Opening Statement Restriction Lifted?
Are the Scales of Justice Tipping Back to Even After
State v. Thompson?
by Matthew J. O'Connor1 and Nicholas B. Schopp2
The Missouri rule against "argument" during opening statements has recently undergone significant changes. The change in law will be particularly beneficial to criminal defendants, as they are now entitled to present a more meaningful description of their defense during opening remarks.
Prior to the recent case of State v. Thompson,5 Missouri followed a strict rule prohibiting defense counsel from mentioning during opening statement the facts that counsel anticipated eliciting on cross-examination of state witnesses. For many attorneys, this strict prohibition has served as a significant barrier to the effective representation of clients.6 Recognizing that opening statements have become a mainstay of American trials, and that the lack of a meaningful opening places defendants at a strategic disadvantage, the Missouri Court of Appeals for the Western District recently relaxed the strict rule regarding opening statements in favor of giving significant discretion to the trial judge.
In Thompson,7 the court declared that an absolute rule prohibiting reference to cross-examination material during opening statement is a misapplication of the Missouri rule against argument, and should no longer be followed. Instead, trial courts should exercise discretion in determining whether the proposed evidence is rooted in fact or is, instead, argumentative.8
The Thompson ruling is significant because it allows defense attorneys a jump-start on the impeachment process. Counsel will no longer be disadvantaged during opening statement, having to wait to provide the jury with the critical fodder expected from cross-examination. So long as the attorney confines comments to what counsel believes in good faith will be said by a witness on cross-examination, counsel may now point out the holes in the state's case, couched in factual recitation, but not argument.
The Thompson Legal Analysis
In 1957, the Supreme Court of Missouri explained in Hays v. Missouri Pacific Railroad Co. that "[t]he primary purpose of an opening statement is . . . to inform the judge and the jury in a general way of the nature of the action so as to enable them to understand the case and to appreciate the significance of the evidence as it is presented."9 In keeping with the basic purpose espoused in Hays, the Supreme Court later explained in other decisions that opening statement material should be confined to provable facts,10 and should not include argument.11 Interpreting the Supreme Court's prohibition against argument, the Courts of Appeal for the Eastern District and the Western District agreed on an absolute rule that all evidence a defendant intends to elicit on cross-examination of state witnesses is argumentative, and therefore not within the proper scope of an opening statement.12
Realizing that the strict prohibition against cross-examination material during opening statement could effectively deny a defendant the opportunity to make a meaningful opening, the Thompson court recently explained that the absolute rule should no longer be followed.13 Instead, trial courts are now vested with the authority to exercise discretion in order to distinguish between improper argument and permissible factual evidence that tends to prove the defense's theory of the case.14
The facts leading to Thompson's appeal demonstrate the harsh application of a strict rule against argument. Thompson subpoenaed three witnesses to testify about exculpatory matters, yet the state decided to subpoena the same three witnesses.15 Since the state put its evidence on first, Thompson's entire case was deemed to be from cross-examination of state witnesses.16 Thus, Thompson's case fell within the strict rule prohibiting cross-examination material during opening statement.17 As a result, Thompson was left with the following opening statement:
There's much more; there's much more. We ask you to wait, listen, and then decide. The evidence will not add up, so you will not be able to find Bruce Thompson guilty of his offense because he is not.18
The opening statement speaks for itself. Thompson was denied a meaningful and effective opening. Uninformed as to the rules of the court and the intricacies of trial procedure, any rational juror would be justified in concluding that Thompson offered a three-sentence opening because he lacked any sort of viable defense.
In ruling that it was error to prohibit Thompson from using cross-examination material during his opening, the appeals court relied on the Supreme Court of Missouri opinion in State v. Gardner.19 In State v. Gardner, the Supreme Court explained that defendants can establish a defense entirely through cross-examination of state witnesses, without calling those witnesses (or any witnesses) in the defendant's case-in-chief.20 Following the Gardner analysis, the Thompson court reasoned that:
Since the purpose of opening statements is to allow both sides to outline the anticipated proof and the significance of the evidence presented, an absolute prohibition against mentioning in opening statement any facts elicited in cross-examination operates to penalize a defendant whose witnesses will be called first by the State. In that situation, the defendant is effectively denied the opportunity to make an opening statement.21 The defendant, therefore, is denied the opportunity to do exactly that which the U.S. Supreme Court and the Missouri Supreme Court intended counsel do in opening statements—inform the jury of the nature of the defense so as to enable the jurors to appreciate the significance of the evidence as it is presented.22
The Thompson court declared that the Western District cases that follow the strict prohibition against cross-examination material during opening remarks should no longer be followed. Those cases include State v. Flaaen, State v. Nelson, and State v. Hamilton.23 The new rule calls for the trial court to exercise discretion in distinguishing between argument and factual evidence that tends to prove the defense's theory of the case.24
Why Are Opening Statements Vital to the Effective Representation of Clients?
