CASES & STATUTES

VISUALS


SUMMARY OF CASES
OPENING STATEMENT &  JURY ARGUMENT
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+ A prosecutor may argue the state's case forcefully, provided the argument is fair and based
upon the facts in evidence and the reasonable inferences to be drawn therefrom.
+  The occasional use of rhetorical devices is simply fair argument.
+  Counsel in jury argument is entitled to considerable leeway in deciding how best to highlight or underscore the facts and
the reasonable inferences to be drawn therefrom, for which there is adequate support in the record.
+  The prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the jury's attention from the facts of the case; this heightened duty derives from long recognition of the special roles played by the government's attorney in a criminal case.
+  The prosecutor is not only an officer of the court, like every attorney, but is also a high public officer, representing
the people of the state, who seek impartial justice for the guilty as much as for the innocent.
The prosecutor's conduct and language in the trial of cases in which human life or liberty is at stake should be forceful, but fair,
because the prosecutor represents the public interest, which demands no victim and asks no conviction through
the aid of emotional passion, undue prejudice, or vengeful resentment.
Statements of a prosecutor designed to inflame passions and ignite undue prejudice of the jurors, have the effect of diverting
the juror's attention from their duty to decide the case on the evidence.
+  While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never
be used as a license to state, or comment upon, or suggest an inference from, facts not in evidence, or to
present matters which the jury has no right to consider.
+ While a prosecutor may strike hard blows, s/he is not at liberty to strike foul ones. It is as much her/his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
+ A prosecutor must draw a careful line. S/he should be fair and should not seek to arouse emotional passion and
undue prejudice, but earnestness or even stirring eloquence cannot convict her/him of hitting foul blows.
+  A prosecutor in fulfilling her/his duties must confine her/himself to the evidence in the record.
+  A prosecutor may invite the jury to draw reasonable inferences from the evidence; however, s/he may not invite
sheer speculation unconnected to the evidence.
Statements in argument as to facts that have not been proven amount to improper unsworn testimony.

Objections to Opening Statement in Criminal Cases - This list of objections will be useful when you plan, prepare and write your own opening statement and when you listen to the opposition's opening statement and try to sort out the impermissible from the permissible. You must carefully construct your own opening statement so that it is not an argument. That is, you may talk about the facts, but you may not argue logical inferences that could be drawn from those facts. Also, in opening statement, you may not make appeals to passion, fair play or common sense - all things that are allowed during the final argument but not during opening statement. The same goes for your opponent. So in learning how to craft your own opening statement, you are learning how to object when your opponent steps out of bounds with his or hers. Consult your jurisdiction's Rules of Professional Conduct, Advisory Ethics Opinions on the CCJA -Ethics page (1) as well as the ABA Standards - Prosecution Function - Opening Statement - Standard 3-5.5 and Jury Argument- Standard 3-5.8 and  ABA Standards - Defense Function - Opening Statement - Standard 4-7.4 and Jury Argument - Standard 4-7.8  See also Model Rules of Professional Conduct,e.g., Rules 3.4, 8.4. Ethics for Prosecutors has a list of appellate decisions with shorthand renditions regarding proper and improper jury arguments.

Objections to Jury Argument in Criminal Cases -  Most of us instinctively recognize the impropriety of certain speech in jury argument, e.g., name calling, making derogatory remarks about opposing counsel, expressing personal opinion as where one personally vouches for the credibility of his witnesses, arguing the existence of facts outside the record as where one explicitly or implicitly assures the jurors that other information not presented in evidence supports a conviction (or acquittal), etc. This hyperlinked list of objections will provide you with a more sophisticated list of objections to jury argument. Use it along with cases from your own jurisdiction to create an objection list for your trial notebook.

The Prosecutor's Role

"The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor - indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." 
Justice George Sutherland
Berger v. United States, 295 U.S. 78 (1935)

Invited Argument

The Doctrine of Invited Argument or Opening the Door or Invited Reply or Invited Response: The doctrine of invited argument (opening the door, invited reply, invited response) refers to the right of one party to respond to the opponent's argument with argument that would otherwise have been improper but for the opponent's argument that opened up the area for comment in response or reply. Assume for example a case where the defendant did not testify; if the defense lawyer argues to the jury that the defendant has never been given an opportunity to explain his side of the story, under the doctrine of invited argument an appellate court could well hold that, without violating the privilege against self-incrimination, the prosecutor could reply or respond with an argument that the defendant could have taken the witness stand and explained his side of the story to the jury.

Texas Bar Exam Question re Order of Opening Statement

"QUESTION (appears several times on recent Texas Bar Exams; answer below under Texas)
After the jury is seated and the indictment is read, Prosecutor makes her opening statement to the jury. At the conclusion of the State's opening statement, the following exchange occurs:
THE COURT: Defense Counsel, do you wish to make an opening statement?
DEFENSE: I do, Your Honor. However, I wish to make it after the State rests its case.
THE COURT: That request is denied. Either make it now or you waive it. We're not going to drag this trial out.
Is this ruling correct?"  On the order or sequence of opening statements, see Article 36.01 CCP and the full discussion below under Texas. [On the order of argument at the end of the case see Article 36.07 CCP and the full discussion below under Texas.]
 
