In State Court in Florida the rules allow for waiving or preserving your opening statement in a criminal trial. Also, in Florida, a lawyer can only tell the jury in opening statement, contrary to what most television legal dramas present, what you expect the evidence will show–you cannot argue inferences from those facts. (Albeit, voice inflection and tone, pauses, etc. can, if done properly, blur the line between what the evidence may show and argument).
If you said something in opening that is not “proven up” in the trial, the prosecutor will surely hammer home your omission in his or her closing. However, the jury, if they trust you, should be reminded that you have no burden to prove your case and when the case began you had no idea that the government would not even meet it’s burden of proof beyond a reasonable doubt so therefore you had no obligation to put on the small amount evidence that you didn’t. (A trial lawyer must be careful with this last concept because if your case is substantially overstated in opening, you will lose credibility and trustworthiness, which are necessary to win your case).
Albeit opinions vary on this issue, and I don’t like to say “never,” I believe it would be the extremely rare case when a trial lawyer would want to waive an opening statement.
If you have had a successful voir dire (lawyer term for jury selection) wherein the people on the jury trust and respect you because in short, you have shown great respect and honor towards them, delivering a convincing, trustworthy detailed story in opening can devastate opposing counsel’s case provided you don’t lose that credibility and trust throughout the rest of the trial. You must show them throughout the rest of the case what you said in opening is actually true.
Hopefully most of your client’s story can be told through cross examination of the State’s witnesses themselves. If you waive opening, the jury won’t even know what points, especially subtle points, you are making during cross examination of the State’s witnesses that add to you and your client’s credibility.