53 RI Bar J., No. 4, Pg. 5 (January/February 2005). Contesting the Constitutionality of Restricting Criminal Defendant Opening Statements.

• Author: John L. Calcagni III, Esq

Rhode Island Bar Journal

Volume 53.

53 RI Bar J., No. 4, Pg. 5 (January/February 2005).

Contesting the Constitutionality of Restricting Criminal Defendant Opening Statements

January/February 2005pg. 5 Contesting the Constitutionality of Restricting Criminal Defendant Opening StatementsJohn L. Calcagni III, EsqJohn L. Calcagni III is a Captain in the United States Army Judge Advocate Generals' Corps currently assigned to 10th Mountain Division (Light Infantry) as the Division's Claims Judge Advocate.

1. Introduction

   In Rhode Island, Rule 26.2 of the Rhode Island Rules of Criminal Procedure (Rule 26.2) sets forth the rule for making opening statements at trial. The rule provides that "[b]efore any evidence is offered at trial, the State may make an opening statement. If a defendant chooses to make an opening statement, he or she may do so just prior to the introduction of evidence by the State, or just prior to presenting his case."(fn1) Although the plain language of Rule 26.2 appears to provide criminal defendants with the opportunity to present an opening statement, the Rhode Island Supreme Court (the Court) has substantially limited its application. The Court's interpretation of Rule 26.2 has resulted in a trial practice that precludes criminal defendants who do not present affirmative evidence at trial from making an opening statement. (fn2) These defendants include those who have made a strategic choice not to present any evidence, those who are unsure at the beginning of he trial whether to present evidence, (fn3) and those who are without sufficient facts to do so. As a result, the Court has empowered Rhode Island trial judges to preclude many criminal defendants from making opening statements.

   This article examines the constitutionality of this controversial Rhode Island practice. Section II sets forth the current law in Rhode Island pertaining to a criminal defendant's ability to make an opening statement. Section III discusses the importance of the opening statement, to include both its purpose and effect in the trial process. Section IV analyzes the constitutional implications of Rhode Island's practice of restricting criminal defendants from making an opening statement. Finally, Section IV concludes that the practice is unconstitutional and proposes potential solutions for returning to an entire class of criminal defendants their most valued rights - those guaranteed by the U.S. Constitution.

2. Opening Statements:

   Rhode Island Law

   The Court first restricted a criminal defendant from presenting an opening statement in State v. Byrnes. (fn4) In Byrnes, the defendants were charged with the robbery of a commercial safe deposit company. At trial, the defense did not have adequate evidence to present an affirmative case. As a result, defense counsel requested the opportunity to make an opening statement comprised of instructing the jury to "pay attention to such factors as the [state] witnesses' demeanor, their prior criminal involvement, their explanation about particular aspects of evidence which might be developed on cross-examination, and the reasons for any inconsistencies in their testimony." (fn5) The trial judge denied the request and restricted counsel from presenting an opening statement. The defendants were subsequently convicted.

   On appeal, the Court affirmed the trial court's limitation, finding that the trial court did not abuse its discretion by limiting the scope of an opening statement. In support of its decision, the Court cited an Idaho case that sustained a limitation on a defendant's opening statement. (fn6) The Idaho court held that "opening statement is not an appropriate vehicle in which to impeach or otherwise argue the merits of evidence that the other side will or will not present." (fn7) Thus, the Court in Byrnes concluded that the trial court's ruling was sound. (fn8)

   Several years later, in State v. Bleau, (fn9) the Court extended its practice of limiting a criminal defendant's ability to present an opening statement. In Bleau, a criminal defendant was charged with leaving the scene of an accident. At trial, the defense was denied the opportunity to present an opening statement on the basis that counsel was unsure whether it would present any evidence to the jury in its case-in-chief. Ultimately, the defendant was convicted. Resting on its decision in Byrnes, the Court held that "the proper function of an opening statement is to apprise the jury with reasonable succinctness what the issues are in the case that is about to be heard and what evidence the prosecution and defense expect to produce at trial in support of their respective positions." (fn10) Since the defense was uncertain as to what, if any, evidence it would present, the trial court's restriction against making the opening statement was affirmed. (fn11)

