SERIES 100 PRETRIAL INSTRUCTIONS
F 100.4 OPENING STATEMENTS
TABLE OF CONTENTS
F 100.4 Inst 1 Opening Statement: What Attorney Will Show Or Not Show
F 100.4 Inst 2 Failure Of Prosecutor To Support A Claim Made In The Opening Statement: Cautionary/Limiting Instruction
F 100.4 Inst 3 (a & b) Defendant Not Obligated To Make Opening Statement
F 100.4 Note 1 Importance Of Opening Statements
F 100.4 Note 2 Opening Statements: Strategic Considerations
F 100.4 Note 3 Supplementary “Opening” Statements
F 100.4 Note 4 Reference To Inadmissible Evidence In Opening Statement As Prosecutorial Misconduct
F 100.4 Note 5 Admission Of Client’s Guilt In Opening Statement As Ineffective Assistance Of Counsel
F 100.4 Note 6 Opening Statement: Improper For Prosecution To Comment On Anticipated Defense Evidence
Return to Series 100 Table of Contents.
F 100.4 Inst 1 Opening Statement: What Attorney Will Show Or Not Show
*Modify CC 100, paragraph 2, sentence 3, as follows [added language is underlined]:
The purpose of an opening statement is to give you an overview of what the attorneys expect the evidence will show or not show.
Points and Authorities
It undermines the presumption of innocence to imply that the defense is obligated to present evidence to “show” anything. (See FORECITE F 100.1 Inst 1.)
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 100.4 Inst 2 Failure Of Prosecutor To Support A Claim Made In The Opening Statement: Cautionary/Limiting Instruction
*Add to CC 100 as follows:
In (his/her) opening statement the prosecutor alleged that the evidence would show ____________ <insert evidentiary allegation>. You are now admonished not to consider this allegation for any purpose since it was not established by the evidence.
Points and Authorities
The failure of defense counsel to present evidence promised in the opening statement may implicate the defendant’s federal constitutional rights (6th and 14th Amendments) to effective assistance of counsel. (See People v. Patterson (IL 2000) 735 NE2d 616, 633 [IAC where counsel informed jury at opening statement that evidence of involuntariness and coercion would be presented but no such evidence was presented at trial]; see also Ouber v. Guarino (D.Mass. 2001) 158 FSupp2d 135 [counsel ineffective in telling jury four times during opening statement that petitioner would testify, but then persuaded petitioner not to testify]; compare People v. Pantages (1931) 212 C 237 [prosecutorial misconduct to make too much in closing argument of the defense’s failure to present evidence promised in opening statement].)
Therefore, where the prosecutor fails to offer evidence to support a claim made in the opening statement, simply giving the jury the standard jury instruction that opening statements are not evidence, is insufficient to cure the prosecutor’s failure to offer proof in support of a highly prejudicial claim. The cautionary or curative instruction should make specific reference to the prosecutor’s claim and admonish the jury not to consider it. (Alexander v. State (GA 1998) 509 SE2d 56, 60-61.)
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 7.3 [Consideration Of Matters Not Admitted Into Evidence]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 100.4 Inst 3 (a & b) Defendant Not Obligated To Make Opening Statement
*Add to CC 100:
Alternative a:
The defendant is not obligated to make an opening statement.
Alternative b:
After the government’s evidence, the defendant’s lawyer may (make an opening statement and) present evidence in the defendant’s behalf, but he is not required to do so. I remind you that the defendant is presumed innocent and the government must prove the guilt of the defendant beyond a reasonable doubt. The defendant does not have to present evidence or prove (he/she) is not guilty.
Points and Authorities
The defense is not obligated to prove anything and, hence, is not obligated to make an opening statement. (See FORECITE F 100.1 Inst 1; see also Federal Judicial Center, Pattern Criminal Jury Instructions Inst. No. 1 [Standard Preliminary Instruction Before Trial] & 8, p. 3. (1988).