CASES ON OPENING AND ARGUMENT FROM THE VARIOUS STATES

1. ALABAMA
Opening Statement:
  • Baker v. State, 2001 WL 32832 (Ala. Crim. App. 2001).
Jury Argument:
2. ALASKA
Opening Statement:
Jury Argument:
3. ARIZONA
Opening Statement:
Jury Argument:
  • State v. Martinez, 854 .P. 2d 147 (Az. 1993). Held improper for prosecutor, over objection, to argue to the jury that the Arizona Supreme Court has said that a felon can reasonably be expected to be untruthful if it is to his advantage.
4. ARKANSAS
Opening Statement:
Jury Argument:
5. CALIFORNIA
Opening Statement:
Jury Argument:
  • People v. Katzenberger, 101 Cal. Rptr. 3d 122 (Cal. 2009). Held that the prosecutor's PowerPoint presentation depicting an easily solved jigsaw puzzle with missing pieces to illustrate that jurors did not need every piece of evidence improperly watered down the reasonable doubt standard.
6. COLORADO
Opening Statement:
Jury Argument:
7. CONNECTICUT
Opening Statement: The law of Ct. does not provide for opening statements.
Jury Argument:
8. DELAWARE
Opening Statement:
Jury Argument:
  • Waters v. State, 974 A.2d 858 (Del. 2009). Requiring defense to give its argument first held to violate mandatory language of state rule that required prosecution to open the arguments with a right of closing rebuttal.
9. DISTRICT OF COLUMBIA
Opening Statement:
Jury Argument:
10. FLORIDA
Opening Statement:
Jury Argument:
  • Wike v. State, 648 So.2d 683 (Fla. 1994). This case demonstrates the arcane Florida Rule 3.25 Fl. R. Cr. P. stating "...a defendant offering no testimony in his or her own behalf, except the defendant's own, shall be entitled to the concluding argument before the jury." This rule allows the defendant who presents no evidence, other than his own testimony, to open and close the argument. See Georgia which has a similar rule.
11. GEORGIA
Opening Statement:
  • Sheriff v. State, 587 S.E.2d 27  (Ga. 2003) Number of lawyers who can argue for the defense.
  • Parker v. State, WL 22381052 (Ga. 2003).
Jury Argument:
  • Nash v. State, 683 S.E.2d 591 (Ga. 2009). Name calling reference to gunman as "terrorist" held proper.
  • Here's an article explaining the highly unusual Georgia rule of procedure providing that when a criminal defendant offers no evidence, with the exception of his own testimony, such defendant has the right to open and close the argument, sandwiching the prosecution between the two. Note also that the Georgia closing portion of the argument is not limited to rebuttal, thus allowing the practice of "sandbagging."
12. HAWAII
Opening Statement:
.Jury Argument:
13. IDAHO
Opening Statement:
Jury Argument:
14. ILLINOIS
Opening Statement:
Jury Argument:
15. INDIANA
Opening Statement:
Jury Argument:
  • Poindexter v. State, 374 N.E.2d 509 (Id. 1978). This case supports the trial court's refusal to allow the accused to participate in the jury argument.
16. IOWA
Opening Statement:
Jury Argument:
17. KANSAS
Opening Statement:
Jury Argument:
  • State v. King, 204 P.3d 585 (Kan. 2009). No objection required to preserve error in opening statement and argument; Doyle v. Ohio, 426 U.S. 610 (1976) violation.
18. KENTUCKY
Opening Statement:
  • Wheeler v. Commonwealth, 121 S.W.3d 173 (Ky. 2003). Prosecutor's use of words "slaughterhouse" and "slaughtered like a pig" not error.
Jury Argument:
19. LOUISIANA
Opening Statement:
  • State v Hall, 986 So.2d 863 (La 2008). Reference to confession before it had been ruled admissible and statement that defendant was "in jail" not error.
  • State v Davenport, 978 So.2d 1189 (La 2008) Prosecutor's statement that defendant was "in jail" not unmistakable reference to uncharged misconduct.
Jury Argument:
20. MAINE
Opening Statement:
Jury Argument:
21. MARYLAND
Opening Statement:
Jury Argument:
  • Mitchell v. State, 969 A.2d 989 (Md. 2009). When defense criticized prosecution for "holding back" witnesses, fair response/comment doctrine allowed prosecution to comment on defense right to subpoena witnesses
22. MASSACHUSETTS
Opening Statement:
Jury Argument: One argument per side; defense gives its argument; then, prosecution gives its argument; no rebuttal                                                   arguments permitted.
23. MIGHIGAN
Opening Statement:
Jury Argument:
24. MINNESOTA
Opening Statement:
Jury Argument:
25. MISSISSIPPI
Opening Statement:
Jury Argument:
  • Brown v. Mississippi, 986 So.2d 270 (Miss. 2008). "Send a message " argument - test of reversible error requires that it must be clear beyond a reasonable doubt that, absent the inappropriate comment, the jury would have found the defendant guilty.
26. MISSOURI
Opening Statement:
Jury Argument:
27. MONTANA
Opening Statement:
Jury Argument:
28. NEBRASKA
Opening Statement:
Jury Argument:
29. NEVADA
Opening Statement:
Jury Argument:
30. NEW HAMPSHIRE
Opening Statement:
Jury Argument:
31. NEW JERSEY
Opening Statement:
Jury Argument:
  • State v. Bradshaw, 920 A.2d 1228 (N.J. 2007). Held, improper vouching for the credibility of a deaf witness by the prosecutor who argued the heightened sensory perception of deaf people constituted error; case reversed.
32. NEW MEXICO
Opening Statement:
Jury Argument:
33. NEW YORK
Opening Statement:
  • People v. Hagi, 572 N.Y.S.2d 663 (1991).  Name calling results in mistrial.
Jury Argument: One argument per side; the defense gives its argument; then, the prosecution gives its argument; no rebuttal         arguments allowed.
  • People v. Spann, 918 N.Y.S.2d 588 (NY App. Div. 2011) Improperly shifting the burden and arguing outside the record.
  • People v. Brown, 812 N.YS.2d 561 (NY App. Div. 2011) Improperly impugning the defense and witness voucher.
  • People v. Fredrick, 861 N.Y.S.2d 895 (NY App. Div. 2008) Improper voucher for credibility of prosecution witnesses.
  • People v. Gorghan, 787 N.Y.S.2d 178 (NY App. Div. 2004) Misstating evidence and the law.
  • People v. Collins, 784 N.Y.S. 489 (N.Y. App. Div. 2004). Reversed for cumulative errors in arguments.
  • People v. Bowie, 607 N.Y.S.2d 248 (NY App. Div. 1994) Reversed in part for emotional appeals.
34. NORTH CAROLINA
Opening Statement:
Jury Argument: See the 2011 NC Defender Manual for a discussion of NC law of criminal jury argument.
If the criminal defense offers no testimony or exhibits the defense is afforded the last argument. See State v.                                        Mouzon, 485 S.E.2d 918 (1997)
35. NORTH DAKOTA
Opening Statement:
Jury Argument:
36. OHIO
Opening Statement:
Jury Argument:
37. OKLAHOMA
Opening Statement:
Jury Argument:
38. OREGON
Opening Statement:
Jury Argument:
39. PENNSYLVANIA
Opening Statement:
  • Commonwealth v. Parker, 919 A.2d 943 (Pa. 2007). Held that it is permissible for counsel to display tangible evidence during opening statement so long as counsel intends to introduce the item and there is no question as to its admissibility.
Jury Argument: See many NC cases listed in the NCIDS pdf on the subject of Jury Argument in NC criminal cases
  • Commonwealth v. Chambers, 599 A.2d 630 (Pa. 1991). Pennsylvania case law holds, "Reliance in any manner upon the Bible or any other religious writing in support of the imposition of the death penalty is reversible error per se and may subject violators to disciplinary actions."
40. RHODE ISLAND
Opening Statement:
Jury Argument:
41. SOUTH CAROLINA
Opening Statement:
Jury Argument:
42. SOUTH DAKOTA
Opening Statement:
Jury Argument:
43. TENNESSEE
Opening Statement:
Jury Argument:

44. TEXAS  
Federal Rules of Evidence
Texas Rules of Evidence (1/1/18)
Texas Penal Code
Texas Code of Criminal Procedure
Texas Rules of Civil Procedure (1/1/18)
Texas Rules of Appellate Procedure (7/1/17)
Other Texas Codes

TEXAS OPENING STATEMENT:
CASES
  • Dunn v. State, 819 S.W.2d 510 (Tex. Crim. App. 1991) - The defense has a statutory right to make an opening statement under the provisions of Art. 36.01 Tx.C.C.P
  • Moore v. State, 868 S.W.2d 787 (Tex. Crim. App. 1993) - The defense has no right to make an opening statement prior to presentation of the prosecution's case when the prosecution waives its right to give an opening statement; of course, the defense still retains its right to deliver an opening statement at the outset of its case-in-chief provided that the defense is going to present a case-in-chief.  [Note: This rule of case law seems to preclude any defense opening statement in cases where the prosecution has waived its right to make an opening statement and the defense rests its case without putting on a case-in-chief.] See Art. 36.01 Tx.C.C.P.
  • Abney v. State, 1 S.W.3d 271 (Tex. App. - Houston [14th Dist.] 1999) PDR ref. - The trial court's erroneous refusal to allow the defense to present its opening statement immediately after the prosecution's opening statement was deemed harmless error under the circumstances when the trial court subsequently allowed the defense to deliver an opening statement at the beginning of the defense case.
  • Graham v. State, 3 S.W.3d 272 (Tex. App. - Fort Worth 1999), PDR ref. - One must object to the prosecutor's continued injection of improper opening statement; one objection to the particular improper statement does not preserve error when the same matter is again mentioned without objection, even if both instances of impropriety are in violation of a motion in limine; the violation of a motion in limine re opening statement does not preserve error.
  • McGowen v. State, 25 S.W.3d 741 (Tex. App. - Houston [14th Dist.] 2000), PDR ref.  - The denial of the right to make an opening statement, when it has been preserved by proper objection, will be subjected to a harmless error analysis by the appellate court.
  • Powell v. State, 63 S.W.3d 435 (Tex. Crim. App. 2001) - The court suggests that the defense opening statement might be a vehicle to "opening the door" to otherwise inadmissible prosecution evidence.
  • Love v. State, 69 S.W.2d 678 (Tex. App. - Texarkana 2002) - There is no constitutional or statutory right for the prosecution or defense to make an opening statement at the beginning of the punishment phase of a trial.
  • Fisher v. State, 220 S.W.3d 599 (Tex. App - Texarkana 2007) - Displaying unpreadmitted photos of the alleged victim during opening statement was harmless error.
  • Guillory v. State, 397 S.W.3d 864 (Tex. App. - Houston [14th Dist.] 2013, no pet) - The right to make an opening statement is a statutory right rather than a constitutional imperative.
  • TIP: If you want to display a visual during opening statement and the item will be an exhibit, move to preadmit it before opening; you can support your motion to preadmit with testimony or an affidavit from the witness(es) who will establish the evidentiary foundation for receipt of the exhibit.