In creating new precedent for the Western District, the Thompson court was likely persuaded by a number of factors, one of which is the growing recognition in the legal community that an effective opening statement is crucial to presenting a viable defense. Procedurally, opening statements are justified as a means of providing a roadmap to the jurors, so that they don't become lost or confused throughout the course of a trial. Strategically, however, opening statements are considered one of the most important segments of a trial because they enable the jurors to become acquainted with the attorneys and to develop initial impressions about the case.
The profound impact of opening statements in a criminal trial is without dispute.25 As one practitioner noted, "[I]f you have a presentable case, it should be over by the time you finish your opening statement."26 During the opening statement, a juror begins to lean toward one party and they subsequently support their initial feeling toward the evidence favorable to that view.27 When you are "watching an interesting football game," chances are, "[e]ven if you have no reason to favor either side, there is a good chance you will be rooting for one team or the other by the kick-off."28
Trial consultants continually emphasize the importance of presenting a central theme to jurors during opening statement.29 This is because opening statements provide the framework through which jurors view the case and process evidence.30 Subsequent information that fits into such a framework is more easily remembered.31 "Thus, a major battle is won when the attorney gets the jury to view the evidence in the case from his or her perspective."32
Opening statements are also important due to the principle of primacy.33 Since human beings tend to remember things in sequential order,34 an effective opening statement sets the stage for the decision-making the jurors will face in the trial ahead.35
Similarly, jurors are more likely to remember the opening statement because they are in a novel situation, thus inducing heightened attention.36 After the trial is worked into its middle phase, the jurors have become accustomed to their environment and their attention span begins to dwindle.37
Trial consultants generally advise that opening statements should not be waived or deferred.38 "By waiving or deferring an opening statement, the attorney risks the jurors adopting the opponent's view of the case at the outset of trial."39 Undoubtedly, the same reasoning that applies to the waiver or deferral of an opening statement applies when a court prohibits a defendant from making an opening (by limiting the defendant's ability to comment on cross-examination material). If a defendant is limited to an opening statement such as the three-sentence opening presented in Thompson, the jurors are likely to adopt the prosecution's theory of the case from the outset.
The Appropriate Scope of Opening Statements Following Thompson
The holding in Thompson stated that "the absolute rule prohibiting defense counsel from mentioning in its opening statement factual evidence that it intends to elicit on cross-examination of the State's witnesses goes beyond a prohibition against argument in opening statements."40 In dicta, the court added that a trial judge is able to distinguish between argument and factual evidence, and should use discretion in setting the proper scope.41 Finally, the court pointed out that when the defense goes beyond the appropriate scope of factual evidence during opening statement, such abuse can typically be remedied by pointing out such deficiencies to the jury during the state's closing argument.42
In a typical criminal trial, the state will file a motion in limine seeking to prohibit defense counsel from commenting on the state's evidence or witnesses during opening statement. Following the court's ruling in Thompson, defendants can now oppose these motions if they can proffer a factual basis in anticipated cross-examination testimony.
Conclusion
The Thompson decision has removed the absolute prohibition that had precluded defendants from mentioning facts that will be elicited during cross-examination. The depth of analysis offered by Thompson indicates that trial judges who follow the absolute prohibition may very well be denying the defendant the right to make a meaningful opening statement. As a result, where criminal defense attorneys outline those facts that will be elicited during cross-examination, they will be availing themselves of the Thompson ruling, and their openings should be unimpeded by the pre-Thompson prohibition. Failure to allow a defendant to make a fact-specific opening that includes those issues that will be raised through cross-examination would clearly constitute error.
