How I Open a Massachusetts Criminal Trial

By Attorney Joe Serpa | Georgetown University Law Center | Massachusetts Criminal Defense Since 1995

The opening statement is the only time in the trial when twelve people who know nothing about the case will listen to me without interruption. They have just been told the defendant is presumed innocent, and most of them do not yet believe it. What I say in the next few minutes determines whether they hear the Commonwealth’s evidence as proof or as a set of claims that still have to be tested.

What follows is how I use that time: what an opening is permitted to do, what I promise and what I refuse to promise, the one mistake that cannot be repaired, and what I am doing while the prosecutor delivers hers. The rules and the full authority appear on the companion page for opening statements and closing arguments.

What an Opening Is Allowed to Be

The rule has been the same in Massachusetts for a century. The proper function of an opening is to outline in a general way the nature of the case which counsel expects to be able to prove or support by evidence. Commonwealth v. Fazio, 375 Mass. 451, 454 (1978), quoting Posell v. Herscovitz, 237 Mass. 513, 514 (1921).

Two limits follow from that. An opening is not an opportunity for argument, and counsel may not vouch for the credibility of a key witness. Commonwealth v. Croken, 432 Mass. 266, 268 (2000). I cannot tell the jury that the complainant is lying. I can tell them what the evidence will show about what she said the first time, and what she said the third time.

The standard for what I may mention is good faith. Counsel may reference anything he or she reasonably believes in good faith will be proved by evidence introduced during the trial. Commonwealth v. DePina, 476 Mass. 614, 627 (2017). That is not a high bar to clear honestly, and it is an easy one to fail by accident, because a lawyer who has read a report and assumed a witness will adopt it has not formed a belief about evidence. He has formed a belief about paper.

That distinction is not a technicality I work around. It is the whole design of the speech. An argument invites a juror to disagree with me. A description of what the evidence will show invites a juror to wait and check. I want the second thing, because I am going to be right about it and the prosecutor is going to be wrong about some of hers.

Whether I Open at All, and When

Nothing requires the defense to open. Waiving an opening has been treated as a tactical decision, a matter of professional judgment, and within the realm of trial strategy. Commonwealth v. Scott, 430 Mass. 351, 357 (1999), quoting Commonwealth v. Cohen, 412 Mass. 375, 391 (1992). I waive rarely, because silence at the start cedes the frame, but I have waived in a short case where the only defense was that the Commonwealth could not prove identity and anything I said would have sounded like a preview of testimony I was never going to offer.

The timing is also mine. Under Mass. R. Crim. P. 24(a)(1) the defense may open immediately after the Commonwealth’s opening or wait until the close of the Commonwealth’s evidence. Most lawyers never think about the second option. I do think about it, and I almost always take the first, because a jury that has heard two days of the prosecution’s case before hearing anything from me has already decided what the case is about.

Waiting makes sense in one situation. Where I do not yet know whether a contested evidentiary ruling will go my way, and my opening would have to promise something that ruling controls, opening later lets me speak with the ruling in hand. The cost is that the jury spends the entire Commonwealth case with no competing account, and that cost is usually higher than the benefit.

The Promise I Cannot Take Back

Everything I say the evidence will show is a promise, and the jury keeps score whether or not anyone tells them to. If I say a witness will testify to something and that witness never appears, the jury does not conclude that the judge excluded it. The jury concludes that I said something untrue in the first five minutes.

The appellate courts treat this seriously. Failure to present critical evidence that has been announced in an opening statement can have drastic ramifications for a defendant. Commonwealth v. McMahon, 443 Mass. 409, 425 (2005). In some circumstances a lawyer’s failure to produce evidence predicted in an opening may amount to ineffective assistance of counsel. Commonwealth v. Duran, 435 Mass. 97, 109 (2001).

So I promise only what I control. I do not promise testimony from a witness I have not spoken to. I do not promise a document until I have it in my hand and I know it is admissible. I do not promise that my client will explain anything, because that decision belongs to him and it is not made until the Commonwealth rests.