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 100.4 Note 1 Importance Of Opening Statements
Several studies indicate that approximately 75% of all jurors claim that their ultimate verdict was the same as their evaluation based on the opening statement, such statements are prime contenders for the title of “most important.” (See “Jury Instructions: A Judicial Perspective,” by Hon. Dennis C. Kolenda, Circuit Judge, Grand Rapids, Michigan; see also BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) Vol. 13, No. 1, 1/13/99, p. 3, quoting McComas [“A high impact opening statement is the necessary foundation upon which reasonable doubts will be built during trial” ]; but see F 100.4 Note 2 [Opening Statements: Strategic Considerations].)
As with closing arguments, objections to the opening statements must be put on the record. (See e.g., U.S. v. Hampton (10th Cir. 1972) 458 F2d 29, 30.)
F 100.4 Note 2 Opening Statements: Strategic Considerations
The view that innocence should be the focus of the opening statement and reasonable doubt the focus of the closing argument has been expressed as follows:
“A high impact opening statement is the necessary foundation upon which reasonable doubts will be built during trial. However, absent some extraordinary circumstance, the words ‘reasonable doubt’ or ‘proof beyond a reasonable doubt’ should never leave our lips during opening statement. Opening statement is the time to assert out client’s innocence. The defense cannot survive the initial damage of the prosecution opening by relying on doubt. We must meet their story of guilt with our story of innocence. At the end of the case, we will argue reasonable doubt in order to move undecided and adverse jurors. But now, in opening statement, we want jurors to know, and believe, that, in this case, innocence is more than just a legal presumption.
It is particularly easy to be faithful to this rule in jurisdictions … where you will have already engaged in a thorough discussion of reasonable doubt/beyond a reasonable doubt during voir dire.”
(BNA Criminal Practice Manual (Pike & Fisher Inc. 1999), p.3 [quoting Attorney James H. McComas].)
F 100.4 Note 3 Supplementary “Opening” Statements
In long trials, counsel has been permitted to make additional “opening” statements to the jury at the start of different phases of the trial or at specific intervals, for example, the start of each week. These statements can alert the jury to what may be presented in relation to what they have already heard. The practice of allowing such mid-trial statements is suggested in “Federal Judiciary Manual of Complex Litigation“ (3rd) section 22.21 (1995); see also Alschuler, “Our Faltering Jury,” 41 U. Chicago Law School Record 2, 7 (1995); Alexander, Maine Jury Instructions Manual 3-10 [Supplementary ” Opening” Statements] (Lexis, 1999).
F 100.4 Note 4 Reference To Inadmissible Evidence In Opening Statement As Prosecutorial Misconduct
Reference to inadmissible evidence during the opening statement is improper. (See Rule 3.4(e) American Bar Association, Annotated Model Rules of Professional Conduct (ABA, 3rd ed., 1996) DR 1—106(C)(1), ABA Model Code of Professional Responsibility.) If such misconduct cannot be prevented with an in limine motion, and the improper reference is made, a motion for mistrial should be made. Failing that, counsel should ask for a curative instruction to disregard the improper statements. (See Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 2012) § 13:1; see also Virgin Islands v. Turner (3rd Cir. 1968) 409 F2d 102, 103; U.S. v. Jozwiak (7th Cir. 1992) 954 F2d 458, 460; U.S. v. Eason (11th Cir. 1990) 920 F2d 731, 734.)
F 100.4 Note 5 Admission Of Client’s Guilt In Opening Statement As Ineffective Assistance Of Counsel
See Jackson v. State (OK 2001) 41 P3d 395, 400-401 [concession of defendant’s guilt during guilt/innocence phase of capital trial was ineffective assistance of counsel absent on the record acquiescence in the strategy by the defendant].
F 100.4 Note 6 Opening Statement: Improper For Prosecution To Comment On Anticipated Defense Evidence
See Parker v. State (GA 2003) 588 SE2d 683 [prosecutors may not discuss in their opening arguments any evidence the defendant might present at trial].
