OPENING STATEMENT V. ARGUMENT – WHERE IS THE LINE?

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. Moreover, 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 Argumentative Historic Comparison
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.

 

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.

Collective Wisdom:

As the final step in trying to adduce the ‘argument principle(s)’ for an opening statement, this author turned to some of the best trial advocacy teachers in this country.  Each was asked to explain “how you define this or what rule(s) you provide to your students and when you train lawyers.”

The responses varied, and included related issues such as how to focus on persuasion and what to do when the opponent veers into argument during opening (the “whether and when do I object” concern).  Their responses are set forth here:

Liz Lippy (Associate Director of the Trial Advocacy Program at the American University Washington College of Law)

Below are a list of guidelines/reasons I would make an objection to an opening as argumentative:

Rhetorical questions – I find that when an opening statement includes rhetorical questions it is often argumentative.  Rhetorical questions are a tool better saved for closing arguments and often if used in an opening are used in an argumentative fashion.

Deep dives into the law or jury instructions – to the extent an opening statement goes into great lengths describing the law (other than standard burden of proof stuff which is in most openings), many times an opening statement misstates the law or frames the law in a way that argues their theory of the case.

Language that goes above and beyond forecasting the evidence – semantics can be tricky and are a huge part of advocacy, but there are times semantics in an opening are more like closing argument and therefore argumentative.  An extreme example, for illustrative purposes, would be something akin to telling the jury that the defendant is a liar/cannot be trusted or telling the jury how to judge credibility of a witness.

The “no brainers” – if an advocate in opening states a personal opinion regarding the case; misstatement of facts

Criminal v. Civil cases – a prosecutor is much more confined to what is proper in an opening statement.  Although not an argumentative objection, certainly a prosecutor cannot discuss what evidence the defense will present or the absence of defense evidence.

Abbe Smith (Director of the Criminal Defense and Prisoner Advocacy Clinic, Co-Director of the E. Barrett Prettyman Fellowship Program, and Professor of Law at Georgetown University):

A strong narrative is better than an argument in opening – that is, your case theory told as a compelling story – partly because there is nothing in the record to argue about yet.  That said, I do believe in inserting what could easily be called “argument” somewhere in the middle of the opening – a section that defuses what the government has said by telling the factfinder the things they should be on the lookout for that will demonstrate the accused is not guilty.

Grant Rost (Senior Instructor of Lawyering Skills, Liberty University School of Law):

I tend to think of the difference between a proper opening versus one that is argumentative as the difference between description and prescription.  The art of description is not telling someone what to think—whether I tell them with the economy of a single word or in a targeted sentence—but is putting together facts in a way that makes the unspoken conclusion sensible and easy to reach.  Prescription is any word or phrase or series of phrases where I’m telling the jury what they ought to do or think.  Artful description is the nonverbalized “ought.”  When artfully describing the defendant’s inattention, it’s utterly unnecessary to call him careless. (Or, to say it as though I’m translating the use of that word to the jury: “By using that word, it means you ought to think his conduct careless.”)  The carelessness is evident to the jurors when they supply their powers of reason to the facts I’ve described.  Argument is when I am supplying some reasoning along with the facts.  Thus, prescription, whether it’s artful or not, isn’t coy about suggesting what jurors ought to think or do.

I think students know this for the most part.  It’s the execution in the moment that causes the problems.  I find that students are most likely to turn to prescription once they think they have no more story to tell or they think there are no other characters in the story to follow around as they narrate events to the jury.  In practice, they most often think the story has ended once they show that their client or victim was wounded, bilked, killed, accused, or arrested.  When the description has ended, they devolve into prescription and start arguing about the conduct, the facts, or even the law.  I’m convinced that it comes so naturally to them because this desire to over-conclude bubbles like a spring from every advocate’s heart.  Therefore, when teaching new advocates I tell them to find the narrators’ voices and continue the descriptive story right up to their final, thundering thought.

David Erickson (Director of the Trial Advocacy Program, Chicago-Kent College of Law):

 [Liz Lippy]  said it all and said it very well. The only thing I would add, Trial lawyers still argue in opening and will continue… because judges let them ….and it sounds more convincing.

