Rhode Island Bar Association Publication: The Constitutionality of Restricting Criminal Defendant Opening Statements

CONTESTING THE CONSTITUTIONALITY OF RESTRICTING CRIMINAL DEFENDANT OPENING STATEMENTS

53 RI Bar Jnl. 5, *

Copyright (c) 2005 by the Rhode Island Bar Association

Rhode Island Bar Journal

January/February, 2005

53 RI Bar Jnl. 5

John L. Calcagni III, Esq

John L. Calcagni III at the time of publication was (is) a Captain in the United States Army Judge Advocate Generals’ Corps (currently) assigned to loth Mountain Division (Light Infantry) as the Division’s Claims Judge Advocate.

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I. Introduction

In Rhode Island, Rule 26.2 of the Rhode Island Rules of Criminal Procedure (Rule 26.2) sets forth the rule for making opening statements at trial. The rule provides that “before any evidence is offered at trial, the State may make an opening statement. If a defendant chooses to make an opening statement, he or she may do so just prior to the introduction of evidence by the State, or just prior to presenting his case.” n1 Although the plain language of Rule 26.2 appears to provide criminal defendants with the opportunity to present an opening statement, the Rhode Island Supreme Court (the Court) has substantially limited its application. The Court’s interpretation of Rule 26.2 has resulted in a trial practice that precludes criminal defendants who do not present affirmative evidence at trial from making an opening statement. n2 These defendants include those who have made a strategic choice not to present any evidence, those who are unsure at the beginning of he trial whether to present evidence, n3 and those who are without sufficient facts to do so. As a result, the Court has empowered Rhode Island trial judges to preclude many criminal defendants from making opening statements.

n1 R.I. R. Crim. P. Rule 26.2 (2002).

n2 State v. Byrnes, 433 A.2d 658 (R.I. 1981).

n3 State v. Turner, 746 A.2d 700 (R.I. 2000); State v. Bleau, 649 A.2d 215 (R.I.) 1994).

This article examines the constitutionality of this controversial Rhode Island practice. Section II sets forth the current law in Rhode Island pertaining to a criminal defendant’s ability to make an opening statement. Section III discusses the importance of the opening statement, to include both its purpose and effect in the trial process. Section IV analyzes the constitutional implications of Rhode Island’s practice of restricting criminal defendants from making an opening statement. Finally, Section IV concludes that the practice is unconstitutional and proposes potential solutions for returning to an entire class of criminal defendants their most valued rights — those guaranteed by the U.S. Constitution.

II. Opening Statements: Rhode Island Law

The Court first restricted a criminal defendant from presenting an opening statement in State v. Byrnes. n4 In Byrnes, the defendants were charged with the robbery of a commercial safe deposit company. At trial, the defense did not have adequate evidence to present an affirmative case. As a result, defense counsel requested the opportunity to make an opening statement comprised of instructing the jury to “pay attention to such factors as the [state] witnesses’ demeanor, their prior criminal involvement, their explanation about particular aspects of evidence which might be developed on cross-examination, and the reasons for any inconsistencies in their testimony.” n5 The trial judge denied the request and restricted counsel from presenting an opening statement. The defendants were subsequently convicted.

n4 433 A.2d 658 (R.I. 1981).

n5 Id. at 664.

On appeal, the Court affirmed the trial court’s limitation, finding that the trial court did not abuse its discretion by limiting the scope of an opening statement. In support of its decision, the Court cited an Idaho case that sustained a limitation on a defendant’s opening statement. n6 The Idaho court held that “opening statement is not an appropriate vehicle in which to impeach or otherwise argue the merits of evidence that the other side will or will not present.” n7 Thus, the Court in Byrnes concluded that the trial court’s ruling was sound. n8

n6 Id.

n7 Id., quoting State v. Griffith, 539 P.2d 604, 608 (Idaho 1975).

n8 Id.

Several years later, in State v. Bleau, n9 the Court extended its practice of limiting a criminal defendant’s ability to present an opening statement. In Bleau, a criminal defendant was charged with leaving the scene of an accident. At trial, the defense was denied the opportunity to present an opening statement on the basis that counsel was unsure whether it would present any evidence to the jury in its case-in-chief. Ultimately, the defendant was convicted. Resting on its decision in Byrnes, the Court held that “the proper function of an opening statement is to apprise the jury with reasonable succinctness what the issues are in the case that is about to be heard and what evidence the prosecution and defense expect to produce at trial in support of their respective positions.” n10 Since the defense was uncertain as to what, if any, evidence it would present, the trial court’s restriction against making the opening statement was affirmed. n11

n9 649 A.2d 215 (R.I. 1994).

n10 Id. at 217 (quoting State v. Byrnes, 433 A.2d 658, 664 (R.I. 1981)).

n11 Id. at 218.

Finally, in State v. Turner, n12 a defendant charged with breaking and entering was denied the opportunity to present an opening statement. As the basis for its ruling, the trial court cited the defendant’s refusal to testify and his failure to present any affirmative evidence at trial. n13 The defendant was convicted and predictably, the conviction was affirmed. n14 Why did the Court affirm this conviction?

n12 746 A.2d 700 (R.I. 2000).

n13 Id. at 703-04.

n14 Id.

The Court contends that the trial practice it has created does not completely ban a defendant’s ability to make an opening statement. n15 Rather, the Court asserts that the practice only limits the scope of a defendant’s opening statement to what evidence the defendant expects to produce at trial. n16 However, the effect of this practice in Rhode Island does substantially more than limit the scope of opening statements. Instead, it creates a ban on the presentation of opening statements for an entire class of criminal [*6] defendants.

n15 Bleau, 649 A.2d at 217.

n16 Byrnes, 433 A.2d at 664.

