In a criminal trial, the lawyers explain what they will prove during opening statements, which take place after the jury is sworn in and before any witness testifies or any evidence is introduced. The prosecution speaks first, the defense follows, and each side uses the time to give jurors a roadmap of the case from its perspective.
Where Opening Statements Fall in the Trial
A criminal trial follows a predictable order: jury selection, opening statements, the prosecution’s evidence, the defense’s evidence (if it chooses to present any), closing arguments, jury instructions, and deliberation. Opening statements land near the very start, immediately after the jury is empaneled. The placement is deliberate. Jurors hear each side’s narrative before a single witness testifies, which gives them a framework for interpreting the testimony and exhibits as they come in.
Before either lawyer begins, the judge typically instructs the jury that what the attorneys say during opening statements is not evidence. Federal model jury instructions put it plainly: statements by lawyers “are intended to help you interpret the evidence, but it is not evidence,” and if a juror’s memory of the facts differs from how a lawyer described them, the juror’s own memory controls.1United States Courts. Model Jury Instructions – 1.10 What Is Not Evidence That instruction matters more than jurors usually realize at the time. It becomes especially relevant if a lawyer previews something that never materializes.
Why the Prosecution Goes First
The prosecution always delivers its opening statement before the defense. This order follows from a basic structural rule: the prosecution carries the burden of proof and must establish guilt beyond a reasonable doubt.2Legal Information Institute. Burden of Proof Because the government is the side that must prove something, it gets the first chance to tell jurors what it plans to show.
A prosecutor’s opening lays out the government’s theory of the crime. The prosecutor identifies the defendant, walks the jury through the events in question, and previews the key witnesses and physical evidence that will tie the defendant to those events. Phrases like “the evidence will show” and “you will hear testimony from” come up again and again. They signal that the attorney is previewing facts rather than arguing conclusions, which is the line opening statements are not supposed to cross.3United States Courts. Differences Between Opening Statements and Closing Arguments
The strongest prosecution openings don’t just list witnesses and exhibits. They tell a coherent story so that when, say, a forensic analyst testifies about a DNA match two days later, the jury already knows where the testimony fits.
What the Defense Does With Its Opening
After the prosecution finishes, the defense attorney delivers an opening statement. The defense has no obligation to prove anything, so the preview plays a different role. It plants doubt. The defense may offer an alternative explanation for the evidence, point to specific weaknesses jurors should watch for in the government’s case, or simply remind the jury that one side’s version is not the whole story.
The defense also has a timing option the prosecution does not. In many jurisdictions, the defense can reserve its opening until after the prosecution has finished presenting its entire case-in-chief. That lets the defense tailor its preview to the evidence that actually came in rather than the evidence the prosecution promised. If the state’s star witness underperformed, or the judge excluded a key exhibit mid-trial, the defense can calibrate its narrative accordingly.
Waiving the opening altogether is technically possible, but experienced defense attorneys rarely do it. Skipping the opening leaves the prosecution’s version sitting with the jury unchallenged, sometimes for days, while the state puts on its witnesses. Jurors start assembling the picture using only the frame the prosecution gave them, and first impressions formed that way can be hard to dislodge.
What Lawyers Can and Cannot Say
Opening statements are limited to outlining facts the attorney expects to prove through evidence. That boundary sounds simple, but in practice the line between previewing evidence and arguing the case is one of the most frequently tested limits in trial advocacy.3United States Courts. Differences Between Opening Statements and Closing Arguments Generally off-limits:
- Arguing conclusions. A lawyer can say the surveillance video will show the defendant entering a store at 9:14 p.m., but not that this proves the defendant is guilty. Drawing conclusions from evidence is reserved for closing arguments.
- Personal opinions. Statements like “I believe the defendant is lying” or vouching for a witness’s honesty cross the line. The lawyer’s own views are not evidence.
- Discussing inadmissible evidence. If the judge already ruled that certain evidence cannot be shown to the jury, mentioning it in the opening is improper and can carry serious consequences.
- Attacking witness credibility directly. Telling the jury a witness “cannot be trusted” is argumentative. The defense can, however, note that cross-examination will reveal problems with a witness’s account, because that previews evidence rather than telling jurors what to conclude.
- Asking the jury to “send a message.” Appeals to emotion or civic duty belong in closing arguments, if anywhere.
Opposing counsel can object when these limits are crossed, and the judge rules on the objection. In extreme situations, such as a prosecutor referencing excluded evidence or commenting on the defendant’s right to remain silent, improper remarks can lead to a mistrial. That remedy is reserved for misconduct serious enough that the defendant can no longer receive a fair trial.
When a Preview Doesn’t Pan Out
Every opening statement is, in effect, a promise. When a lawyer tells the jury “the evidence will show X,” the jury expects to see X. Sometimes it doesn’t appear. A witness’s testimony may not go as planned, an exhibit may be excluded mid-trial, or the attorney may have been too optimistic about what the facts would support.
When the prosecution previews evidence and fails to produce it, the defense can hammer that failure during closing. The reverse is also true. These moments can be damaging because jurors remember what they were told to expect, and the gap between the preview and the reality erodes the attorney’s credibility across the rest of the case.
That is why experienced trial lawyers avoid overselling. Making statements that cannot be supported by proof, particularly on significant elements of the case, is considered professional misconduct. Beyond ethics, it is a practical trap: the opposing side will use the broken promise as a weapon, and jurors tend to punish the attorney who made it.
How This Differs From Closing Arguments
Opening statements and closing arguments bookend the trial, but the rules are fundamentally different. An opening previews what the evidence will show. A closing reviews what the evidence did show and asks the jury to reach a specific conclusion.3United States Courts. Differences Between Opening Statements and Closing Arguments
During closings, most of the restrictions on advocacy come off. Lawyers can argue inferences, challenge witness credibility head-on, tell jurors why certain testimony should not be believed, and explicitly ask for a guilty or not-guilty verdict. None of that is permitted during the opening. The shift in tone between the two stages is often striking. A measured, factual opening gives way to a closing that is openly persuasive and sometimes emotional. Treating the opening as a chance to argue the case, rather than preview it, is one of the fastest ways to draw an objection.