TITLE ELEVEN — MISCELLANEOUS RULES
Rule 1107. Opening Statement and Closing Argument; Applicable to Criminal and Civil Cases
Opening Statement.
Purpose. The proper function of an opening statement is to outline in a general way the nature of the case that a party expects to be able to prove or support by admissible evidence. The expectation must be reasonable and grounded in good faith. Except for a prosecutor in a criminal case, a party may discuss evidence expected to be offered by an opponent. Argument for or against either party is not permitted.
Directed Verdict, Finding of Not Guilty, or Mistrial. If the evidence outlined in an opening statement is insufficient as a matter of law to sustain that party’s burden of proof, or to establish a cause of action, the court has discretion to direct a verdict against that party.
Order and Time. The party bearing the burden of proof opens first, and the opposing party follows. The court may permit a defendant in a civil action, or a defendant in a criminal case, to reserve the opening statement until the close of the opponent’s evidence. The court shall fix the time allowed for each opening statement before the statements begin, shall state it upon the record, and shall apply it evenly to the parties. Time so fixed runs continuously in Coordinated Universal Time from the moment the court so states.
Preparation. Counsel shall prepare the opening statement in advance and shall not read it from a prepared script. Counsel shall state only what counsel reasonably and in good faith expects the admissible evidence to show, and shall not outline evidence which the court has excluded, which counsel knows to be inadmissible, or the admission of which depends upon a ruling not yet made.
Evidence Not Yet Ruled Upon. Where the admissibility of evidence which a party intends to outline has been reserved or is the subject of a pending motion, counsel shall obtain a ruling before referring to it, or shall refrain from referring to it. A party who refers to evidence which is later excluded is subject to Rule 1107(4), and the court may give a curative instruction, may permit the opponent to comment upon the failure of proof, or may declare a mistrial.
Waiver. A party may waive the opening statement. A waiver is not a concession of any matter and shall not be commented upon by any party.
Closing Argument.
Critical Stage. Closing argument is not evidence but is a critical stage of a trial that requires advance preparation and knowledge of the principles expressed in this section.
Permissible Argument. Closing argument must be based on the evidence and the fair inferences from the evidence. It may contain enthusiastic rhetoric, strong advocacy, and excusable hyperbole. It is permissible to argue from the evidence that a witness, document, or other evidence is or is not credible, as well as to suggest the conclusions, if any, that should be drawn from the evidence. A party may urge jurors to rely on common sense and life experience as long as the subject matter at issue does not require expert knowledge. In civil actions, parties, through their counsel, may suggest a specific monetary amount for damages at trial.
Improper Argument. The following are not permissible in a closing argument:
to misstate the evidence, to refer to facts not in evidence (including excluded matters), to use evidence for a purpose other than the limited purpose for which it was admitted, or to suggest inferences not fairly based on the evidence;
to state a personal opinion about the credibility of a witness, the evidence, or the ultimate issue of guilt or liability;
to appeal to the jurors’ emotions, passions, prejudices, or sympathies;
to ask the jurors to put themselves in the position of any person involved in the case;
to misstate principles of law, to make any statement that shifts the burden of proof, or to ask the finder of fact to infer guilt based on the defendant’s exercise of a constitutional right;
to ask the jury to disregard the court’s instructions;
to comment upon a defendant’s failure to testify, upon the invocation of a privilege by any person, or upon a party’s exercise of a right secured by the Constitution of this State; and no comment shall be made upon a defendant’s express waiver of presence under 6 R. Stat. § 131.501(b)(1), upon a motion made under § 131.501(h), or upon the defendant’s absence as evidence of guilt, as Rid. R. Crim. P. 18.4(4) requires; comment upon a defendant’s failure to appear is permitted only where evidence of the failure has been admitted under Rule 1105 and the court has made the findings that Rule 1105(4)(b) and Rule 1105(7) require;
to disparage a party, a witness, or opposing counsel personally, or to refer to a matter outside the record concerning any of them, including conduct in another proceeding, reputation upon a platform, or standing in a community;
to refer to the punishment, sanction, or other consequence that may follow from the verdict or finding, except where the fact finder has a role in determining it;
to display, read from, quote, or refer to any item not admitted in evidence, except an aid permitted under Rule 1107(2)(d);
to assert the personal knowledge of counsel, to vouch for the State or for a party, or to suggest that the State or a party possesses information not before the fact finder;
to make a missing-witness argument without the approval required by Rule 1106(1), or to argue an adverse inference from the loss of evidence without the approval required by Rule 1101(8)(d); and
to argue an inference from conduct which Rule 1105(6) places outside the reach of Rule 1105.
Demonstratives and Illustrative Aids.