An examination of the Court’s decisions establishing this practice reveals only one logical rationale for the court’s holdings: to preclude the defense from presenting an argument at the beginning of trial. The Court draws the erroneous conclusion that the only purpose of an opening statement when the defense has no affirmative evidence is to present argument. This conclusion is erroneous because it overlooks the important purposes of an opening statement, which are to present to the jury the defense’s story and theme of the case, to humanize the trial, and to rebut the prosecution’s case.

III. The Importance of the Opening Statement

1. Purpose

The opening statement is the stage of the trial where defense counsel gets the first opportunity to speak about the merits of his case. n17 The opening statement is also the moment at trial when a lawyer makes the first impression to the jury of himself, his client, and the case to be presented. n18 Although opening statements are generically defined as an outline of what an attorney expects to prove during trial, n19 they serve several other important functions.

n17 Steven Lubet, MODERN TRIAL ADVOCACY 309 (NIT 2000); Carman E. Kipp, DEFENDANT’S OPENING STATEMENT, 8 UTAH B.J. 21 (1995).

n18 James R. Lucas, OPENING STATEMENTS, 13 U. HAW. L. REV. 349, 351 (1991).

n19 Id. at 349.

A. Story of the Case: Theme and Theory

One crucial function of an opening statement is to educate the jury about the defendant’s case. n20 This involves conveying to the jury a theme and theory with which it should view the evidence to be presented. n21 The most successful litigant is often the one who convinces the jury to adopt his or her theme of the case. n22 An effective theme captures the moral force of a case and communicates to the jury why one side is right and the other is wrong. n23 For instance, in a criminal trial, the defense’s theme will consist of how the alleged crime occurred and why the defendant is not guilty. n24 Once the theme is communicated, counsel must then set forth the theory of their client’s case.

n20 Steven P. Grossman, TRYING THE CASE: OPENING STATEMENTS, 1999 MD. INST. CLE LAW, at 19.

n21 Id.; Lubet, supra note 20, at 318-20.

n22 Grossman, supra note 23, at 19.

n23 Lubet, supra note 20, at 319.

n24 John J. Eannace, AN ART — NOT A SCIENCE: CRIMINAL LAWYER’S PERSPECTIVE ON OPENING STATEMENTS, NB NAT’L B. ASS’N MAG., Nov. – Dec. 1997, at 41.

A successful theory is a story of the case that adopts a provable set of facts, which along with the legal principles, leads the fact finder to the sole conclusion that the defendant must prevail. n25 This is the lawyer’s first chance to persuade the jurors. The mood and tone of the case are set before getting into specific legal aspects and evidentiary issues. n26 This enables the jury to get an idea of the factual context of the case and to prepare to assimilate and integrate the evidence as it unfolds at trial. n27 Once the jury is introduced to the theory, it will have a concrete reference frame from which to sort and organize the evidence to be presented. n28

n25 Lubet, supra note 20, at 318.

n26 Jim Moody, TRIAL NOTEBOOK, TRIAL STRATEGY, OPENING STATEMENT, 29 ARK. LAW. REV. 29 (1995).

n27 Lucas, supra note 121, at 350.

n28 Id. at 375; Matthew J. O’Connor and Nicholas B. Schopp, OPENING STATEMENT RESTRICTION LIFTED? ARE THE SCALES OF JUSTICE TIPPING BACK TO EVEN AFTER STATE V. THOMPSON, 58 Mo. B.J. 35, 37 (2002).

B. Humanize the Trial

Opening statements also serve the important function of humanizing the trial process. n29 To do so, counsel should first personalize herself or himself to the jury. n30 This is significant because it allows counsel to make a first impression — one that counsel will never get a second chance to make. Because first impressions harden like cement, n31 defense counsel must seize this opportunity to earn the jurors’ trust and respect. It has been found that jurors are more apt to believe the lawyer whom they trust the most. n32 As a result, the impressions formed during opening statements may govern how the jury will consider and analyze the evidence presented throughout trial. n33

n29 Grossman, supra note 223, at 9, 20, 2.

n30 Moody, supra note 229, at 29.

n31 Lucas, supra note 21, at 351.

n32 Patricia C. Bobb, WINNING YOUR TRIAL IN OPENING STATEMENT, 2001 ATLA CONV. REF. MAT. at 66.

n33 Eannace, supra note 27, at 41.

Defense counsel may also use the opening statement to personalize her or his client. n34 This is achieved by painting the defendant as a human being as [*7] opposed to the prosecution’s portrayal of the defendant as an inanimate object. Personalizing a criminal defendant may help create sympathy for the accused in light of heightened allegations set forth by the government. n35 Overall, the jury will perceive the defendant as a person to whom they can relate, and not a mere widget of the criminal justice system.

n34 Moody, supra note 33, at 29.

n35 Grossman, supra note 232, at 9.

When humanizing the trial, counsel must also confront the jurors’ sympathy for the victim(s). n36 As human beings, jurors often decide cases with their hearts and not their heads. n37 Emotions and personal experiences often influence verdicts more than the law and facts presented at trial. By addressing this sympathy, counsel will depict his understanding of the tragedy caused by the crime. This may heighten the jurors’ perception of counsel’s humanity and help offset any negative preconceptions they may have of criminal defense attorneys.

n36 Id. at 13.

n37 Id. at 7.

Counsel should also address the jurors’ oath. n38 Counsel may do so by reminding them that they have sworn to uphold the justice system and to follow the court’s instructions. This admonition will display to jurors the severity of their duty and grave consequences they have the power to effect.

n38 Kipp, supra note 120, at 23.

After opening statements, defense counsel will not have another opportunity to speak directly to the jury until summation at the end of the trial. As a result, it is pertinent to address the human aspects of trial before the presentation of evidence commences. Doing so provides the jury with an initial understanding of the people present at trial and, most importantly, whose fate they must decide.

