Following the jury selection process and after the court has given preliminary instructions to the jury, both sides (prosecution and defense) have an opportunity to make an opening statement to the jury.  Under Utah law, a defense attorney can elect to make the defense opening statement either at the beginning of the trial (after the prosecutor’s opening statement and before the first prosecution witness is called), or at the beginning of the defense case (after the prosecutions case-in-chief is concluded and before the first defense witness is called).  A defense attorney may also elect not to give any opening statement at all.  But most of the best criminal defense attorneys agree that giving an opening statement at the beginning of a trial is important.  Although the judge may instruct the jury to refrain from forming opinions until all evidence has been presented, most jurors are unable to completely do this.  Thus, it is important to get the defense theory of the case into the jurors’ minds as soon as possible.

An opening statement in a Utah criminal trial differs from closing argument.  In a closing argument, both the prosecutor and the defense attorney have the opportunity to argue their positions to the jury, to openly attempt to persuade the jury in their favor.  But in an opening statement, the attorneys are not permitted to engage in open argument regarding the facts or the application of the law.  Instead, an opening statement is intended to consist of an overview or statement of what evidence will be presented during the course of the trial.  The best criminal defense attorneys still are able to find ways to craft the opening statement in a way that begins the process of swaying the jury to their side.