By Bruce Merenstein
Special to the Legal
Most trial lawyers would consider their opening statement and closing argument two of the most important parts of a trial. The opening offers the lawyer his or her first chance to set out a case for the jury and lay the foundation for the story to be told throughout the trial. Thomas Mauet, in his “Fundamentals of Trial Techniques”, notes that “opening statements can and often do make the difference in the outcome of a case.” The closing argument is the lawyer’s last opportunity to reach the jury and convince it to see the facts his or her way. It also offers the lawyer the one chance during the trial to directly urge the jury to reach the result the lawyer has been working toward since the beginning of the case. Yet, Pennsylvania’s appellate courts regularly reject claims of trial error when lawyers make allegedly improper comments during opening statements or closing arguments, on the ground that what the lawyers say has little effect on the jury.
Consider a recent decision from the Pennsylvania Superior Court, Commonwealth v. Lewis. Erin Lewis was a probation officer who became involved in a relationship with one of the probationers she was supervising. When they took a trip together to Atlantic City, Lewis falsely noted in the probationer’s record that he was traveling to Atlantic City with family. After she left her job, the truth of her relationship and her trip to Atlantic City were discovered and she was charged with tampering with public records or information.
At trial, the prosecutor referred in his opening statement to the Luzerne County bribery scandal to — according to the Superior Court — “illustrate his point that there is no type of ‘minor’ public misconduct.” The trial court sustained Lewis’ objection to the comment but denied her request for a mistrial. On appeal, the Superior Court found no error in this ruling, holding that the comments “were not so prejudicial as to deny Appellant a fair trial.” In doing so, the court invoked a rationale that Pennsylvania appellate courts typically rely upon when rejecting claims regarding improper lawyer comments: the trial court had “instructed the jury that opening statements of counsel were not evidence and could not be the basis for a verdict.”
Of course, jurors are instructed in almost every case that statements of counsel are not evidence and cannot form the basis for their verdict. Yet, it seems the only point of such an instruction is to give appellate courts a basis to reject claims of improper statements by counsel, because, despite the instruction, lawyers clearly believe that jurors do rely on the statements of counsel to reach their verdict. If they did not, what would be the point of opening statements and closing arguments? And why would lawyers put so much emphasis on them?
Ultimately, the Superior Court concluded, the prosecutor’s remark simply had no effect on the jury: “any possible impact from the prosecutor’s remark was marginal.” Again, this raises the question: if this comment (like so many others that are improper, but found to have no effect on the jury) had no impact on the jury, why did the prosecutor say it? Presumably, he believed it would impact the jury’s verdict or else he would not have said it. Indeed, the precise point of his comment was to “impact” the jury’s verdict.
The Lewis scenario is repeated regularly in Pennsylvania’s courts, usually in criminal cases, but occasionally in civil cases as well. In the vast majority of these cases, the Pennsylvania appellate courts invoke the twin rationale above: the jury was instructed to ignore the lawyer’s comments and the comments had no impact on the jury. If this is true, lawyers are wasting a great deal of time preparing and giving opening statements and closing arguments. Of course, despite what the appellate courts tell us, jurors are listening to what the lawyers say, for better or worse.
Bruce P. Merenstein is a partner with Schnader Harrison Segal & Lewis, with a practice focused primarily on appellate litigation in state and federal courts. He can be reached by e-mailing firstname.lastname@example.org.
This posting is intended only to inform, not to provide legal advice; and readers should seek professional advice for specific applications of the information.