Ch. 28: Opening Statements (Oct. 2018)
NC Defender Manual Vol. 2, Trial
28.1 Right to Opening Statement
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28.1 Right to Opening Statement
Section 15A-1221(a)(4) of the North Carolina General Statutes grants the defendant the
right to give an opening statement before the introduction of evidence. Rule 9 of the
General Rules of Practice for the Superior and District Courts also provides that counsel
for each party, at any time before the presentation of evidence, may make an opening
statement setting forth the grounds for his or her claim or defense. The defendant has the
right to make an opening statement regardless of whether he or she intends to present
evidence. State v. Paige, 316 N.C. 630, 648 (1986) (“Even if the defendant does not
intend to offer evidence, he may in his opening statement point out to the jury facts which
he reasonably expects to bring out on cross-examination.”)
Although North Carolina law gives the defendant the right to make an opening statement
before the guilt-innocence phase of the case, it does not give a defendant the right to give
an opening statement before the sentencing phase of a capital trial. State v. Call, 349 N.C.
382 (1998) (trial judge did not abuse his discretion in forbidding opening statement
before sentencing phase of capital case; N.C. Supreme Court found no authority that
defendant is entitled to opening statement before sentencing phase of capital case). In
practice, however, trial courts will often grant the defendant’s request to make an opening
statement before sentencing in a capital case, and counsel should take advantage of this
additional opportunity to address the jury.
Unlike the right to make a closing argument, the right to make an opening statement is
not guaranteed by the U.S. Constitution. See Herring v. New York, 422 U.S. 853 (1975);
United States v. Salovitz, 701 F.2d 17 (2d Cir. 1983); United States v. Ciancaglini, 945 F.
Supp. 813 (E.D. Pa. 1996).
