Opening Statement and Court's Preliminary Remarks

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 71-94

OPENING,

PRELIMINARY REMARKS

CHAPTER 21

OPENING STATEMENT

AND COURT’S PRELIMINARY

REMARKS

§21:01 New York Trial Notebook 21-2

OPENING,

PRELIMINARY REMARKS

I. COURT’S PRELIMINARY

REMARKS

§21:01 When Trial Is in Session

Whenever a judge is present, trial is in session.

When the judge is not present during jury voir dire,

the law is not clear whether the trial actually begins

with voir dire, or the rendering of preliminary

remarks by the judge. If the trial judge is present

during jury voir dire, the trial begins at that time.

[Matter of Mertens, 56 AD2d 456, 392 NYS2d

860 (1st Dept 1977) (judge was “holding court”

by presiding over or participating in voir dire,

and parties were entitled to stenographic record).]

Current rules indicate that a judge be present

during voir dire, but as a practical matter, this does

not usually occur. In most instances, judges are

available to make rulings but are physically outside

of the jury selection room. Of course, if a party

requests that a judge be present during voir dire,

the request will generally be granted. [See Ch 20.]

§21:02 Court’s Preliminary Remarks

After the jury has been sworn in, proceedings

usually continue with the trial judge addressing

preliminary remarks to the jury. The judge tells

the jurors something about the nature of the case,

the trial schedule, and their obligations as jurors.

Most judges follow the New York Pattern Jury

Instructions (PJI) (updated annually) for their

introductory comments.

There are occasions when a jury may be

selected, sworn, and then sent home to return

some time in the future, sometimes even weeks

later. This practice, although criticized [Report and

Recommendations of the Chief Judge of the Court

of Appeals, Jury Project, 1994], is still in effect.

In such cases, once the jury is sworn, most judges

reserve giving the jury the preliminary charge until

it is re-assembled for the actual commencement of

the proceedings.

§21:03 Contents

The judge starts by welcoming the jury and

explaining how a trial proceeds. Many judges read

their preliminary instructions straight from the PJI,

using PJI 1:1 (Introduction); 1:2 (Parties); 1:2A

(Split Trial—Liability) (if applicable); 1:2B (Split

Trial—Damages) (if applicable); 1:3 (Openings and

Evidence); 1:4 (Objections, Motions, Exceptions);

1:5 (Summations); 1:6 (Function of Court and

Jury); 1:7 (Consider Only Competent Evidence);

1:8 (Weighing Testimony); 1:9 (Conduct During

Recess); 1:10 (Do Not Visit Scene) (if applicable);

1:11 (Discussion With Others); 1:12 (Discussion

By Others); 1:13 (Conversation With Parties or

Attorneys); 1:13A (Alternate Jurors); and 1:14

(Conclusion).

The judge’s preliminary remarks are totally

discretionary, but it is desirable that jurors receive

some instruction before they hear the openings and

the evidence. The Court of Appeals in People v.

Newman, 46 NY2d 126, 129, 412 NYS2d 860, 862

(1978), said “[i]t is well and good for Trial Judges

to give jurors the benefit of an introductory and

explanatory address. It is also more than helpful, and

in some cases essential, that jurors be familiarized

with pertinent rules and procedures peculiar to

the law and the courts and perhaps the particular

matter at hand.” The Fourth Department has clearly

stated that: “It doubtless is helpful in either a civil

or criminal case for the court to deliver a pre-trial

charge.” [People v. Cardinale, 35 AD2d 1073, 316

NYS2d 369, 370 (4th Dept 1970).]

§21:04 Input by Counsel

All counsel may make suggestions to the judge

for matters to be included in the preliminary

remarks. The decision as to what is included in the

preliminary remarks is solely within the judge’s

discretion.

Depending on the specific fact situation, counsel

may consider requesting instructions on burdens

of proof (e.g., plaintiff’s counsel may request an

instruction that defendant carries this burden for its

affirmative defenses), consideration to be given to

expert testimony, or disregarding pretrial publicity.

IN PRACTICE:

If your adversary submits suggestions,

you must examine them closely and perhaps

make suggestions of your own, or object

if appropriate. All suggestions should be

in writing, and marked as a court exhibit.

Suggestions rejected by the court should be