Opening Statement

United States v. Sloan, 36 F.3d 386 (4th Cir. 1994)

During his opening statement, the attorney for the defendant described the defendant’s Horatio Alger life. Throughout the course of the trial, moreover, the trial court stated that it based evidentiary rulings on the defendant’s asserted intention to take the stand. At the close of the government’s case, however, the defendant opted not to testify. The trial court declared a mistrial. There was no manifest necessity to do so and a retrial was barred by the double jeopardy clause. With regard to the evidentiary rulings, the record demonstrated that the few times the issue of the defendant’s expected testimony was raised, it was when the district court ruled out certain defense-offered testimony, on the basis that such evidence would have to wait until the defendant testified. With regard to the opening statement, the trial court did not entertain options short of declaring a mistrial. Here, unlike in Arizona v. Washington, 434 U.S. 497 (1978), the attorney did not refer to clearly inadmissible evidence. Rather, as in Frazier v. Culp, 394 U.S. 731 (1969), the attorney had a good faith belief in the availability of the evidence which he referred to in the opening statement.

United States v. Murrah, 888 F.2d 24 (5th Cir. 1989)

During the prosecutor’s opening statement, he alluded to a witness who would testify that the defendant had earlier approached him to torch his business. There was no such witness, or at least the prosecutor never called him to testify, and the comment in opening statement necessitated reversal of the conviction.

United States v. Cardenas Alvarado, 806 F.2d 566 (5th Cir. 1986)

During the government’s opening statement, the prosecutor made reference to the defendant’s post-arrest silence. This is error. However, in this case, the error was harmless in light of the strong evidence of guilt and lack of any trial testimony concerning the post-arrest silence.

United States v. Shaw, 829 F.2d 714 (9th Cir. 1987)

During opening statements, the prosecutor stated that as long as the witness was truthful, the prosecutor would present his truthful cooperation to a local prosecutor at the time of sentencing. This constitutes improper vouching for a witness. Implicit in such a comment is the suggestion that a prosecutor has a method of determining whether the testimony of the witness is truthful.

United States v. Novak, 918 F.2d 107 (10th Cir. 1990)

A mistrial should have been granted after the prosecutor utterly failed to back up his factual statements made during the opening statement about a tip received from an informant and also about the purity of cocaine which had been found at the defendant’s house. The prosecutor should have known that the evidence would not have been admitted because of its hearsay nature and thus the failure to back up this opening statement was grounds for a mistrial.

United States v. Adams, 74 F.3d 1093 (11th Cir. 1996)

During opening statements prosecutors should avoid referring to evidence that is even of questionable admissibility. Here, the prosecutor recited to the jury the statements of a person that implicated the defendants – statements that were not admissible, because they were hearsay. Harmless error.

United States v. Sawyer, 799 F.2d 1494 (11th Cir. 1986)

During opening statements, the prosecutor stated that the defendant had confessed to the crimes charged and that there would be testimony to that effect. In fact, there was no such testimony and none intended. However, there was no objection and the remark did not amount to plain error requiring a reversal.