Opening Statements: What the Prosecution and Defense Can and Can’t Say

In a typical criminal trial, after they have selected the jury, the prosecution and defense have the opportunity to give an opening statement. (For information on jury selection, see Jury Selection in Criminal Cases. To read about closing argument, see Closing Argument in Criminal Trials.)

The opening statement allows both sides to give the judge and jury an overview of the case, including what they plan to prove and how they plan to prove it (what evidence they will offer in support of their claims).

Prosecutors and defense attorneys generally have considerable latitude in what they're allowed to say in opening statement. That said, they're not allowed to "argue" (argument is saved for closing), nor are they allow to refer to inadmissible evidence or facts they don't intend to or can't prove.

Opening Statement Examples

The following are examples of opening-statement comments that courts have found improper:

• A defense attorney said that the defendant had offered to take a polygraph test in or to prove that he was innocent. (Evidence regarding lie detectors was inadmissible.) (Simmons v. State, 208 Md. App. 677 (2012).)
• A prosecutor asserted a fact that could have been proven only if an informant had been available to testify in support of it. The prosecutor knew the informant would not be testifying. (State v. Bernier, 486 A.2d 147 (Me. 1985).)
• A defense attorney tried to argue legal principles relating to eyewitness identification. (State v. Elliott, 69 N.C. App. 89 (1984).)

On the other hand, courts frequently allow lawyers to push the boundaries of acceptable opening-statement remarks. Consider the following comments, which appellate courts validated:

• A prosecutor described the alleged crime as a "mass execution" and its date as "one of the worst and most violent days in the history of Boston." The statements were "enthusiastic rhetoric, strong advocacy, and excusable hyperbole." (Com. v. Siny Van Tran, 460 Mass. 535 (2011).)
• A prosecutor said, "You will learn that defendant is a drug dealer." The appellate court said this merely amounted to saying the defendant committed the crime in question. (State v. Smallwood, 230 S.W.3d 662 (Mo. Ct. App. 2007).)
• A prosecutor commented that the defendant had escaped from a prison camp shortly before abducting the victim. Even though evidence of other crimes by a defendant aren't usually admissible, the prosecutor had a reasonable expectation that evidence of the escape would be admitted. (Ex parte Baldwin, 456 So. 2d 129 (Ala. 1984).)

Intervention

If a lawyer goes too far astray in an opening statement, opposing counsel can object—if the objection is proper, the judge will cut off the lawyer and potentially admonish the jury not to consider what he or she just said. The judge will probably let the lawyer resume the opening statement, but intervene if it gets off track again.