 Sara Jacobson (Director of Trial Advocacy Programs, Temple Beasley School of Law):

 A few things I tell students to avoid include:

  • Rhetorical questions
  • Language that tells the jury what conclusion to reach about the evidence (often, although not always spotted by the use of the word ‘because’)
  • Vouching isn’t allowed in any speech but it is also argumentative
  • A speech that frames the case around a personal view of a broad social issue

Gerald Powell (Practice Court Faculty Chair and Abner v. McCall Professor of Evidence, Baylor Law School):

I teach students arguing can be either drawing conclusions or pounding the table while saying something objectively non-argumentative.

Justin Bernstein (Director of A. Barry Cappello Program in Trial Advocacy,  UCLA Law School):

I tell my students that the question of whether an opening is argumentative is less objective and less precise than most objection questions.  For example, hearsay debates often have a correct answer.  But with openings, it’s more of whether the presentation feels argumentative to the presiding judge.  That’s usually a combination of language and delivery.

I also tell them that most judges err on the side of overruling argumentative objections in opening.

Adam Shlahet (Director of the Brendan Moore Trial Advocacy Center, Fordham Law School):

What makes this so confusing to students is that if you make a statement of facts and/or your theory of what happened in a passionate, confident way, it may sound more argumentative than an actual argument made weakly.

That is operating under the definition of an argument being an explanation of how or why certain facts should lead to certain conclusions.

It’s important to point out that argument in opening statement is a bad idea not just because it is objectionable and improper.  It is a bad idea because it is not effective.  For an argument to work, first, the trier of fact must trust that the facts are what you say they are.  Second, they must consider the person making the argument to be a credible person.  The problem is that during the opening statement, the advocate has not earned any credibility yet.  At that point, the advocate is just some lawyer trying to win a case, which naturally translates to suspicion and distrust (the opposite of credibility).  So a “hard sell” at this point in the game can actually turn off a juror and taint an otherwise compelling argument.

Tell the story persuasively, earn credibility and then cash in on that credibility with smart arguments.  Change the order of that sequence and you’re just another bad salesman.

Charles Rose (Director, Center for Excellence in Advocacy; Professor of Excellence in Trial Advocacy, Stetson Law School):

The opening must be an argument, but the argument is made through the structure of the factual story that is told, and not necessarily the way in which it is delivered. You can make an extremely effective, argumentative, conclusory opening statement that is fine – when it focuses on the story that is told and the way it is told, and not on telling the jury what that story means. Let them decide what it means, our job is just to teach others to tell it in a way that the law allows for only one conclusion when you are done.

I tell my students that folks should feel like you’ve dropped the mike in the room at the conclusion of the OS, and the jury should be looking at the other side with some combination of “what have you got” or “why did you do that?”

Susan Poehls (Director of Trial Advocacy Programs, Loyola Law School, Los Angeles):

It’s important to earn your credibility with the jury, but I think a well told logical story can do that so long as you 1) don’t over-promise and under-deliver; and 2) make sure the table pounding is something the jurors can identify with and relate to.

I start by telling my students that if the statement you are making isn’t going to come out of a witness’ mouth, from a stipulation or out of a document, it is high risk for argument.  I’m also not a big believer in burying every argument behind the words “the evidence will show.”

You really do want your opening to sound somewhat argumentative, but you do that by structure, ordering and juxtaposing facts in such a way that any conclusion other than the one you are suggesting would seem incredible and unbelievable.

Dan Tilly (Director of Advocacy Programs, Campbell University School of Law):

Jumping out of the gate with overt argument negatively impacts lawyer credibility.  The jury just isn’t ready yet to be argued to on a case they know little about.  Doing so screams that you are being paid and the least neutral person in the courtroom.

To Charlie’s point, however, the jury is certainly prepared to begin making conclusions and drawing their own inferences.  That’s what I try to encourage among advocates and lawyers alike.  How we arrange the story or explain the evidence in a manner that is persuasive is enormously important because it allows the jurors to begin drawing the inferences.  I want confirmation bias to set in early and in my favor.

Obvious impropriety that would raise mistrial concerns must be objected to or else the issue is waived.  Those things are rare – but do occur.  I use the Roger Clemens case to teach this point.  The federal judge declared a mistrial during the government’s opening statements after an objection.  The U.S. Attorney was playing a video in his opening that included hearsay statements directly implicating the defendant.  The court had ruled the statements inadmissible in a pretrial in limine hearing under hearsay and Crawford.  Rusty Hardin, defending Clemens, objected and moved for a mistrial given the severity of the violation (and the obvious conclusion that the jury would not be able to forget the damning testimony).  These kinds of objections are clearly proper and must be made.