Where I have a ruling in limine that lets in evidence I intend to use, I still ask myself what happens if the judge revisits it. If the answer is that my opening collapses, I describe the point without staking the speech on it, and I make my record so that the judge knows a reversal mid-trial leaves the jury with a broken promise that was not mine to keep.

What I Say

I open with the thing the Commonwealth cannot show. Not a theory, not a slogan, a fact. In an operating under the influence case it may be that nobody saw the car move. In an assault case it may be that the first person to call the police was my client. The jury should be able to repeat that sentence to each other in the deliberation room three days later.

Then I give them a short account of what happened, in order, in plain words. Jurors organize testimony around whatever structure they are handed first. If I hand them nothing, they use the prosecutor’s. Every witness who testifies after that gets filed into her frame instead of mine.

I keep it short. An opening that runs long stops being an outline and starts being an argument, which draws the objection and, worse, tells the jury I am worried. Most of my openings in a District Court trial run under ten minutes. The jury has just sat through empanelment and they are not ready for a lecture.

I name my client. He has been sitting silently while a stranger described him as a criminal, and the first human thing anyone says about him should come from me. That is not sentiment. A jury that is not permitted to think of the defendant as a person will convict him more easily than one that is.

The Burden Is the Spine of It

Every opening I give is built around the same structural fact: my client does not have to prove anything. I say it once, plainly, near the start, and then I never say it again in those words. Jurors discount a phrase they have heard four times.

Instead I make the burden do work through the rest of the speech. I tell the jury what questions they should expect to have answered, and I let them notice for themselves, over the following two days, which of those questions the Commonwealth never answers. That is a promise about the prosecution’s case rather than about my own evidence, which is a promise I can keep no matter what my witnesses do.

Opening When I Will Call No Witnesses

In a great many trials the defense rests without calling anyone. That is a legitimate and often correct choice, and it changes the opening completely. If I am not going to put on evidence, my opening cannot describe evidence I will offer. It has to describe the testing that the Commonwealth’s own witnesses are about to undergo.

So I tell the jury what to watch for on cross-examination: what the officer wrote down that night and what he did not, how many times the account changed, who was never interviewed. Those are facts I can deliver through the Commonwealth’s case, so the promise is safe.

I never suggest, directly or by implication, that my client will testify unless he has decided to and I am certain of it. The right to remain silent is his, the decision is made after the Commonwealth rests, and an opening that hints otherwise puts an unkept promise into the case before the first witness is called.

What I Do While the Prosecutor Opens

I write down every factual assertion she makes, in her words, with a mark beside each one I do not believe she can prove. That page becomes the spine of my closing. A prosecutor who tells the jury in the opening that a witness will say something, and then never produces it, has handed me the same weapon I am so careful not to hand her.

I object during an opening only when the harm cannot be repaired later. Interrupting is expensive with a jury and it rarely improves the situation. But where the remark is argument rather than outline, or where it puts before the jury something I know is not coming into evidence, I say so at the time, because a limiting instruction given later is worth less than one given at once.

I also listen for what she leaves out. An opening that spends four minutes on the defendant’s demeanor and thirty seconds on the identification is telling me where the case is weak. Prosecutors, like everyone else, talk longest about what they are most confident in.

Where the Opening Comes From

The opening is written last and prepared first. I do not know what I can say until I know which trial motions have been decided, what survived suppression, and what the judge has ruled on in limine. An opening drafted before those answers is a list of promises I have no authority to make.

It also depends on the jury. What I learned at empanelment tells me which two facts this particular group will find hardest, and the opening is where I address them first rather than hoping nobody noticed. A prepared opening delivered to the wrong jury is a speech, not advocacy.

The last thing I do before standing up is cut it. Whatever I have written, the version the jury hears is shorter, has fewer promises in it, and ends on the single fact I most want them carrying into the first witness.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995 and tries cases in the District Courts and Superior Courts of Greater Boston. Serpa Law Office can be reached at 617.936.0201.