Expressing Personal Opinion in an Opening Statement
Argument and expressions of personal opinion are always improper in opening statements. These rules are violated with great regularity by prosecutors and defense lawyers alike.
It is important to be vigilant and to object if opposing counsel engage in any argument. Lawyers commonly speak to witness credibility in opening statements; such an argument is proper only in closing. A proper opening is limited to a statement of what the evidence will show—or not show, as the case may be. A criminal defendant may, for example, point out in opening that the government will present no physical evidence tying the defendant to the crime or that the eyewitness’s story is uncorroborated, but not that the eyewitness should not be trusted.
Furthermore, attorneys often end their opening statements by saying something along the lines of, “At the conclusion of all the evidence, I am confident that you will be persuaded to return a verdict for my side.” There are many judges who will sua sponte interrupt counsel at that point and instruct the jurors that the statement was improper and that they should disregard it—a disastrous beginning to any case. It is always improper to say that you expect, or are confident, or believe that the evidence will support your side—both because it is argument and because it is an expression of personal opinion. Such “vouching” by counsel is never proper, not even in closing.
The Timing of Defense Counsel’s Opening Statement
In criminal trials, defense counsel almost always have the choice of making an opening statement immediately after the prosecution’s opening statement or reserving their statement until the conclusion of the government’s case. Conventional wisdom says that the defendant’s opening should follow immediately after the government’s opening so that the jury does not get the impression that the defense has no answer to the government’s case. That is good advice when the defense has no evidence to present and will rely on creating reasonable doubt about the government’s case. But when the defense will offer evidence, it may be better practice for the defense to reserve its opening statement until the conclusion of the prosecution’s case. There are three reasons for this.
First, as already mentioned, opening statements provide the jurors with a big picture of the case, which makes it easier for them to understand the evidence as they hear it. If the defendant’s opening statement occurs days or weeks before the presentation of its evidence, that big picture will have faded. The jury will have only a fuzzy memory of the picture on the cover of the puzzle box.
Second, revealing the defense theory of the case in detail at the very beginning of the trial allows the government to tailor its presentation of the evidence to counter that theory. It informs the government’s direct examination of its witnesses in a way that usually strengthens its case. A defense opening is likely to suggest lines of questioning to the prosecutor that the prosecutor would not have thought of otherwise.
Finally, opening before the prosecution has presented its evidence puts the defense in a bind in any case in which the defendant is considering testifying. Every experienced defense lawyer knows that a final decision about whether the defendant should testify usually cannot be made until after the government has rested. If the defense states in opening that the defendant will testify and then does not follow through, most courts will allow the government to point out that broken promise in its closing—usually to devastating effect. That argument is not considered an impermissible comment on the defendant’s silence; it is generally held not to violate the Fifth Amendment. If the defense opens at the beginning of the trial without mentioning that the defendant will testify and the defendant then takes the stand, that glaring omission is likely to lead to speculation on the part of the jurors. Reserving opening until after the prosecution has rested avoids all of these problems.
Cheryl D. Stein is a criminal defense lawyer in Washington, D.C.