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[uppityperson]

110. Because SOME things were excluded but not ALL things were excluded.

The Opening statement is not a presentation of facts and there are some things which are not excluded. The jury is supposed to listen to evidence presented during the trial. The Opening Statement is not evidence.

http://www.nlrg.com/our-services/jury-research-division/jury-research-publications/persuasion-at-trial-opening-statements/

he opening statement is a valuable contributor to the persuasion process at trial. Through opening statements each side lets the jury know what evidence they will present and what this evidence is supposed to prove. This is the primary opportunity for attorneys to present their positions to the jury prior to the introduction of the evidence upon which the jurors will base their decisions. The critical feature of opening statements is that frameworks are advanced as to how jurors should view the case, an important component since jurors will process evidence in light of whichever framework they adopt. Because information consistent with an adopted framework is generally more easily remembered than information contrary to the adopted framework, a major battle is won when the attorney gets the jury to view the evidence in the case from his or her perspective.
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Third, effective opening statements take advantage of persuasive techniques such as rhetorical questions and inoculation strategies, carefully weaving them into the fabric of the presentation. Rhetorical questions help persuasion by guiding the jurors' search for answers and, in some cases, implying answers on their own. For strong cases, placing rhetorical questions near the beginning of the presentation or subdivision of the statement fosters persuasion because the answers will be forthcoming. However, for weak cases, rhetorical questions placed in the beginning of the presentation reduce persuasion because the answers to these questions are either not forthcoming or are equivocal. Rhetorical questions are also effective when placed near the end of the presentation when they address the weak points of the opponent's case.

Inoculation is a technique which increases the resistance to persuasion. As the name implies, this technique is analogous to the medical technique of inoculating patients to increase their resistance to disease. Inoculation in persuasion occurs by exposing jurors to a weakened version of the opponent's arguments and successfully refuting these arguments, thus making the jurors aware of counterarguments to the opponent's position. When the opponent later raises the argument, jurors are able to more successfully resist it.

Fourth, persuasive opening statements enable the jurors to see the case from the client's perspective. They take jurors from the realm of the outside observer to that of an actor in the event being recreated by describing the events as seen through the client's eyes. This shift in focus enables jurors to have greater empathy for the client. Obviously, jurors cannot be asked to "put themselves in the party's shoes." However, jurors will be placed in those shoes by an opening statement that effectively walks them through the case....

http://en.wikipedia.org/wiki/Opening_statement

An opening statement is generally the first occasion that the trier of fact (jury or judge) has to hear from a lawyer in a trial, aside possibly from questioning during voir dire. The opening statement is generally constructed to serve as a "road map" for the fact-finder. This is especially essential, in many jury trials, since jurors (at least theoretically) know nothing at all about the case before the trial, (or if they do, they are strictly instructed by the judge to put preconceived notions aside). Though such statements may be dramatic and vivid, they must be limited to the evidence reasonably expected to be presented during the trial. Attorneys generally conclude opening statements with a reminder that at the conclusion of evidence, the attorney will return to ask the fact-finder to find in his or her client's favor. See, http://www.uscourts.gov/EducationalResources/ClassroomActivities/RealLifeScenarios/TextingWhileDriving/DifferencesBetweenOpeningAndClosingArgs.aspx.

Opening statements are, in theory, not allowed to be argumentative, or suggest the inferences that fact-finders should draw from the evidence they will hear. In actual practice, the line between statement and argument is often unclear and many attorneys will infuse at least a little argumentation into their opening (often prefacing borderline arguments with some variation on the phrase, "As we will show you...&quot . Objections, though permissible during opening statements, are very unusual, and by professional courtesy are usually reserved only for egregious conduct.

Generally, the prosecution in a criminal case and plaintiff in a civil case is the first to offer an opening statement, and defendants go second. Defendants are also allowed the option of delaying their opening statement until after the close of the prosecution or plaintiff's case. Few take this option, however, so as not to allow the other party's argument to stand uncontradicted for so long.