Trial Court Endorses Delayed Defense Opening
Although not commonly seen in this District, it has always been understood that a defendant's attorney has the right to delay presentation of his or her opening statement until after the close of the government’s case. Advocates of the trial theory of primacy would argue that such a strategy risks denying the fact-finder an alternative view of the facts at an impressionable moment of the trial, but there is no doubt that FRE 611 gives the court the authority to allow the procedure.
In the Northern District of Ohio, it appears, the practice is more widespread, and was recently upheld over the government’s objection. In United States v. Amawi, 541 F. Supp.2d 955 (N.D. Ohio 2008), the Court rejected the government’s argument that allowing one defendant to reserve would prejudice both the government and the remaining defendants.
The trial judge observed that, in his experience, defense attorneys “more often than not” reserve opening. The only prejudice suffered by the government in the practice is the denial to the prosecutor of the opportunity to learn early in the trial what strategy the defense intends to pursue.
