After jury selection, but before opening statements, the judge may give the jury preliminary instructions that explain the procedure of a trial from opening statements to closing arguments. There is no requirement that the judge instruct the jury on substantive matters such as reasonable doubt in the preliminary instructions. Decapite v. State, 312 Ga. App. 832 (2011). After these preliminary instructions, the jury will be ready to hear the opening statements of the attorneys.
Opening statements are the opportunity for the attorneys to give the jury an overview of the case. Franks v. State, 88 Ga. App. 263 (1988). The attorneys are allowed to tell the jury what they expect the evidence to show during the course of the trial. Clark v. State, 271 Ga. 6 (1999). It is not a time for the attorney to argue the case. Barber v. State, 317 Ga. App. 600 (2012). Studies indicate that what is said in opening statement has an influence on jurors. Therefore, although an attorney can waive an opening statement, the decision to do so should not be taken lightly. However, the failure to make an opening statement does not amount to ineffective assistance of counsel. Futch v. State, 151 Ga. App. 519 (1979).
Uniform Superior Court Rule 10.2 provides: “The district attorney may make an opening statement prior to the introduction of evidence. This statement shall be limited to expected proof by legally admissible evidence. Defense counsel may make an opening statement immediately after the State's opening statement and prior to introduction of evidence, or following the conclusion of the State's presentation of evidence. Defense counsel's statement shall be restricted to expected proof by legally admissible evidence, or the lack of evidence.” Mason
v. State, 197 Ga. App. 634 (1990). A defense attorney can reserve his opening statement until after the State has presented its evidence. However, the judge must allow the defense opening statement to be reserved. Berryhill v. State, 235 Ga. 549 (1975); McKenzie v. State, 248 Ga. 294 (1981).
Since opening statements are limited to statements concerning legally admissible evidence, attorneys must have a good faith basis that what they say will be proven by admissible evidence. Ramirez v. State, 276 Ga. 249 (2003); Ballamy v. State, 272 Ga. 157 (2002). Sometimes the judge will prevent an attorney from making a statement about certain evidence in opening until its admissibility can be determined during trial. Yarborough v. State, 183 Ga. App. 198 (1987); Teems v. State, 256 Ga. 675 (1987.
A prosecutor should confine his opening statement to an outline of what he expects admissible evidence to prove at trial. However, if a prosecutor departs from these guidelines, a conviction will not be reversed if the prosecutor acted in good faith and if the judge instructs the jury that the prosecutor's opening statement is not evidence and has no probative value. The burden is on the prosecutor to show that the failure to offer this proof was in good faith. Alexander v. State, 270 Ga. 346 (1998); Belyeu v. State, 262 Ga. App. 682 (2003).
It is inappropriate for a prosecutor in a criminal case to discuss in opening statement the evidence the State anticipates the defense will present at trial. Hargett v. State, 285 Ga. 82 (2009); Parker v. State, 277 Ga. 439 (2003). For example, in Hargett, the defense gave notice of its intent to present an alibi defense. The prosecutor in opening statement improperly said that the State was prepared to expose and refute the alibi defense that the State anticipated.
The use of a visual aid is permissible during opening statement. Phillips v. State, 287 Ga. 560 (2010).