Endnotes
1 Mr. O'Connor is the managing attorney for the O'Connor Law Firm, P.C. His practice is focused on criminal and civil litigation. Mr. O'Connor is a 1993 graduate of the University of Missouri-Kansas City School of Law.
2 Mr. Schopp has served as law clerk to the O'Connor Law Firm, P.C. He is a 2001 graduate of the University of Missouri-Kansas City School of Law. Mr. Schopp was admitted to The Missouri Bar in September 2001. He received his Master of Law in Taxation in December 2001.
3 Matthew J. O'Connor, Opening Statement Restriction Gives Prosecution Head Start, 56 J. Mo. Bar 100 (2000).
4 2001 WL 603529 ___ S.W.3d ___ (Mo. App. W.D. 2001).
5 2001 WL 603529 ___ S.W.3d ___ (Mo. App. W.D. 2001).
6 The rationale for abolishing this rule was published by the authors in 56 J. Mo. Bar 100-102 (March-April 2000).
7 ___ S.W.3d ___ at 8 (Mo. App. W.D. 2001).
8 Id. at 8.
9 Hays v. Missouri Pacific R.R. Co., 304 S.W.2d 800, 804 (Mo. 1957); see also Best v. District of Columbia, 291 U.S. 411 (1934).
10 State v. Feger, 340 S.W.2d 716, 724 (Mo. 1960).
11 State v. Arrington, 375 S.W.2d 186, 190 (Mo. 1964).
12 Thompson 1 at 6. For examples of appellate cases interpreting the rule against argument as forbidding cross examination material, see State v. Gibson, 684 S.W.2d 413 (Mo. App. E.D. 1984); State v. Bibbs, 634 S.W.2d 499 (Mo. App. E.D. 1982); State v. Nelson, 831 S.W.2d 665 (Mo. App. W.D. 1992); State v. Hamilton, 740 S.W.2d 208 (Mo. App. W.D. 1987).
13 Thompson, at 8.
14 Id.
15 Id. at 5.
16 Id.
17 Id.
18 Id. at 6.
19 State v. Gardner, 8 S.W.3d 66, 71 (Mo. banc 1999).
20 Id.
21 Thompson, note 1 at 8 citing L. Timothy Perrin, From O.J. to McVeigh: The Use of Argument in the Opening Statement, 48 Emory L.J. 107, 131 (1999).
22 Id. citing Best v. District of Columbia, 291 U.S. 411 at 415 (1934), and State v. Murray, 744 S.W.2d 762, 774 (Mo. banc 1988).
23 Id. abrogating the absolute prohibition used in State v. Flaaen, 863 S.W.2d 658, 660 (Mo. App. W.D. 1993); State v. Nelson, 831 S.W.2d 665 (Mo. App. W.D. 1992); and State v. Hamilton, 740 S.W.2d 208 (Mo. App. W.D. 1987).
24 Id.
25 Matthew J. O'Connor, Opening Statement Restriction Gives Prosecution Head Start, 56 J. Mo. Bar 100 (2000).
26 Id. at 100 citing Hugo Black Jr., The Opening Statement, 340 Pli/Lit 709 (1987).
27 James W. McElhaney, Taking Sides: What Happens in the Opening Statement, 78 A.B.A. J. 80 (May 1992).
28 Id. at 82.
29 See generally, Jeffrey T. Frederick, Ph.D., Persuasion at Trial: Opening Statements, Defense Practice Notebook 76 (1996).
30 Id. at 76.
31 Id.
32 Id.
33 O'Connor, note 20 at 101.
34 Donald E. Vinson, How To Persuade Jurors, 71 A.B.A. J. 72 (Oct. 1985).
35 O'Connor, note 20 at 101.
36 Id.
37 G. David Hughes & Henry S. Hsiao, Does the Opening Determine the Verdict?, 22 Trial Feb. 1986 at 66.
38 Jeffrey T. Frederick, Ph.D., note 29 at 78.
39 Id.
40 Thompson note 1 at 1.
41 Id. at 8.
42 Id. citing State v. Mease, 842 S.W.2d 98, 110 (Mo. banc 1992).
JOURNAL OF THE MISSOURI BAR
Volume 58 - No. 1 - January-February 2002