The Use of Evidence in Opening Statement and Closing Argument

June 20, 2007

Presented by:

 The Honorable C. Robert Jameson, Orange County Superior Court

 Richard A. Cohn, Aitken Aitken & Cohn

I. Fundamentals/Legal Principles

A. Opening Statement

  • C.C.P. §607(1) — When the jury has been sworn unless the court, for special reasons, otherwise directs: (1) The plaintiff may state the issue and his case; (2) The defendant may then state his defense if he wishes or wait until after the plaintiff has produced his evidence.
  • A statement made against one’s clients’ interest can be taken as an admission.  Miller v., Johnston (1969) 270 Cal.App.2d 289.
  • A very limited discussion of applicable law is allowable when necessary to provide jury with an understanding of the case (e.,g. violation of statute is alleged).  DeArmas v. Dickerman (1952) 108 Cal.App.2d 548.
  • C.C.P. §581c(a) authorizes nonsuit motion where one fails to cover all elements of asserted cause of action in opening statement.  (However, caselaw allows counsel to “re-open”? to correct such errors.)  (See e.g. John Norton Farms v. Todabco (1981) 124 Cal.App.3d 149.)
  • Time limits within sound discretion of trial judge.  (Such limits are normally prearranged in discussions with judge pre-trial.)
  • Opening statement is not evidence.
  • Opening Statement should not be used to “argue”? case to the jury.  (A very “gray”? area)
  • Exclusion of witnesses in discretion of the trial court California Evidence Code §777(a); C.C.P. §128(a)(3).
  • Transcript of opposing counsel’s opening can/should often be ordered to examine in detail (and later expose unfulfilled promises).
  • In multiparty cases, the order of who will present opening statements is in the discretion of the court (if the parties cannot agree).  C.C.P. §607(B).  Co-defendants should consider having one defendant “reserve”? argument until after plaintiff’s case is complete.
  • Improper Conduct During Opening
  • Discussing excluded matters
  • Statements made without “good faith”? belief
  • Argument
  • Discussing applicable law (with limited exceptions)
  • Statements of personal belief or opinion
  • In the event of misconduct by opposing counsel, timely objection and request for jury admonishment is required (to avoid waiver of claim of prejudice on appeal).  See, Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 861.  In extreme cases, request for mistrial is appropriate.
  • Use of Demonstrative Evidence is generally accepted under California law where it will aid the jury in following the evidence, and to discern its materiality, force and effect.  People v. Green (1956) 47 Cal.2d 209.
  • Items that will be received into evidence may be used in opening.
  • Even items not independently admissible (i.e. a map or sketch) can be used if they will fairly serve a proper purpose.  (Id.)  See also, People v. Fauber (1992) 2 Cal.4th 792; People v. Kirk (1974) 43 Cal.App.3d 921, 929; Gibson v. State (1962) 208 Cal.App.2d 458.
  • Beware of Local Rules limiting use of demonstrative evidence in opening statement without prior approval of the court.

B. Closing Argument

  • Wide latitude is granted.
  • Argument re: how the law applies to the facts of the case allows for use of all of the following:
  • Blow-ups of Jury Instructions
  • Blow-up of Verdict Form
  • Exhibits designed to recap the evidence (and argue the case).
  • Any exhibits referred to during trial
  • Deposition and/or trial transcripts
  • Testimony “Highlights”? charts
  • Scope of Permissible Argument:
  • Inferences v. unsupported inferences
  • Counsel’s view of disputed facts — permissible; (but opinion that witness is liar is improper)
  • Discussion of applicable law is permissible (especially jury instructions)
  • Improper to argue re: excluded evidence, matters not in evidence, misstatements of evidence or law.
  • Improper to appeal to “passion/prejudice”?
  • Improper to refer to exercise of privilege
  • Improper to argue counsel’s personal knowledge of facts
  • Okay to refer to common knowledge
  • Golden Rule = improper
  • Juror’s self interest = improper (i.e. cost to taxpayers).
  • Referring to jurors by name = improper
  • Lack of timely objection yields waiver; Must object and request jury admonition

II. Types Of Demonstrative Evidence

  • Chronology/Timeline
  • Videotape
  • Audiotape
  • Charts and graphs
  • Medical records
  • Medical Illustrations
  • Models of human anatomy
  • Maps
  • Exemplar products/devices
  • Xrays/CT-Scans/MRI films, etc. . .  (positive)
  • Documents (blown up)
  • Diagrams of scene and party/witness locations
  • Video/Computer generated re-creation and simulation
  • Photographs of scene, vehicles, injuries
  • Injury Diagrams
  • Sequence of events diagrams
  • Family photos and video
  • “Day in the Life”? films
  • Plaintiff’s diplomas, certificates, achievements
  • “Scales of Justice”? chart summarizing/weighing evidence
  • Economic damages summary chart
  • Medical bills summary chart
  • Police/Fire/Paramedic/Coroner/Other investigative reports
  • Witness statements
  • Land Survey charts

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