by Matthew J. O'Connor1
Missouri follows a strict rule that a criminal defendant may not discuss facts in opening statements that he intends to elicit on cross-examination. This prohibition handcuffs criminal defendants. As is often the case in criminal trials, the defense may not put on evidence. As a result, the defense is precluded from making an opening statement. This allows the state to put forward the theory of the case while the defendant is unable to offer his theory until much later in the trial. Given the noted impact of opening statement, this restriction gives the state a head start in nearly every criminal trial.
Let's cinch up our gloves and spar for a few rounds. Ring the bell, Mick. Before we start, may I tie your right hand behind your back? The phrase "I could whip him with one hand tied behind my back" rings true in a criminal trial. How so? Quite simply, criminal defendants start trial several paces behind the state. Why? Because under Missouri law, the breadth of the opening statement is limited to an outline of the evidence the defense intends to introduce at trial. Thus, a criminal defendant is forbidden from mentioning the evidence that will develop on cross-examination. In effect, a man charged with burglary may not mention in opening statement that the purported eyewitness admits she is legally blind, drank a case of scotch, and has a documented history of hallucinations. If our system is indeed a search for the truth, should we allow the state a head start in every criminal trial?
This rule against argument is followed throughout the United States in order to limit opening statements to material that each side intends to prove at trial. Missouri has adopted the strictest approach to the rule, forbidding discussion of material one expects to elicit during cross-examination.2 "That approach, despite its support among trial and appellate judges, defies common sense. Parties often seek to elicit proof during cross-examination, and they should be allowed to discuss it during the opening in the same way they discuss evidence elicited on direct examination."3 In the Menendez brothers' murder trial, counsel for the defendants was asked to limit her opening statement to what she intended to prove at trial. Her response was: "Cross-examination is also what I intend to prove, your honor."4 Our criminal justice system does not require a defendant to prove his own innocence. Rather, prosecutors must prove guilt. Logic follows that the most effective defense strategy is to disprove or at least cast shadows on the case made by the prosecution. This entails deconstructing the credibility of the prosecution's witnesses and evidence. As a result, an entire defense can rest on material elicited through cross-examination. If the entire case is based on cross-examination, defense counsel should be allowed to discuss that material during their opening statement.
Opening Statements Are Vital to Presenting a Defense
The profound impact of opening statements in a criminal trial is without dispute. As one practitioner noted, "If you have a presentable case, it should be over by the time you finish your opening statement."5 This feeling is echoed by many practitioners who believe that 80 percent of jurors decide the case during opening statements.6 During the opening statement, a juror begins to lean toward one party and they subsequently support their initial feeling with the evidence favorable to that view.7 "[w]hen you're watching an interesting football game . . . [e]ven if you have no reason to favor either side, you will be rooting for one team or the other by kick-off."8 Jurors decide the case so early because they seek reinforcement for their initial conclusions.9 Not surprisingly, jurors come with prejudice. They are eager to apply their beliefs and experiences to reach a conclusion. In doing so, the juror does not receive evidence in a neutral manner. Rather, they call on their own backgrounds to organize all of the information and establish a deductive framework to support their conclusion.10
Fears of Incorrect Statements of Fact in Opening Are Misguided
The fear in the judicial community that lawyers will misrepresent the facts during opening statement is not well founded.
The adversary system provides its own checks on advocate abuses during opening statement, without regard to the externally imposed limit of the rule against argument. If an advocate makes a promise about the expected evidence during the opening statement, but fails to keep that promise by not presenting the evidence, the jury may consider that failure, and the opposing party may point out the unreliability of the party's counsel and the party's case.14Research indicates that in three separate trial scenarios, when the prosecutor reminded the jury of the defense's unfulfilled promise to elicit certain testimony during cross-examination, the jury returned a finding of guilty.15 Any fears of misleading the jury with speculation of the substance of cross-examination are not borne out by the research.
The Rule Against Argument Stymies The Defense
The practical effect of this rule is that the defense will be left with very little or no material to offer the jury during opening statements, since their case usually centers around attacking the credibility of the prosecution's witnesses and evidence. Practitioners everywhere agree that opening statements can be the most important part of a trial because that is where the jurors make their first impressions. Consequently, this rule (so far as it restricts counsel from using cross-examination material in opening statement) infringes on defendants' constitutional rights to present a defense and to effective assistance of counsel. Those rights are protected by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri Constitution. When defense counsel is left with nothing of substance to discuss in their opening statement, the phrase "innocent until proven guilty beyond a reasonable doubt" is undermined. The defendant starts out perceived as guilty because the prosecution is allowed to give a chronological outline during opening statement of how they think the crime happened, while the defense doesn't begin to tell their side of the story until cross-examination.
