11.3 Opening Statement

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

11.3 OPENING STATEMENT

11.301 In General. The Virginia Code gives counsel for both sides in a felony or misdemeanor trial the right to make an opening statement. ¹⁹⁴ The opening statement is made before any evidence is submitted by either side. Thus, when the statute is read literally, if defense counsel chooses not to make an opening statement before the Commonwealth's submission of evidence, he or she has arguably waived his or her right to make any opening statement, unless counsel has obtained special permission of the court to make the statement immediately before presentation of the defense evidence.

11.302 Scope and Limits. The opening statement should be a clear, concise, and brief statement of what the parties expect to prove. An opening statement is not evidence. ¹⁹⁵ Its purpose is to inform the jury of what decision they are expected to consider, assistance in how the evidence should be applied, and what counsel expects the evidence to be so that they may better understand the case. Counsel acts unprofessionally by alluding to evidence unless he or she has a good faith, reasonable basis for believing the evidence will be offered and admitted. ¹⁹⁶ The opening statement should be free from scandalous matter and argument.

11.303 Objections. If the commonwealth's attorney makes an improper statement or comment during his or her opening statement, defense counsel should identify the precise nature of the objection and may also move for a mistrial immediately. After the objection and motion for a mistrial, the court has the option of addressing the jury in order to erase the improper comment from the jury's memory and admonish it to disregard the statement in future considerations. ¹⁹⁷

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11.304 Practice. The lawyer should carefully consider the content of the opening statement. One theory of advocacy holds that the opening statement should be waived, but most advocates feel that it should not. ¹⁹⁸

In some rare cases you may wish to keep the prosecutor in the dark as to the exact nature of your defense. In other cases your defense may simply rely upon your ability to discredit the testimony of prosecution witnesses. Even in these rare cases, don't waive the opening. Fill the jury in as much as possible without revealing strategy you wish to keep hidden from the prosecutor. ¹⁹⁹

Lloyd Paul Stryker recommends including matters that may have nothing to do with the merits but that are useful for other reasons. Defense counsel should point out...