C. Outline the Evidence

Opening statements are typically defined as counsel’s outline of the evidence to be presented. n39 Often referred to as the “notice function,” n40 counsel’s objective is to explain the nature and elements of the issues to be presented, and outline the evidence that counsel intends to present. This provides jurors with a roadmap n41 to help lead them through the maze of evidence to follow. n42 Roadmaps assist jurors in following the evidence presented in order to arrive at counsel’s desired conclusion. n43 By first presenting the theme and theory of his case, counsel psychologically sets up the jury to accept counsel’s version of the facts. n44 Next, counsel persuasively outlines the evidence he or she expects to introduce at trial, both on direct and cross examinations, in a manner that supports the story of his client’s case. If this process is conducted successfully, at its conclusion, the jury will ultimately be conditioned to find in counsel’s favor. n45

n39 United States v. Dinitz, 424 U.S. 600 (1975); United States v. Hershenow, 680 F.2d 847, 858 (1st Cir. 1982); State v. Byrnes, 433 A.2d 658, 664 (R.I. 1981).

n40 Lucas, supra note 18, at 350.

n41 Grossman, supra note 20,at 5.

n42 Donna Fullenweider & Linda Hinds, OPENING STATEMENT: A KEY TO PERSUASION, 13 FAIR ARE 3, 4 (1993).

n43 Id. at 5.

n44 William Allison, TELL YOUR STORY THROUGH OPENING STATEMENT, 34 TRIAL 78, 82 (1998).

n45 Fullenweider & Hinds, supra note 445, at 5.

D. Rebut the Prosecution’s Case

At a criminal trial, the prosecution has the burden to prove the defendant guilty beyond a reasonable doubt. Because the prosecution has the burden of proof, it is allowed to address the jury first by presenting its version of the facts and theory of how the crime occurred. When the prosecution concludes its casein-chief, a picture remains in the minds of jurors that, if allowed to linger unaltered, will be disastrous for the defense. n46 More specifically, if presented properly, the prosecution’s opening statement will spell out the defendant’s guilt. n47 This signals the importance of the defendant’s need to present an opening statement.

n46 Hugo L. Black, Jr., THE JURY 1987: TECHNIQUES FOR THE TRIAL LAWYER: THE OPENING STATEMENT, 340 PLI LITIG. ADMIN PRAC. 709, 711 (1987).

n47 Id.

Following the prosecution, the jury expects to hear the defense respond to the State’s allegations. Defense counsel must respond with an opening statement that not only sets forth the defense’s theme and theory, but also addresses the weaknesses of the State’s case. n48 The [*8] defense must also explain any conflicts that exist in its own case, if any, in an affirmative manner that is consistent with its story of the case. n49 Overall, the defense must rebut the State’s case by explaining to the jury why the State is wrong and how the evidence supports a verdict of acquittal for the defendant.

n48 Moody, supra note 33, at 29.

n49 Id.

2. Effect

The most critical reason for allowing a criminal defendant’s opening statement is the influence that opening statements have on ultimate jury verdicts. It has been urged by many scholars that cases are often won during opening statements, thus marking their importance.

According to the theory of primacy, people best remember things they hear first. n50 Opening statements, in addition to being at the beginning of trial, place jurors in a novel situation n51 because it is the first time that jurors are confronted by counsel advocating on behalf of their clients in open court. This novelty instills in jurors a heightened level of attention that is unlikely to exist at any other stage of the trial. n52 Therefore, counsel must take this opportunity to make a lasting impression and create the perspective from which jurors will view the evidence.

n50 Lubet, supra note 20, at 320; Matthew J. O’Connor, OPENING STATEMENT RESTRICTION GIVES PROSECUTION HEAD START, 56 J. MO. BAR. J. 100, 101 (2000).

n51 O’Connor, supra note 54, at 101.

n52 Id.

Studies show that 80% of jurors draw a conclusion about a case during the opening statement that they do not alter and do not change throughout the course of trial. n53 Instead, jurors simply seek from the evidence presented those portions that support their initial conclusions. n54 In such cases, the party that receives the winning verdict is the party whom the jury favored at the beginning of trial. n55 Alternatively, in cases where jurors do not conclusively form their decisions solely on the presentation of opening statements, jurors inevitably reach tentative decisions at the end of openings that influence their final verdict. n56 On this basis, if one has a presentable case, it should be over at the conclusion of the opening statement.

n53 Black, Jr., supra note 49, at 711; Eannace, supra note 27, at 41; Moody, supra note 33, at 29.

n54 O’Connor, supra note 54, at 101.

n55 Eannace, supra note 24, at 41.

n56 O’Connor, supra note 54, at 101; Steven H. Goldberg, WHAT YOUR OPENING STATEMENT SHOULD AND SHOULDN’T DO, 2 CRIM. JUST. 10 (1987).

The Rhode Island Supreme Court has effectively denied a class of criminal defendants the chance to present an opening statement. Depriving a defendant of the chance to present an opening statement, at the point in time when the defendant has the jurors’ undivided attention and the initial opportunity to influence their ultimate verdict, is to prevent the defendant from participating in a significant segment of the trial process.

IV. The Constitutional Effect of Rhode Island’s Trial Practice of Denying Criminal Defendants the Opportunity to Present an Opening Statement

While the U.S. Supreme Court has not yet held the presentation of an opening statement to be a constitutionally protected right, n57 trial and appellate courts alike have taken judicial notice of the importance of allowing criminal defendants to make opening statements. n58 In Rhode Island, however, the constitutional rights of these defendants have been placed in jeopardy.

n57 Salovitz, 424 U.S. at 21; Lucas, supra note 21, at 358.

n58 Hampton v. United States, 269 A.2d 441 (D.C. 1970); O’Connor, supra note 54, at 101.

