The Legal Advocate

A blog brought to you by the national institute for trial advocacy

Monthly Theme: Opening Statements Part Two

Posted On By

Objections in Openings

Written by NITA guest blogger Sara Jacobson1

The purpose of opening statements is to lay out your theory of the case and to preview what you believe the evidence will be, but rules still apply.2 While not codified in the formal Federal Rules of Evidence, there are limits to what lawyers can do in speeches. As with everything, you need to know where the boundaries are before you push them. Here are some of the things lawyers cannot do in opening statements.

    • ARGUE
      The main difference between opening statement and closing argument, is that in closing, lawyers are permitted to argue; whereas, in openings they cannot.3

      • THE OBJECTION: What makes something argument? If the lawyer is explaining what conclusions the jury should draw from facts or talking about what the evidence means, its impermissible argument in opening. Rhetorical questions are argumentative by their nature and should be avoided in opening. Comments on the viability of the approach taken by opposing counsel, qualifies as argument too.
      • THE RESPONSE: The most common response is to explain to the jury that everything the lawyer is talking about in opening is what they believe the evidence will be, and to thereafter use more of ‘the evidence will show’ phrasing than one generally would.
    • VOUCH
      Vouching comes in two common forms and is prohibited in both opening statements and closing arguments. An attorney is vouching when they offer an opinion on the ultimate guilt or liability at issue, or when they comment on the credibility of a witness.

      • THE OBJECTION: There are a number of cases across jurisdictions that note the prohibition against lawyers giving their opinion on the ultimate issue or on credibility.4 Both types of vouching were addressed by the Supreme Court in 1985 in U.S. v. Young.5 Young dealt with vouching by both sides in closing argument in a prosecution for fraud. The defense argued that “the [prosecution’s] statements have been made to poison your minds unfairly,” hinted that the prosecution withheld evidence, and added – while pointing at the prosecution table – “there’s not a person in this courtroom, including those sitting at this table who think Billy Young intended to defraud Apco.”6 Defense counsel also went on to claim that the defendant was “the only one … that has acted with honor and with integrity.”7 In rebuttal, the prosecutor responded, saying, “(w)ell, I was sitting there and I think he was …. If we are allowed to give our personal impressions since it was asked of me …. I don’t know what you call that, I call it fraud.”8 The prosecutor repeated the fraud claim multiple times during the closing. The Court rebuked both sides, citing ABA Standard for Criminal Justice 3-5.8(b)9 and noting, “(t)he kind of advocacy shown by this record has no place in the administration of justice and should neither be permitted nor rewarded.”10 Ultimately, although disproving of counsels’ conduct, the court found that the prosecutor’s comments were a fair, invited response and did not find sufficient plain error, absent contemporaneous objection, to overturn the conviction.
      • THE RESPONSE: If closing, if the argument is re-framed and couched either as what common sense tells the jury or as what the evidence has shown, vouching can be avoided. Take for example US v. Morris, where the 5th Circuit which drew that very distinction, finding that “an attorney properly may state, ‘I believe that the evidence has shown the defendant’s guilt,’ but… may not state, ‘I believe that the defendant is guilty.’ ”11 There are no good ways to re-frame or re-fit vouching in opening statements.

There are other, obvious, things that lawyers cannot do in opening, which are also prohibited in closing argument. Lawyers cannot ask the jury to put themselves in the shoes of either party to the case, violating what is sometimes referred to as the ‘golden rule,’ and they cannot misstate either the evidence or the law. While in opening, presumably lawyers would not be misstating the evidence so much as approaching it aspirationally, but know that that approach, too has its consequences. Come closing argument one’s opponent can call out any failure to deliver on the promises of the opening. Finally, prosecutors cannot imply in any way in opening that a criminal defendant will put on a case or might testify, as that violates the defendant’s 5th Amendment right to remain silent.12

Objections don’t frequently occur in opening statement, but is important to know where the lines lie, if nothing else, than to be able to call out your opponent if they break the rules.


1 Sara Jacobson is the Director of Trial Advocacy Programs and Associate Professor, Temple University, Beasley School of Law
2 U.S. v. Zielie, 734 F.2d 1447 (11th Cir. 1984).
3 Id. And see U.S. v. Hershenow, 680 F.2d 847 (1st Cir. 1982). “… (A) court is always free to stop argument if it occurs….”
4 See: U.S. v. Jones¸468 F.3d 704 (10th Cir. 2006); Byrd v. Collins, 209 F.3d 486 (6th Cir. 2000); U.S. v. Thornton, 197 F.3d 241 (7th Cir. 1999); U.S. v. Dispoz-O-Plastics, Inc., 172 F.3d 275 (3rd Cir. 1999); U.S. v. Loayza, 107 F.3d 257 257 (4th Cir. 1997).
5 U.S. v. Young, 470 U.S. 1 (1985).
6 Young at 4-5.
7 Id, at 5.
8 Id, at 5.
9 “[i]t is unprofessional conduct for the prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.” ABA Standards for Criminal Justice 3-5.8(b)(2d ed. 1980.
10 Young at 9.
11 U.S. v. Morris, 568 F.Supp. 396, 402 (5th Cir. 1978)(internal citations omitted).
12 Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965).

 

Leave a Reply

Your email address will not be published. Required fields are marked *

NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system.

NITA’s Goals are to:

  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
Feature Products

Follow

Get every new post on this blog delivered to your Inbox.

Join other followers: