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IN NEW YORK, THE PROSECUTION IS REQUIRED TO MAKE AN “ADEQUATE” OPENING STATEMENT WHICH DELINEATES THE PARTICULAR OFFENSES CHARGED AND HOW THEY WILL BE PROVEN. IF THE PROSECUTION FAILS TO MAKE AN “ADEQUATE” OPENING STATEMENT – THEY GET A “DO O

At Tilem & Campbell our lawyers have the trial experience to take cases to trial when plea bargaining proves to be non-productive. Criminal defense lawyers need not make an opening statement at trial. However, in a New York State criminal trial, the prosecution “must deliver an opening address to the jury.” [CPL 260.30(3)]. Although the relevant statute, CPL 260.30(3), does not set forth the required content of the prosecution’s opening statement, “at a minimum the prosecutor generally should set forth the nature of the charge against the accused and state briefly the facts he expects to prove, along with the evidence he plans to introduce in support of the same.” People v. Kurtz, 51 N.Y.2d 380, 384 (1980).
If the prosecutor’s opening statement is deficient, defense counsel should move to dismiss the case at the conclusion of the prosecution’s opening pointing out the deficiencies in their opening statement. The trial court is obligated to rule on this motion when defense counsel makes it and cannot reserve decision. Why? Because the prosecutor must be given the opportunity to correct any deficiency in their opening – thus avoiding dismissal. Id at 384.
The Kurtz case exemplifies the general rule that courts will rule in a manner that favors the prosecution to the detriment of the defendant. In other words, it is the defense attorney who must (1) recognize that the prosecutor’s opening is deficient; (2) bring this deficiency to the court’s attention; and (3) tell the court (and therefore the prosecutor) why the opening was deficient. Then, after the prosecutor has been taught by the defense attorney how to properly give an opening, the prosecutor gets a “do over” – he gets to present another opening this time making the necessary adjustments all thanks to the defense attorney.
Indeed, in Kurtz, the trial court did not immediately rule on defense counsel’s motion to dismiss due to an inadequate prosecution opening. However, after the trial started, the trial court granted the defendant’s motion and dismissed on that ground. In upholding the appellate court’s reversal of the dismissal, the Court of Appeals held that “[t]he trial court should have ruled on the motion and given the prosecutor the opportunity to correct the deficiency before proceeding with trial.” Id at 384-385.
The Court further noted that a trial court should not direct an acquittal based upon an insufficient prosecutorial opening unless “the prosecutor has been given an opportunity to correct the deficiency in his opening.” Id at 385. In other words, the prosecution must be afforded a “do over.”
If you are facing a criminal trial, feel free to contact us toll free at 1-877-377-8666 for a free telephone consultation to discuss questions you might have about the criminal trial process. We can also be found on the web at www.888AnyCrime.com.