Opening Statement Rules In Missouri

The primary purpose of an opening statement is to inform the judge and jury of the general nature of the case, so they may appreciate the significance of the evidence as it is presented. Best v. District of Columbia, 291 U.S. 411, 415, 54 S. Ct. 487, 489, 78 L. Ed. 882, 885 (1934); Hays v. Missouri Pac. R.R. Co., 304 S.W.2d 800, 804 (Mo. 1957). Opening statements are limited to factual statements that can be proved. State v. Feger, 340 S.W.2d 716, 724 (Mo. 1960); State v. Fleming, 523 S.W.2d 849, 853 (Mo. App. 1975). Thus, argument is improper. State v. Arrington, 375 S.W.2d 186, 190 (Mo. 1964); State v. Hurst, 612 S.W.2d 846, 853 (Mo. App. 1981); State v. Ivory, 609 S.W.2d 217, 222 (Mo. App. 1980). Cross-examination may establish facts. State witnesses may know facts that support the defense, because the State, like any party, must take its witnesses as it finds them. Rowe v. Farmers Ins. Co., 699 S.W.2d 423, 424-25 (Mo. banc 1985). Generally, State witnesses may be cross-examined on any and all matters in the case, including matters not within the scope of direct examination. State v. Gardner, 8 S.W.3d 66, 71 (Mo. banc 1999). Even cross-examination limited to prior inconsistent statements may yield substantive evidence. See Section 491.074 RSMo 1994. Thus, through cross- examination alone, the defense can establish facts, a defense, or theory of the case. An absolute ban on reference to all cross-examination testimony denies the defendant - who does not call witnesses - the right to an opening statement. See Rule 27.02(f); section 546.070(2) RSMo 1994. Such a ban reaches beyond the prohibition of argument in opening statements. Cases espousing this absolute ban are hereby overruled. State v. Flaaen, 863 S.W.2d 658, 661 (Mo. App. 1993); State v. Nelson, 831 S.W.2d 665, 667 (Mo. App. 1992); State v. Gibson, 684 S.W.2d 413, 415 (Mo. App. 1984); State v. Bibbs, 634 S.W.2d 499, 501 (Mo. App. 1982). See also State v. Hamilton, 740 S.W.2d 208, 211 (Mo. App. 1987) (dicta not to be followed: "Although where a defendant will not testify and has no other evidence or testimony there may be no basis for an opening statement on his part, the ruling does not prevent the statement of what he expects to prove as a defense if he will have evidence."). The scope of opening statements is within the discretion of the trial court. State v. Brooks, 618 S.W.2d 22, 24 (Mo. banc 1981). Review is only for abuse of discretion. State v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998). the trial court here erred in denying defense counsel the opportunity to make an opening statement that referred to cross-examination testimony.