TEXAS STATUTES RE OPENING STATEMENT -  CRIMINAL CASES:
  • What is an opening statement and when is it delivered? Article 36.01 Texas Code of Criminal Procedure Order of Proceeding in Trial provides in part  as follows: "(a) A jury being impaneled in any criminal action, except as provided by Subsection (b) of this article, the cause shall proceed in the following order: ...  3. The State's attorney shall state to the jury the nature of the accusation and the facts which are expected to be proved by the State in support thereof  ...  5. The nature of the defenses relied upon and the facts expected to be proved in their support shall be stated by defendant's counsel.    (b) The defendant's counsel may make the opening statement for the defendant immediately after the attorney representing the State makes the opening statement for the State. After the defendant's attorney concludes the defendant's opening statement, the State's testimony shall be offered. At the conclusion of the presentation of the State's testimony, the defendant's testimony shall be offered, and the order of proceedings shall continue in the manner describe by Subsection (a) of this article. [Note: In describing the order of the trial, the geniuses in the legislature omitted any mention of jury argument in Article 36.01, saving that for Articles 36.07 and 36.08.]

TEXAS STATUTES RE OPENING STATE - CIVIL CASE
  • Rule 265 Tex. R. Civ. P. provides: The trial of cases before a jury shall proceed in the following order unless the court should, for good cause stated in the record, otherwise direct: (a) The party upon whom rests the burden of proof on the whole case shall state to the jury briefly the nature of his claim or defense and what said party expects to prove and the relief sought. Immediately thereafter, the adverse party may make a similar statement, and intervenors and other parties will be accorded similar rights in the order determined by the court...  [Note: If the adverse party does not make a back-to-back opening statement, it then makes it's opening at the conclusion of the plaintiff's case-in-chief per (c).]  (c) The adverse party shall briefly state the nature of his claim or defense and what said party expects to prove and the relief sought unless he has already done so.

TEXAS JURY ARGUMENT:
  • Look at the statutes, rules and ruling case law. By way of introduction, the statutory procedure for argument, insofar as the order and number of arguments, will be noted following this listing of cases. Be aware that the statutes and rules do not advise you of what arguments are permissible and impermissible. For this, you must consult and understand the ruling case law. Thus, we will list a number of the Texas cases dealing with the propriety of jury arguments. You will also see that there is also case law on failure to preserve error in argument by failure to object and waiver of objection in cases of "invited" argument where defense counsel has "opened the door" to otherwise improper prosecution argument. Concerning the preservation of error, there is a very important rule about which you must be aware in preserving error. This is Rule 33.1 of the Texas Rules of Appellate Procedure. There is also another rule that governs what constitutes reversible error in criminal cases. This is Rule 44.2 of the Texas Rules of Appellate Procedure.   
  • What qualifies as a proper subject for jury argument in criminal cases? Alejandro v. State, 493 S.W.2d 230 (Tex.. Crim. App. 1973) - Landmark Texas Case This case purports to limit the proper subjects of jury argument in a criminal case to four areas of discussion, i.e., (1) summation of evidence, (2) reasonable inferences from the evidence, (3) reply or answer to opposing counsel's statements, and (4) pleas for effective law enforcement. [This is a myopic and hypocritical view that is belied by numerous other opinions from the same court authorizing other statements that may be legitimately made in argument. For example, counsel is always allowed to discuss the law contained in the court's instructions in arguing it's application to the facts. See Hawkins v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004) where at least one judge of the high criminal court recognizes the fallacy of the Alejandro limitations.]
  • Can the prosecution comment on failure by the defendant to call the defendant's spouse? Yes. Rule 504(b)(2) TRE states, "Failure by an accused to call the accused's spouse as a witness, where other evidence indicates that the spouse could testify to relevant matters, is a proper subject for comment by counsel."
  • What qualifies as a proper subject for jury argument in civil cases? Reese v. Standard Fire Insurance Company, 584 S.W.2d 835 (Tex. 1979) - Landmark Texas Civil Case  This civil case established that wide latitude is afforded to counsel in arguing Texas civil cases. By implication, Reese can be extended to criminal cases.
  • How do you preserve error when an objectionable argument in made in a criminal case? Cockrell v. State, 933 S.W.2d 73 (Tex. Crim. App. 1996) - Landmark Texas Case The defense failure to object to a jury argument or the defense failure to pursue the original sustained objection to an adverse ruling by the trial judge, i.e., requesting an instruction that the jury disregard, and, if that is granted and a curative instruction given, moving for mistrial, waives the right of the defense to complain about the argument on appeal. Thus, the defense forfeits its right to contend that the prosecution's argument was error if the defense does not object and also pursue its objection to a negative ruling by the trial court. See Threadgill v. State, 146 S.W.3d 654 (Tex. Crim. App. 2004); Howard v. State, 153 S.W.3d 382 (Tex. Crim. App. 2004) holding that if the same allegedly improper information is before the jury without objection in the argument of opposing counsel a subsequent objection when counsel repeats preserves nothing for review; the fact that the information came in without objection waives the issue even if one objects when the information is repeated in the argument. Also, if you object at trial to argument as improper on one ground and argue a different ground on appeal, you have no appellate issue; your objection(s) at trial must be the one(s) you argue on appeal. See Wead v. State, 129 S.W.3d 126 (Tex. Crim. App. 2004). Do you see why it is very important to know the proper objection to make at trial.  [Notice: When the failure to object is egregious (flagrant), the appellate courts may reverse on the ground of ineffective assistance of counsel, see Andrews v. State, 159 S.W.3d 98 (Tex. Crim. App. 2005). For further information on possible objections in criminal cases, take a look at the CCJA page Objections to Jury Argument in Criminal Cases.
  • Should I be on the lookout to be sure that there is a court reporter present to record the entire jury argument, the objections and responses of the parties, the ruling of the court,  and all bench conferences. See Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1997) - Yes. Though the new Texas Rules of Appellate Procedure provide that the court reporter record the jury argument without the necessity of motion requesting such action, if the court reporter does not do so the defense should object to preserve its claim of error on appeal.
  • How long do you have to argue? - Case law indicates that the defendant must be given a reasonable period of time in which to argue the case. See Dang v. State, 154 S.W.3d 616 (Tex. Crim. App. 2005) listing the following seven factors as revealing of whether the defense was given a sufficient period of time in which to argue: quantity of evidence, length of the trial, conflicts in the testimony, seriousness of the crime charged, complexity of the facts and law, whether the lawyer in the actual case used the time allotted efficiently, and whether the lawyer made a record of the issues that s/he wanted to discuss but which were not discussed because of the strictures of time imposed by the court. [Note: If the defender is unduly restricted in the amount of time allowed for jury argument, the objection should always be couched in terms of a violation of the Sixth Amendment of the U.S. Constitution and Article 1, Section 10, Texas Constitution right to counsel. See Herring v. New York, 422 U.S. 853 (1975) holding the total denial of the right to argue in a jury or nonjury case violates the Sixth Amendment. See also Johnson v. State, 698 S.W.2d 154 (Tex. Crim. App. 1985) This should be presented as a constitutional error under Rule 44.2 (a) Texas Rules of Appellate Procedure.

