CHAPTER 28

OPENING STATEMENTS

§ 28.01 Order and Content

§ 28.02 Remedies for Prejudicial Opening Statements

§ 28.01

Order and Content

Opening statements, unlike closings,{1} are not governed by rule, and may not even be a constitutionally necessary part of the trial,{2} but they are as much a fixture as any other stage. The prosecution always opens first, with the defense following either immediately, or after the close of the state's case-in-chief.

Like closings, opening statements are not evidence.{3} Hornbook law says that unlike closings they should not be argumentative,{4} but Vermont's very sparse case law on this subject does not so hold, and the Vermont Supreme Court has approved a hard-hitting and definitely adversarial opening argument on the ground that the evidence ended up supporting it.{5}

As a forecast of what the trial will show, the statement should be restricted to admissible evidence. It is improper, for example, to suggest even obliquely that the defendant has a criminal record or was previously in prison, unless the judge has ruled that this material will be admissible.{6} The restrictions on what can be said in closing argument, for example, personal opinion statements, witness vouching, and comments on defendant's silence,{7} should apply generally to openings.

The forecast may not always be accurate. Anticipated evidence may not materialize for unpredictable reasons (e.g., a witness's claim of privilege,{8} or memory lapse), but both sides have to have a reasonable good faith basis for what they say.{9}

It is improper for the prosecution to refer in its opening statement to evidence which it may introduce on rebuttal.{10}

An opening statement may refer to legal concepts which will be involved in the case, so long as it does so accurately.{11}

§ 28.02

Remedies for Prejudicial Opening Statements

As with closing arguments,{11.5} counsel should make an immediate objection to an objectionable opening, and ask for appropriate relief - to strike the offending remarks, for a cautionary instruction, or for a mistrial in extreme cases. Mistrials will rarely be granted at this early stage.{12} When counsel can anticipate a prejudicial opening beforehand, the matter should be raised by motion in limine. When evidence promised in an opening statement does not materialize, counsel should move for appropriate relief at that time.{13}

1. See V.R.Cr.P. 29.1.

2. Also unlike closings. See Herring v. New York, 482 U.S. 853 (1975).

3. State v. Lawrence, 137 Vt. 597, 602 (1979).

4. See ABA Standards for Criminal Justice 3-5.5 (prosecutor's opening "should be confined to a brief statement of the issues in the case and to remarks on evidence the prosecutor intends to offer. . . ."), 4-7.4 (similar standard for defense counsel).

5. State v. King, 131 Vt. 200, 208 (1973) (defense witness was woman without moral code or moral fiber, not telling the truth).

6. State v. Lawrence, 137 Vt. 597, 601 (1979), and id. at 603-04 (Billings, J., dissenting) (defendant shared a prison cell with expected witness). Prior crimes evidence must now be noticed before trial and its admissibility can be decided on a motion in limine. V.R.Cr.P. 26(c). See also Woodmansee v. Stoneman, 133 Vt. 449, 457 (1975) (improper reference to inadmissible prior consistent statements).

7. See § 33.04, infra.

8. See Frazier v. Cupp, 394 U.S. 731 (1969) (opening statement referring to confession which never came into evidence); State v. Lawrence, 137 Vt. 597, 599-601 (1979).

9. ABA Standards for Criminal Justice 3-5.5, 4-7.4 ("It is unprofessional conduct to allude to any evidence unless there is a good faith and reasonable basis for believing that such evidence will be tendered and admitted in evidence"); DR 7-106(C)(1) (lawyer should not "[s]tate or allude to any matter that he has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence").

10. Woodmansee v. Stoneman, 133 Vt. 449, 457 (1973).

11. State v. Smith, 140 Vt. 247, 259-260 (1981) (prosecutor's reference to "caveat" clause of insanity defense; mischaracterization was harmless error in view of judge's instructions).

11.5. See § 33.06, infra.

12. Frazier v. Cupp, 394 U.S. 731, 732-36 (1969) (cautionary instruction was sufficient "where the anticipated, and unproduced, evidence is not touted to the jury as a crucial part of the prosecution's case"); State v. Lawrence, 137 Vt. 597, 601-02 (1979).

13. ABA Standards for Criminal Justice 3-5.5, Commentary (clarifying instruction when evidence does not materialize through honest inadvertence). Cf. State v. Lawrence, 137 Vt. 597, 600 (1979) (defense counsel made no objection when witness refused to testify further).