Opening statements set the stage for the entire trial. Effective openings tell a compelling story while remaining within the bounds of what the evidence will show. Counsel uses primacy effect to their advantage, knowing that jurors form early impressions that are difficult to dislodge. The scope of permissible opening statements is bounded: counsel may not argue, state personal opinions, reference inadmissible evidence, or appeal to prejudice. Objections during opening statements are relatively rare but may be sustained if counsel crosses into argument or references matters ruled inadmissible by pretrial motions in limine.
Plaintiff's Attorney: "Ladies and gentlemen, the evidence will show that on the morning of September 14th, the defendant ran a red light at 45 miles per hour and struck my client's vehicle in the driver's side door. You will hear from three eyewitnesses and see the traffic camera footage."
Defense Attorney: "Objection, Your Honor. Counsel is arguing and asking the jury to draw conclusions. This is opening statement, not closing argument." Judge: "Sustained. Counsel, please confine yourself to what the evidence will show."
Defense Attorney: "We reserve our opening statement until the commencement of the defense's case-in-chief, Your Honor." Judge: "Very well. The defense has reserved its opening."
The most common mistake is treating the opening statement as a closing argument. Opening statements must describe evidence ("the evidence will show..."), not argue conclusions or appeal to jury emotions. Additionally, mentioning evidence that was excluded by a motion in limine can result in a mistrial.
United States v. Dinitz, 424 U.S. 600 (1976)
Addressed the consequences of improper opening statements and held that a mistrial granted at the defendant's request due to prejudicial opening remarks does not bar retrial under double jeopardy.
Frazier v. Cupp, 394 U.S. 731 (1969)
Established that failure to present evidence promised in an opening statement does not automatically require a mistrial, though it may warrant a curative instruction.
| Opening Statement | Closing Argument |
|---|---|
| Previews the evidence to be presented | Argues what the evidence has proven |
| Must not contain argument or opinion | Argument and persuasion are expected |
| Delivered before evidence is presented | Delivered after all evidence is in |
| Cannot ask the jury to draw inferences | May urge specific inferences and conclusions |
| Should be objective and factual in tone | May be passionate and emotionally persuasive |
What is the purpose of an opening statement?
The purpose of an opening statement is to provide the jury with a roadmap of the case. Attorneys outline the facts they intend to prove and preview the evidence that will be presented. It is not an argument — rather, it is a factual preview that helps jurors understand the context of the evidence they will hear.
Can you object during an opening statement?
Yes, objections during opening statements are permissible but relatively rare. Common grounds include arguing facts rather than previewing them, referencing inadmissible evidence, stating personal opinions, or making inflammatory remarks. Courts generally discourage frequent objections during openings to avoid disrupting the narrative flow.
Who gives the opening statement first?
The plaintiff in a civil case or the prosecution in a criminal case delivers the opening statement first because they bear the burden of proof. The defense then follows. In some jurisdictions, the defense may reserve their opening statement until the beginning of their case-in-chief.
Closing argument (or summation) is each party's final presentation to the jury, delivered after all ...
Direct examination is the initial questioning of a witness by the party who called that witness to t...
Voir dire is the process by which prospective jurors are questioned to determine their qualification...
A motion in limine is a pretrial motion asking the court to rule on the admissibility of evidence be...
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