224.1Opening Statement
Key Concepts
- By statute, parties are entitled to make an opening statement to the jury for the purpose of explaining the charge to be proved and forecasting what the evidence will be.
- The trial judge has wide discretion to decide how much time to allow for statements, and the scope of issues the attorneys may address.
- Attorneys generally are not permitted to use opening statements to make arguments, instruct the jury on the law, or contradict the other party’s witnesses.
Procedure and Timing for Opening Statements
In most cases, prospective jurors will learn a few basic facts about the case from the trial judge during the court’s initial statement to the jury before jury selection begins, as required by G.S. 15A-1213. But this information is fairly limited, since pleadings may not be read out to the jury (G.S. 15A-1221), and the arraignment of the defendant must be held outside of jury’s presence (see the related entry on Arraignment).
The prosecutor’s first opportunity to talk to jurors about the case in more detail comes during jury voir dire; however, factual summaries by the attorneys at this stage are still restricted to providing brief background information for the limited purpose of enabling the prosecutor and defense attorney to question jurors concerning their fitness and competency to serve (although in practice, some judges do allow a slightly more extensive summary). See G.S. 15A-1214 and the related entry on Jury Selection.
After the jury is impaneled, the prosecutor is entitled to make an opening statement in which he or she may finally talk more freely and openly to the jury about what the facts of the case will be, and what the evidence will show. G.S. 15A-1221(a)(4). Each defendant is then given an opportunity to make an opening statement; alternatively, if the defense will be presenting evidence in the case, the defense may reserve the making of an opening statement until after the state has rested its case-in-chief and before presenting the defense’s case. G.S. 15A-1221(a)(6). The failure to request an opportunity to make an opening statement may result in waiver of this procedural right. State v. McDowell, 301 N.C. 279 (1980).
“Rebuttal” opening?
There is no statutory provision authorizing a follow-up or “rebuttal” opening by either side, although the trial court arguably has the inherent authority to allow it in the interests of justice. See generally State v. Temple, 302 N.C. 1 (1981) (“the order of presentation at trial is a rule of practice, not of law, and it may be departed from whenever the court, in its discretion, considers it necessary to promote justice”).
But in general, if the defense makes an improper argument in the opening statement, the appropriate remedy for the prosecutor is to make an objection. Additionally, if the defense mischaracterizes the evidence or makes an unsupported claim, the prosecutor should make a note of it and then bring it the jury’s attention during closing arguments (e.g., “in his opening statement, the defendant claimed that you would hear about ‘fraudulent test results’ in this investigation – but there was zero evidence of that in this case…”). For more information on responding to the defendant’s opening statement during closing arguments, see the related entry on Closing Arguments – Permissible Topics.
If a trial consists of more than one guilt-innocence phase, such as a trial in which the state must prove the defendant is an habitual felon after the jury convicts the defendant of the underlying offense, the court will typically allow the parties to make additional opening statements at the beginning of the second phase of the trial. See, e.g., G.S. 14-7.5 (habitual felon phase of trial is conducted "as if the issue of habitual felon were a principal charge"); State v. Hoskins, 225 N.C. App. 177 (2013) (“…the State laid out in its opening arguments for the habitual felon phase which three felonies it was relying on…”). However, the North Carolina Supreme Court has held that the trial judge is not required to allow the parties to give additional opening statements to start the sentencing phase of a capital murder trial. State v. Call, 349 N.C. 382 (1998) (“defendant fails to cite, and we do not find, any authority that he is entitled to an additional opening statement during the sentencing phase”).
Purpose, Content, and Length of Opening Statements
In a criminal jury trial, “[e]ach party must be given the opportunity to make a brief opening statement.” G.S. 15A-1221(a)(4). The purpose of an opening statement is to allow counsel to make a general forecast of the evidence. State v. Fisher, 336 N.C. 684 (1994); State v. Mash, 328 N.C. 61 (1991). A prosecutor may use the opening statement to: (1) explain the nature of the offense charged; (2) outline the evidence that will be presented; (3) help the jury understand the purpose of their role and the prosecutor’s role. See State v. Gladden, 315 N.C. 398 (1986); State v. Elliott, 69 N.C. App. 89 (1984); State v. Freeman, 93 N.C. App. 380 (1989); State v. Paige, 316 N.C. 630 (1986); State v. Burmeister, 131 N.C. App. 190 (1998).