1. Due Process: Right to Present a Complete and Meaningful Defense

The Fifth Amendment to the U.S. Constitution guarantees criminal defendants the right to due process. n59 The right to due process is also set forth in the Rhode Island Constitution, n60 which requires that criminal prosecutions comport with the notion of fundamental fairness. n61

n59 U.S. CONST. amend. V.

n60 R.I. CONST. art. I, § 2.

n61 California v. Trombetta, 476 U.S. 479, 485 (1984).

The U.S. criminal justice system and trial process are adversarial in nature. n62 The ultimate objective of a trial is to perform a truth-seeking function n63 where the guilty are convicted and the innocent [*9] are set free. n64 This system presumes a defendant’s innocence and requires the government to prove the defendant’s guilt beyond a reasonable doubt. n65 Although not required to prove his own innocence, the defendant responds to the prosecution’s case by presenting a defense on the defendants’ behalf either with the production of affirmative evidence or by arguing that the State has failed to meets its burden of proof.

n62 O’Connor, supra note 54, at 102.

n63 Id.

n64 Herring v. New York, 422 U.S. 853, 862 (1975).

n65 O’Connor, supra note 54, at 100.

The principles of fundamental fairness pursuant to due process require criminal defendants to be prosecuted by a fair trial. n66 To the defendant, a fair trial means the opportunity to present a complete and meaningful defense. n67 Such is necessary for the defense to adequately participate in a trial’s truth-seeking process. The basic ingredients to a fair trial include the right to reasonable notice of the charges pending and the opportunity to be heard in one’s own defense. n68 The opportunity to be heard, which guarantees the accused a fair opportunity to present a defense, includes at a minimum, the right to examine adverse witnesses, the right to offer testimony on the defendant’s behalf, and the right to be represented by counsel. n69 As a whole, these aspects comprise the right to present a complete and meaningful defense.

n66 Chambers v. Mississippi, 410 U.S. 284, 294 (1973).

n67 Rock v. Arkansas, 483 U.S. 44, 47 (1987); Crane v. Kentucky, 476 U.S. 683, 690 (1986); California v. Trombetta, 476 U.S. 479, 485 (1984); Washington v. Texas, 388 U.S. 14, 19 (1967).

n68 Chambers, 410 U.S. at 294.

n69 Washington, 388 U.S. at 18 (quoting In Re Oliver, 333 U.S. 257, 263 (1948)).

Like all constitutional rights, this right is not without limitations. n70 Accordingly, lawmakers have the latitude to establish rules that effectively exclude certain types of evidence from criminal trials providing these rules are not arbitrary and capricious. n71 Where there exists a conflict between a valid state interest and the exercise of a defendant’s right, the competing interests are placed onto a balancing scale. n72 Where the State’s interest outweighs the defendant and there exists other reasonable alternatives to protect the rights of the accused, the State will prevail. n73

n70 United States v. Scheffer, 523 U.S. 303, 308 (1998); Greene v. Lambert, 288 F.3d 1081, 1090 (9th Cir. 2002).

n71 Greene, 288 F.3d at 1090.

n72 Washington, 388 U.S. at 23; Greene, 288 F.3d at 1091.

n73 Scheffer, 523 U.S. at 317; Rock v. Arkansas, 483 U.S. 44, 62 (1987).

For instance, in California v. Trombetta, n74 the defendant was arrested for drunk driving. In preparation for trial, the defense counsel sought to obtain intoxilyzer test samples used by the arresting officer to determine Trombetta’s intoxication. Counsel’s request was denied on the basis that the police do not preserve intoxilyzer test samples. On appeal, Trombetta asserted that the destruction of the intoxilyzer samples denied his opportunity to present a complete and meaningful defense. The Supreme Court disagreed and concluded that Trombetta’s rights had not been violated since he had additional means of proving his innocence. n75

n74 476 U.S. 479 (1984).

n75 Id. at 490-91.

Notwithstanding this latitude, State courts do not have the unfettered right to run judicial proceedings without rules. n76 There are customs and principals so deeply rooted in the conscience and traditions of our justice system that to deprive a defendant of a right in a criminal trial is an inexcusable constitutional error. Among these protections is the defendant’s right to present a complete and meaningful defense. n77

n76 Taylor v. Withrow, 288 F.3d 846, 851 (6th Cir. 2002)(citing Montana v. Egelhoff, 518 U.S. 37, 42 (1996)).

n77 Faretta v. California, 422 U.S. 806, 818 (1975); Washington v. Texas, 388 U.S. 14, 19 (1967); Richmond v. Embry, 122 F.3d 866, 871 (10th Cir. 1997).

In order to establish a violation of the due process right to present a complete and meaningful defense, a criminal defendant must show a denial of fundamental fairness. n78 To succeed on such a claim, the court must find an absence of fairness that fatally infects the trial. n79 As such, the acts complained of must prevent the defendant from receiving a fair trial. n80 Rhode Island’s trial practice of precluding criminal defendants from making an opening statement clearly violates the right to present a complete and meaningful defense and, therefore, fails to comport with fundamental fairness required [*25] by due process.

n78 Richmond, 122 F.3d at 872 (citing United States v. Valenzuela-Bernal, 458 U.S. 858, 872 (1982)).

n79 Id.

n80 Id.

In a criminal trial, if the defendant does not have any witnesses or evidence to present in his case-in-chief, the defendant’s sole remedy is to defend against the prosecution’s case by presenting an opening statement, conducting cross-examinations of the State’s witnesses, and making a closing argument. By taking away the opportunity to present an opening statement, the State diminishes one third of the accused’s entire defense. As a result, the remaining defense is substantially less than complete and meaningful.

