The opening statement provides an opportunity for counsel to present their respective cases as a whole and in a way to elicit the sympathy of the jurors for their respective positions. The opening statement is important as it will provide the first information that the jurors will receive as to the facts of the cases, and the first impression is important. For this reason, as well as for others, counsel would be well-advised to heed the requirements for an opening statement so as not to exceed them to the point of drawing a warning from the court to the jury.
In the opening statements, counsel should confine their remarks to (i) the evidence they intend to offer which they believe will be available and admissible, and (ii) a brief statement of the issues in the case.3 It is improper to allude to any evidence unless there is a good-faith and reasonable basis for believing that such evidence will be tendered and admitted into evidence.4 If counsel intends to refer in the opening statement to evidence which is of doubtful admissibility, counsel should make an offer of proof to the judge in support of the admissibility of the evidence, prior to the opening and outside the presence of the jury.4.1 It may be preferable, where possible, to have the admissibility of the evidence decided prior to trial through a motion in limine.4.2 If what counsel states is, on its face, manifestly inadmissible as proof or if counsel makes any statement that ultimately is not supported by proof, the judge should instruct the jury to disregard it.5 Opposing counsel is entitled to so request.
As the purpose of the opening statement is to acquaint the jury with the facts the parties expect to prove, a court may properly prevent counsel from commenting upon the law in the opening statements.6
3. Hughes v. State, 437 A.2d 559, 567 (Del. 1981); Holmes v. State, 422 A.2d 338, 340 (Del. 1980).
4. Hughes v. State, 437 A.2d 559, 567 (Del. 1981). See also Parson v. State, 275 A.2d 777, 790 (Del. 1971); Pritchard v. Henderson, 50 A. 217, 219 (Del. Super. 1901); Del. R. Prof. Cond. 3.4(e) (“[al lawyer shall not …in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence…”).
4.1. See Bridges v. State, 706 A.2d 489, 491 (Del. 1998).
4.2. See § 2:10.
5. Pritchard v. Henderson, 50 A. 217, 218, 219 (Del. Super. 1901).
6. Holmes v. State, 422 A.2d 338, 340 (Del. 1980).
© 2010 David L. Finger