Use. Counsel may use a chart, timeline, diagram, enlargement, excerpt, or other aid to illustrate argument, provided that every fact it depicts is in evidence, that it is accurate, that it does not by its emphasis, arrangement, or annotation assert a fact not in evidence, and that it is legible to the fact finder in the medium in which it is displayed.
Notice and Leave. A party intending to use an aid in argument shall, before argument begins, display it to every other party and to the court and shall obtain leave to use it. The court shall rule before argument. An objection to an aid shall be made when it is displayed under this paragraph.
Not Evidence. An aid used under this paragraph is not evidence, is not admitted as an exhibit, and does not go to the fact finder for its deliberations. The court shall so state on request.
Preservation. An aid used in argument shall be marked for identification and preserved in the record. Where the aid is transmitted in the proceeding communications, the transmission is its preservation; where it is not, the party using it shall file a copy through the electronic filing system, subject to the limit of fifty (50) megabytes for each document, or shall make it available as Rule 1108(8) provides.
Order and Time. The party bearing the burden of proof argues first and may reserve a portion of its time for rebuttal, the reservation to be stated before argument begins. The court shall fix the time allowed for argument and for rebuttal before argument begins and shall state it upon the record. Rebuttal shall be confined to matters raised in the opponent’s argument.
Preparation. Counsel shall prepare closing argument in advance of trial and shall adapt it to the evidence actually admitted. Counsel shall not read the argument from a prepared script. Counsel shall address the fact finder in clear and direct language, shall avoid terms peculiar to a trade, platform, or activity without explaining them, shall refer to a person by the username or name of record rather than by a familiar or in-game nickname, and shall, when quoting from an exhibit or from the record, identify the exhibit or the place in the record from which the quotation is taken.
Argument Is Not Evidence. The court shall, on request and in every trial to a jury, instruct that the statements and arguments of counsel are not evidence. In a bench trial the court shall treat them as argument only.
Concessions. Counsel may concede a point, and a concession fairly made upon the record binds the party who makes it for the purposes of the trial.
Objections. An objection to a statement in an opening or closing, to be timely, must be made no later than the conclusion of the opponent’s opening or closing. If counsel is dissatisfied with a judge’s curative or supplemental instruction, an additional objection must be made.
Manner. An objection under this subdivision shall be made in the proceeding communications, shall state the ground with specificity, and shall identify the statement objected to. Counsel shall not interrupt an opponent’s statement except where the impropriety cannot be cured if the statement proceeds; in every other case the objection shall be made at the first pause or at the conclusion of the statement, and in no event later than the conclusion.
Ruling. The court shall rule upon the objection upon the record and shall state the ground of its ruling. Where the court sustains the objection, it shall strike the offending statement, may instruct the fact finder to disregard it, and may permit the objecting party to respond.
Waiver. An objection not made within the time this subdivision allows is waived, except that in a criminal case the court shall consider an unpreserved error to determine whether there has been a substantial risk of a miscarriage of justice, as Rule 103(5) requires.
Record. The statement objected to, the objection, the ruling, and any curative instruction are part of the record of the proceeding communications and require no separate filing.
Duty of the Court. A trial judge has a duty to take appropriate action to prevent and remedy error in opening statements and closing arguments.
On the Court’s Own Initiative. The court shall act upon its own initiative where an impropriety occurs and no objection is made, and shall state upon the record what it observed and what it did.
Remedies. The remedies available to the court include striking the statement; instructing the fact finder to disregard it; permitting the opposing party to reply; giving a curative or supplemental instruction; declaring a mistrial where no lesser remedy can cure the prejudice; and imposing a sanction under Rid. R. Civ. P. 11 or Rid. R. Crim. P. 48.
Referral. Where the impropriety consists of a knowing misstatement of the evidence or of the law, or of a statement which counsel knew to be outside the record, the court may refer the matter to the appropriate disciplinary authority.
Application in a Bench Trial. A petit jury is available only upon a charge of treason, as 6 R. Stat. §§ 131.111 and 131.306 provide, and the right to jury trial is preserved only when explicitly demanded by law, as Const. art. I, § 7 provides. In every other case the court is the fact finder. In a bench trial:
every limit stated in Rule 1107(1) and Rule 1107(2) applies, and a reference in those subdivisions to the jury or to jurors is read as a reference to the court as fact finder;
no instruction is given, and the court’s ruling upon an objection, together with its statement that it disregards the offending matter, takes the place of a curative instruction; and
the court’s statement of the matters it has disregarded shall appear upon the record or in its findings.
Argument in the Proceeding Communications. An opening statement and a closing argument are made in the proceeding communications for the case, or in such other manner as the court directs. While a party is making a statement or argument, no other person shall transmit into the proceeding communications except the court and a party making an objection which Rule 1107(3)(a) permits to be made at that time. A statement or argument so transmitted is part of the record and requires no separate filing.