In Rock v. Arkansas, n81 the defendant was charged with the manslaughter of her husband. At trial, Rock was precluded from testifying on her own behalf where the testimony to be elicited was prompted by her previously undergoing hypnosis to refresh her lapsed memory. The exclusion of the testimony was based on an Arkansas Supreme Court rule that precluded the admissibility of hypnosis testimony on the basis of its unreliability. On appeal, the United States Supreme Court ruled that, “fundamental to a personal defense is an accused’s right to present his own version of events.” n82 On this basis, the Court held that the Arkansas Supreme Court’s per se exclusionary rule precluded Rock from presenting her own version of the facts and, therefore, deprived her of the right to present a complete and meaningful defense. n83

n81 483 U.S. 44 (1987).

n82 Id. at 47.

n83 Id. at 53.

In Rhode Island, the defense is similarly precluded from presenting its version of the facts in response to the version set forth by the prosecution. Rebutting the prosecution’s case is the aspect of the opening statement that is most significant to criminal defendants. When the defense is precluded from doing so, the jury is tainted by the impression that the defense concedes the version of facts presented by the State. It is not until the closing argument that the defense is allowed its first opportunity to address the jury and present its own story of the case. At such time, the trial is near its conclusion. Meanwhile, the jury has remained under the false impression created by the prosecution.

As discussed in Section II, opening statements have a strong impact on jury verdicts. To permit the State in an opening statement to shape the perspective [*26] from which jurors will view the evidence to be presented and not permit the defense an opportunity to respond implies a presumption of guilt. n84 The jury expects to hear the defense respond to the State’s allegations. When it fails to do so because of Rhode Island’s practice, the defense’s silence implies an admission of guilt to the crime(s) charged. n85 This is contrary to our adversarial system, which provides criminal defendants with a presumption of innocence. Accordingly, the defendant is prejudiced by a direct violation of the defendant’s right to present a complete and meaningful defense.

n84 supra note 54, at 101.

n85 Id.

Rhode Island’s trial practice also violates the due process principals of fundamental fairness by permitting the prosecution to bring a case against the defendant on an uneven playing field. n86 Although Rule 26.2, on its face, appears to create equality between the prosecution and defense, Rhode Island case law distorts this perception. Rule 26.2 permits both the prosecution and the defense the opportunity to present an opening statement. n87 However, although not discernable from the text of the rule, the defense’s ability to make an opening statement is conditional upon its presentation of evidence at trial. If the defense chooses not to present an affirmative case or due to the facts and circumstances of the case is unable to do so, the opportunity to make an opening statement is prohibited. The prosecution, however, maintains the unrestricted ability to make an opening statement.

n86 Id. at 102.

n87 R.I. Crim. P. Rule 26.2 (2002).

In Conde v. Henry, n88 the defense was precluded from making a closing argument where it would have argued that the State failed to meet its burden of proving robbery or intent to commit robbery beyond a reasonable doubt. However, the prosecution was permitted to go forward in its summation by arguing that it had in fact proved these crimes. On appeal, this unequal opportunity to present closing arguments was determined to violate the defendant’s right to present a complete and meaningful defense pursuant to a fair trial. n89 Similarly, in Rhode Island, allowing the prosecution to make an opening statement while restricting the defense is also on its face unfair. This inequality completely ignores the concept of a fair trial and the notions of fundamental fairness guaranteed by due process.

n88 198 F.3d 734 (9th Cir. 2000).

n89 Id. at 739.

By precluding criminal defendants from presenting opening statements, Rhode Island has effectively narrowed the constitutional protections of criminal defendants who are without an affirmative defense. In support of its position, the Court cites a trial court’s discretion to limit the scope of an opening statement. n90 The only plausible state interests to be achieved by exercising this discretion are to prevent argument and limit opening statements to evidence that counsel expects to produce at trial.

n90 Byrnes, 433 A.2d at 664; Bleau, 649 A.2d at 218.

It is uncontested that certain limitations exist on the presentation of opening [*27] statements. Rhode Island’s practice extends trial judges’ discretion on the scope of opening statements beyond permissible limitations and into the realm of unconstitutionality by conditioning a defendant’s ability to make an opening statement on the defendant’s presentation of evidence at trial. However, nowhere in the Constitution does it qualify the receipt of its protections.

It is generally accepted in trial practice that opening statements must not contain arguments, explanations of the importance of certain pieces of evidence, directives on how evidence should be weighed, comments on the credibility of witnesses, or comments on the law. n91 Although Rhode Island seeks to restrict defense counsel from arguing the merits of the defendant’s case, counsel may still effectively deliver an opening statement that both complies with Rhode Island’s asserted interests and promotes the free exercise of a defendant’s constitutional right to present a complete and meaningful defense.

n91 Lubet, supra note 20, at 313.

In such instances, defense counsel may develop an opening statement that presents to the jury an explanation of the indictment charging the defendant, the prosecution’s burden of proof beyond a reasonable doubt on each element of the crime(s) charged, the defendant’s right not to testify, the duty of jurors to keep an open mind and uphold their oath, and the importance of jury service in our criminal justice system. n92 Such an opening statement would remain within the parameters desired by the Rhode Island Judiciary, as well as serve the defense’s objective of responding to the prosecution’s case in attempting to create a level of doubt in the minds of jurors.

n92 G. Nicholas Herman, ENTER OPENING STATEMENTS, 31 TRIAL 57 (1995).

Furthermore, if the court truly seeks to limit opening statements to the evidence counsel expects to introduce at trial, the defense should be permitted an opening statement to set forth the testimony that he or she expects to elicit on cross-examination. The fact that the defense intends to present its entire case through cross-examination, as opposed to presenting affirmative evidence in its case-in-chief, does not diminish the importance of the defense, nor its desire to apprise the jury of what the defense intends to prove at trial. n93

n93 Hershenow, 680 F.2d at 858.

