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Jury experts have long held the view that the opening statement has a disproportionately high influence on juror verdict decisions. As psychologists Donald E. Vinson and David S. Davis have noted: “The analysis of hundreds of post-trial jury interviews and thousands of simulated trials provide consistent findings: The vast majority of jurors arrive at a verdict predisposition during or immediately after opening statements. Further, these initial decisions are remarkably consistent with the final verdicts that jurors render at the conclusion of the trial.” [FOOTNOTE 1] Whether or not the social science research is correct, the opening obviously has a strong effect on which case story the jurors decide to adopt; and, adoption of the lawyer’s case story means that the jurors will more likely remember and agree with the evidence they hear supporting that story. The opening provides the jurors with the knowledge base necessary to understand the evidence and legal theories underlying the case; and the opening gives the lawyers the opportunity to present facts, issues, and equities that will color the way the jurors view the evidence they will ultimately hear. In short, first impressions count. OPTIMIZE IMPACT Considering its importance, the practitioner should master the law of opening statements to optimize the impact of his opening while avoiding judicial reprimand during this critical juncture of the trial. Counsel must also be prepared to legally defend the propriety of his opening presentation. The right to make an opening “has long been recognized as one of supreme importance.”[FOOTNOTE 2] It constitutes a “unique opportunity to advance one’s cause, to communicate the issues to the jury, and to present the facts to be proven.”[FOOTNOTE 3] An attorney may inform the jury of the “significance of the evidence” as it will be presented[FOOTNOTE 4] ; and, a party should be able to anticipate an opponent’s position or evidence.[FOOTNOTE 5] While counsel should be allowed latitude in making an opening statement, the trial court may use its discretion to reasonably limit the opening’s content.[FOOTNOTE 6] For example, in United States v. Rivera, the 10th U.S. Court of Appeals allowed the district court to admonish an attorney when, during his opening, he emphasized the defendant’s background, family and how he had “pulled himself up by the bootstraps,” considerations which the court called “an appeal to sympathy.”[FOOTNOTE 7] Generally, the scope, length and timing of an opening is within the control of the trial court.[FOOTNOTE 8] The opening statement should serve to inform the jury of the issues of the case and to briefly outline the evidence each litigant intends to introduce in support of his allegations or defenses. [FOOTNOTE 9] A defendant has a right to make an opening whether or not he intends to call witnesses and may rely on the facts he expects to be elicited on direct or cross-examination.[FOOTNOTE 10] However, importantly, the opening is not simply an occasion to present the facts that will be shown, but is an important opportunity to state the legal claim or defense in basic terms. [FOOTNOTE 11] A related issue that often arises is whether, in presenting this basic claim or defense, counsel may discuss the law. One scholar noted that if “defense counsel’s opening is to make any sense at all, the judge must allow him to include some information about the law.”[FOOTNOTE 12] However, courts have been given wide discretion to limit counsel’s explanation of legal concepts as long as the basic legal defense has been communicated to the jury.[FOOTNOTE 13] Some judges unnecessarily interrupt openings to preclude any mention of the law when a short accurate synopsis of the legal standard is critical to the jury’s understanding of the lawyer’s opening and the trial itself. The most significant rule of opening statements is the prohibition against argument.