A Practitioner’s Guide to Opening Statements and Closing Arguments in Massachusetts Criminal Trials

In a Massachusetts criminal trial, counsel address the jury twice without a witness on the stand: in the opening statement before any evidence is offered, and in the closing argument after both sides rest. Different rules govern the two moments. An opening is a preview, confined to what counsel reasonably expects the evidence to show. A closing is argument, confined to the evidence admitted and the fair inferences that may be drawn from it. The recurring violations are catalogued in the reported decisions, and the preservation rules that fix the standard of review on appeal are exact.

This guide states the governing standards for each stage: what an opening may promise and the consequences of an unkept promise; the defense options of opening at once, reserving, or waiving; the boundaries of closing argument under Commonwealth v. Kozec, 399 Mass. 514 (1987); four recurring prosecutorial errors; and the preservation, curative instruction, and mistrial rules that determine appellate review. It closes with structural advice for the defense summation.

The Function of the Opening Statement

The proper function of an opening is to outline in a general way the nature of the case that counsel expects to be able to prove or support by evidence. Commonwealth v. Fazio, 375 Mass. 451, 454 (1978). The content rule follows from the function: counsel may state anything they reasonably, and in good faith, expect to prove. The expectation must exist at the moment the words are spoken, and it must rest on evidence counsel has a reasonable basis to believe will be admitted, not on hope. An opening is not evidence, and trial judges instruct juries to that effect, ordinarily before the openings and again in the final charge.

The judge retains authority over form as well as content, and may confine an opening that drifts from a preview of expected proof into argument. Commonwealth v. Dupree, 16 Mass. App. Ct. 600 (1983). An opening that argues draws an objection; an opening that overpromises creates the problems described next.

Unfulfilled Promises in the Opening

When evidence described in the Commonwealth’s opening never materializes, reversal is not automatic. In Fazio, the Supreme Judicial Court held that bad faith will not be presumed from the failure of proof alone, and that the ordinary remedy is an instruction that the jury may not consider the unproven portion of the opening against the defendant. The court approved the trial judge’s instruction to that effect and affirmed the denial of a mistrial. Defense counsel should record every factual promise in the Commonwealth’s opening, compare the promises to the proof at the close of the evidence, and, where a central promise went unfulfilled, request an instruction naming the missing evidence and move for a mistrial if no instruction can repair the harm.

The exposure on the defense side is different. A promise by defense counsel in the opening to produce key testimony, followed by a failure to deliver it, may, without more, constitute ineffective assistance of counsel. Commonwealth v. Duran, 435 Mass. 97, 109 (2001). Whether it does is decided case by case, on the nature and extent of the promise, any strategic justification for the later decision not to produce the evidence, and the likely effect of the unkept promise on the jury. The most dangerous promise is the defendant’s own testimony: when the promised testimony never comes, the jury may conclude that the defendant was unwilling to answer cross-examination, or that the defense itself failed.

An unkept defense promise is not ineffectiveness in every case. The decision whether to open at all, and what details to include, is purely strategic, and the benefit of announcing specific anticipated testimony may outweigh the risk that the testimony will not be available. Commonwealth v. McMahon, 443 Mass. 409 (2005). In McMahon, counsel built the opening around the account of a defendant who had insisted through extensive preparation that he would testify and who then refused midtrial; the Supreme Judicial Court held the opening was a reasonable strategic choice and the failure of proof was forced by events beyond counsel’s control. The working rule is control: promise in an opening only what counsel can deliver without another person’s cooperation, and describe the defendant’s testimony only when that decision is firm.

The Defense Choices for the Opening Statement

Rule 24(a)(1) of the Massachusetts Rules of Criminal Procedure, 378 Mass. 895 (1979), governs the order. The Commonwealth opens first. The defense then holds three options: open immediately after the Commonwealth’s opening, reserve the opening until after the Commonwealth rests, or waive the opening entirely. The choice between the first two belongs to the defendant alone, and a judge commits error by restricting the defense opening to the close of the Commonwealth’s case. Dupree, 16 Mass. App. Ct. at 600-601.