CATEGORIES OF IMPERMISSIBLE JURY ARGUMENT IN TEXAS CRIMINAL CASES   
  • Argument that goes beyond the evidence -misstatements of evidence, misleading inferences and references to the existence of facts not in evidence
  • Argument that goes beyond the evidence -  assertions of personal knowledge and beliefs concerning disputed facts, witness credibility, and or guilt of the accused - See Fowler v. State, 500 S.W.2d 643 (Tex. Crim. App. 1973); Menefee v. State, 614 S.W.2d 167 (Tex. Crim. App. 1981). It is also improper for counsel to tell the jury what the judge believes about the merits of the case. See Dunbar v. State, 551 S.W.2d 382 (Tex. Crim. App. 1977).
  • Argument that appeals to racial, religious, ethnic, political, economic and/or patriotic prejudice and passion  
  • Argument that calls for conviction to meet civic duty due to community sentiment - See Cortez v. State, 683 S.W.2d 419 (Tex. Crim. App. 1984).
  • Argument that invites a juror to imagine that the circumstances of the crime as if it had happened to the juror and his/her family, thus entreating the juror to abandon his/her objectivity in deciding the case. See Brandley v. State, 691 S.W.2d 699 (Tex. Crim. App. 1985) But see Ayala v. State, 267 S.W.3d 428 (Tex. App. - Houston [14th Dist] 2008)
  • Argument that is unfairly prejudicial, abusive, and inflammatory
  • Argument that invites the jury to disregard and nullify the applicable law contained in the court's instructions to the jury
  • Argument that discusses punishment at the guilt phase of the bifurcated trial including argument that invites the jury to consider that the defendant may not be required to suffer conviction or the full penalty of the law , e.g., arguments regarding parole, pardon or clemency

CATEGORIES OF PERMISSIBLE JURY ARGUMENT IN TEXAS CRIMINAL CASES
  • Introductory remarks, including thanking the jury and explaining the purpose of jury argument and telling the jurors what will occur procedurally when the arguments are concluded
  • Role and duty of the jury
  • Discussion of court's instructions to the jury including reading the instructions and properly paraphrasing them in layman's language for explanatory purposes and distinguishing the evidence in the case at bar from hypothetical cases to which the instructions may apply.
  • Recounting and summarizing the factual evidence or the lack of it and urging reasonable deductions and inferences from the factual evidence - The burden of proof being what it is, summation of the evidence is the heart of the prosecution's argument. Regarding characterizations and labels, the primary issue is whether the evidence supports the prosecutors description of the defendant. See Burkett v. State, 179 S.W.2d 18 (Tex. App. - San Antonio 2005); Renn v. State, 495 S.W.2d 922 (Tex. Crim. App. 1973). Prosecutors are allowed to comment on the accused's failure to call his/her spouse as a witness. See Boles v. State, 598 S.W.2d 274 (Tex. Crim. App. 1980).
  • Witness credibility or lack of it
  • Use of relevant analogies, metaphors, quotations, and demonstrations - See State v. Stern, 171 S.W.2d 351 (Tex. Crim. App. 1943).
  • Matters of common knowledge based on ordinary human experience - See Nenno v. State, 970 S.W.2d 549 (Tex. Crim. App. 1998)
  • Answer or reply to the argument of opposing counsel - This is sometimes referred to as "invited argument" when it deviates from the normal rules of proper argument because it is invited by argument of opposing counsel. See
  • Discussion of the opposition's theory of the case and opposing counsel's tactics
  • Punishment [Note: This issue arises at the punishment hearing after conviction at the guilt stage. Argument re punishment is not permitted at the guilt stage. See McClure v. State, 544 S.W.2d 390 (Tex. Crim. App. 1976)] - Subjects include: character and background of the defendant; nature of crime and punishment; incarceration; probation; death penalty; leniency and mitigation
  • Concluding remarks

SOME TEXAS CRIMINAL CASES RE JURY ARGUMENT
  • Cruz v. State,  225 S.W.3d 546 (Tex. Crim. App. 2007). Requirement of obtaining a negative ruling to preserve error.
  • Guy v. State, 160 S.W.3d  606 (Tex. App. - Ft. Worth 2005).
  • Mata v. State, 141 S.W.3d 858 (Tex. App. - Corpus Christi 2004) PDR ref.
  • Drew v. State, 76 S.W.3d 436 (Tex. App. - Houston [14th Dist.] 2002).
  • Peak v. State, 57 S.W.3d 14 (Tex. App. - Houston [14th Dist.] 2001). The argument here was deemed misleading.
  • Parker v. State, 51 S.W.3d 719 (Tex. App. - Texarkana 2001). This case held that it was error for the trial court to allow the prosecutor to make an interim argument at the end of the first day of trial, before the state had closed its case and before the jury charge had been given. The court pointed out that there is no provision in the statutes for an interim argument. In this case the error was held harmless.
  • Corpus v. State, 30 S.W.3d 35 (Tex. App. - Houston [14th Dist.] 2000) PDR ref.
  • Taylor v. State, 945 S.W.2d 295 (Tex. App. - Houston [1st Dist.] 1997) PDR ref. - This case provides a good example how a prosecution argument that emphasizes inadmissible evidence can contribute to "cumulative error" that can result in reversal under Rule 44.2 TRAP
  • Schneider v. State, 645 S.W.2d 463 (Tex. Crim. App. 1983). This old case held that it was permissible for the prosecution to comment on the defense failure to produce testimony.
  • Salinas v. State, 542 S.W.2d 864 (Tex. Crim. App. 1976). This old case held that statements based on common knowledge are permissible during jury argument.
  • Powell v. State, 502 S.W.2d 705 (Tex. Crim. App. 1973). This old case held that it is proper to draw fair and reasonable inferences from the evidence.
  • Garcia v. State, 428 S.W.2d 334 (Tex. Crim. App. 1968).  This ancient case held that a blackboard demonstration is permissible. [Note: By analogy, this old case could be used to support your effort to use a PowerPoint or other electronic presentation at the argument, and perhaps the opening statement, portion of the trial. See Technology in the Courtroom.]

TEXAS STATUTES RE JURY ARGUMENT IN CRIMINAL CASES
  • What about the sequence or order of jury argument in criminal cases? Article 36.07 of the Texas Code of Criminal Procedure Order of Argument provides as follows: "The order of argument may be regulated by the presiding judge; but the State's counsel shall have the right to make the concluding address to the jury." [As a matter of custom, most trial courts follow the practice of allowing the prosecution to open and close the jury argument, sandwiching the defense between the prosecution's opening and closing arguments. Case law has for many years held that, unlike the civil plaintiff under Texas Rule of Civil Procedure Rule 269, the prosecution's concluding remarks are not limited to rebuttal. See Brown v. State, 475 S.W.2d 938 (Tex. Crim. App. 1971). In effect, the prosecution gets to make two full and complete arguments. This sequence allows the prosecution to sandbag the defense by saving all the argument fireworks for the closing portion of argument when the defense has no opportunity to reply. Note, however, that rules only mandate that the prosecution should be allowed to make the concluding address. The rest of the sequence or order of argument is left to the discretion of the trial court. See Dang v. State, 154 S.W.3d 616 (Tex. Crim. App. 2005). My suggestion to you if you become a criminal defense lawyer is this: File a motion asking the court to require the prosecutor to make a full opening jury argument (Don't be surprised if it is denied as there is case law saying you can't require the prosecution to make an opening argument.)  and file a motion for permission to make a reply argument to rebut issues raised by the prosecution in its closing argument that you were not able to anticipate in your defense argument. There is case law that suggests that the trial court has the power to grant you a rebuttal argument after the prosecution makes its closing argument so long as the court also allows the prosecution the opportunity to make an additional concluding argument as required by Art. 36.07 C.C.P. See See Nelson v. State, 828 S.W.2d 185 (Tex. App. - Houston [14th Dist.] 1992). See also Tamez v. State, 27 S.W.3d 668 (Tex. App. Waco 2000). [Query: Do you think the approach to the order of argument used in Texas civil cases, per Rule 269 Tex. R. Civ. P,. and federal cases, per Rule 29.1 Fed. R. Crim P., is fairer than the "sandbag" approach employed in Texas criminal cases? As far as I know, Texas is the only state that allows the prosecution to make two complete jury arguments, one in front of the defense argument and one behind it.]
  • What about waiving the right to argue? It is quite common, particularly in misdemeanor cases, for the prosecution to waive the right to make an opening jury argument and reserve the right to make the closing jury argument. Case law has established that the defense cannot force the prosecution to make an opening argument. See Margraves v. State, 56 S.W.3d 673 (Tex. App. - Houston [14th Dist.] 2001) But what if the defense waives its right to make a jury argument, will that waiver cut off the prosecutor's right to make the closing portion of the argument? No, it will not. The prosecution is still allowed to make the closing (concluding) portion of the jury argument even if the defense waives its right to make a jury argument. See Burnett v. State, 959 S.W.2d 652 (Tex. App. - Houston [1st Dist] 1997).
  • Does the defendant have a right to participate in the jury argument? If the defendant is represented by counsel, it appears that s/he is not entitled to take part in the jury argument. See Bledsoe v. State, 178 S.W.3d 824 (Tex. Crim. App. 2005). On the other hand, the defendant who represents her/himself pro se, would be entitled to make a pro se jury argument.
  • Note: The Texas statutes do not address the permissible and impermissible substance of the argument, leaving it for the judiciary to inform the practicing bar through case law what we can and cannot properly say in argument.

