness to testify that the alibi is not true. Rebuttal evidence may include testimony from newly discovered witnesses, as well as additional testimony from witnesses who previously testified in the trial. Like all aspects of the trial, rebuttal examination should be driven by the defendant's theory of the case.
The prosecution may not offer new evidence on rebuttal unless a foundation was laid for it earlier in the trial. This is not an opportunity for the prosecution to present its entire case again. As a result, the examination of a rebuttal witness is generally short. After the prosecution's direct examination of the rebuttal witness, the defense has the opportunity to cross examine the rebuttal witness. The prosecution will then have the opportunity to conduct a redirect examination. The defense may then have the opportunity to present a surrebuttal to counter only the prosecution's rebuttal evidence. Again, the admission of surrebuttal evidence is at the discretion of the trial judge and this is not an opportunity for the defense to present its entire case again or to open the door to new issues. Although this process could theoretically go back and forth until both sides are satisfied, in practice, the presentation of surrebuttal evidence is rare.
Tips for the Defense Lawyer
The defense lawyer should listen carefully to the prosecution's rebuttal evidence and object to the presentation of evidence that goes beyond that which the defense introduced in its case in chief. New issues should not be addressed during this stage of the trial. Furthermore, the defense lawyer should seek to conduct effective cross examinations of all of the prosecution's witnesses throughout the trial in order to dissuade the prosecution from calling such witnesses again on rebuttal. Finally, the defense lawyer should be well prepared for trial and conduct thorough background interviews and investigations to avoid the surprise of a rebuttal witness at trial.
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