Opening Statements in a Criminal Trial: What to Expect

Opening statements are the first chance each lawyer has to tell the story of the case and give the jury a roadmap of the evidence they expect to present. An effective opening statement can strongly influence how jurors understand the rest of the trial, even though the information itself is not evidence.

What Is an Opening Statement in a Criminal Case?

An opening statement is a short, organized preview of what each side believes the evidence will show in a criminal trial. It helps the judge and jury understand what each lawyer plans to prove and how they plan to prove it, but it does not count as evidence or argument.

Trials rarely unfold in a neat, step-by-step way. The order in which witnesses testify, exhibits are shown, and documents and police reports are introduced can feel disconnected to jurors. The opening statement gives jurors a framework so they can fit each piece of evidence into a bigger picture as the case moves forward.

Where Opening Statements Fit in the Trial

In a typical jury trial, the major stages are:

• jury selection (called voir dire)
• opening statements
• presentation of evidence and witnesses
• closing arguments
• jury instructions and deliberations, and
• verdict.

Opening statements happen after the jury is selected and sworn in and before any witnesses testify. The opening statements by each side are meant to orient the jury to the case, not to persuade them to reach a final decision at that moment.

Who Goes First in Opening Statements?

The side with the burden of proof goes first. In a criminal case, this is the government prosecutor, who must prove every element of the charged offenses beyond a reasonable doubt.

Technically, the defendant does not have to prove anything. The defendant can rely on the presumption of innocence. For that reason, rules about defense opening statements can vary:

• The defense often gives an opening statement immediately after the prosecution.
• If permitted, the defense may choose to reserve an opening statement until after the prosecution finishes presenting its evidence.
• The defense can waive opening statements.

If the defense waives or delays an opening statement, it doesn't mean the lawyer is unprepared. It might be a strategic choice based on the facts, the charges, and how the defense plans to cross-examine the prosecution's witnesses. (The prosecution can also waive opening statements.)

What Lawyers Can Say in Opening Statements

Judges usually give both prosecutors and defense attorneys considerable freedom in how they present their opening statements. However, important limits exist. Opening statements are supposed to be fact-based and focused on what the evidence will show. They are not supposed to be arguments about what the evidence means.

Prosecution's Opening Statement

The prosecutor typically uses the opening statement to explain:

• what the case is about
• what the government must prove
• who the key witnesses are and what they are expected to say
• what physical or documentary evidence will be shown and what it is expected to show, and
• what outcome the prosecution wants.

Some prosecutors walk through the case witness by witness, describing what each person is expected to testify about. Others take a more narrative approach, telling the story of the alleged crime in a timeline or sequence of events. Either way, the goal is to give jurors a roadmap so they can connect later testimony and exhibits back to the prosecution's overall theory of the case.

Defense's Opening Statement

The defense opening statement can look very different from the prosecution's, depending on the strategy. In some cases, the defense plans to call witnesses and present evidence. In others, the defense may focus more on challenging the government's proof and relying on the presumption of innocence.

A defense opening statement might:

• remind jurors that the prosecution bears the burden of proof
• explain the presumption of innocence and the jurors' responsibility to uphold it
• preview any evidence the defense plans to introduce
• describe what the defense expects to bring out through cross-examination of prosecution witnesses, and
• state what outcome the defense wants.

The defense may also seek to humanize the defendant and present a different story or context for the events the prosecution describes. Even when the defense doesn't plan to present its own witnesses, it can still use opening statements to highlight how it plans to poke holes in the prosecution's expected evidence.

What Is Not Allowed in Opening Statements

Even though judges give lawyers leeway, there are clear lines that should not be crossed in opening statements. Neither side is supposed to:

• mention facts they don't intend to prove or know they can't prove
• refer to evidence that is inadmissible or highly questionable
• mention witnesses who will not be called to testify
• argue the law or the overall merits of the case
• make inflammatory remarks or unfair character attacks, or
• personally vouch for a witness's honesty or credibility

Overstepping these boundaries can seriously harm a case. In extreme situations, it can even lead to a mistrial, which stops the trial and may require starting over with a new jury.