Rather than restrict the scope of a defendant’s opening statement within these permissible limits, Rhode Island [*29] instead prevents a certain class of criminal defendants from presenting opening statements. Although the presentation of an opening statement is not yet a constitutionally protected right, n94 such is an inadequate basis to defend Rhode Island’s trial practice as constitutionally permissible. In Herring v. New York, n95 the United States Supreme Court afforded constitutional protection to closing statements. In its opinion, the Herring court set forth the purpose of closing statements as the opportunity at trial to sharpen and clarify the issues for the trier of fact, point out inferences that may be drawn from the evidence, indicate the weaknesses in the adversaries’ position and to persuade the trier of fact. n96 Virtually, all of the functions that are served in summation are equally served in opening statements. However, since the two are separate components of a trial, each has its own independent significance in the trial process. To deny the accused the opportunity to present both is to deny the accused the chance to present a complete and meaningful defense.

n94 Salovitz, 701 F.2d at 21.

n95 422 U.S. 853 (1975).

n96 Id. at 862.

The Rhode Island practice explicitly bans criminal defendants who are without affirmative evidence to present at trial from making opening statements. These individuals represent a large class of defendants since one of the most common defenses in a criminal trial is to disprove or cast doubt on the prosecution’s case. n97 Since 1981, it is unknown how many defendants have actually been affected by this practice. This practice is constitutionally impermissible and, therefore, must be abolished not only to even the playing field between the prosecution and defense, but also to restore to our criminal defendants their right to a fair trial with the presentation of a complete and meaningful defense.

n97 O’Connor, supra note 54, at 100.

2. Right to Effective Assistance of Counsel

The right to the assistance of counsel is guaranteed by the Sixth Amendment of the United States Constitution n98 This right is applicable to the states through the Fourteenth Amendment. n99 Rhode Island’s Constitution also provides for the assistance of counsel. n100

n98 U.S. CONST. amend. VI.

n99 Gideon v. Wainwright, 372 U.S. 335, 399 (1963).

n100 R.I. CONST. RT art. I, § 10.

The rationale behind the right to the effective assistance of counsel is derived from the same fundamental fairness that guarantees defendants a fair trial and the opportunity to present a complete and [*30] meaningful defense. n101 A criminal defendant requires the assistance of counsel to adequately prepare his defense. n102 Effective assistance of counsel permits the accused to subject the prosecution’s case to meaningful adversarial testing. n103 Also, the presence and assistance of counsel is the means by which other constitutional rights are secured. n104 For example, when exercising the Fifth Amendment right to remain silent, the defendant’s right to be heard is exercised through counsel. Therefore, the right to counsel is fundamental to one’s defense.

n101 A.L. Lockhart v. Fretwell, 506 U.S. 364, 369 (1993); United States v. Cronic, 466 U.S. 648, 655 (1984); United States v. Morrison, 449 U.S. 361, 364 (1984).

n102 Powell v. Alabama, 287 U.S. 45, 69 (1932).

n103 Cronic, 466 U.S. at 656.

n104 Id. at 653.

The Court in Strickland v. Washington n105 set forth two factors that a defendant must prove to succeed on a claim of ineffective assistance of counsel. First, defendants must prove that their counsel was deficient by showing counsel’s performance to be unreasonable in light of the specific facts of the case. n106 Second, defendants must show that as a result of counsel’s deficiency, their defense was prejudiced. n107 To do so, the defendant must prove by a totality of the circumstances that, but for counsel’s error(s), the result of the criminal prosecution would have been different. n108 Ultimately, those who are accused must prove that counsel’s error(s) deprived them of a fair trial, which inevitably led to their conviction. Failure to make the required showing of either of these requirements defeats a claim of ineffective assistance of counsel. n109

n105 466 U.S. 668 (1984).

n106 Id. at 691.

n107 Id. at 692.

n108 Id. at 695.

n109 Id. at 700.

The two-part test set forth by the Strickland court is specifically tailored to errors committed by counsels’ own volition. However, the court also recognizes circumstances where an act of the State renders counsel’s performance ineffective. In response, the court created a presumption of ineffectiveness where State interference results in the actual or constructive denial of the right to the effective assistance of counsel. n110 The application of this presumption requires a case-by-case analysis.

n110 Id. at 692.

The State violates a defendant’s right to the effective assistance of counsel when it interferes with the ability of counsel to make independent decisions about how to conduct a defense. This violation does not require the two-part deficiency and prejudice analysis that is required when a defendant claims ineffectiveness based upon the defendant’s lawyer’s performance. Rather, such governmental [*31] interference is conclusively a Sixth Amendment violation.

For instance, in Geders v. United States, n111 at the conclusion of defense counsel’s direct examination of his client, the court recessed for the night and scheduled the trial to resume the following morning commencing with the defendant’s cross-examination. After the jury exited the courtroom, the trial judge imposed an order restricting defense counsel from having any contact with the client during the course of the overnight recess. The trial concluded the next day and the defendant was convicted of conspiracy and the illegal importation of a controlled substance.

n111 425 U.S. 80 (1976).

On appeal, the defendant contended that his inability to converse with counsel during a seventeen-hour overnight recess deprived him of his right to the effective assistance of counsel. The United States Supreme Court agreed, stating that “it is common practice during such recesses for an accused and counsel to discuss the events of the day’s trial” and that such periods are “often times of intensive work, with tactical decisions to be made and strategies to be reviewed.” n112 Therefore, the State’s interference with the defendant’s ability to communicate with his attorney during this critical time impinged upon his right to the effective assistance of counsel. n113

n112 Id. at 88.

n113 Id. at 91.

