By John DiMotto
Once the jury has been selected and the jury has been read preliminary instructions, the attorneys are given the opportunity to make their Opening Statements. While it might seem like this phase does not have much of a judge-jury relationship, it does.
Every judge should make sure the jury understands that what the attorneys say in their opening statement is not evidence. This may be rudimentary to those of you reading this blog but it is not necessarily so for the ordinary citizen off the street. Some people think that if the attorneys are allowed to say something it must be so. I emphasize that the Opening Statement phase is the opportunity for the attorneys to "paint a big picture" about what the case is all about; that it gives the attorneys the opportunity to provide the jury with a "roadmap" to follow the evidence as it is presented. However, I emphasize that what they say is not evidence and if the evidence does not support what they say in opening statements that the jury must give it no credence. In fact, I tell the jury that they may not take notes of what the attorneys say in opening statements because they can only take notes of the evidence.
When the attorneys are making their opening statements, I pay close attention not just what they say but how they say it. While I will not be overly proactive, I will sustain objections to "arguments" and "personal opinions" during opening statements. Attorneys are not allowed to argue during opening statements. There is a difference between opening statements and closing arguments. The words themselves convey the difference. In opening statements, the attorneys tell the jury what they will prove. In closing arguments, the attorneys can argue and attempt to persuade the jury as to how they should decide the case. While attorneys will often try to use the opening statement to argue, it really is not appropriate.
In my next post I will discuss the fourth phase of the jury trial - the Evidentiary Phase.