The time allotted and overall scope of opening statements is left largely to the discretion of the court, but in general the parties should be given sufficient opportunity to present “something more than just a limited preview” of the evidence. State v. Freeman, 93 N.C. App. 380 (1989); see State v. Paige, 316 N.C. 630 (1986); but see State v. Call, 349 N.C. 382 (1998) (upholding trial judge who limited opening statements to five minutes). See also Rule 9 of the General Rules of Practice for the Superior and District Courts ("opening statements shall be subject to such time and scope limitations as may be imposed by the court," and also noting that "parties may elect to waive opening statements").
In making an opening statement, counsel should not argue the case, instruct the jury on the law, or contradict the other party’s witnesses. State v. Mash, 328 N.C. 61 (1991); State v. Freeman, 93 N.C. App. 380 (1989); see G.S. 15A-1221, Official Commentary. In previewing the evidence, counsel generally should not refer to inadmissible evidence, exaggerate or overstate the evidence, or discuss evidence that the other party is expected to introduce. State v. Jaynes, 342 N.C. 249 (1995); see also State v. Allred, 131 N.C. App. 11 (1998) (trial judge properly granted state’s motion in limine to prevent defense counsel in opening statement from referring to reputation of building as a “crack house”—because evidence was inadmissible hearsay).
Two things to remember
It is beyond the scope of this entry to repeat all the lessons of a basic trial advocacy class about what makes for a “good” opening statement, but two key points are worth mentioning:
1. Promise and delivery: Prosecutors should avoid talking about any evidence in the opening statement which may not be introduced at trial. For example, if the judge has reserved ruling on a motion to exclude the state’s 404(b) evidence, the prosecutor should avoid telling the jury that they will hear about “how he did this twice before.” If the judge keeps that evidence out, the jury will be left wondering why the state failed to prove something that it thought was important enough to mention in the opening.
2. “Evidence will show”: Opening statements are supposed to be a forecast of what the evidence will show at trial. But starting every single sentence with the exact same words “the evidence will show…” quickly becomes an annoying distraction for the jury, and should be avoided. On the other hand, remembering to use the phrase from time to time during the opening may help avoid objections from the defense that the prosecutor is ‘making arguments’ rather than just ‘forecasting evidence.’ (E.g., “the evidence will show that he did this for one simple reason – greed.”)
Use of Exhibits During Opening
Although there are no North Carolina cases specifically analyzing whether it is permissible to use exhibits during opening statements, the trial judge apparently has the authority to allow it. See Board of Transportation v. Rentals, Inc., 28 N.C. App. 114 (1975) (noting, without comment, that counsel used an exhibit during opening statement); see also United States v. Burns, 298 F.3d 523, 543 (6th Cir. 2002) (no error where trial court allowed prosecutor to use a PowerPoint with photos during opening, and any “potential prejudicial effect of the slides was not so great as to overwhelm the jury's ability to follow the court's instructions not to consider the opening statements as evidence”); State v. Sucharew, 66 P.3d 59 (Ariz. App. 2003) (trial judge did not abuse discretion in allowing prosecutor in vehicular homicide trial to use a PowerPoint during opening statement that contained photographs of the vehicles and accident scene with superimposed descriptions and headings, a map, a listing of the defendant’s blood alcohol content and physical symptoms, and a list of the elements of the offenses).
Notice to defense and judge
Given the limited North Carolina case law on this issue, prosecutors who intend to use exhibits or presentations during their opening should consider giving notice (along with a copy of the presentation, or at least an opportunity to review the exhibits) to the defense before beginning the opening statement, and make sure the judge is aware that exhibits will be used during the state’s opening. This will allow the court to resolve any objections in advance, and avoid interruptions during the opening itself.
Defense "Opened the Door"
Defense counsel’s opening statement may open the door for the state to introduce evidence during trial to rebut or explain that opening statement. See State v. Murillo, 349 N.C. 573 (1998) (in response to defense counsel’s opening statement that victim was irresponsible alcoholic, state was properly permitted to offer character evidence concerning victim’s performance as school teacher); State v. Jones, 342 N.C. 457, 463-64 (1996) (“The State was entitled to introduce this testimony by Ms. Lorden to explain this opening statement by the defendant's attorney.”). But see State v. Buie, 194 N.C. App. 725 (2009) (finding it was error to allow state to introduce character evidence in case-in-chief to refute defendant’s forecast of evidence in opening statement).
In closing arguments, the prosecutor may also properly comment on the defense counsel’s opening statement and the defense counsel’s failure to produce evidence to support the assertions made in it — even if the defendant did not testify at the trial. State v. Call, 349 N.C. 382, 421 (1998); State v. Taylor, 344 N.C. 31, 42 (1996); State v. Harris, 338 N.C. 211, 229 (1994). For more information about responding to the defendant’s opening statement during closing arguments, see the related entry on Closing Arguments – Permissible Topics.