The right to open presupposes a defense case to outline: under Dupree, a judge may deny a defense opening that would offer no more than a hope of puncturing the Commonwealth’s case through cross-examination. A defense conducted entirely through cross-examination therefore ordinarily proceeds without an opening. Waiver of an opening has been held to be a tactical decision and a matter of professional judgment, within the realm of trial strategy, and the failure to make an opening does not by itself support a claim of ineffective assistance. Commonwealth v. Scott, 430 Mass. 351, 357 (1999).

The choice among the three options follows from the defense evidence. Opening at once fits the case with a committed theory and witnesses to present: the jury hears from the first moment what the defense expects to prove, and the Commonwealth’s witnesses are measured against that account as they testify. Reserving fits the case where the defense will present evidence but its final shape depends on how the Commonwealth’s witnesses hold up on cross-examination; the reserved opening then introduces the defense case directly, without early commitments. Waiving fits the pure reasonable doubt defense. Whatever the timing, the drafting rule follows from Duran: every factual sentence in a defense opening is a promise, and each should be one counsel controls.

The Boundaries of Closing Argument

The framework decision is Commonwealth v. Kozec, 399 Mass. 514 (1987). Counsel may argue the evidence and the fair inferences that may be drawn from it, and may argue, from demeanor, disclosed circumstances, and appearance, that a particular witness should be believed or disbelieved. Arguments unsupported by the evidence are speculative and improper. A prosecutor should not refer to the defendant’s failure to testify, misstate the evidence or refer to facts not in evidence, interject personal belief in the defendant’s guilt, play on racial, ethnic, or religious prejudice or on the jury’s sympathy or emotions, or comment on the consequences of a verdict.

The Supreme Judicial Court in Kozec rejected the suggestion that prosecutors may exceed the proper limits because defense counsel argued improperly first. An excessive defense argument may justify a limited response, a concept given modest recognition, but the better course for the Commonwealth is to seek redress from the judge, and the prosecutor, as a representative of the government, must maintain a consistently high and proper standard. Commonwealth v. Amirault, 404 Mass. 221 (1989).

The Kozec Factors

The consequences of an improper argument depend on four factors: whether the defendant seasonably objected; whether the error was limited to “collateral issues” or went to the heart of the case; what the judge told the jury, generally or specifically, that may have mitigated the mistake; and whether the error, in the circumstances, possibly made a difference in the jury’s conclusions. Kozec, 399 Mass. at 518. Once a preserved objection is found valid, the entire record, including the balance of the argument, bears on whether reversal is required. Kozec, 399 Mass. at 523.

Trial counsel can treat the factors as a checklist: object seasonably, state the specific ground, request a specific instruction, and show that the misstatement went to the contested center of the case rather than to a collateral point.

Recurring Prosecutorial Errors in Closing Argument

The first recurring error is vouching. Improper vouching occurs when an attorney expresses a personal belief in the credibility of a witness or indicates knowledge independent of the evidence before the jury. Commonwealth v. Wilson, 427 Mass. 336, 352 (1998). The distinction is between reasons and assurances: a prosecutor may argue from motive, corroboration, and demeanor that jurors should credit a witness, and may not certify the witness personally or suggest access to information the jury has not seen.

The second is burden shifting. A prosecutor cannot comment on a defendant’s failure to contradict testimony and cannot make statements that shift the burden of proof from the Commonwealth to the defendant. Commonwealth v. Amirault, 404 Mass. 221, 240 (1989). The error usually takes the form of a demand for an explanation the defense never owed: the argument that the defendant could point to nothing, called no witness, or left testimony unanswered. In Amirault, prompt instructions that the defendant bears no duty to rebut any evidence cured the improper comment; defense counsel should request precisely that instruction whenever the Commonwealth argues in this form.

The third is the appeal to sympathy. A prosecutor may tell the jury something of the person whose life was lost, but where the victim’s character and personal characteristics are not relevant to any material issue, the prosecutor must refrain from emphasizing them in a way that risks undermining the rationality and the integrity of the verdict. Commonwealth v. Santiago, 425 Mass. 491 (1997). In Santiago, the Supreme Judicial Court ordered a new trial based on the cumulative effect of repeated references to the young victim’s pregnancy, irrelevant testimony from the victim’s sister, and misstatements of the record. Jurors want to decide cases fairly on the evidence; a prosecutor who argues grief instead of proof invites objection and risks retrial.