TEXAS STATUTE RE TIMING OF JURY INSTRUCTIONS WITH REGARD TO JURY ARGUMENT
  • Article 36.14 of the Texas Rules of Criminal Procedure  Charge of the Court provides, in part, as follows: Subject to the provisions of Article 36.07 in each felony case and in each misdemeanor tried in a court of record, the judge shall, before the argument begins, deliver to the jury, except in pleas of guilty, where a jury has been waived, a written charge distinctly setting forth the law applicable to the case.

TEXAS STATUTES ALLOWING ADDITIONAL EVIDENCE

  • Article  36.02 of the Texas Rules of Criminal Procedure  Testimony at Any Time provides as follows: "The court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice."  This provision is important for a couple of reasons. First, it is useful to know when you and your opponent are permitted to urge the admission of additional testimony. i.e., in the interests of justice until the arguments are over and when you are precluded, i.e., when the arguments for both side have been completed. See Allman v. State, 164 S.W.3d 717 (Tex. App. - Austin 2005). Second, it is very useful when you are moving for a directed verdict because of failure of proof, e.g., venue, to wait until the jury arguments have commenced to make your motion. Many prosecutors won't know that they can reopen at this late stage of the game to make the vital proof and will fail to repair the omission. I would generally wait to move for instructed verdict for failure to prove venue until immediately before I began my defense jury argument. This is contrary to the answer that law school and the bar exam teaches, i.e., move for instructed verdict on failure to prove venue immediately after the prosecution rests its case in chief; if you do this, if you do this and the prosecutor has failed to prove venue, expect that the prosecutor will ask to reopen to prove venue and that the court will typically allow it.]
  • Rule 270 Tex. R. Civ. P. Additional Testimony provides that when it clearly appears to be necessary to the due administration of justice, the court may permit additional evidence to be offered at any time; provided that in a jury case no evidence on a controversial matter shall be received after the verdict of the jury.
  
TEXAS STATUTE RE ORDER OF ARGUMENT IN PLEADINGS IN CRIMINAL CASES
  • Article 28.01 of the Texas Code of Criminal Procedure Order of Argument states as follows: "The counsel of the defendant has the right to open and conclude the argument upon all pleadings of the defendant presented for the decision of the judge." [Note: Think about this when you argue pretrial motions.]

TEXAS CIVIL RULE REGULATING THE ORDER OF ARGUMENT IN TEXAS CIVIL CASES
  • Rule 269 of the Texas Rules of Civil Procedure provides as follows ARGUMENT (a) After the evidence is concluded and the charge is read, the parties may argue the case to the jury. The party having the burden of proof on the whole case, or on all matters which are submitted by the charge, shall be entitled to open and conclude the argument; where there are several parties having separate claims or defenses, the court shall prescribe the order of argument between them. (b) In all arguments, and especially in arguments on the trial of the case, the counsel opening shall present his whole case as he relies on it, both of law and facts, and shall be heard in the concluding argument only in reply to the counsel on the other side. [Note: This well conceived civil rule has been held by court decision of the Texas Court of Criminal Appeals not to apply in Texas criminal cases. Thus, the prosecution is allowed to waive the right to open and "sandbag" the defense in the prosecution's concluding argument. See Brown v. State  475 S.W.2d 938 (Tex. Crim. App. 1971).] (c) Counsel for an intervenor shall occupy the position in the argument assigned by the court according to the nature of the claim. (d) Arguments on questions of law shall be addressed to the court, and counsel should state the substance of the authorities referred to without reading more from books than may be necessary to verify the statement. On a question on motions, exceptions to the evidence, and other incidental matters, the counsel will be allowed only such argument as may be necessary to present clearly the question raised, and refer to authorities on it, unless further discussion is invited by the court. (e) Arguments on the facts should be addressed to the jury, when one is impaneled in a case that is being tried, under the supervision of the court. Counsel shall be required to confine the argument strictly to the evidence and to the arguments of opposing counsel. Mere personal criticism by counsel upon each other shall be avoided, and when indulged in shall be promptly corrected as a contempt of court. (f) Side-bar remarks, and remarks by counsel of one side, not addressed to the court, while the counsel on the other side is examining a witness or arguing any question to the court, or addressing the jury, will be rigidly repressed by the court. (g) The court will not be required to wait for objections to be made when the rules as to arguments are violated; but should they not be noticed and corrected by the court, opposing counsel may ask leave of the court to rise and present his point of objection. But the court shall protect counsel from any unnecessary interruption made on frivolous and unimportant grounds. (h) It shall be the duty of every counsel to address the court from his place at the bar, and in addressing the court to rise to his feet; and while engaged in the trial of a case he shall remain at his place in the bar. See also Rule 266 Tex. R. Civ. P.,  Texas Employers' Ins. Ass'n v. Guerrero, 800 SW 2d 859 (Tex. App. -San Antonio 1990). [Note: In Texas civil practice, each juror is given a copy of the court's written charge before the arguments of counsel. See Rule 226a Tex. R. Civ. P. As usual, the Texas criminal practice lags behind and furnishes only one copy of the written instructions to the entire jury, giving the foreperson of the jury more power than is warranted .]

  • TEXAS RULES OF APPELLATE PROCEDURE RE PRESERVATION OF ERROR & WHAT CONSTITUTES REVERSIBLE ERROR IN CRIMINAL AND CIVIL CASES (Including Jury Argument and Opening Statement)
  • Rule 33.1 of the Texas Rules of Appellate Procedure - Preservation: How Shown states as follows: (a) In General. As a prerequisite to presenting a complaint for appellate review, the record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion that: (A) stated the ground for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless specific ground were apparent from the context; and (B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence [Authors Note: These two sources are now called the Texas Rule of Evidence.] or the Texas Rules of Civil or Appellate Procedure; and (2) the trial court : (A) ruled on the request, objection, or motion, either expressly or implicitly; or (B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.
  • Rule 44.1 of the Texas Rules of Appellate Procedure - Reversible Error in Civil Cases states, in pertinent part, as follows: " (a) Standard for reversible error. No judgment may be reversed on appeal on the ground that the trial court made an error of law unless the court of appeals concludes that the error complained of: (1) probably caused the rendition of an improper judgment: or (2) probably prevented the appellant from properly presenting the case to the court of appeals. (b) Error affecting only part of case. If the error affects part of, but not all, the matters in controversy and that part is separable without unfairness to the parties, the judgment must be reversed and a new trial only as to the part affected by the error. The court may not order a separate trial solely on unliquidated damages if liability is contested.
  • Rule 44.2 of the Texas Rules of Appellate Procedure - Reversible Error in Criminal Cases states, in pertinent part, as follows: " (a) Constitutional Error. If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. (b) Other Errors. Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded. [Note: The cases prior to 1997 when Rule 44.2 was enacted, are not controlling as to whether an improper argument is reversible error for a non-constitutional error. See Hawkins v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004).]
  • Here is an excellent, if somewhat old, 1992 80-page article on jury argument in Texas civil cases that has been put on the Internet in pdf form by its author: Michael Sean Quinn, Jury Argument: Rhetoric and Rationality. The article is also prefaced by a funny cartoon.