[FOOTNOTE 14] However, there is no New York case that explains exactly what argument is. As Northwestern University law professor Steven Lubet noted: “The rule against argument is easier to state than to define. Moreover, application of the rule will vary from jurisdiction to jurisdiction and even from courtroom to courtroom. No matter how the rule is articulated, it is almost never hard and fast. Most judges recognize that ‘argument’ is a relative concept and allow lawyers a reasonable amount of latitude.[FOOTNOTE 15] AVOID INTERPRETATION AND EXHORTATION In an attempt to guide us, Lubet explains that lawyers should, in an opening, avoid “interpretation and exhortation” and explaining how evidence should be weighed. Counsel should concentrate on the facts, events that will actually be testified to, and should avoid giving the “rhetorical link” to the significance of the evidence (i.e. “No person could drink that much whiskey without showing it”). However, counsel may structure discussion of the facts so that the conclusions he wishes the juror to reach are inevitable. Obviously, counsel’s tone of voice can change the trial court’s interpretation of whether a lawyer is stating a narrative or arguing. Words which are not necessarily argumentative can become that way if they are delivered with a loud voice, sarcasm, rhetorical questions or sneering.[FOOTNOTE 16] A key test for determining if a comment is not argument is if someone will testify to the fact or conclusion mentioned. For example, courts have disallowed: “All the facts in this case suggest that a mistake was made, that the witnesses were not accurate beyond a reasonable doubt.”[FOOTNOTE 17] Certainly, this hyperbolic statement regarding “all” the facts could not be true since there are almost always some facts that indicate that an indicted defendant is guilty. People v. Robinson[FOOTNOTE 18] impacts on the argument issue. There, the Appellate Division, 1st Department, reversed a conviction when the court terminated the opening because defense counsel expressed doubt about the memory of the arresting officer.[FOOTNOTE 19] Similarly, in People v. Rodriguez,[FOOTNOTE 20] the 1st Department reversed a conviction when the court stopped an opening because defense counsel said that being crouched behind a car makes it hard to identify someone. The Rodriguez court stated that a trial judge should not unduly restrict counsel from presenting his “view of the case” or “highlighting the weakness of the identification aspect of the People’s case.” BASIC ARGUMENT Thus, although counsel cannot make summation-style arguments during the opening, he may explain his basic argument. In other words, instead of arguing, explain what your argument at the end of the case will be. This falls within the litigant’s right, as discussed above, to present his claim or defense in basic terms. For example, regarding witness credibility, you may inform the jury that you contend that the plaintiff is lying about the accident; but, when you begin explaining why the jury should reach that conclusion, you probably enter the realm of argument. However, as noted above, in telling the story of the case during your opening, you are free to include those facts, without argument, which support the contention that the plaintiff is lying. This requires restraint — that is, at this stage of the proceedings, let the facts speak for themselves. Also, remember Lubet’s primary point: The difference between legally presenting a basic defense or claim and illegally presenting argument is a fine distinction that each judge will interpret differently. Therefore, be prepared with alternative versions of your presentation in case the court precludes your first rendition. As a final note on ethical issues, counsel should take care not to refer to inadmissible evidence or exaggerate or overstate the evidence.[FOOTNOTE 21] The attorney should also not open on facts he has no intention of proving.[FOOTNOTE 22] Reference to witnesses who ultimately do not testify, though disfavored, is often found to be harmless error.[FOOTNOTE 23] Inflammatory conclusions, like a prosecutor calling defendant a “parasite,” or irrelevant considerations, such as the fact that “citizens like yourselves” indicted the defendant, are not allowed in an opening.