The fourth is misstating the evidence. Prosecutors must limit their arguments to facts in evidence and the inferences that may reasonably be drawn from them, and must take care not to misstate the evidence. Commonwealth v. Coren, 437 Mass. 723 (2002). In Coren, the prosecutor repeatedly attributed to the victim a final plea not to shoot that no witness had described. The shooting had no eyewitnesses and the defense rested in part on accident, so the invented words went to the heart of the case, and the court ordered a new trial. Not every misstatement requires reversal: in Wilson, two statements without record support were error but not prejudicial against overwhelming proof of guilt. The difference is the fourth Kozec factor, whether the error possibly made a difference in the result.

Preservation and the Standards of Review

The first Kozec factor makes preservation part of the merits. An objection at the conclusion of the argument is sufficient to preserve the defendant’s rights; counsel need not interrupt the argument as it is delivered. Commonwealth v. Person, 400 Mass. 136 (1987). The disciplined practice is to note each offending statement, object at sidebar when the argument ends, state a specific ground for each point, and couple the objection with a request for curative language and, where warranted, a motion for a mistrial.

The standard of review turns on that objection. Preserved error is reviewed as prejudicial error: the conviction stands only if the reviewing court is sure that the error “did not influence the jury, or had but very slight effect.” Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). Unpreserved error is reviewed for a substantial risk of a miscarriage of justice, which exists when the court has a “serious doubt whether the result of the trial might have been different had the error not been made.” Commonwealth v. Randolph, 438 Mass. 290, 298 (2002). Under Randolph, the reviewing court asks four questions, including whether counsel’s failure to object was itself a tactical choice, and relief under this standard is seldom granted. The distance between the two standards is the practical argument for objecting every time.

Curative Instructions and the Motion for a Mistrial

Whether to declare a mistrial rests within the trial judge’s discretion, and a judge may properly rely on curative instructions as an adequate means to correct error and to remedy prejudice. Commonwealth v. Kilburn, 426 Mass. 31, 37-38 (1997). Jurors are expected to follow instructions to disregard matters withdrawn from their consideration, and where the instruction is prompt and the jury does not hear the offending material again, a mistrial is generally unnecessary.

Two practices follow. Because the third Kozec factor turns on what the judge said, generally or specifically, counsel should request an instruction that identifies the improper statement rather than settling for the standard reminder that arguments are not evidence. And counsel who consider an instruction inadequate should say so on the record before the jury retires and renew the mistrial motion, because reviewing courts assume juries follow the instructions given.

The Structure of the Defense Closing

Rule 24(a)(1) requires the defendant to present the closing argument first, and the Appeals Court has described that order as clear and mandatory. Commonwealth v. Rocheteau, 74 Mass. App. Ct. 17 (2009). The order presents no constitutional question; as the Appeals Court observed in Rocheteau, quoting Commonwealth v. Seminara, 20 Mass. App. Ct. 789 (1985), there are advantages to having the last word and countervailing advantages to having the first. Because the Commonwealth speaks last, the defense summation must answer the rebuttal before it is spoken: counsel should identify the replies the prosecutor will most likely make and address each in advance.

The organizing principle is the weakest point of the Commonwealth’s case. Every charge reduces to elements, and in most tried cases one element rests on the thinnest proof: an identification made in poor conditions, an intent inferred from ambiguous conduct, an opinion of impairment resting on subjective field observations. The defense closing should be built around that single proposition, with the concessions won on cross-examination assembled behind it and the burden of proof presented as the standard that the weak element cannot satisfy. Counsel who scatter the argument across every dispute in the trial spend the jury’s attention on points the Commonwealth can afford to lose. Jurors want to do their jobs fairly and without theatrics; the closing that shows them precisely where proof beyond a reasonable doubt fails respects that instinct. The firm’s article on how Massachusetts OUI cases are won at trial applies this method to a single recurring charge, from the traffic stop through the field observations to the verdict.

The two stages reward one discipline. State in the opening only what the evidence will support; argue in the closing only what the admitted evidence does support; and when the Commonwealth does otherwise, object at the close of the argument, request the specific instruction, and put the mistrial motion on the record. The same improper argument is measured against prejudicial error where counsel objected, and against a substantial risk of a miscarriage of justice where counsel stayed silent.

Referring counsel may reach Attorney Serpa at 617.936.0201.

Last Reviewed: July 2026