ETHICS IN TEXAS CASES

45. UTAH
Opening Statement:
Jury Argument:
46. VERMONT
Opening Statement:
Jury Argument:
47. VIRGINIA
Opening Statement:
Jury Argument:
48. WASHINGTON
Opening Statement:
  • State v. Rivers,  921 P.2d 495 (Wash. 1996). Defendant forced in cross to contradict defense counsel's opening. (1
Jury Argument:
  • State v. Frost, 161 P.3d 361 (Wash. 2007). Held that it was error to prohibit the defense from arguing the defense of duress.
49. WEST VIRGINIA
Opening Statement:
  • Jury Argument:
50. WISCONSIN
Opening Statement:
Jury Argument:
51. WYOMING
Opening Statement:
Jury Argument:

UNITED STATES SUPREME COURT- Holdings re Opening and Closing

Federal Rules of Evidence
Federal Rules of Criminal Procedure
Federal Rules of Appellate Procedure

Opening Statement

  • Jury Argument: [From the oldest cases to the most recent in this instance. Remember that constitutional violations must be found to be "harmless beyond a reasonable doubt" to qualify as harmless error. See Chapman v. California, 386 U.S. 18 (1967)]
  • Griffin v. California, 380 U.S. 609 (1965). This case held that the prosecution violates the nontestifying defendant's Fifth Amendment right to remain silent when it comments on the defendant's election not to testify. One reason for this prohibition is that to allow comment on the invocation of a constitutional right would have a chilling effect on the exercise of that right. But see United States v. Robinson, 485 U.S. 25 (1988) where the USSC upheld a prosecutor's argument that the accused "could have taken the stand and explained it to you. . . " as a proper response to the defense argument. 
  • Donnelly v. DeChristoforo, 416 U.S. 637 (1974). This case indicates that an argument may be reversible error if it so infects the trial with unfairness as to make the resulting conviction or sentence a denial of the due process right to a fair trial.
  • Herring v. New York, 422 U.S.853 (1975). Landmark Supreme Court case guaranteeing the defense the right to make an argument in bench and jury trials.
  • United States v. Young, 470 U.S. 1 (1985). The USSC held that the prosecutor's remarks during rebuttal argument in which he stated his personal opinion that the defendant was guilty and argued for the jury "to do its job" did not amount to plain error requiring reversal where there was no objection and any harm from the prosecutor's arguing his personal opinion was mitigated by the jury's understanding that the prosecutor was countering defense counsel's repeated attacks on the prosecutors's integrity and defense counsel's argument that the evidence established no crime and where the evidence of guilt eliminated any doubt that the prosecutor's remarks unfairly prejudiced the jury. This case discusses the invited error doctrine and the fact that the reviewing court must evaluate the prosecutor's otherwise improper argument against the backdrop of the defense argument.
  • Darden v. Wainwright, 477 U.S. 168 (1986). This was a federal habeas corpus post-conviction collateral attack of a Florida death penalty conviction. Darden contended that the prosecution's argument at the guilt innocence stage of the trial rendered his conviction fundamentally unfair and deprived the sentencing determination of the reliability that the Eighth Amendment required.The court reviewed the brutal facts involving a robbery murder at a mom and pop furniture store. The court then evaluated the prosecution argument in light of the defense argument which preceded it. [Note: The defense in Florida is allowed to open and close the argument if the defense puts on no witnesses, excluding the defendant. Georgia has a similar procedure. See Georgia above.] The court, through Justice Powell, pointed out that none of the lower courts had held that the prosecution's argument, though undoubtedly improper and deserving of condemnation, rendered the trial unfair. Some of Florida prosecutor McDaniel's [Note that appellate courts typically identify errant prosecutor's by name as a form of perceived disgrace. Whether prosecutors view it that way or as badge of honor, remains to be seen.] argument attempted to blame the Florida Division of Corrections because Darden was on weekend furlough from a prison sentence when the crime occurred., e.g., "As far as I am concerned, there should be another Defendant in this courtroom, one more, and that is the division of corrections, the prisons ... Can we expect him to stay in a prison when they go there? Can we expect them to stay locked up once they go there? Do we know that they're going to be out on the public with guns, drinking?" Some comments of the prosecutor at the guilt phase argument implied that the death penalty would be the only guarantee against a future similar act, e.g., "I will ask you to advise the Court to give him death.That's the only way I know that he is not going to get out on the public. It's the only way I know. It's the only way anybody can be sure of it now, because the people that turned him loose - " Others incorporated the defense's use of the word animal, e.g., "As far as I am concerned, and as Mr. Maloney [the defense attorney] said as he identified this man as an animal, this animal was on the public for one reason." Prosecutor McDaniel made several other offensive comments reflecting an emotional reaction to the case, e.g., "He shouldn't be out of his cell unless he has a leash on him and a prison guard at the other end of that leash." ; "I wish Mr. Turman [the murder victim] had had a shotgun in his hand when he walked in the back door and blown his [Darden's] face off. I wish I could see him sitting here with no face, blown away by a shotgun."; "I wish someone had walked in the back door and blown his head off at that point."; "He fired in the boy's [a neighbor who arrived at the scene and was also shot by the robber] back, number five saving one. Didn't get a chance to use it. I wish he had used it on himself"; "I wish he had been killed in the accident [There was evidence that Darden fled from the murder scene in his girlfriend's car which he wrecked.], but he wasn't. Again, we are unlucky that time."; "Don't forget what he has done according to those witnesses, to make every attempt to change his appearance from September the 8th, 1973. The hair, the goatee, even the mustache and the weight. The only thing he hasn't done that I know of is cut his throat."  The majority opinion pointed out that much of the objectionable content in the prosecutor's argument was invited by or was responsive to the opening summation of the defense. Also, in closing rebuttal the defense lawyer used some of the improper comments of McDaniel to engender disapproval of the prosecutor by the jury, e.g., "Mr. McDaniel made an impassioned plea ... how many times did he repeat, 'I wish you had been shot, I wish they had blown his face away.' My God, I get the impression he [McDaniel] would like to be the man that stands there and pulls the switch on him."  The defense lawyer objected only after the series of improper prosecutorial comments. One of the defense lawyers testified at the habeas corpus hearing that he had made a tactical decision not to object to the prosecutor's improper comments. Based on his long experience with prosecutor McDaniel, he knew McDaniel would "get much more vehement in his remarks if you allowed him to go on." By not immediately objecting, he hoped to encourage the prosecutor to commit reversible error. In addition, the trial court instructed the jurors several times that their decision was to be made on the basis of the evidence alone, and that the arguments of counsel were not evidence. Citing Donnelly v.  DeChristoforo, the Supreme Court said that the relevant question in the case was "Whether the prosecutor's comments so infected the trial with unfairness as to make the resulting conviction a denial of due process."  In addition, since the case was a habeas corpus, the appropriate standard was viewed as the narrow one of due process, and not the broad exercise of supervisory power. The court found the weight of the evidence against Darden heavy, e.g., overwhelming eyewitness and circumstantial evidence supporting a finding of guilt on all charges, thus reducing the likelihood that the jury's decision was influenced by argument. For these reasons, the majority of the court found that Darden's trial, though not perfect, was not fundamentally unfair. The dissent by Blackmun, joined by Brennan, Marshall, and Stevens, said that  the majority opinion revealed a court willing to tolerate not only imperfection but a level of fairness and reliability so low it should make conscientious prosecutors cringe. The dissent cites violations of the Model Rules of Professional Conduct and the ABA Standards on the Prosecutor's Function. Blackmun said the "summations cut to the very heart of the Due Process clause by diverting the jury's attention from the ultimate question of guilt or innocence that should be the central concern in a criminal proceeding." The dissenters were  unable to conclude that the jury's verdict was not the product of the prosecutor's misconduct. The dissenters believed that the prosecutor's improper arguments deprived Darden of a fair trial and mandated a new trial.
  • Bell v. Cone, 535 U.S. 685 (2002). This case involved the issue of whether a defense lawyer's wavier of argument at the punishment phase of a capital case constituted a denial of the right to effective assistance of counsel.
  • Oregon v. Guzek, 546 U.S. 517(2006)(1) The primary holding in this capital murder appeal was that the State may limit innocence-related evidence at the capital sentencing hearing to the evidence the defense introduced at the guilt phase of the trial; here the defense had been precluded from introducing additional live alibi testimony from the accused's mother at the capital sentencing hearing. A collateral issue was whether the capital defendant has a constitutional right at the punishment phase of the trial  to argue "residual or lingering factual doubts" about the defendant's guilt to the sentencing jury; the court pointed out that the cases have not interpreted the Eighth Amendment as providing the defense with the right to introduce at sentencing evidence designed to case a "residual doubt" on his guilt; even if such a right did exist, the court held it would not extend as far as Guzek sought at the retrial of his capital sentencing hearing.   
Federal Rules Re Opening Statement in Federal Criminal Cases: Note that the Federal Rules of Criminal Procedure say absolutely nothing about opening statement and do not indicate whether the government (prosecution) must give an opening statement. Case law suggests that the government may waive opening statement. See United States v. Welch, 97 F.3d 142 (6th Cir. 1996). The prevailing view in federal court is that defense is entitled to make an opening statement, irrespective of whether the defense plans to present any evidence in its case-in-chief. Also, the cases indicate that the defense is entitled to make its opening statement in federal court either immediately after the government's opening statement or at the close of the government's case-in-chief. See Karikas v. United States, 296 F.2d 434 (D.C. Cir 1961).  
Federal Rules "Closing Argument" in Federal Criminal Cases: Note that the order of "closing argument" in federal court is governed by Rule 29.1 Fed. R. Crim. P. [Adopted Apr. 22, 1974, effective Dec. 1; amended Apr. 29, 2002, effective Dec. 1, 2002] a very short rule providing as follows:
"Closing arguments proceed in the following order:
(a) the government argues;
(b) the defense argues;
and (3) the government rebuts."
That's it. Thus, we know that in federal criminal cases there is an initial full argument by the government prosecutor, followed by the full defense argument, followed by the prosecution's rebuttal. Federal prosecutors apparently can't waive opening argument and reserve the right to close as Texas prosecutors do. [Remember, in Texas criminal cases, unlike Texas civil cases, the prosecution's closing is not limited to rebuttal.] Notice that there is nothing in the federal rules regulating the content of federal jury arguments. Matters such as the propriety of the substance of the argument and the scope and length of the presentation is left to developing case law and the discretion of the trial court.  See the smattering of federal cases above to get the flavor for specific areas of misconduct. Be aware that a federal judge may be more likely to interrupt sua sponte a government  prosecutor's improper argument than a Texas trial judge. See United States v. Garza, 608 F2d 659 (5th Cir. 1979); United States v. Corona,  551 F.2d 1386 (5th Cir. 1977), two plain error cases where the government prosecutor's improper arguments served as a basis for reversal based on denial of a fair trial, notwithstanding that there was no defense objection to the arguments at trial.
Timing of the Jury Instructions with Reference to Argument in Federal Courts: Note that the decision of whether the jury instructions will be given before or after or before and after the jury arguments is left to the trial judge's discretion. Rule 30 Fed. R. Crim. P. states as follows
Jury Instructions
(a) In General. Any party may request in writing that the court instruct the jury on the law as specified in the request. The request must be made at the close of the evidence or at any earlier time that the court reasonably sets. When the request is made, the requesting party must furnish a copy to every other party.
(b) Ruling on a Request. The court must inform the parties before closing arguments how it intends to rule on the requested instructions.
(c) Time for Giving Instructions. The court may instruct the jury before or after the arguments are completed, or both times.
(d) Objections to Instructions. A party who objects to any portion of the instructions or to a failure to give a requested instruction must inform the court of the specific objection and the grounds for the objection before the jury retires to deliberate. An opportunity must be given to object out of the jury's hearing and, on request, out of the jury's presence. Failure to object in accordance with this rule precludes appellate review, except as permitted under Rule 52(b). [Rule 52(b) is the plain error rule.]

