THE NATIONAL CRIMINAL JURY INSTRUCTION
COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information
VOLUME 3 - CHAPTER 16
Go to Volume
16.1 Opening Statements
16.1.1 Importance Of Opening Statements
16.1.2 Opening Statements: Strategic Considerations
[Reserved]
16.1.3 Supplementary "Opening" Statements
16.1.4 Failure Of Prosecutor To Support A Claim Made In The Opening Statement: Cautionary/Limiting Instruction
16.1.5 Reference To Inadmissible Evidence In Opening Statement As Prosecutorial Misconduct
16.1.6 Situations Where Cautionary Or Limiting Instructions May Not Cure Prejudice
16.1.7 Failure Of Defense Counsel To Present Evidence Promised In Opening Statement
16.1.8 Admission Of Client’s Guilt In Opening Statement As Ineffective Assistance Of Counsel
16.1.9 Opening Statement: Improper For
Prosecution To Comment On Anticipated Defense Evidence
THE NATIONAL CRIMINAL JURY INSTRUCTION
COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information
VOLUME 3 - CHAPTER 16
16.1.1 Importance Of Opening Statements
PRACTICE NOTE: Several studies indicate that approximately 75% of all jurors claim that their ultimate verdict was the same as their evaluation based on the opening statement, such statements are prime contenders for the title of "most important." (See "Jury Instructions: A Judicial Perspective," by Hon. Dennis C. Kolenda, Circuit Judge, Grand Rapids, Michigan; see also BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) vol 13, No. 1, 1/13/99, p. 3, quoting McComas ["A high impact opening statement is the necessary foundation upon which reasonable doubts will be built during trial"].)
As with closing arguments, objections to the opening statements must be put on the record. (See e.g., U.S. v. Hampton (10th Cir. 1972) 458 F2d 29, 30.)
THE NATIONAL CRIMINAL JURY INSTRUCTION
COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information
VOLUME 3 - CHAPTER 16
16.1.2 Opening Statements: Strategic Considerations [Reserved]
THE NATIONAL CRIMINAL JURY INSTRUCTION
COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information
VOLUME 3 - CHAPTER 16
16.1.3 Supplementary "Opening" Statements
PRACTICE NOTE: In long trials, counsel has been permitted to make additional "opening" statements to the jury at the start of different phases of the trial or at specific intervals, for example, the start of each week. These statements can alert the jury to what may be presented in relation to what they have already heard. The practice of allowing such mid-trial statements is suggested in the "Federal Judiciary Manual of Complex Litigation" (3rd) section 22.21 (1995); see also Alschuler, "Our Faltering Jury," 41 U. Chicago Law School Record 2, 7 (1995).
THE NATIONAL CRIMINAL JURY INSTRUCTION
COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information
VOLUME 3 - CHAPTER 16
16.1.4 Failure Of Prosecutor To Support A Claim Made In The Opening Statement: Cautionary/Limiting Instruction
PRACTICE NOTE: Where the prosecutor fails to offer evidence to support a claim made in the opening statement, simply giving the jury the standard jury instruction that opening statements are not evidence, is insufficient to cure the prosecutor’s failure to offer proof in support of a highly prejudicial claim. The cautionary or curative instruction should make specific reference to the prosecutor’s claim and admonish the jury not to consider it. (Alexander v. State (GA 1998) 509 SE2d 56, 60-61.)
THE NATIONAL CRIMINAL JURY INSTRUCTION
COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information
VOLUME 3 - CHAPTER 16
16.1.5 Reference To Inadmissible Evidence In Opening Statement As Prosecutorial Misconduct
RESEARCH NOTE: See Wharton’s Criminal Evidence (West, 14th ed. 1986) § 4:4, pp. 296-97.
THE NATIONAL CRIMINAL JURY INSTRUCTION
COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information
VOLUME 3 - CHAPTER 16
16.1.6 Situations Where Cautionary Or Limiting Instructions May Not Cure Prejudice
See NCJIC 17.4.4 [Limiting Admonition May Not Cure Improper Juror Anonymity].
See also NCJIC 272.5.4 [Inability Of Limiting Instruction To Cure Highly Prejudicial Misconduct During Summation/Closing Argument].
See also NCJIC 297.3.1 [Situations Where Cautionary Or Limiting Instructions May Not Cure Prejudice].
THE NATIONAL CRIMINAL JURY INSTRUCTION
COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information
VOLUME 3 - CHAPTER 16
16.1.7 Failure Of Defense Counsel To Present Evidence Promised In Opening Statement
PRACTICE NOTE: The failure of defense counsel to present evidence promised in the opening statement may implicate the defendant's federal constitutional rights (6th and 14th Amendments) to effective assistance of counsel. (See People v. Patterson (IL 2000) 735 NE2d 616, 633 [IAC where counsel informed jury at opening statement that evidence of involuntariness and coercion would be presented but no such evidence was presented at trial]; see also Ouber v. Guarino (D.Mass.
2001) 158 FSupp2d 135 [counsel ineffective in telling jury four times during opening statement that petitioner would testify, but then persuaded petitioner not to testify].)On the other hand, it may be improper for the prosecutor to make too much of defense counsel's failure. (See People v. Pantages (CA 1931) 212 C 237 [297 P 890] [prosecutorial misconduct to make too much in closing argument of the defense's failure to present evidence promised in opening statement].)
THE NATIONAL CRIMINAL JURY INSTRUCTION
COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information
VOLUME 3 - CHAPTER 16
16.1.8 Admission Of Client’s Guilt In Opening Statement As Ineffective Assistance Of Counsel
PRACTICE NOTE: See Jackson v. State (OK 2001) 41 P3d 395, 400-401 [concession of defendant’s guilt during guilt/innocence phase of capital trial was ineffective assistance of counsel absent on the record acquiescence in the strategy by the defendant].
See also NCJIC 18.5.2.1 [Jury Should Not Be Told To Disregard Defendant's Testimony Even If Defense Counsel Believes That The Defendant Committed Perjury].
THE NATIONAL CRIMINAL JURY INSTRUCTION
COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information
VOLUME 3 - CHAPTER 16
16.1.9 Opening Statement: Improper For Prosecution To Comment On Anticipated Defense Evidence
PRACTICE NOTE: See Parker v. State (GA 2003) 588 SE2d 683 [prosecutors may not discuss in their opening arguments any evidence the defendant might present at trial].