Opening Statements in Federal Criminal Trial Proceedings

A federal criminal jury trial commences immediately following jury selection. In a typical federal criminal case, the courtroom is comprised of an Assistant United States Attorney (AUSA), the defendant and defendant’s counsel, a United States District Court judge, the jury of 12 men and women, and a court reporter. The courtroom is generally open to the public unless previously determined otherwise.

Opening statements play a significant role in federal criminal trial proceedings. In the federal criminal system, a defendant is presumed not guilty. Because the burden of proof lies with the government, the government will present its case first. Logically following, this allows the AUSA to give the first opening statement. The defense has the option to either give its opening statement immediately following the government, or may wait until the government rests its case.

In most cases, the defense will give an opening statement immediately following the government. Many reasons support this defense strategy. It is extremely important to convey the defendant’s defense near the start of trial proceedings. Much will take place before closing arguments, therefore it is vital that the jury hears from the defense as soon as possible. Understanding the defense’s position will help the jury to unravel the theory of the government’s case as the trial progresses.

Moreover, the opening statement allows the defense to emphasize the government’s burden. In federal criminal trials, the government must prove every element of an offense beyond a reasonable doubt. If the defendant has been charged with more than one offense, the government is required to prove those elements as well. Beyond a reasonable doubt is the highest burden in our legal system. If the jury believes a reasonable doubt exists as to the defendant’s guilt, they are required by law to find him not guilty.

There are certainly cases where the defense may wait to give an opening statement until the government rests its case. However, it is important to consider the totality of the circumstances before making such a decision.

The opening statement itself should paint a clear picture for the jury regarding the facts of the case. Although the opening statement is a brief introduction to the case, it is also an opportunity to highlight facts favorable to the defense.

Following the conclusion of opening statements, the AUSA will begin the in-depth process of presenting its case by calling witnesses and introducing evidence, followed by the defense. Witnesses are important in federal criminal cases, as they tend to support or contradict the assertions made during opening statements.

Douglas McNabb and other members of the firm practice and write extensively on matters involving Federal Criminal Defense, INTERPOL Litigation, International Extradition and OFAC SDN Litigation.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at or at one of the offices listed above.

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