Opening Statements and Jury Instructions (Part 1)

On June 23, 2020, the New Jersey Supreme Court decided the Burlington County case of State v. Carey Greene. The principal issue involved the trial prosecutor’s detailed account of a cooperating witness’s statement during his opening remarks, followed by the cooperating witness’s recanting of her statement and refusing to testify at trial.

Justice Albin wrote for the unanimous Court in relevant part: In the murder trial of defendants Cary Greene and Tyleek Lewis, the prosecutor opened to the jury that the State would present as a witness Greene’s grandmother, to whom he allegedly confessed his guilt in the shooting death of Edward Baker. The prosecutor gave a detailed description of the grandmother’s expected testimony and a prediction of the emotional struggle she would encounter as a witness against her grandson. Before trial, Greene’s grandmother recanted the statement that she gave to the police. She also refused to testify. The Court considers whether the prosecutor’s discussion of her anticipated testimony deprived defendants of a fair trial.

On the evening of July 16, 2010, defendants and A.J., a minor at the time who later testified as the State’s key witness in accordance with a plea agreement, drove to Baker’s residence with the intent to rob him. Once there, Greene and Lewis retrieved guns and entered the residence wearing black-bandana masks; A.J. remained outside. Baker was watching television with two female friends, Ariel Dickens and Courtney Zabala. According to Dickens, Baker confronted the two men while Zabala and Dickens fled through a back door. A few moments later, Dickens heard a gunshot. She returned, discovered that Baker had been shot, and called the police. Later that evening, detectives interviewed Dickens. For the first fifty-five minutes, she made no mention of the name of any of the perpetrators. During a break, Dickens spoke with Zabala. Afterward, she told the detectives that she recognized one of the robbers as Greene but that she was not certain about the identification.

The temptation for the prosecutor to capture the jury’s collective mind with his opening statement is understandable. It is a high-stakes murder case with obvious proof issues.