Delaware Trial Handbook § 8:1. ORDER OF PRODUCING EVIDENCE

The order in which evidence is presented is within the discretion of the court.1 The ordinary procedure, which is generally followed, is for the side having the burden of proof to introduce all evidence in support of its case, to be followed by the opposing side introducing all of its evidence in denying the affirmative, and thereafter the side having the burden of proof is limited to a rebuttal of the other side’s case.2  In eminent domain cases, for example, the landowner whose property is being taken is the first to introduce evidence and has the right to produce rebuttal evidence since the owner has the burden of proving the value of the property taken.2.1

The court has the discretionary power to vary from the ordinary procedure according to the requirements of the particular case, to make the presentation of evidence more effective for the ascertainment of the truth, to avoid a needless consumption of time, and to protect witnesses from harassment or undue embarrassment.2.2 Such departures are more out of consideration for the administration of justice than for technical rules of procedure.3 Thus, it will not be deemed improper for a judge to permit the introduction of evidence in a party’s case in chief that is more properly admitted in rebuttal.4 Similarly, the trial court, in its discretion, may admit in rebuttal evidence which more properly should have been introduced in the case in chief, so long as the opposing party is permitted to reply to the new matter.5

1. Van Arsdall v. State, 486 A.2d 1, 8-9 (Del. 1984), vacated on other grounds, 475 U.S. 673 (1986); Keys v. State, 337 A.2d 18, 23 (Del. 1975); Taylor v. State, 298 A.2d 332, 337 (Del. 1972); Baltimore & O. R. Co. v. Hawke, 143 A. 27, 31 (Del. 1928); Garboctowski v. State, 123 A. 395, 400 (Del. 1923); Gibson v. Gillespie, 152 A. 589, 591 (Del. Super. 1928); Cerchio v. Mullins, 138 A. 277, 279 (Del. Super. 1922); Saudi Basic Industries Corp. v. Mobil Yanbu Petrochemical Corp., C.A. No. 00C-08-161 JRJ, slip op. at 3, Jurden, J. (Del. Super. Jan. 24, 2003).  .

2. Herbal v. State, 283 A.2d 482, 485 (Del. 1971); Gaston v. State, 234 A.2d 324, 325 (Del. 1967); Roberts v. State, 79 A. 396, 397 (Del. 1911); State v. Curran, Cr. A. No. 81-08-0500A, slip op. at 3, Stiftel, J. (Del. Super. July 8, 1982). See also National Union v. Rhone-Poulenc, C.A. No. 87C-09-l I, slip op. at 1, Chandler, V.C. (Del. Super. Dec. 17, 1992).

2.1. See §9:3, fn. 35.

2.2. D.R.E. 611(a).

3. Herhal v. State, 283 A.2d 482, 485 (Del. 1971); Gaston v. State, 234 A.2d 324, 325 (Del. 1967); Roberts v. State, 25 Del. 385, 2 Boyce 385, 79 A. 396, 397 (Del. 1911).

4. Baltimore & O. R. Co. v. Hawke, 34 Del. 25, 31, 143 A. 27 (Del. 1928).

5. Garboctowski v. State, 123 A. 395, 400 (Del. 1923); Ajax Rubber Co. v. A. B. Rothacker, Inc., 114 A. 610, 618 (Del. 1919); Roberts v. State, 79 A. 396, 397 (Del. 1911).

© 2010  David L. Finger