Opening Statements Are Fundamental to Effective Assistance of Counsel
Opening statements are as deeply rooted in our adversarial tradition as closing arguments. The origins of opening statements can be traced to the English murder trial of Rex v. Orrell, where the court allowed the prosecutor to state all of the facts he intended to prove.16 Courts have taken judicial notice that for years the ability to make an opening statement has been protected by trial and appellate courts.17 The legal rationale supporting opening statements varies from state to state because it is the product of common law.18 Despite the minor differences among the jurisdictions, the opening statement remains remarkably similar across the country and has become a mainstay of the American trial. It is arguably a fundamental component of a fair trial akin to closing argument. Justice Stewart, writing for the court in Herring v. New York, concluded that the closing argument is a fundamental element of a fair trial because it had become an integral part of our adversarial system.19 The same empirical support exists for the right to make an opening statement. The right to make an opening statement has risen to the level of an essential component of American justice.
The Rule Denies a Defendant the Right to Present a Defense
The line of reasoning that supports the right to present a defense hinges on the belief that obstacles that inhibit the defendant's right to present evidence of innocence should be removed.20 The ultimate goal of our adversarial system is to offer both the state and the defendant the ability to "fully participate in the search for truth in a criminal trial."21 When the opening statement is restricted so greatly as to make it ineffective, the defendant is placed at a severe disadvantage. This disadvantage vitiates the equal playing field envisioned by our adversarial system. By eliminating a defendant's ability to present the jury with expected testimony from cross-examination, the defendant's right to present an effective defense is denied.
Given the noted impact of an opening statement, denying a defendant the right to comment on the state's witnesses during opening statement has the same detrimental effect of denying the defendant the right to offer rebuttal witnesses; arguably, even greater damage is done to the defendant by restricting opening statement, given the fact that juries are so greatly influenced by first impressions. In the Texas case Arriaga v. State, the court held that where a statute provides a defendant the right to make an opening statement, the trial court should not restrict their right to comment on testimony derived from cross-examination.22 In Arriaga, the case came down to an issue of the credibility of the undercover officer who testified he purchased herion from the defendant.23 The trial court prevented defense from discussing the officer's credibility in the opening statement. The Texas Appeals Court reversed:
By not being allowed to state the nature of the defense relied upon and the facts expected to be proved in their support before the State presented its evidence, appellant was not able to have the jury evaluate the State's evidence in the context of the defense position as that evidence was being heard. Additionally, appellant was not able to have the jury relate the defense cross-examination of the State's witnesses to the overall defense posture as the cross-examination was being conducted.24Like Texas, Missouri recognizes the right to make an opening statement25 but that right is like an empty promise because Missouri courts place such severe limitations on what the defense is able to present in opening statement.
Given the fact that the opening statement is the lynch pin of the jury's view of the case, and the fact that we have a 'checks' system that challenges the credibility of an advocate who misrepresents evidence, there is no reason that a defense lawyer should be prevented from discussing cross-examination material during opening statement. Such a restriction is an infringement on a defendant's right to present a defense and to effective assistance of counsel.
Now, would your like to spar with both hands? Ring the bell, Mick. Let's have a clean fight, no hitting below the belt.
Endnotes
1 Mr. O'Connor is the managing attorney for The O'Connor Law Firm, P.C. His practices focuses on state and federal criminal defense. Mr. O'Connor received his J.D. in 1993 from the University of Missouri at Kansas City. He previously served as an assistant appellate defender and later as the district defender for the Fifth Judicial Circuit. He is in private practice in Kansas City. Mr. O'Connor would like to thank Nicholas B. Schopp, law clerk for The O'Connor Law Firm, P.C. and second year law student for his assistance with this article.
2 State v. Nelson, 831 S.W.2d 665, 666 (Mo. App. W.D. 1992).
3 Timothy L. Perrin, From O.J. To McVeigh: The Use Of Argument In The Opening Statement, 48 Emory L.J. 107, 153 (1999).
4 Id. quoting "People v. Menendez, No. BAO68880, 1995 WL 597781, at *44 (Cal. Super. Ct. Oct. 11, 1995)."
5 Hugo Black Jr., The Opening Statement, 340 Pli/Lit 709 (1987).
6 James W. McElhaney, Taking Sides: What Happens In The Opening Statement, 78 A.B.A. J. 80 (May 1992).
7 Id. at 80.
8 Id.
9 Donald E. Vinson, How to Persuade Jurors, 71 A.B.A. J. 72 (Oct. 1985).
10 Id.
11 Id. at 74.
12 Id.
13 G. David Hughes and Henry S. Hsiao, Does the Opening Determine the Verdict?, Trial Feb. 1986 at 68.
14 Timothy L. Perrin, From O.J. To McVeigh at 163.
15 Saul M. Kassin, The American Jury: Handicapped in the Pursuit of Justice, 51 Ohio St. L.J. 687, 696 (1990).
16 James R. Lucas, Opening Statement, 13 U. Haw. L. Rev. 349, 356 (1991).
17 Id.
18 Id.
19 Herring v. New York, 422 U.S. 853 (1975).
20 Id.
21 Robert N. Clinton, The Right to Present a Defense, An Emergent Constitutional Guarantee in Criminal Trials, 9 Ind. L. Rev. 713, 857 (1976).
22 Arriaga v. State, 804 S.W.2d 271 (Tex. App. 1991).
23 Id.
24 Id. at 276.
25 Mo. Sup. Ct. 27.02(f) and (i) (1990).