[194 NJSuper Page 561] Defendant was tried for robbery N.J.S.A. 2C:15-1(a)(2). Following the close of all the evidence, defense counsel announced that he would not be making a closing argument to the jury. The assistant prosecutor indicated that he intended to sum up. A hearing was then conducted out of the presence of the jury to determine whether the defendant knew of, understood and
consented to the trial strategy proposed by his attorney. This opinion is written to expand upon the reasons given at trial for allowing defense counsel to remain mute even though the jury was allowed to hear closing argument for the State.
All who are acquainted with litigation recognize that summation is a most important aspect of the trial process. During closing argument, an attorney is placed in the role of an advocate in the truest sense of the word. The purpose of closing argument is to draw together all the facts at the end of the trial and to present the theories of the litigants to prepare the jury*fn1 to make a proper decision. Summation in criminal cases serves to sharpen and clarify the issues for resolution by the jury and, as such, constitute a basic element of the adversary factfinding process. Herring v. New York, 422 U.S. 853, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975). In the interest of promoting advocacy, courts have given counsel wide latitude in the presentation of their arguments.
The right of the criminal defendant to have his attorney argue the factual issues of the case to the jury is recognized by the New Jersey Court Rules. Rule 1:7-1(b) provides:
(b) Closing Statement. After the close of the evidence . . ., the parties may make closing statements in the reverse order of opening statements.
The right to final argument by counsel has its Constitutional underpinnings in the Sixth Amendment*fn2 to the Constitution. This right is so important a right that it should never be denied.
Herring v. New York, 422 U.S. 853, 95 S. Ct. 2550, 45 L. Ed. 2d 593 supra; Aladdin Oil Burner Corp. v. Morton, 117 N.J.L. 260 (E. & A.1936).
Research has disclosed no New Jersey authority which either condones or permits a criminal defendant to waive summation. The New Jersey Court Rules do not provide a definitive answer. Rule 1:7-1(b) merely instructs that the parties may make closing statements in the reverse order of opening statements." The use of the word "may" suggests that summations are merely permissible, but not mandatory. The rule certainly does not use the mandatory word "shall". Compare R. 1:7-1(a) which requires the State to make an opening statement. The same principles of statutory construction apply to rule construction. Cf. Diodato v. Camden Cty. Park Comm'n, 136 N.J. Super. 324, 327 (App.Div.1975). However, the context of the rule does not clearly point to such a construction. Rather, it can be argued that R. 1:7-1(b) only establishes the order of closing argument, but not the discretionary nature of closings.
A defendant's right to waive a Constitutional right has long been recognized. In appropriate factual settings, New Jersey courts have permitted criminal defendants to waive substantial rights including those of a Constitutional dimension. See, e.g., State v. McKnight, 52 N.J. 35 (1968) (right to counsel); State v. Monroe, 30 N.J. 160 (1959) (right to trial by jury); State v. Kremens, 57 N.J. 309 (1971) (right to testify at his own trial); State v. Ciniglio, 57 N.J. Super. 399 (App.Div.1959) (right to jury of twelve); and State v. Johnson, 68 N.J. 349 (1975) (right to refuse to consent to a warrantless search). If these rights may be surrendered, why not the right to a closing argument?
To constitute an effective waiver, the court must be satisfied that a defendant knew and understood the particular right and that he voluntarily relinquished it. See, e.g., State v. McKnight, 52 N.J. 35, 48-56 supra. This Court questioned the ...