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In many jurisdictions, when a case goes to trial, each party's attorney is allowed to make an opening statement before evidence is admitted or testimony is heard. This statement is an oral account of what the attorney believes he or she will prove during the course of the trial. Opening statements are frequently permitted in both criminal and civil cases, and they generally become part of the official trial record. In many jurisdictions, attorneys are not allowed to make arguments during an opening statement. Rather, these must be reserved for the closing argument, which is an oral statement made by each of the attorneys after all of the evidence has been presented.
Usually, each party’s attorney has the right to make an opening statement in front of a judge or jury. If a party is pro se, meaning he or she has not hired an attorney, the party may be able to make the statement. Opening statements are customarily delivered after a jury has been selected, although a few jurisdictions allow the statement to be made before final jury selection. Typically, each party can waive his or her right to give an opening statement, although most parties elect to deliver a statement.
An attorney often uses an opening statement to establish rapport with a jury and to point out favorable attributes of his or her client’s case. An opening statement will often sound like a story. During the statement, each of the opposing attorneys usually recounts his or her version of the facts in the case. Additionally, the attorneys typically describe the central legal elements at issue in the case.
When presenting an opening statement, an attorney may outline the sequence of who will testify and what they will testify about. The attorney may also allude to the different types of evidence that will be presented during the trial. In addition to telling his or her client’s side of the story during an opening statement, an attorney may also describe what the evidence will not support. For example, in a murder case, a defense attorney may declare that the prosecution will not be able to produce evidence of a murder weapon during the trial.
As a general rule, the party with the burden of proof gives its opening statement first. In a civil case, a plaintiff is usually entitled to present the first statement. The prosecution generally delivers the first opening statement in a criminal case.
An opening statement is probably the first time either side can present their argument without worrying about objections or improper questions. The prosecution can say "That defendant came home from work, took out a gun and shot his wife in cold blood. He's a murderer, and we're going to prove it beyond any doubt."
The defendant's attorney will say "The prosecution has no physical evidence linking my client to the crime. They have no fingerprints on the murder weapon. My client was seen 20 miles away on the night in question. Other people had even more motivation to commit the crime, and we'll prove it."
I think group psychology and rhetorical skills play just as much of role in opening arguments as the raw facts of the case.
When I participated in a mock trial, both sides had opening statements. I felt like it was a good idea for both lawyers to give opening statements, because I didn't want to feel like I was only hearing one version of the story.
The plaintiff's attorney's opening statement basically spelled out the story behind the lawsuit. His client used gasoline to clean up some spilled paint and the fumes were ignited by a gas water heater's pilot light positioned two inches above the floor. His client was severely burned, and was suing the manufacturer of the water heater because the pilot light should have been at least 18 inches above the ground. That was the industry standard.
defendant's opening statement reminded the jury that the plaintiff was the one who brought a flammable liquid into her home for an unauthorized purpose, and the gas water heater was installed properly. The 18 inch height requirement only applied to water heaters installed in garages, not interior rooms. The defendant did nothing to cause the accident.
Without those opening statements to orient ourselves, I don't know if we could have formed a unanimous opinion later.
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