Criminal defendants, as a minimum component of their right to a fair trial, retain the opportunity to be heard. n114 When brought to trial, a criminal defendant is unlikely to be familiar with either trial practice or procedure. It is likely that the defendant will exercise his or her right to remain silent and refrain from taking the witness stand. Therefore, the only way that the defendant can effectively be heard is through representation by counsel. n115 Rhode Island fails to observe the right to counsel when it precludes the defense from making an opening statement.

n114 Chambers, 410 U.S. at 294; Washington, 388 U.S. at 18.

n115 Powell, 287 U.S. at 68-69.

During its opening statement, the prosecution will present to the jury its version of how the alleged crime occurred in a persuasive manner spelling out the defendant’s guilt. If defense counsel it not allowed to respond, the jury’s perception will be molded to that of the prosecutor. If our criminal justice system is truly premised upon seeking the truth, then without a doubt, the defense must have the chance to rebut the State’s allegations and provide the jury with its theory of the case. If not, the only party heard is the State bringing the charges, not the accused defending against them. Rhode Island’s practice silences the defense at the most critical stage of trial. This directly interferes with counsel’s ability to defend the client and, therefore, violates the defendant’s right to the effective assistance [*33] of counsel. n116

n116 Cronic, 466 U.S. at 659, n.25.

At trial, counsel must decide what type of defense is the best course of action to defend his or her client against the prosecution’s case. In many criminal cases, the most effective defense is to hold the prosecution to its burden of proof and to rebut its case on cross-examination. n117 However, due to Rhode Island’s practice, defense attorneys are forced to choose a defense that includes the presentation of affirmative evidence or waive the opportunity to make an opening statement. In cases where no other evidence is available, counsel may be forced to place the defendant on the stand. Failure to do so precludes the defense from making an opening statement, which will prevent it from rebutting the prosecution’s case. Due to the potential effect of opening statements, this may have a detrimental impact on the jury’s ultimate verdict. In cases where the defendant takes the stand to preserve the ability to present an opening statement, the defense may involuntarily incur tactical disadvantages such as impeachment and cross-examination. Such disadvantages would not exist but for Rhode Island’s practice of restricting a defendant’s ability to present an opening statement.

n117 Hampton, 269 A.2d at 443; O’Connor supra note 54, at 100.

Rhode Island’s practice clearly interferes with both the defendant’s right to be heard through counsel and counsel’s ability to independently represent his or her client. As a result, this practice violates the Sixth Amendment guarantee to the effective assistance of counsel.

3. Right Against Self-Incrimination

The Fifth Amendment states that no person “shall be compelled in any criminal case to be a witness against himself.” n118 Also provided by the Rhode Island Constitution, n119 the right against self-incrimination guarantees criminal defendants the right to remain silent unless he or she chooses to speak. The unfettered right to remain silent is to be exercised upon a defendant’s free will. n120 When doing so, according to the United States Supreme Court, he or she shall suffer no penalty. n121 However, a close examination of Rhode Island’s restriction on opening statements reveals that a penalty is, in fact, imposed.

n118 U.S. CONST. amend. V.

n119 R.I. CONST. art. I §§ 10, 13.

n120 Brooks v. Tennessee, 406 U.S. 605, 609 (1992)(citing Malloy v. Hogan, 378 U.S. 1, 8 (1971)).

n121 Id.

Whether the defense has any evidence to present at trial is often not a choice available to the defendant. For [*34] instance, in a typical mugging case where a victim is robbed at knifepoint, a defendant who has been wrongfully accused and has no alibi witnesses will have no affirmative evidence to present on his or her behalf. Since the only feasible defense is misidentity, the sole evidence to be introduced in support thereof will be through cross-examination of the victim in order to cast reasonable doubt on the defendant’s identification. In preparation, the defense could use its opening statement to present to the jury the theory of misidentification as well as the testimony the defense intends to elicit on cross-examination to prove this theory.

Since Rhode Island precludes these defendants from presenting opening statements, defense counsel must wait until the end of trial in the closing argument to present the defendant’s version of the facts and explain to the jury the defendant’s actions taken throughout trial. At the end, absent an opening statement by the defense at the beginning, the jury will have viewed the evidence through the prosecutor’s eyes. At that point, it may be too late for defense counsel to undo the perception of the defendant created by the State.

To avoid this harsh result, the defendant may choose to take the stand to testify that he or she was not in the alleged location on the date and time of the robbery. This would avoid the harsh effect of Rhode Island’s practice and afford the defense the opportunity present an opening statement. However, many risks arise when a criminal defendant takes the witness stand. n122 For example, if the defendant has a prior criminal history, the prosecution will seek to introduce it on cross-examination to impeach the defendant’s credibility. Under such circumstances, there is the risk that the jury will convict the defendant based on the theory that if the defendant committed crimes in the past, then the defendant probably committed the crime for which the defendant is currently charged. Hence, criminal defendants and their counsel often decide that the defendant will refrain from taking the stand.

n122 Brooks, 406 U.S. at 609.

In Rhode Island, the consequence of choosing not to take the witness stand, for many defendants, is the restriction against making an opening statement. Due to the great significance of presenting an opening statement, these criminal defendants are forced to engage in the balancing act of choosing between their Fifth Amendment right against self incrimination and the importance of rebutting the prosecution’s case and presenting the defense’s theory in an opening statement.

In these unique circumstances, when a defendant exercises the right against self-incrimination by choosing not to take the witness stand, Rhode Island effectively punishes him by preventing him from making an opening statement. In Griffin v. California, n123 the prosecution, during its opening statement, commented on the defendant’s failure to take the witness stand and testify on his own behalf. The U.S. Supreme Court held this action to be in direct violation of the Fifth Amendment protection against self-incrimination because it imposes a penalty upon the defendant for exercising one of his constitutional rights. n124 In essence, the prosecution was punishing the defendant for exercising his right to remain silent by implying that his silence amounted to his guilt. The practice of imposing a penalty “cuts down on this constitutional privilege by making its assertion costly” n125 and, therefore, violates the defendant’s Fifth Amendment right against self-incrimination.

n123 380 U.S. 609 (1965).

n124 Id. at 614-15.

n125 Id. at 614.

