Opening Statements and Closing Arguments in Massachusetts Criminal Trials

An opening statement tells the jury what the evidence is expected to show. A closing argument explains what the evidence admitted at trial proves, or fails to prove. Neither is evidence, and the judge tells the jury so.

Massachusetts rules limit what counsel may say in each. Counsel enforces those limits by objecting, and the objection preserves the issue for review. Which appellate standard applies can turn on the timing and specificity of the objection.

This guide covers the function and limits of each address, the standards Massachusetts courts apply to improper argument, and the preservation rules that determine the standard of review.

Attorney Serpa’s account of the stage before the opening appears in how I pick a jury in a Massachusetts criminal trial.

For Attorney Serpa’s own account of how he delivers an opening, see how I open a Massachusetts criminal trial.

Opening and closing are two stages of a trial. The rest appear in the Massachusetts criminal court practice section.

The Order and Timing

Massachusetts Rule of Criminal Procedure 24(a) sets the sequence. The Commonwealth presents its opening statement first. The defendant may present an opening statement “after the opening statement of the Commonwealth or after the close of the Commonwealth’s evidence.” The defendant presents the closing argument first.

The rule allows each party fifteen minutes for an opening and thirty minutes for argument, and the judge may reasonably reduce or extend that time on motion or on the judge’s own initiative before the address begins.

The Function of the Opening Statement

“The proper function of an opening is to outline in a general way the nature of the case which the 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). It is not an opportunity for argument, and “[c]ounsel in an opening statement may not vouch for the credibility of a key witness.” Commonwealth v. Croken, 432 Mass. 266, 268 (2000). Counsel may not argue the case, comment on the credibility of witnesses who have not testified, or appeal to the jury’s sympathy in an opening.

Counsel in general may state anything counsel expects to be able to prove by evidence, and that expectation “must, of course, have been reasonable and grounded in good faith.” Fazio, 375 Mass. at 456. Where the evidence alluded to does not materialize at trial, bad faith is not presumed. Id. at 454 to 456.

The defense also faces a practical consequence when promised evidence never arrives. The prosecutor may point out the omission, and the unfulfilled promise can damage counsel’s credibility. In Commonwealth v. Duran, 435 Mass. 97, 109 (2001), the Supreme Judicial Court observed that a promise by defense counsel to produce key testimony followed by a failure to deliver it “may, without more, constitute ineffective assistance of counsel.” When counsel promises that the defendant will testify, the jury may infer that the defendant avoided cross-examination or that the defense failed. Duran did not make that result automatic. The defendant must show that the unfulfilled promise created a substantial likelihood of a miscarriage of justice. That determination depends on the scope of the promise, any strategic reason for the later decision, and the likely effect on the jury.

When the admissibility of important evidence is uncertain, counsel should seek a ruling by motion in limine before mentioning that evidence in the opening. See trial motion practice in Massachusetts criminal cases.

The Defense Choice on the Opening

Rule 24(a) gives the defense two options: open immediately after the Commonwealth’s opening, or reserve and open after the close of the Commonwealth’s evidence. A third possibility is to give no opening at all.

Counsel should discuss those options with the client and choose the timing that fits the defense expected at trial.

Opening immediately gives the jury the defense account before the Commonwealth presents its evidence. Reserving avoids committing to a theory before counsel has heard the Commonwealth’s witnesses and places the defense account closer to the defense case. Giving no opening avoids making a promise, but leaves the Commonwealth’s account unanswered while it presents its case.

A defense may rely entirely on cross-examination and evidence introduced through the Commonwealth’s witnesses. If counsel gives an opening in that kind of case, the opening should identify the evidence expected from those witnesses without promising a separate defense case.

The Boundaries of Closing Argument

Counsel may argue the evidence and the fair inferences from it, may attack the credibility of witnesses who testified, and may respond to the other side’s argument. A prosecutor “may marshal the evidence in closing argument, and, in doing so, may urge the jury to believe the government witnesses and disbelieve those testifying for the defendant.” Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005).

Counsel may not vouch for a witness. “Improper vouching occurs if an attorney expresses a personal belief in the credibility of a witness, or indicates that he or she has knowledge independent of the evidence before the jury.” Commonwealth v. Ortega, 441 Mass. 170, 181 (2004), quoting Commonwealth v. Wilson, 427 Mass. 336, 352 (1998). Counsel may explain why the evidence supports or undermines a witness’s account. Counsel may not claim personal belief in the witness or suggest knowledge that the jury has not heard. A prosecutor also may not tell the jury that a complainant has no reason to lie. Commonwealth v. Riberio, 49 Mass. App. Ct. 7, 10 (2000).

