Opening Statements

• Author: Anthony G. Amsterdam/Martin Guggenheim/Randy A. Hertz
• Profession: University Professor and Professor of Law at New York University/Fiorello LaGuardia Professor of Clinical Law at New York University School of Law/Professor of Clinical Law at NYU School of Law
• Pages: 669-672

669

CHAPTER 29

OPENING STATEMENTS

§ 29.01 Opening Statements Generally

Immediately after the attor neys announce that they are ready to begi n trial and before the

first witness is called, the prosecuti ng and defense attorneys (in that order) are permitted

to make opening statements, someti mes called opening arg uments or opening speeches.

In many jurisd ictions the only recognized function of the opening statement is to

assist the jury (or the court, in a bench trial) to follow the ev idence with greater under-

standing, by knowi ng in advance how the testimony of each witness and the signif icance

of each exhibit fits into the whole case or the overall theory of the part y who presents it.

Counsel are accordingly expected to confine their open ing statements to (1) outlining

the substance of their respective cases; (2) naming their witnesses and sum marizing the

testimony of each; (3) enumerating the pieces of physical evidence or other exhibits that

they will introduce and explaining what each is designed to show; and (4) relating each

witness and piece of evidence to the theor y of counsel’s case (a process in which counsel

are permitted to “state” but not to “argue” the inferences t hat they wi ll subsequently ask

the jury or the court to draw from the test imony and exhibits). See, e.g., United States v.

Dinitz, 424 U.S. 600, 612–13 (1976) (concurring opinion of Chief Justice Burger), quoted

with approval in Arizona v. Washington, 434 U.S. 497, 513 n.32 (1978) (dictum).

In other jurisdic tions considerably more argumentat ive opening statements are per-

mitted. In still others, the law is not clear regarding t he precise function of the opening

statement, and individual judges var y in the latitude they allow counsel.

As a practical matter, the trial judge’s disposition is crucial in every jurisdict ion

because the line between describing a case and arguing it is inevitably fuzzy, and any

good lawyer will attempt to use h is or her first speech to the jury (or the court) to create

a favorable impression. Nevertheless, counsel needs to ascertain before trial—both by

legal research and by inquiry of local practitioners—whether the jurisdiction and the

particula r judge insist upon the narrower, “descriptive” form of opening statement or

will tolerate a broader measure of argumentation and rhetoric. This is important both

in planning the opening statement of the defense and in framing objections dur ing the

opening statement for the prosecution.

§ 29.02 The Opening Statement for the Prosecution

Counsel must be alert to stop the prosecutor from referring to inadmissible evidence

in the prosecution’s opening statement. If, as is often the case, counsel knows from