   Finally, in State v. Turner, (fn12) a defendant charged with breaking and entering was denied the opportunity to present an opening statement. As the basis for its ruling, the trial court cited the defendant's refusal to testify and his failure to present any affirmative evidence at trial. (fn13) The defendant was convicted and predictably, the conviction was affirmed. (fn14) Why did the Court affirm this conviction?

   The Court contends that the trial practice it has created does not completely ban a defendant's ability to make an opening statement. (fn15) Rather, the Court asserts that the practice only limits the scope of a defendant's opening statement to what evidence the defendant expects to produce at trial. (fn16) However, the effect of this practice in Rhode Island does substantially more than limit the scope of opening statements. Instead, it creates a ban on the presentation of opening statements for an entire class of criminal defendants.

   An examination of the Court's decisions establishing this practice reveals only one logical rationale for the court's holdings: to preclude the defense from presenting an argument at the beginning of trial. The Court draws the erroneous conclusion that the only purpose of an opening statement when the defense has no affirmative evidence is to present argument. This conclusion is erroneous because it overlooks the important purposes of an opening statement, which are to present to the jury the defense's story and theme of the case, to humanize the trial, and to rebut the prosecution's case.

3. The Importance of the Opening Statement

   1. Purpose

      The opening statement is the stage of the trial where defense counsel gets the first opportunity to speak about the merits of his case. (fn17) The opening statement is also the moment at trial when a lawyer makes the first impression to the jury of himself, his client, and the case to be presented. (fn18) Although opening statements are generically defined as an outline of what an attorney expects to prove during trial, (fn19) they serve several other important functions.

      1. Story of the Case: Theme and Theory

         One crucial function of an opening statement is to educate the jury about the defendant's case. (fn20) This involves conveying to the jury a theme and theory with which it should view the evidence to be presented. (fn21) The most successful litigant is often the one who convinces the jury to adopt his or her theme of the case. (fn22) An effective theme captures the moral force of a case and communicates to the jury why one side is right and the other is wrong. (fn23) For instance, in a criminal trial, the defense's theme will consist of how the alleged crime occurred and why the defendant is not guilty. (fn24) Once the theme is communicated, counsel must then set forth the theory of their client's case.

         A successful theory is a story of the case that adopts a provable set of facts, which along with the legal principles, leads the fact finder to the sole conclusion that the defendant must prevail. (fn25) This is the lawyer's first chance to persuade the jurors. The mood and tone of the case are set before getting into specific legal aspects and evidentiary issues. (fn26) This enables the jury to get an idea of the factual context of the case and to prepare to assimilate and integrate the evidence as it unfolds at trial. (fn27) Once the jury is introduced to the theory, it will have a concrete reference frame from which to sort and organize the evidence to be presented. (fn28)

      2. Humanize the Trial

         Opening statements also serve the important function of humanizing the trial process. (fn29) To do so, counsel should first personalize herself or himself to the jury. (fn30) This is significant because it allows counsel to make a first impression - one that counsel will never get a second chance to make. Because first impressions harden like cement, (fn31) defense counsel must seize this opportunity to earn the jurors' trust and respect. It has been found that jurors are more apt to believe the lawyer whom they trust the most. (fn32) As a result, the impressions formed during opening statements may govern how the jury will consider and analyze the evidence presented throughout trial. (fn33)

         Defense counsel may also use the opening statement to personalize her or his client. (fn34) This is achieved by painting the defendant as a human being as opposed to the prosecution's portrayal of the defendant as an inanimate object. Personalizing a criminal defendant may help create sympathy for the accused in light of heightened allegations set forth by the government. (fn35) Overall, the jury will perceive the defendant...