B. Opening Statements and the Burden of Proof


The purpose of an opening statement is to advise the jury what a party expects the evidence to prove during the trial of the case. In criminal cases, because the burden of proving the defendant’s guilt rests with the government, the prosecution is allowed to address the jury first. Thereafter, the defendant’s attorney will advise the jury what he expects the evidence to show and immediately after that the government’s first witness will be called.

In a criminal case, the defendant is presumed to be innocent. Under the Fifth Amendment to the Constitution, the defendant has the absolute right not to incriminate himself and has no duty or responsibility to testify, call witnesses or otherwise prove his innocence. Instead, he is presumed innocent with no responsibility to prove anything. The burden of proof rests entirely with the government.  That responsibility is to prove the defendant’s guilt beyond a reasonable doubt to the unanimous satisfaction of all twelve jurors. Failing this, the jury must acquit the defendant, for if a reasonable doubt exists, the presumption of innocence is not overcome. Affording the accused the benefit of such doubts, and to prevent conviction of the innocent, the petit juror will be instructed that he/she must acquit unless the government proves the defendant is guilty of the charges as alleged beyond a reasonable doubt. As established by the Courts, a reasonable doubt is a real doubt based on common sense after careful and impartial consideration of all the evidence. It is not a fanciful or imaginary doubt, for the government is required to prove criminal defendants guilty only beyond a reasonable doubt and not beyond all possible doubt.

During opening statements, the Assistant United States Attorney assigned the task of prosecuting the case will usually introduce himself and briefly explain to the jury the charges in the indictment against the defendant. Thereafter, the prosecutor will summarize what he/she expects the evidence to show and how he intends to substantiate the allegations in the indictment. Usually, this opening statement will be brief in nature, designed only to provide the jury with an outline or overview of the case so that they may more readily discern the significance of the government’s evidence as it is placed before them. It is rare for such an opening statement to exceed 30-45 minutes in length.

Counsel for the defendant is not obligated to give an open opening statement immediately after the government counsel has given his. Instead, and if desired, the right to make such a statement may be reserved until after all of the government’s evidence has been presented to the jury and before any defense is presented. However, this tactic is rarely employed, for if opening statement is reserved until conclusion of the government’s case, it may tactically be much more difficult to convince a jury that the defendant is in fact innocent.

Unless a defendant has decided in advance of his opening statement that he intends to waive his Fifth Amendment privilege and testify in his own behalf, in the usual opening statement by the defense, counsel will not be advising the jury what the defendant expects to prove through the evidence. The defendant has no obligation to prove anything. Accordingly, if an opening statement is made, the jury will usually be reminded of the government’s burden initially. Thereafter, defense counsel will advise the jury what he expects the evidence to show. Since the only evidence offered before a jury ultimately may only be that evidence offered by the government, defense counsel will usually discuss the inferences he expects to establish during cross-examination of government witnesses. Like the prosecutor, the chief objective of defense counsel will be to provide the jury with a succinct overview of the defendant’s position on the evidence to be offered before the jury. The jury will be asked to scrutinize the evidence carefully and not to accept it uncritically. The jury will usually be advised that the defendant expects the government to fail in carrying its burden of proving the defendant’s guilt beyond a reasonable doubt.

Next Section: C. The Evidence

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