National Institute for Trial Advocacy

Mar 26, 2019
Opening Statement V. Argument - Where is the Line? Part One of Two
Mar 26, 2019

Written by Professor Jules Epstein, Director of Advocacy Programs at Temple Beasley School of Law

When does an opening statement, meant to be persuasive, veer off into impermissible argument? The line is in some sense indefinable – and it feels like the only formula is like that of obscenity – “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it…”  Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S. Ct. 1676, 1683, 12 L. Ed. 2d 793, 803-804 (1964) (Stewart, J. concurring).

But there has to be a demarcation, at least in principle, to guide Judges when confronted with objections and lawyers and law students when preparing their remarks, remarks that will maintain the power to persuade but remain just shy of that treacherous border where objections will be made, interruptions occur, momentum be lost, and legal error may be found.

This article, prompted by an advisory one advocate made that It’s argument unless you say ‘the evidence will show’ or ‘you will hear’  will survey decisional law, trial advocacy treatises, and the advice and lessons of noted trial advocacy teachers and scholars, to attempt to ferret out the, or at least some, guidance.

Decisional Law:

As might be expected, caselaw lacks uniformity (or even meaningful definitions) on this subject.  Consider this court’s summary of guiding principles (numbered for the reader’s convenience):

  1. An opening statement has a narrow purpose and scope. It is to state what evidence will be presented, to make it easier for the jurors to understand what is to follow, and to relate parts of the evidence and testimony to the whole; it is not an occasion for argument.

  2. Opening statement is intended as an outline of a party’s anticipated proof.

  3. Opening statement should not refer to matters that are not to be presented as evidence.

  4. The scope and extent of an opening statement is within the trial court’s control.

  5. The trial judge can exclude irrelevant facts and stop argument if it occurs.

United States v. McCabe, 1997 U.S. App. LEXIS 33704, *7-11.  Principles 1 and 2 explain purpose, but offer no border; principle 3 is a guiding rule separate from where argument begins; and 4 and 5 are about the Judge’s power.

The warning to ‘not argue but explain’ has been repeated (and again is numbered for discussion), but again without explicit definition of what or where is the line: An opening statement has a narrow purpose and scope.

  1. It is to state what evidence will be presented, to make it easier for the jurors to understand what is to follow, and to relate parts of the evidence and testimony to the whole; it is not an occasion for argument.

  2. To make statements which will not or cannot be supported by proof is, if it relates to significant elements of the case, professional misconduct.

  3. It is fundamentally unfair to an opposing party to allow an attorney, with the standing and prestige inherent in being an officer of the court, to present to the jury statements not susceptible of proof but intended to influence the jury in reaching a verdict.

People v. Meseral, 2014 Guam 13, 25-29, 2014 Guam LEXIS 14, *13-15, 2014 WL 2621179.  Again, principle 2 is not about “argument” but about confining oneself to the realm of provable facts.  Only principle 3 begins to tease out a line – don’t talk about things you won’t prove at trial but that will pull out heartstrings or inflame passions.

What can be found at times are specific categories of remarks which are deemed off limits, whether denominated “argument” or just deemed improper.  In State v. Neher, 2018 N.J. Super. Unpub. LEXIS 1333, *14-23, the court listed as banned comments that express personal belief, urge that jurors ‘send a message’ with their verdict, highlight or denigrate the defendant’s right to remain silent, or explicitly declare guilt.

Restrictions are also imposed when the opening veers into some issues regarding credibility.  “It is not proper to engage in anticipatory rebuttal or to argue credibility by referring to impeachment evidence the other side may adduce.”  State v. Williams, 656 P.2d 450, 452, 1982 Utah LEXIS 1104, *2-3.  At the same time, where the defense case is that the prosecution witnesses lack credibility, and that is what will be shown via cross-examination, this is proper content for an opening.

"Particularly when the defense intends to rely solely upon evidence that will be adduced or highlighted through cross-examination, its opening statement inherently will sound contradictory. Nonetheless, as long as the opening statement is confined    to  what the defense “hopes to show” at trial, through cross-examination or otherwise,…the trial court should permit counsel to continue…"

Wright v. United States, 508 A.2d 915, 920-921, 1986 D.C. App. LEXIS 321, *17.

Then there are courts that eschew condemning argument and instead emphasize the “latitude” permitted in an opening statement.  Consider this recent Nebraska decision, which applies that rule to a highly persuasive depiction by the prosecutor and deems it to not be argument:

Schaetzle’s motion alleges that the prosecutor “made repeated argumentative statements during its opening statement, he only specifically refers to the prosecutor’s comment that Schaetzle’s actions turned “a weekend of remembrance” into “a weekend of tragedy” and “something criminal.”  A party is allowed considerable latitude in making an opening statement. State v. McMillion, 23 Neb. App. 687, 875 N.W.2d 877 (2016). In an opening statement, it is permissible for the State to discuss what the evidence may show. Id. In view of the considerable latitude given in making opening statements, we cannot conclude an objection to the State’s comments would have been sustained.

State v. Schaetzle, 2019 Neb. App. LEXIS 33, *25-26, 2019 WL 446632.

What arises next are cases explaining the tools that prevent an opening from devolving into argument.  At times, the issue is less what was said than how it was prefaced.  Repeating the incantations “You’ll be able to see,” “You’ll hear from these individuals” and “the State expects to present to you” has been deemed sufficient to keep the opening non-argumentative, even when what will be seen and presented are potent statements such as

Who you will not see in this courtroom is [] Bullock. She will not be here to tell you what happened on December 29, 2012. And I get to introduce to you her, who [] Bullock was before this man right here got to her.