From a strategic perspective, both sides must be careful not to overpromise. If a lawyer makes bold promises in opening and fails to deliver that evidence, jurors may feel misled. Presenting false promises can damage the lawyer's credibility and the jury's willingness to accept other evidence from that side.

Can Lawyers Object During Opening Statements?

Yes. Just as during witness testimony, opposing counsel can object if they believe the other lawyer is crossing the line in an opening statement.

Common reasons for objections during openings include:

• giving a personal opinion about guilt or credibility
• referring to a defendant's prior convictions when not allowed
• mentioning a co-defendant's guilty plea
• describing witness testimony that won't be given
• referring to evidence the judge has already ruled inadmissible, or
• grossly exaggerating or misstating what the evidence will show.

If the judge agrees that the statement was improper, several things can happen:

• The judge can stop the lawyer, note their error, and tell them to move on accordingly.
• The judge can instruct the jury to ignore the improper statement (often called a curative or limiting instruction).
• In very serious situations, where the lawyer acted in bad faith or an improper comment cannot be "unheard" and would make a fair trial impossible, the judge can declare a mistrial.

Even if the judge doesn't grant a mistrial, repeated improper comments from a lawyer and warnings from the judge can hurt the lawyer's credibility in front of the jury and could harm that side's case.

Proper and Improper Opening Statement Examples

Courts have spent a lot of time deciding what is and is not acceptable in opening statements. The line between persuasive facts and improper arguments can be thin.

Here are some general takeaways from court decisions:

• A lawyer may sometimes use strong language or vivid descriptions if those comments are tied to what the evidence is expected to show and not offered as pure opinion or emotion. (A prosecutor's statement that the alleged "mass executions...[were] one of the worst and most violent days in the history of Boston" was proper.)
• Statements that preview the evidence in clear terms, even if they sound harsh, may be allowed when they are grounded in facts the party intends to prove and can be proven. ("You will learn that the defendant was a drug dealer.")
• On the other hand, comments that rely on evidence the lawyer knows will not be presented, or that refer to information the judge has already excluded, are improper. (Lawyer referring to defendant's offer to take lie detector test, which the judge ruled inadmissible prior to trial.)
• Lawyers also cross the line when they use opening statements to argue detailed points of law or to tell the jury how to apply legal standards before any evidence has been heard. (Lawyer explaining legal principles of eyewitness testimony.)

When a lawyer makes an improper comment in opening, judges often try to fix the problem by instructing the jury to disregard it and reminding them that opening statements are not evidence. If the problem cannot be fixed by an instruction, and the comment has made a fair trial impossible, a mistrial may be the only remedy.

What Jurors and Families Should Remember

For jurors and for families or friends watching the trial, it can be helpful to keep a few things in mind during opening statements:

• Opening statements are not evidence. They are only previews of what the lawyers believe the evidence will show.
• Jurors are asked to keep an open mind until they have heard all the evidence, closing arguments, and the judge's instructions on the law.
• The prosecution always bears the burden of proving the defendant's guilt beyond a reasonable doubt.
• Defense strategies can vary widely. A short or reserved opening statement does not necessarily signal a weak defense. It could be part of a considered trial plan.

If you're a defendant, talk with your lawyer ahead of time about what to expect in opening statements, how your lawyer plans to approach theirs, and how to should conduct yourself in the courtroom.

If you're a family member, it may help to understand that opening statements are only the beginning of the process, not the final word.

Getting Legal Help

If you face criminal charges, an experienced criminal defense attorney can explain how opening statements will work in your case, what strategy makes sense, and how you can best prepare.

(Simmons v. State, 208 Md. App. 677 (2012); Com. v. Siny Van Tran, 460 Mass. 535 (2011); State v. Smallwood, 230 S.W.3d 662 (Mo. Ct. App. 2007); U.S. v. Millan, 817 F. Supp. 1086 (N.Y.S.D. 1993); State v. Bernier, 486 A.2d 147 (Me. 1985); State v. Elliott, 69 N.C. App. 89 (1984); State v. Elliott, 69 N.C. App. 89 (1984).)