The unanimous Court continued in relevant part: The trial court determined that Smith’s recorded statement would be admissible when Smith testified, rejecting Smith’s testimony that “her story was fabricated.” The court issued a written opinion, stating that Smith would be compelled to testify at trial and that if she refused to answer any questions, she would be subject to contempt charges. In light of those procedural events, the prosecutor gave his opening statement to the jury.
During his presentation, the prosecutor told the jurors that they were “going to meet Mrs. Smith during the course of this trial.” He then gave a recitation of her expected testimony and highlighted the tension she would face in resolving the conflict between her love of her grandson and her obligation to tell the truth. In his remarks, the prosecutor prepared the jury for Smith’s recantation of her recorded statement.
During the trial, Smith notified the State that she would not testify if placed on the stand. In arguing for the admission of Smith’s recorded statement, despite her refusal to testify, the prosecutor acknowledged that Greene’s “confession is the single most important piece of evidence that could be brought against him.” The court nevertheless denied admission of Smith’s statement. Neither Greene nor Lewis moved for a mistrial on the ground that the State’s opening prejudiced their ability to receive a fair trial. Instead, at the conclusion of the trial, Greene’s attorney requested a jury instruction addressing the issue. Ultimately, with the consent of counsel, the court gave a charge stressing that the statements of counsel are not evidence and that “any statements the prosecutor made regarding Ethel Smith [are] not evidence and cannot be considered by you in your deliberations.”
If a mistrial were granted, the State would still have the opportunity to try the case again. At that point, they would have been given a preview into the defense theory and tactics that they did not have before the first trial. This is one reason that re-trials more often then not result in convictions.