Supreme Court’s Message to Prosecutors: Opening Statement Promises of a Confession by Defendants Are at Your Own Risk

State v. Greene, 242 N.J. 530 (2020). Until today, the Supreme Court “has not had occasion to squarely address a prosecutor’s opening statement that detailed evidence of a defendant’s guilt that never materialized because the anticipated witness refused to testify.” So wrote Justice Albin in the Court’s unanimous opinion today.

The context was as follows. Two defendants, Greene and Lewis, were prosecuted for murder after they allegedly shot someone while trying to steal drugs from him. Greene’s grandmother, Ethel Smith, gave a recorded statement to police. She said that Greene, “sobbing,” had told her that he and his co-defendants (one of whom became a cooperating witness for the State) had gone “to the home of a ‘guy’ that they knew sold ‘weed’ intending to ‘snatch the drugs and run.'” Greene had a gun, Smith recounted Greene telling her, thinking that “once [they] went there, if the guy saw the gun he would just give [them] the drugs.” It did not work out that way. Smith said that Greene told her that the “guy” grabbed the gun, he and Greene struggled, and the gun discharged into the victim.

Smith moved out of state. As trial approached, detectives approached her about testifying. She refused to do so and said that she had lied in her statement. At trial, even after receiving immunity, she refused to testify and was jailed for contempt as a result.

The prosecutor’s opening statement referred in detail to Smith’s expected testimony about what Greene had allegedly confessed to her. But, as Justice Albin also noted, “the prosecutor prepared the jury for Smith’s recantation of her recorded statement.”

As stated above, Smith refused to testify and was jailed for contempt. The State sought to introduce her recorded statement, but the Law Division excluded it and, on an emergent appeal, the Appellate Division upheld that ruling.

Neither defendant sought a mistrial arising out of the prosecutor’s opening statement. But they did request, and receive, a cautionary instruction to the jury when it was time for them to deliberate. The key part of that instruction said “during opening statements, the prosecutor indicated that you would hear testimony from Ethel Smith. Ethel Smith did not testify in this case. Any statements the prosecutor made about Ethel Smith [are] not evidence and cannot be considered by you in your deliberations.” The jury convicted both defendants of felony murder and other charges.

Both defendants appealed, and the Appellate Division reversed both defendants’ convictions. Though the prosecutor had believed in good faith that Smith would testify, “a prosecutor makes representations in opening statements at his or her own peril.” Smith’s promised testimony was “extremely damaging,” and the cautionary instruction was “woefully inadequate” and ‘could not ‘unring the bell.'” The Supreme Court granted the State’s petition for certification.

The Court agreed with a United States Supreme Court opinion that “a defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him.” Quoting Brown v. Superintendent Greene SCI, 834 F.3d 506 (3d Cir. 2016), Justice Albin said that “[a] prosecutor– even one acting in good faith– cannot in an opening statement ‘dangle an incriminating statement in front of jurors, tell them it implicates a particular defendant, and then expect that they will not use it against that person.'” Moreover, “no curative instruction is likely to have the desired effect of removing the taint of the forbidden information from the jurors’ minds.” Justice Albin cited cases from the Appellate Division and from other jurisdictions that addressed the effect of comparable opening statements.

Justice Albin then evaluated the effect of the opening statement on each defendant individually. The Court affirmed the Appellate Division’s reversal of Greene’s conviction. The alleged confession to Smith was, as the prosecutor conceded, “the single most important piece of evidence that could be brought against” Greene. The remainder of the State’s case against Greene was “far from overwhelming” (no physical or forensic evidence tied Greene to the crime, and the testimony of the cooperating witness and another witness were subject to serious attack).

The State’s inability to present Smith’s promised testimony “was not a minor or even modest ‘variance’ between the prosecutor’s opening and the case he presented.” Accordingly, Greene’s case met the plain error standard of review, which applied since defendants had not taken timely action at trial. The Court remanded his case for a new trial.

But the Court reached the opposite conclusion as to Lewis. The prosecutor’s opening did not mention him in connection with Smith’s potential testimony. And “the strength of the State’s case against Lewis his DNA and the victim’s blood on” a baseball cap left at the scene, which the cooperating witness said that Lewis had worn. Thus, the prosecutor’s opening statement did not deny Lewis a fair trial.

The lesson for prosecutors, and likely for all trial counsel in any sort of case, is Justice Albin’s admonition that “[b]]ecause the testimony of witnesses is not always predictable, proceeding with a modest degree of caution in an opening statement may be the safer course when the anticipated testimony is fraught with uncertainty.” Though “not every variance” between an opening statement and the proofs is reversible error, even in a criminal case, some remarks “unavoidabl[y]” lead to “error, or even constitutional error.”

Justice Albin cited cases saying that an opening statement is meant to be an “outline,” a ‘roadmap,” or a “general recital” (emphasis by Justice Albin) of the case, and should not “anticipate [counsel’s] final argument.” Today’s decision illustrates the risk of going too far in an opening statement.