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Timothy Perrin, "From O.J. to McVeigh: The Use of Argument in the Opening Statement," 48 Emory L.J. 107, 107-108 (1999):

"Opening statements are not evidence .... We're lawyers. We're not witnesses. We're not under oath. Nothing we say is evidence." n1

- Christopher Darden, opening statement in People v. O.J. Simpson

 

"The opening statement is not opening argument, but it is just that - opening statement. If you have had occasion to go to a movie, you know that there is something called the previews of coming attractions. [The opening statement] is supposed to be a guide, a roadmap, if you will, what we expect the evidence to show .... What I say is not evidence." n2

- Johnnie Cochran, opening statement in People v. O.J. Simpson

 

"An opening statement is not argument. I am not permitted ... to argue the strength of my evidence, to try to convince you to accept my version and to reject the defense version .... At this time we will simply tell you what the evidence will show." n3

- David Conn, opening statement in People v. Erik and Lyle Menendez

 

Introduction

 

Lawyers believe that a juror's first impressions "harden like cement,"n4 thus making the opening statement an invaluable tool of persuasion, an irreplaceable first opportunity to advocate the lawyer's case to the jury.n5 Yet, "rule one on page one" is that the lawyer may not "argue" during the opening statement.n6 The rule against argument, along with a litany of other limitations, conspires to preclude overt displays of partisanship in the opening statement, limiting the advocate to giving an overview of his expected proof at trial. Every trial lawyer, even the novice, knows the rule against argument.n7

n1. People v. Simpson, No. BAO97211, 1995 WL 25440, at *19 (Cal. Super. Ct. Jan. 24, 1995) (opening statement of Christopher Darden).

n2. People v. Simpson, No. BAO97211, 1995 WL 27396, at *12 (Cal. Super. Ct. Jan. 25, 1995) (opening statement of Johnnie Cochran).

n3. People v. Menendez, No. BAO68880, 1995 WL 597779, at *16 (Cal. Super. Ct. Oct. 11, 1995) (opening statement of David Conn).

n4. Alfred S. Julien, Opening Statements 1.01, at 2 (1996); James R. Lucas, Opening Statement, 13 U. Haw. L. Rev. 349, 351 (1991).

n5. See Julien, supra note 4, 1.01, at 3 ("At the time of openings ... the jury is neither bewildered nor tired nor angry at the loss of time. It has been told it is to be a judge and it is anxiously awaiting something to adjudge. The opening statement is the answer."); Francis L. Wellman, Day in Court 134 (1914) ("In an opening speech one has the opportunity of creating ... a favorable opinion of his case. If the advocate interests his jurymen in his behalf at the very beginning, they will often retain throughout an unconscious bias in favor of his side and want to see him win.").

n6. See Leonard Decof, The Art of Advocacy 1.06[1] (1992) ("The major and most frequent objection made during an opening statement is that the lawyer is making argument."); Robert S. Hunter, Federal Trial Handbook 2d 277 (1984) (noting that "there is no place for any argument in the opening statement").

n7. See Kenney F. Hegland, Trial and Practice Skills 197 (2d ed. 1994) ("Everyone knows that you cannot argue during opening.").