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Why there should be no argument in the Trump trial's opening statements

From the perspective of the prosecutor, an opening is a preview for the jurors of what they will see and hear. And good prosecutors do not overpromise.

This week, with a jury seated and sworn, trial will begin in a Manhattan courtroom in the false records case brought by District Attorney Alvin Bragg against former President Donald Trump. The trial will begin with opening statements, an important part of the trial. But do not expect to hear on Monday any arguments about the strength of the case or the weight of the evidence.

Hollywood routinely mangles courtroom scenes. But that was mostly not true for the 1992 comedy “My Cousin Vinny.” Vinny Gambini — an inexperienced Brooklyn lawyer — travels to Alabama to defend his cousin, who has been falsely accused of murder.

On the day of opening statements, the prosecutor went first, as it is his burden to prove guilt. He told the jury how the evidence would show that the defendants entered and robbed a convenience store, and then were seen running out of that store a moment after gunshots killed a clerk, driving away in their car.

Then Joe Pesci, portraying defense counsel Gambini, gives his opening statement. “Everything that guy just said is b-------. Thank you.” Nine words, and Gambini sat back down.

The prosecutor immediately objected: “Counsel’s entire opening statement is argument.”

The judge agreed and sustains the objection, ruling that “the entire opening statement, with the exception of ‘thank you,’ will be stricken from the record. The jury will please disregard counselor’s entire opening statement.”

The prosecutor and the judge were right. Gambini’s opening statement was argument and — as opening statements go — therefore improper.

Attorneys are not permitted to argue their case in their opening statement. Indeed, no evidence has been introduced at this point in the trial.

Attorneys are not permitted to argue their cases in their opening statements. Indeed, there is no evidence that has been introduced at this point in the trial — no witnesses, no documents — from which to argue. An opening, rather, is a non-argumentative statement to the jury of what you expect to prove (if you represent the government) or, perhaps, what you claim the government will be unable to prove (if you represent the defendant). Most judges set time limits on these statements (thank goodness).

The defense, of course, has no burden to put on any case at all, and so often does not promise particular facts or evidence or witnesses in an opening statement (though it can do so, if it wishes) but rather notes the difficult burden on the prosecution.

From the perspective of the prosecutor, an opening is a preview for the jurors of what they will see and hear — promises often framed in terms of what “the evidence will show” and what a witness “will tell you.” Good prosecutors in openings do not overpromise and underdeliver — that can be fatal to their case. And good defense attorneys are only too happy to remind jurors during closing argument — at the end of the trial — of where and how a prosecutor failed to deliver on their promises.  

In an opening a good prosecutor will also get ahead of any weaknesses in their case. Almost all cases have soft spots, and it is better for a prosecutor to tell the jury about any weaknesses upfront then to have jurors learn about them from a defense attorney. In that way, prosecutors make it clear that they have nothing to hide and that the jury is hearing the truth, the whole truth and nothing but the truth from the government.

Arguments are reserved for closing, after all of the witnesses have testified and all of the evidence has been admitted. You are permitted to argue the strength of your case in closing and the inferences you think the jury should draw from the facts presented during trial. That’s why these trial parts have different and specific names: opening statements and closing arguments. Statement and argument, beginning and end, preview of the evidence and the inferences to be drawn from the evidence.

“My Cousin Vinny” also offers an appropriate analogy. When the Trump trial begins in earnest this week, think of the opening statement by the prosecutors as a movie trailer, with the added requirement that everything in the trailer had better be in the movie.