The evidence sets the other boundary. “Prosecutors must limit the scope of their arguments to facts in evidence and inferences that may be reasonably drawn from the evidence.” Commonwealth v. Coren, 437 Mass. 723, 730 (2002). In Beaudry, the Supreme Judicial Court reversed the convictions because the prosecutor argued an inference that the record could not support and the judge’s standard instructions did not address the particular error.

Several categories of argument recur as improper:

• Asserting facts not in evidence, or arguments that are speculative or conjectural rather than supported by the evidence;
• Stating counsel’s personal belief in the guilt or innocence of the defendant or in the credibility of a witness;
• Vouching for a government witness, including by reference to the terms of a plea or cooperation agreement;
• Commenting on the defendant’s failure to testify, or on the defendant’s silence after Miranda warnings;
• Shifting or misstating the burden of proof;
• Appealing to sympathy, fear, or the jury’s role in protecting the community.

The Kozec Standard

Massachusetts courts apply Commonwealth v. Kozec, 399 Mass. 514 (1987), when reviewing a challenged closing argument. The court first decides whether the remarks were improper. If they were, the court considers the entire argument, whether the defendant objected, whether the judge gave a curative instruction, and the strength of the evidence to decide whether the error requires a new trial.

Kozec also identifies what a judge can do at the moment of the objection. The Court noted that a few words from the judge, at the time of the objection or later, would probably have cured the error, and that a judge in doubt about an argument’s propriety could take a neutral posture and tell the jury that if their memory of the evidence did not support the argument, they should disregard it. The Court observed that by overruling a valid objection, the judge “appeared to give judicial endorsement to the prosecutor’s improper argument.”

Objections and the Standard of Review

An objection preserves the issue and changes the standard of review.

With a proper objection, an appellate court reviews the improper argument for prejudicial error.

Without an objection, Kozec states that “the standard of review changes to the defendant’s detriment,” and the question becomes whether there was a substantial risk of a miscarriage of justice. The Court also noted that the absence of an objection during or after argument may itself provide some guidance about whether the argument was prejudicial in the circumstances, because counsel present in the courtroom did not think it worth objecting to at the time.

On timing, Kozec states that “[o]bjection at the conclusion of the prosecutor’s argument normally preserves the defendant’s rights.” Counsel need not interrupt the argument. At its conclusion, however, counsel should identify each challenged remark and state the basis for the objection. A general objection may not preserve every distinct claim of error.

Curative Instructions and Mistrial

When the judge sustains an objection, counsel should request a specific curative instruction. A general reminder that closing arguments are not evidence may not correct the particular remark.

If an instruction cannot cure the prejudice, counsel may move for a mistrial. The judge decides that motion in the exercise of discretion. Counsel should identify the remark, explain the prejudice, and state why an instruction cannot cure it. That record defines the issue for appellate review.

If the judge gives an insufficient instruction, counsel should object on the record and renew the requested relief. Silence after the instruction may suggest that counsel accepted the remedy.

Structuring the Defense Closing

A defense closing should begin with the evidence admitted at trial and the Commonwealth’s burden of proof.

The elements give the argument its structure. Counsel can identify the element the Commonwealth failed to prove and then explain the specific gap: a witness who changed accounts, a record that contradicts testimony, a test that investigators never performed, or a person they never interviewed.

Two limits apply to the defense as well as the Commonwealth. Counsel may not argue facts outside the evidence, and counsel may not state a personal belief in the defendant’s innocence.

Where the defendant did not testify, counsel should ensure the judge instructs the jury that no inference may be drawn from that. See your right to remain silent.

Where the defense at trial was justification, counsel addresses the Commonwealth’s burden on that issue directly in closing. In a self-defense case, the Commonwealth must prove beyond a reasonable doubt that the accused did not act in self-defense. See self-defense in Massachusetts.

Where These Fit in the Trial

Opening statements and closing arguments depend on the work before and during trial. Which evidence counsel may mention turns on the rulings on trial motions. Through cross-examination, counsel develops the admissions and contradictions available for closing. Questions involving texts, photographs, recordings, or social-media evidence require separate attention to digital-evidence authentication and admissibility. The trial begins with jury selection, and the judge’s final instructions state the law the jury must apply.

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