[FOOTNOTE 24] Counsel should also not use the opening to disparage opposing counsel[FOOTNOTE 25] nor should she appeal to bias, sympathy, or prejudice.[FOOTNOTE 26] Giving a strong opening while staying within the rules is a challenge that will earn results. Labe M. Richman, a criminal defense lawyer in New York City, lectures frequently on the subject of trial communication techniques. ::::FOOTNOTES:::: FN1 Vinson and Davis, “Jury Persuasion: Psychological Strategies and Trial Techniques,” p. 199, Glasser Legal Works (1996). FN2 Devito v. Katsch, 157 A.D.2d at 415 n. 1 (2d Dept. 1990); Huntington v. Conkey, 33 Barb. 218; Kappa Frocks, Inc. v. Alan Fabrics Corp., 263 App. Div. 326 (1st Dept. 1942). In New York, both sides have a right to make an opening under CPLR �4016; People v. Robinson, 202 A.D.2d 225 (1st Dept. 1994). FN3 Devito v. Katsch, 157 A.D.2d at 415 n. 1; Tisdale v. Pres. of D.H. & H.D. Co., 116 N.Y. 416, 419 (1889); Ayrault v. Chamberlain, 33 Barb. 229; Kley v. Healy, 127 N.Y. 555 (1891). FN4 State v. Fleming, 523 S.W.2d 849, 852-53 (Mo. App. 1975); State v. Harris, 731 S.W.2d 846 (Mo. App. 1987). Since there are few New York cases on the subject of openings, out-of-state cases are used. See, United States v. Dinitz, 424 U.S. 600, 612 (1976) (Burger, J., concurring). FN5 Snowhill v. Lieurance, 435 P.2d 624 (Wash. 1967); but see, State v. Freeman, supra, 378 S.E.2d at 551; State v. Griffith, supra, 539 P.2d at 608. FN6 United States v. Rivera, 778 F.2d 591 (10th Cir.) cert. denied, 475 U.S. 1068 (1985); State v. Griffith, 539 P.2d 604 (Idaho, 1975). FN7 United States v. Rivera, supra, 778 F.2d at 593-94. FN8 United States v. Hershenow, 680 F.2d 847, 858 (1st Cir. 1982); United States v. Freeman, 514 F.2d 1184, 1192 (10th Cir. 1975); United States v. Conti, 361 F.2d 153, 158 (2d Cir. 1966) vacated on other grounds, 390 U.S. 204 (1968). See, United States v. Zelie, 734 F.2d 1447 (11th Cir. 1984). The timing of the opening in a criminal case in New York is governed by CPL � 260.30. FN9 See Devito v. Katsch, supra. FN10 See United States v. Hershenow, 680 F.2d 847, 858 (1st Cir. 1982); United States v. Persico, 305 F.2d 534 (2d Cir. 1962). FN11 State v. Freeman, 378 S.E.2d 545, 551 (N.C. App. 1989). See, e.g., State v. Paige, 343 S.E.2d 848, 859 (N.C. 1986); People v. Rogers, 528 N.E.2d 667, 674 (Ill. 1988); see, People v. Rodriguez, 211 A.D.2d 443 (1st Dept. 1995). FN12 Lubet, Steven; “The Opening Moment”, 43 Def. L.J. 1, 29 (Spring, 1994); but see, United States v. Zelie, 734 F.2d 1447 (11th Cir. 1984). FN13 People v. Carini, 502 N.E.2d 1206, 1216 (Ill. App. 1986); State v. Mills, 789 P.2d 530, 532 (Idaho App. 1990). FN14 United States v. Dinitz, 424 U.S. 600, 612 (1976) (Burger, J., concurring). See, People v. Concepcion, 228 A.D.2d 204 (1st Dept. 1996). FN15 41 Def. L.J. at 5-7. FN16 41 Def. L.J. at 5-7. FN17 People v. Valentin, 211 A.D.2d 509 (1st Dept. 1995). FN18 202 A.D.2d 225 (1st Dept. 1994). FN19 The Robinson trial court also erroneously shifted the burden of proof when it asked defense counsel during the opening “is that what you are going to prove?” FN20 211 A.D.2d 443 (1st Dept. 1995). FN21 State v. Freeman, 378 S.E.2d 545, 551 (N.C. App. 1989), People v. Darrel Nickelson, ___ A.D.2d ___ (1st Dept. 2002) (Slip Op. 08545). See, People v. Robert Hendricks, A.D.2d (4th Dept. 2002) (Slip Op. 06821). FN22 See People v. Torres, 141 A.D.2d 682 (2d Dept. 1988); 28 A.L.R.2d 972; 16 A.L.R. 4th 810; 118 A.L.R. 543; 34 N.Y. Jur.2d, Criminal Law, � 2468; 1 CJI NY � 3.03, p.84. FN23 People v. Chapparro, ___ A.D.2d ___ (1st Dept. 2003) (Slip Op. 12137); People v. Issac Jones, ___ A.D.2d ___, (1st Dept. 2002) (Slip Op. 08801) (one of thirteen victims mentioned in opening did not testify). FN24 People v. Lippolis, 241 A.D.2d 557 (2d Dept. 1998). FN25 Devito v. Katsch, supra, 157 A.D.2d at 421 n. 7. FN26 United States v. Rivera, 778 F.2d 591 (10th Cir.) cert. denied, 475 U.S. 1068 (1985). If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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