UNITED STATES COURTS OF APPEAL
D.C. CIRCUIT
Opening Statement:
  • United States v. Bailey, 505 F.2d 417 (D.C. Cir. 1974). Uncharged misconduct, prior bad acts, extraneous offenses should not be mentioned unless  the  trial court has ruled them admissible.
Jury Argument:
  • United States v. Moore, 104 F.3d 377 (D.C. Cir. 1997). This case examines the impropriety of arguing the accused's pretrial silence.
  • United States v. Doe , 903 F.2d 16 (D.C. Cir. 1990). This case deals with the impropriety of prosecution arguments relying on race as a factor bearing on culpability.
FIRST CIRCUIT
Opening Statement:
  • Ouber v. Guarino,  293 F.3d 19 (1st Cir. 2002). Failure by the defense to honor its pledge in opening statement to call witnesses can be a ground for reversal based on ineffective assistance of counsel.
  • United States v. Maccini, 721 F.2d 840 (1st Cir. 1983). Improper to mention the possibility of defendant's failure to testify or present evidence.  
  • United States v. Hershenow, 680 F.2d 847 (1st cir. 1982). This case appears to say that the defense has a right to make an opening statement irrespective of whether it plans to call witnesses.
Jury Argument
  • United States v. Ayala-Garcia, 574 F.3d 5 (1st 2009). Suggesting that drug crime defendants were would-be murderers was severe misconduct warranting reversal.
  • United States v. Roberts, 119 F.3d 1006 (1st Cir. 1997). This court held that a prosecutor's comment on the defendant's failure to take the stand and testify at his trial was plain error that did not require objection.
  • United States v. Whiting, 28 F.3d 1296 (1st Cir. 1994) cert. den. 513 U.S. 956 (1994). The court held it was improper to personally attack the professionalism of opposing counsel  and to argue outside the record in an inflammatory manner.
  • United States v. Giry, 818 F.2d 120 (1st Cir. 1987) cert. den. 484 U.S. 855 (1987). This case discusses the impropriety of appealing to religious beliefs.
SECOND CIRCUIT
Opening Statement:
  • United States v. Newton, 369 F.3d 659 (2nd. Cir. 2004). Undue sympathy and putting jurors in shoes of complainant (Golden Rule).
  • United States v. Jones, 763 F.2d 518 (2nd Cir. 1985) Defense attack on prosecution's cooperating coconspirator witness opens the door for prosecution direct regarding the "tell the truth " provision of the immunity agreement.
  • United States v. Salovitz, 701 F.2d 17 (2nd Cir. 1982). The court states that there is no constitutional right to make an opening statement.
  • United States v. Gentile, 525 F.2d 252 (2nd Cir. 1975). The court prohibits the government prosecutor from anticipating what the probable defense case will be, e.g. entrapment; since the defense has no burden of proof and the accused does not have to testify, prosecutors should not predict in opening statement what the defense case will be. [Note: The prosecution has the burden of proof beyond a reasonable doubt. See In re Winship, 397 U.S. 358 (1970); the defendant in entitled to the presumption of innocence. See Taylor v. Kentucky, 436 U.S. 478 (1978); it is improper to shift the burden proof to the defense. See Francis v. Franklin, 471 U.S. 307 (1985)]
Jury Argument:
THIRD CIRCUIT
Opening Statement:
  • United States v. Somers, 496 F2d 723 (3rd Cir. 1974). Emotional appeals to passion and prejudices of jurors are improper during opening.
Jury Argument:
  • Moore v. Morton, 255 F.3d 95 (3rd Cir. 2001). This case involves an issue regarding appeal to racial prejudice.
  •  
FOURTH CIRCUIT
Opening Statement:
Jury Argument:
  • Boyd v. French, 147 F.3d 319 (4th Cir. 1998). Religion based argument.
  • United States v. Figurski, 545 F.2d 389 (4th Cir. 1976). This case finds that the trial court had discretion to split the allocation of time for argument among two co-defendants, giving each co-defendant its equivalent percentage of the time allotted the government.
FIFTH CIRCUIT
Opening Statement:
Jury Argument:
  • United States v. Gracia, 522 F.3d 597 (5th Cir. 2008). Improper bolstering of his witness by the prosecutor; conviction reversed and case remanded for new trial.
  • United States v. Rodriquez, 260 F.3d 416 (5th Cir. 2001). The prosecutor's argument that the jury should infer guilt directly from the defendant's post-arrest silence was reversible error. See Doyle v. Ohio, 426 U.S. 610 (1976).
  • United States v. Palmer, 37 F.3d 1080 (5th Cir. 1994) cert den 513 U.S. 1087 (1995). This case recognizes that the prosecutor is not allowed to speculate in argument upon what persons not called as witnesses would have testified.
  • United States v. Davis, 993 F.2d 62 (5th Cir. 1993) The cases hold that one can waive final argument in a bench trial by agreeing with the court that no argument is necessary.
  • United States v. Pool, 660 F.2d 547 (5th Cir. 1981). The case says that counsel for each side is barred from arguing facts not supported by the record.
  • Branch v. Estelle, 631 F.2d 1229 (5th Cir. 1980). This case finds that it is improper for the prosecutor to argue the substance of matters not in evidence. 
  • United States v. Braziel, 609 F.2d 236 (5th Cir. 1980). This case approves the  federal practice of allowing the government to open fully and close with rebuttal as being consistent with the allocation of the burden of proof.
  • United States v. Juarez, 566 F.2d 511 (5th Cir. 1978). This case says it is improper for the prosecutor to admonish the jurors that they would violate their sacred oath before God if they acquitted the accused.
SIXTH CIRCUIT
Opening Statement:
  • United States v. Bess, 593 F.2d 749 (6th Cir. 1979). The federal prosecutor cannot suggest in opening that the fact that the defendant has been indicted or is being prosecuted constitutes some evidence of guilt.
Jury Argument:
  • Bates v. Bell, 402 F.3d 635 (6th Cir. 2005). This case involved an issue of cumulative improper argument.
  • United States v. Carter, 236 F.3d 777 (6th Cir. 2001). Plain error where the prosecutor misstated material evidence.
SEVENTH CIRCUIT
Opening Statement:
Jury Argument:
  • United States v. Farinella, 558 F.3d 695 (7th Cir. 2009). Judge Posner details the gross misstatements of the evidence by the prosecutor.
  • United States v. Clark, 535 F.3d 571 (7th Cir. 2008). Prosecutor's argument that defense claim was "the standard argument made by drug defendants" held improper but harmless.
