Michigan Criminal Sexual Conduct Trial Procedure - Opening Statement

Criminal Sexual Conduct (CSC) is what we concentrate on at Prain Law, PLLC. Rather than simply representing any person accused of any type of crime, Prain Law recognizes that Criminal Defense is a very broad area of law, and certain Michigan criminal charges, particularly CSC, require highly specialized knowledge and experience to win with consistency. This is true not just because of the unique Michigan Criminal Sexual Conduct Court procedure and laws, but also because of the stigma that society attaches to those accused of CSC.

For these reasons, Criminal Sexual Conduct cases seem to go to jury trial (rather than result in plea deals) more than other types of charges. Last month, we published an article entitled "Michigan Criminal Sexual Conduct Trial Procedure - Picking Your Jury," where we explained how the jury selection process works. Continuing where we left off, we will now explain the next phase of the jury trial - "Opening Statements."

Once your jury has been selected, the Court will thank and excuse any remaining potential jurors in the courtroom who were not either selected or already excused, and then administer yet another oath to your seated jury panel. These are the 14 people (12 plus the usual two alternates) who will decide your case, and now the Judge asks them to swear under oath to "justly decide the questions submitted to you, that, unless you are discharged by the court from further deliberation, you will render a true verdict, and that you will render your verdict only on the evidence introduced and in accordance with the instructions of the court..."

After the Judge reads a few more instructions explaining the trial procedure, functions of the different people involved, and how to properly do their job of evaluating the evidence, it's time for each side to make their Opening Statement. The standard Michigan Criminal Jury Instructions describe the function Opening Statements to jurors as follows (by clicking the link, you can read all Jury Instructions read to the jury during trial):

"First, the Prosecutor makes an Opening Statement, where he/she gives his/her theories about the case. The Defendant’s lawyer does not have to make an Opening Statement, but he/she may make an Opening Statement after the Prosecutor makes his/hers, or he/she may wait until later. These Statements are not evidence. They are only meant to help you understand how each side views the case."

The Opening Statements of each side represent the first time the jury will actually hear the story of the case that led to the accused being charged with Criminal Sexual Conduct. Up until this point, the jury has received very little information: they have heard in very basic terms what the charges are, for example, "Count 1, First Degree Criminal Sexual Conduct," "Count 2, Third Degree Criminal Sexual Conduct," and so on. They are told nothing about the severity or possible penalty. They know the name of the Defendant, the accuser, and very little else.

Now, the jury is learning why the Defendant is accused and charged with CSC from the point-of-view of the Prosecutor - they are telling the story, true or false as it may be, that the accuser gave to law enforcement, or, in the case of a minor such as in a Criminal Sexual Conduct 1st Degree case, to a forensic interviewer at CARE House or a similar Child Advocacy Center. The Prosecutor will talk about who the parties to the case are, how they are related or came into contact with each other, what the accused supposedly did, how it allegedly came about, and the witnesses they intend to call and what they expect them to testify to.

Importantly, as the above instruction says, the Opening Statement is not "evidence." In other words, if the Prosecutor only gave their Opening and then "rested" their case without calling any witnesses to the stand or introducing any documents or other exhibits (things considered "evidence"), then the only verdict the jury could give would be NOT GUILTY of Criminal Sexual Conduct, because a verdict must be based on evidence.

Likewise, the Opening Statements are not intended to be "argument," either, meaning that you may hear a lot of statements like "Ladies and gentlemen, the evidence in this case is going to show that...", which is proper, but Opening Statement really is not the time for arguing to the jury what inferences and conclusions they should draw from that evidence - that is the purpose of Closing Argument at the end of trial.

Still, it is not entirely uncommon to hear argumentative sounding language in Opening Statement, such as "This is a case about power, control, manipulation, and abuse. This is a case about a predator...", etc. These are attempts to frame how the jury will see the evidence, but some statements like this may be necessary because the Opening is "meant to help [jurors] understand how each side views the case." Some leeway is generally given to both sides, but excessive "argument" in Opening Statement may draw an objection from the opposing side.

Finally, many Prosecutors will conclude their Opening Statements by restating what facts or "elements" of the CSC charge they intend to prove and must prove beyond a reasonable doubt if the accused is to be convicted. These elements have already been read by the Judge, but some Prosecutors are fond of using things like Power Point slides that say things like "Elements of First Degree Criminal Sexual Conduct." While not entertaining, these recitations are generally harmless, since only the facts are for the jury to decide - the law for the various Degrees of Criminal Sexual Conduct is essentially set in stone.

A Prosecutor's Opening Statement usually concludes with a statement like "...and at the end of this trial, I'm going to ask you to find the Defendant guilty of Third Degree Criminal Sexual Conduct." Some Prosecutors overstep and argue that the jury should "hold the Defendant accountable for his actions," etc. Not only is this argument, but the jury's only function is to decide whether there is or is not reasonable doubt - not to punish or hold anyone accountable. Those things are for the Judge, and only if there is a conviction, of course.

Once the Prosecutor sits down, the Judge immediately asks your CSC Defense Attorney, "Do you wish to make an Opening Statement?" This is because, as the instruction says, the Defense does not have to give one, does not have to prove anything in the trial, and does not have to do anything. The Defense can also choose to wait to give an Opening Statement until the Prosecution has presented all of their witnesses and evidence (when they "rest" their case). Whether or not it is sound strategy for the Defense to wait has long been a topic of vigorous debate.

When it comes to the Defense Opening Statement in a Criminal Sexual Conduct case, suffice it to say that styles vary greatly between one Attorney and the next, and between one case and the next. Again, Opening is not argument that the verdict may be based on, and the Defense does not have to prove anything or do anything. But if the Defense is going to give an Opening Statement, especially in a CSC case, a good rule of thumb should be that assuming the essential facts come out at trial as described in the Opening, the obvious conclusion would be that there is reasonable doubt, and therefore the accused is entitled to a verdict of NOT GUILTY.

If you are accused of Criminal Sexual Conduct, you can provide your CSC Defense Attorney with all of the facts and details to make a powerful Opening Statement. In-fact, you may even want to ask to hear your Attorney's Opening Statement to make sure it is complete and accurate.

There is no excuse, and more importantly, no cure, for a weak and inadequate Defense Opening Statement in a CSC case, because the next thing that will happen after your Attorney sits down will be the Prosecution's witnesses taking the stand against you. Will your Attorney's Opening Statement be compelling enough to keep the light of truth burning while the State's witnesses point the finger at you for days on end?

Detroit Sex Crimes Attorney Brian J. Prain of Prain Law, PLLC has the training, skills, and experience necessary for your innocence to prevail against the strong current of a public opinion that says you must be guilty simply because you've been accused of Criminal Sexual Conduct.

Start your defense NOW! Contact Prain Law, PLLC at (248) 731-4543 or online using our Contact Form.


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Prain Law, PLLC is focused only on the types charges featured on our website. This helps us deliver the decisive, effective advocacy for which our clients know us. We only serve individuals currently under investigation or who have a current case pending in court. Our firm does not represent injury victims, defendants who have already taken a plea or have been sentenced, or those seeking to expunge a criminal record. We do not respond to anyone who is not involved in a pending investigation or who has a court case for a type of charge we do not handle, but we wish you the very best of luck.