. . . .

Ladies and gentlemen, let me reintroduce you to the person who did this. This killer right there, take a look at him.

. . . .

[T]he police in this case did locate that evidence he attempted to discard, and it was found.

And but for that being found he possibly could have gotten away with murder.

. . . .

Ladies and gentlemen, this man’s a killer, right here. He is a murderer, and the State intends to prove that.

The [] Bullock that you’ll see? She’s bloody, beaten, swollen, with her lifeless body propped on a keyboard with its cord wrapped around her neck . . . .

[The State] took photographs of [defendant’s] hands . . .

I’m going to leave those pictures for you to judge. You can evaluate them. You can evaluate if they are bruises on his hands and if it’s consistent with being involved in this brutal, vicious murder of [] Bullock.

Neher, supra (noting that “[a]t all times during his opening statement, the prosecutor reminded the jury of what he intended to prove, using phrases such as ‘You’ll be able to see,’ ’You’ll hear from those individuals,’ and ‘the State [] expects to present to you’”).  This expressive depiction was deemed to fit fairly within the New Jersey definition of an opening: “an outline or roadmap of the State’s case…limited to a general recital of what the State expects, in good faith, to prove by competent evidence.”

Building an opening statement around a theme has also been found to not constitute argument.  The “thematic discussion of “Equal Justice Under Law,” and…comments that the defendants had taken the law into their own hands, did not appear to cross the line of permissible opening statements, as the comments were not argumentative.”  Bost v. United States, 178 A.3d 1156, 1191, 2018 D.C. App. LEXIS 51, *53, 2018 WL 893993.

With so much in the range of tolerance, it may be that to deduce the line between persuasion and argument one needs to compare and contrast.

A Tale Of Two Openings:

Fact-Based Persuasion

In the early morning hours on September 3, 2009, Dolores John was at her residence when an unwelcome drunken man paid her a visit. This man was accompanied by another male individual and demanded to know the whereabouts of Mrs. John’s son Matthew. Now, when Mrs. John did not disclose where Matthew was at, this man — this drunken man, he came by and (indiscernible).

That same man subsequently pulled out a knife and tried to stab Mrs. John, who was both a mother and a grandmother. This was not enough. That same drunken man told Mrs. John that if she called the police, he was going to kill her, he was going to kill her son, Matthew, and he’s going to kill another family member.

Sitting in front of you, ladies and gentlemen, five feet in front of you today in the Defendant’s chair is that same drunken man and that person is the Defendant, Keith Meseral.

Argumentative Historic Comparison

Think back, if you will, to maybe your fifth grade in school. Sometime during your elementary school, you heard about the Salem witch trials. And you heard that in Salem, Massachusetts, there were a number of people that were burned at the stake. But there’s one story that stands out, and that’s the story where a little woman, an old woman, who was by extraction Jamaican, was accused by three juveniles of being a witch…

Three have accused Thomas McCabe,…three juveniles. They’ve said that he led them astray. The three girls in the Salem case had disobeyed their elders, and because of the hue and cry, when they said, this woman’s a witch, she made us do it, they believed her and that woman was burned at the stake for a crime she never committed. And those three girls were later shown to have been lying.

So don’t burn Thomas McCabe at the stake before you hear all the evidence. You may laugh now, but believe me, ladies and gentlemen, these kids are lying. The burden was on the old woman at Salem to show that she wasn’t a witch.

The upshot?  From a caselaw-based approach to identifying what constitutes impermissible argument in opening, the principles are few:

Avoid the categoric prohibitions; don't engage in anticipatory rebuttal; no overt vouching for your own witness' believability; and "don't talk about things you won't prove at trial but that will pull out heartstrings or inflame passions."

Put most simply, keep the opening to these facts in this case, perhaps with a touch of law to give context.

Trial Advocacy Textbooks:

If caselaw bans argument in the opening statement but does not meaningfully define it, one would hope that trial advocacy texts do.  Here is a sampling:

In FUNDAMENTAL TRIAL ADVOCACY, 3RD EDITION, 78, Charlie Rose provides a clear guide:

Think of it this way: if you are telling what happened in the present tense from a point of view of someone who was either there or who would have seen the storyline being described, then it is not argument, although it may be extremely persuasive.  If, on the other hand, you are interpreting what the evidence means, assigning relative worth, or discussing how the law will apply to a particular set of facts, then you are arguing and not explaining.

By contrast, Thomas Mauet’s TRIALS: STRATEGY, SKILLS AND THE NEW POWERS OF PERSUASION, 2ND EDITION offers some categoric prohibitions but otherwise declines to offer a definition.  “Less clear, however, is what constitutes impermissible argument…The line between what is proper and what is improper is blurry and is often drawn by the custom in a particular jurisdiction and the attitude of a particular judge.”  Id., 85.

Finally, there is MODERN TRIAL ADVOCACY: ANALYSIS & PRACTICE (LAW SCHOOL 4TH EDITION) by Steven Lubet and J.C. Lore.  They, too, begin with the admonition that “the rule is easier to state than to define[]” but continue with some specific admonitions:

  • “As a general rule, opening statement ends and argument begins when counsel attempts to tell the jury how they should reach their decision.”

  • “You may not explain the importance of certain items of evidence or suggest how evidence should be weighed.”

The two authors offer “guidelines.”  First, will a witness testify to the precise “facts” being averred in opening.  Second, as an alternative metric, can the content of the opening be “verified.”  Finally, if the attorney has provide a “rhetorical link in the probative chain” to make facts add up then argument has occurred.  Id., 327-328.

Collectively, textbooks offer more and applicable advice than the courts.

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