As to most others, I trust the jury and tend to let “argument” go.  Moreover, I often let misstatements of the evidence go but I sure encourage lawyers to write them down to use in cross-examination and against the lawyer in closing argument. “Remember in opening statement when the Plaintiff’s lawyer promised you that _____” is damned effective.

Rafe Forman (Douglas Stripp Dean’s Distinguished Professor and Director of Advocacy, UMKC School of Law):

I do not believe the lawyer has the credibility to “overtly argue” in opening. The jury isn’t ready for that, they do not know who you are and they may judge you harshly as suggested by Tilly. I train (both in the educational sense and the literal sense, i.e. i run over them until they get it) students and lawyers to 1) gain credibility, 2) retain credibility and 3) suffer no credibility KILLS. This begins of course in voir dire, but opening is equally filled with opportunity.

My intent is not to debate. Rather, I offer the following: What if we imagine to ourselves that opening is our opportunity to gain credibility by showing the jury what they know is true, by not judging them, and by showing them how their existing truths may be used  resolve our case?  Remember the jurors are always the HERO in every trial story! Imagine that you are in possession of a part of a great treasure map. You have only a corner. But you have the corner where the “X” is marked. You need these jurors to be willing to find the treasure and use their common experiences and understanding to guide them, with your help. There is peril awaiting, and they know it, sense it and resist. Rather than arguing the justification for the risk,  i.e. how valuable the treasure is, and how it will change their lives once found, and how you desire to help them achieve it, consider this approach instead. FACT:You don’t know what they value. Your third circle judgment of them is manipulation and is off putting energy. Rather than tell them things that are arguments as to why they should do this or that, perhaps we should explain that if they chose to go on this journey, there are a few things you would have them watch out for. Manipulation and judgment are strong third circle energies. So it is for criticism and unjustified argument. People, jurors specifically, are turned off, and repel against and often resist third circle energy.

Case in point: I will offer you the same fact, in first, third and finally second circle energy. You judge for yourself.

1) It would be wrong, terrible, unjust for you to find my client guilty when the prosecution has no evidence to prove his guilt. Please hold the Prosecution to their Burden Of Proof

3) At the end of this trial, my co-counsel will come back before you and ask you for a not guilty verdict because the state has no proof.

2) Guilt or Innocence is simply and entirely up to you. May I show you what things to watch for during the trial that prove innocence?

You judge for yourself.  But then [give them five facts that compel the desired outcome].

Cary Bricker (Professor of Lawyering Skills Director of Mock Trial Program Co-Director of the Center for Advocacy and Dispute Resolution. University of the Pacific McGeorge School of Law):

If a witness will say it, an exhibit will show it or an expert will opine- (while being mindful not to engage in fact overload) you own these facts when creating theory focused stories.   I agree wholeheartedly with so many of you that it’s presumptuous to overtly argue in opening- to tell the jury what the facts mean before they have heard from a single witness- and before you have established your bona fides – it’s both unpersuasive and can compromise your effectiveness as you compromise your credibility.   Hard to shake off this loss of credibility so early in the game during the remainder of the trial.

Take the jury figuratively with you to the key places in the case as you engage in vivid story-telling so that the jury reaches the conclusion you want them to- not because you told them that conclusion but because the arrangement of facts did- and they feel like geniuses! ( E.g in a mugging, have the jury standing next to the complainant on the street as the robber is grabbing her purse through fact selection.  Jury is staring into perp’s face along with complainant. Arrangement of facts, pace, phrasing, voice modulation, gesturing- w/o overt argument.)

The Take-Away

The collective wisdom contributors offer the best delineation of when an opening is argumentative.  Drawing from their contributions, the line seems to be here:

  • Only use facts that will clearly be deemed admissible;
  • Avoid all reference to matters beyond the case at hand;
  • Don’t attack the opponent’s motive or integrity;
  • Leave it to the closing to address why you are correct; and
  • Avoid vouching for your own witnesses and overtly attacking your opponent’s.

Beyond this, don’t confuse the ban on argument with the goal and art of being persuasive.  And persuasion can and should leave the jury with a sense of discovery and the confidence that you are letting them draw their own conclusion(s).