Opening Argument at Jury Trials
In our look at issues in jury trials we started towards the end with closing submissions and particularly issues which can arise for the Crown. Today we move to the beginning of the trial and consider opening argument.
In the vast majority of jury trials only the Crown will make an opening statement at the start of the case. If the defence makes a statement it will be after the Crown has called all of their evidence and the defence will then be calling witnesses. Of course there are many cases where the defence won't call any evidence so there won't be any opening statement from the defence.
The opening address is not the appropriate forum for argument, invective, or opinion
The Crown should use the opening address to introduce the parties, explain the process, and provide a general overview of the evidence that the Crown anticipates calling in support of its case. The purpose of the opening is to provide an overview of the Crown’s case to the jury so that it may better follow the evidence and understand where the matter is leading. Argument forms no part of it.
In R. v. Brown, 2009 BCSC 1870 a case involving a charge of robbery, a mistrial was declared following Crown Counsel’s improper opening statement. In that statement, Crown counsel told the jury that his role was to act in public safety and defence counsel’s was to protect his client’s interest within an ethical and legal framework. He characterized defence counsel’s role as important, substantial, and no lesser than that of the Crown. He went on to say that the system works to allow each side to do their job properly. Then he said there was no greater sin a Crown could commit than to prosecute and convict an innocent person and assured the jury there was a complex apparatus in place to prevent that from taking place.
It is improper for Crown counsel ever to express a personal opinion regarding the guilt or innocence of an accused person and, in so doing, to use inflammatory language
It is also improper for Crown counsel to inform the jury about matters not included in the body of evidence placed before them in the course of the trial. The accused has a right to have guilt or innocence decided based upon sworn evidence alone, uninfluenced by the personal views of the Crown or other extraneous facts.
Finally, it is particularly important that Crown counsel not inform the jury about the Crown’s investigation or charging practices and policies. This factual information is not part of the evidence and could leave the jury with the impression that the accused is guilty because the Crown has investigated the matter thoroughly and decided a charge is justified.
As Justice Dickson in Brown explained, “it is incumbent upon all Crown counsel to understand the parameters of proper conduct and to choose their words carefully, in accordance with those limits, in the conduct of a jury trial.”