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(Applicable to Superior Court and jury sessions in District Court)
(1) Order of presentation
The Commonwealth shall present its opening statement first. The defendant may present an opening statement of his defense after the opening statement of the Commonwealth or after the close of the Commonwealth's evidence. The defendant shall present his closing argument first.
(2) Time limitation
Counsel for each party shall be allowed fifteen minutes for an opening statement and thirty minutes for argument; but before the opening or the argument commences, the judge, on motion or sua sponte, may reasonably reduce or extend the time.
At the close of the evidence or at such earlier time during the trial as the judge reasonably directs, any party may file written requests that the judge instruct the jury on the law as set forth in the requests. The judge shall inform counsel of his proposed action upon requests prior to their arguments to the jury. No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, specifying the matter to which he objects and the grounds of his objection. Upon request, reasonable time shall be given to each party to object to the charge before the jury retires. Where either party wishes to object to the charge or to request additional instructions, the objection or the request shall be made out of the hearing of the jury, or where appropriate, out of the presence of the jury.
The language of this rule substantially parallels that of Mass.R.Civ.P. 51. See National Advisory Commission on Criminal Justice Standards and Goals, Courts, Standard 4.15 (1973).
Drawn from Rules of Criminal Procedure (U.L.A.) Rule 521 (1974), this subdivision (a)(1) establishes the order of presentation of opening statements and closing arguments.
The fifteen-minute limitation on opening statements and thirty-minute limitation on arguments of subdivision (a)(2) are carried over from earlier rules of court. Superior Court Rules 7, 68 (1974); Supreme Judicial Court Rule 2:48 (1967: 351 Mass. 768). It is intended that under this rule only one attorney for each side is to participate, contrary to the provisions of Mass.R.Civ.P. 51 and Supreme Judicial Court Rule 2:48. While placing time limits upon opening statements and arguments, and limiting arguments to a single counsel, Rule 24 does not otherwise affect their respective functions.
The proper function of an opening is to outline in a general way the nature of the case which counsel expects to be able to prove or support by evidence. He should not be allowed to state facts which are irrelevant or for any reason plainly incompetent.
Posell v. Herscovitz , 237 Mass. 513, 514 (1921); see Commonwealth v. Clark , 292 Mass. 409, 410 (1935); Commonwealth v. LePage , 352 Mass. 403, 409 (1967). The refusal by counsel to confine his opening statement within the established boundaries constitutes unprofessional conduct, S.J.C. Rule 3:22A, Disciplinary Rules Applicable to Practice as a Prosecutor or as a Defense Lawyer, PF 11, DF 12 (February 14, 1979), and may amount to such misconduct as to warrant his expulsion from the courtroom and subjection to disciplinary proceedings. United States v. Dinitz , 424 U.S. 600 (1976).
An opening statement has a narrow purpose and scope. It is to state what evidence will be presented, to make it easier for the jurors to understand what is to follow, and to relate parts of the evidence and testimony to the whole; it is not an occasion for argument. To make statements which will not or cannot be supported by proof is, if it relates to significant elements of the case, professional misconduct. Moreover, it is fundamentally unfair to an opposing party to allow an attorney, with the standing and prestige inherent in being an officer of the court, to present to the jury statements not susceptible of proof but intended to influence the jury in reaching a verdict.
A trial judge is under a duty, in order to protect the integrity of the trial, to take prompt and affirmative action to stop such professional misconduct.
United States v. Dinitz, supra, Burger, C.J., concurring at 612. See Commonwealth v. Fazio , 375 Mass. 451 (1978); ABA Standards Relating to the Prosecution Function § 5.5 (Approved Draft, 1971); ABA Standards Relating to the Defense Function § 7.4 (Approved Draft, 1971).
Although Massachusetts practice permits counsel “great latitude” in closing argument, Commonwealth v. Pettie , 363 Mass. 836, 840 (1973),
[i]t is the duty of a judge sitting with a jury to guard against improper arguments.... Whether he shall do this by stopping counsel in the course of such an argument, by instructing the jury to disregard such an argument, or by combining both methods, rests largely in the discretion of the judge.
Commonwealth v. Witschi , 301 Mass. 459, 462 (1938). Accord Commonwealth v. Montecalvo , 367 Mass. 46, 56 (1975). See Commonwealth v. Earltop , 372 Mass. 199 (1977) (Hennessey, C.J., concurring) and cases cited: ABA Standards Relating to the Function of the Trial Judge § 5.10 (Approved Draft, 1972).
Where counsel “repeatedly and deliberately sail[s] unnecessarily close to the wind ... beyond permissible limits,” Commonwealth v. Redmond , 370 Mass. 591, 597 (1976), thus bringing unsworn testimony to the attention of the jury, the cumulative prejudice may be such that curative instructions are insufficient. The remedy in such instance is an order for a new trial. Commonwealth v. Redmond, supra. Further, where counsel misstates the law, a request for a curative instruction is denied, and the judge's general instruction that arguments are not evidence to be weighed by the jury is insufficient to allay the resulting prejudice, a new trial is required. Commonwealth v. Killelea , 370 Mass. 638 (1976). Because of these serious consequences, it is obvious that overreaching in argument--as in openings--may constitute unprofessional conduct. S.J.C. Rule 3:22A, Disciplinary Rules Applicable to Practice as a Prosecutor or as a Defense Lawyer, PF 13, PF 14 (February 14, 1979).
The incorporation of the civil practice form of requests for and objection to instructions into criminal practice is felt to be appropriate because the same basic principles apply to both types of proceedings. Compare Fed.R.Crim.P. 30 with Fed.R.Civ.P. 51. Subdivision (b) adopts what had been a long-standing practice before its formalization as a rule of the Superior Court. SUPERIOR COURT RULES, 1974, ANNOTATED 290-91 (Mass.Bar.Ed.1975); see e.g., Commonwealth v. Boutwell , 162 Mass. 230 (1894); Commonwealth v. Hassan , 235 Mass. 26, 31 (1920).
The rule differs from Mass.R.Civ.P. 51 in requiring that objections to the charge or requests for additional instructions be made out of the hearing or presence of the jury in all cases. This comports with Rules of Criminal Procedure (U.L.A.) Rule 523(b) (1974) and ABA Standards Relating to Trial by Jury § 4.6(c) (Approved Draft, 1968). See Fed.R.Crim.P. 30.