  • United States v. Johnson, 437 F.3d 665 (7th Cir. 2006). Prosecutor's argument re informant witness' credibility due to cooperation agreement with the government held not improper voucher.
  • United States v. Santiago, 428 F. 3d 699 (7th Cir. 2005). Claim that the prosecutor impermissibly commented on Accused's  postarrest silence in violation of the rule of Doyle v. Ohio, 426 U.S. 610 (1976) denied.
  • United States v. Saadeh,  61 F.3d 510 (7th Cir. 1995) cert. den. 516 U.S. 990 (1995). This case held that prosecutors may argue reasonable inferences from the evidence but may not argue outside the record.
  • United States v. Hernandez, 865 F.2d 925 (7th Cir. 1989) This case held that it was improper for the prosecutor to exhort the jury that their verdict would  send a message to "Cuban drug dealers"
  • United States v. Wables, 731 F.2d 440 (7th Cir. 1984). This case recognized the trial court's discretionary power to limit the scope of argument.
  • United States v. Kuta, 518 F.2d 947 (7th Cir. 1975) cert. den. 423 U.S. 1014 (1975). This case recognized the trial court's discretionary power to determine whether counsel could read from the trial transcript.
EIGHTH CIRCUIT
Opening Statement:
  • United States v. Crawford, 523 F. 3d 858 -(8th Cir. 2008) Violation of motion in limine re opening statement not reversible error.
  • United States v. Johnson, 968 F.2d 768 (8th Cir. 1992). Improper opening by the government prosecutor can be a ground for reversal based on denial of a fair trial as guaranteed in federal court by the Fifth Amendment.
Jury Argument:
  • United States v. Robinson, 110 F.3d 1320 (8th Cir. 1997) cert. den. 522 U.S. 975 (1997). This case holds that an objection to improper argument is required in order to preserve error in all but exceptional circumstances.
  • United States v. Crockett, 49 F.3d 1357 (8th Cir. 1995). This case upholds the use in argument of visuals that summarize witness testimony.
  • United States v. Risnes, 912 F.2d 957 (8th Cir. 1990). This case hold that prosecutors are barred from arguing their personal opinion regarding the credibility of witnesses, but are permitted to argue how the evidence bears on the believability of witnesses.
  • United States v. Peltier, 585 F.2d 314 (8th Cir. 1978) cert den 440 U.S. 945 (1979). This case upheld the trial court in precluding the defense counsel from referring to the substance of matters that were not in evidence.
  • United States v. Dawson, 467 F.2d  668 (8th Cir. 1972) cert. den. 410 U.S. 956 (1973). This case upheld the trial court's exercise of discretion to conduct arguments immediately after the conclusion of the evidence phase of the trial without an interval for counsel to collect their thoughts.
NINTH CIRCUIT
Opening Statement:
  • United States v. Croft, 124 F.3d 1109 (9th Cir. 1997). This case seems to suggest that the defense lawyer's statements in opening might be viewed as "opening the door" to the admissibility of otherwise inadmissible evidence.
  • United States v. Taren-Palma, 997 F.2d 525 (9th Cir. 1993). It is improper in opening statement to relate facts that the advocate does not have reasonable grounds to believe can be proven.
  • United States v. Davis, 548 F.2d 840 (9th Cir. 1977). Personal opinion  re the evidence or case is prohibited.    
  • United States v. Stanfield, 521 F.2d 1122 (9th Cir. 1975) (per curiam). This case appears to permit the defense to make an opening statement irrespective of whether the defense plans to call witnesses.
Jury Argument:
  • Sandoval v. Calderon, 241 F.3d 765 (9th Cir. 2001). This case involved an issue of the impropriety of an argument that appeals to religious prejudice.
  • United States v. Tory, 52 F.3d 207 (9th Cir. 1995). This case protected the defense right  to argue that a logical inference from the absence of evidence is that such evidence does not exist.
  • United States v. Schuler, 813 F.2d 978 (9th Cir. 1987). This case deals with the prosecution's improper reference to the courtroom demeanor of a nontestifying defendant.
TENTH CIRCUIT
Opening Statement:
Jury Argument:
  • United States v. Ivory, 532 F.3d 1095 (10th Cir. 2008). Comment on defendant's failure to testify held to be a fair rebuttal/response and not an improper comment on accused's silence in violation of Griffin v. California.
  • United States v. Soto, 988 F.2d 1548 (10th Cir. 1993). This case deals with the issue of the prosecutor's reference to race and/or ethnicity in argument.
  • United States v. Gomez-Olivas, 897 F.2d 500 (10th Cir. 1990). This case deals with the issue of improper prosecutorial comment of the defendant's silence.
ELEVENTH CIRCUIT
Opening Statement:
  • United States v. Zielie, 734 F.2d 1447 (11th Cir. 1984). This court says that counsel are not allowed to argue in opening statement.
Jury Argument:
  • Lawhorn v. Allen, 519 F.3d 1272 (11th Cir. 2008). Held that defense counsel's decision to waive closing argument at sentencing was ineffective assistance of counsel.
  • United States v. Hands, 184 F.3d 1322 (11th Cir. 1999). Name calling and improper voucher by the prosecution; conviction reversed and case remanded for new trial.
  • United States v. Hall, 77 F.3d 398 (11th Cir. 1996). The court approves the defense right to argue reasonable doubt.
  • United States v. Carter, 760 F.2d 1568 (11th Cir. 1985). This court approved the trial court's action in restricting the argument of each side to three hours.


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OBJECTIONS TO OPENING


























Sidebar

Temple Again -

See the Temple murder case as an example of an appellate court discussing jury argument in a criminal case. Note: The court is discussing the prosecution argument by Kelly Siegler that we watched in my O&C class.





NOTE WELL

When you consider the limitations on opening statement, you will recognize that it needs  to be carefully crafted to acquaint the jurors with the facts and the nature of the accusation (The prosecutor can discuss the law.) or the nature of the defenses (The defense lawyer can discuss the defenses.).
You must continue to establish credibility (Ethos) at this stage and tell a good story that captures the jurors' attention.