Duhaime's Law Dictionary


Opening Statement Definition:

A lawyer or litigant's initial remarks at trial, to the finder of fact, either a judge or jury, setting out their road-map or case theory.

Also called an 'opening'.

At the beginning of every trial, before any evidence is entered, each litigant, or their lawyer, is entitled to set out the road-map of the evidence they intend to introduce; a narrative of the facts that the party will be relying on and the issues involved.

Without an opening statement, the start of a trial would be chaotic as the finder would have to dive in blind. Thus, the opening statement assists the judge or jury in understanding the content, flow, important issues and theory of a party's evidence.

At this time, their remarks, what they say, is not evidence at all and ought to be completely discounted as such, rather, serves as a courtesy to the court because it tells the court what the particular party intends to prove or on what evidence it intends to rely.

opening statementEach side gets to make an opening statement.

In a civil trial, the traditional method is for the plaintiff to give his opening statement and then enter all of his evidence. When he closes his case, the defendant gives an opening statement and then enters his evidence.

Then, at the end, there is a wrap-up speech by each litigant called 'closing submissions' or just 'submissions' or a 'closing statement', at which time the litigant will "put it all together"; knit the evidence together in a neat package and, if necessary, relate necessary relevant law.

In a criminal trial, the prosecutor usually makes the opening statement followed by the lawyer for the defendant or, if there is more than one defendant, each lawyer for each defendant, in turn.

The law on opening statements seems to be in constant flux and often to change from judge to judge.

It is very improper for an opening statement to allege facts that the party cannot thereafter prove. Judges remember what is said in an opening statement and it does not help a litigant's case if it was grossly overstated in an opening statement.

It is also improper to raise an objection during an opening statement.

At the same time, a trial is a contest between two litigants, a race to the applicable threshold of evidence in the minds of the finders of fact, either a preponderance of evidence for civil trial, or beyond a reasonable doubt in a criminal trial. Some lawyers, particularly when a jury is the finder of fact, will slip in numerous incidental facts (such as related to the standing of the defendant in his community) which they either do not intend to prove or cannot be certain that the evidence will be entered at trial.

Right away, from the get-go, a jury trial is a race to influence the minds of all of the jurors. Painting a defendant in a criminal trial as a good father, or with children that are very successful, in an opening statement, immediately fosters a good impression of the defendant with the jurors in spite of any remonstration later given it a trial judge if no actual evidence of those allegations of fact is later entered.

The risk in over-extending an opening statement is in causing a mistrial or the discharge of the jury.

The other difficulty with opening statements is that they are not supposed to present argument, to advance a party's arguments; yet persuasiveness is perfectly acceptable in an opening statement! The distinction between the two is rarely apparent.

REFERENCES:

  • Oatley, Roger, Addressing The Jury (Ontario: Canada Law Book, 2006)

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