Conversely, since a defendant without any affirmative evidence to present [*35] at trial may only retain the opportunity to present an opening statement by taking the witness stand, the defendant may be compelled to testify against himself or herself, which is also in violation of the Fifth Amendment. Faced with the detrimental effect of not directly and immediately responding to the prosecution’s case in an opening statement, the defendant is forced to testify, thus waiving the right against self-incrimination.

In Brooks v. Tennessee, n126 the defendant was required either to testify as the first defense witness or waive the right to do so entirely. On appeal, the U.S. Supreme Court held that the decision of a defendant to take the witness stand is one of utmost importance that counsel can make only after meticulously balancing its advantages and disadvantages after the State presents its case. n127 The court’s practice of forcing the defendant to take the stand on a take it or leave it basis effectively violates the Fifth Amendment right to remain silent. The implications of Rhode Island’s trial practice are no different. Upon being faced with the detrimental effect of not responding to the prosecution’s opening, and the likely impact that the defense’s opening may have on the jury’s ultimate verdict, the defendant is compelled to take the witness stand.

n126 406 U.S. 605 (Year).

n127 Id. at 607-08.

Whether or not a defendant chooses to testify, the defendant’s Fifth Amendment right against self-incrimination remains in jeopardy. Rhode Island’s practice of restricting criminal defendants from making an opening statement appears to create an unappealing and paradoxical choice: exercise the right to remain silent and forfeit the chance to present an opening statement or present an opening statement and forfeit the right against self-incrimination. Regardless of the choice, the inevitable result is that the Fifth Amendment will be violated either by penalty or by compelled testimony. On this basis, the Rhode Island practice is unconstitutional.

Furthermore, Section II establishes that Rhode Island’s practice of conditioning a defendant’s ability to make an opening statement on the presentation of affirmative evidence violates the due process right to present a complete and meaningful defense. For criminal defendants without any affirmative evidence to present at trial other than their own testimony, Rhode Island’s practice presents another choice: give up the right to present a complete and meaningful defense or waive the Fifth Amendment protection against self-incrimination. The imposition of this choice alone is also unconstitutional.

In Simmons v. United States, n128 two defendants were charged with armed robbery. Following the robbery, Federal Bureau of Investigation (FBI) agents, without a warrant, searched a house where they found two suitcases that contained “a gun holster, a sack similar to the one used in the robbery, and several coin cards and bill wrappers from the bank which had been robbed.” n129 Prior to trial, to establish standing at a suppression hearing, one of the defendants, Garett, testified that “although he could not identify the suitcase with certainty, it was similar to the one he had owned, and that he was the owner of the clothing found inside.” n130 Garett’s motion to suppress this evidence was denied. His suppression testimony was admitted as evidence against him at trial, and he was subsequently convicted.

n128 390 U.S. 377 (1968).

n129 Id. at 380.

n130 Id. at 381.

On appeal, Garett urged that his constitutional rights were violated when the testimony given at the suppression hearing was admitted against him at trial. The United States Supreme Court agreed. To succeed in a suppression hearing, the [*36] defendant must show a violation of the defendant’s Fourth Amendment right against unreasonable searches and seizures absent a warrant. The defendant must testify to establish this standing by showing an expectation of privacy in the area impermissibly searched. Since such testimony may be admitted against the defendant at trial, defendants are presented with a choice, which is to give up a valid Fourth Amendment claim or to waive the Fifth Amendment right against self-incrimination. The Supreme Court found it “intolerable that one constitutional right should have to be surrendered in order to assert another.” n131 On this basis, Garett’s conviction was reversed.

n131 Id. at 394.

Rhode Island’s practice clearly calls for the surrendering of one right for the exercise of another. Pursuant to the Court’s holding in Simmons, this practice is unconstitutional.

IV. Conclusion

While this article concludes that Rhode Island’s practice of restricting criminal defendants who are without evidence to present at trial from making opening statements is unconstitutional, the Court’s rationale for doing so is not completely without merit. The Court clearly has an interest in preventing argument at the beginning of the trial. However, absent Rhode Island’s trial practice, trial judges would still possess the requisite discretion to limit the scope of opening statements if they determine their content to consist of impermissible argument.

This article illustrates the devastating impact Rhode Island practice has on the constitutional protections guaranteed to criminal defendants. These individual rights unequivocally outweigh the judiciary’s interest of preventing argument and limiting the scope of opening statements. Since there already exists a measure to further this State interest, the Court unnecessarily fears permitting defendants without affirmative evidence to present opening statements. Rather than infringe upon their constitutional rights by imposing an absolute restriction on opening statements, the Court may instead interrupt defense counsel at anytime during counsels’ opening if such is necessary to regulate its content. This would not only promote the free exercise of defendant’s constitutional rights, but also promote the interests asserted by the Court. On this basis, the Rhode Island practice should be abolished.

Alternatively, if abolishing this Rhode Island practice is not feasible, the lower courts, at a minimum, must narrowly construe the decisions that have created the practice by limiting them to their individual facts. A strict construction, although short of overruling a clearly unconstitutional practice, is the minimum required of the Rhode Island Judiciary to protect, for its criminal defendants, the fundamental rights guaranteed to them under the United States Constitution and the Rhode Island Constitution. The court’s failure to protect these rights is the functional equivalent of the defendants having no rights at all. Therefore, defense attorneys, individually and collectively, must petition the courts to restore to their clients the constitutional protections that have been withheld by the Rhode Island Supreme Court for over two decades.