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The State makes its opening statement in a criminal trial first, before any evidence is offered. R. 1:7-1. The defense may, but is not required to, make an opening statement. R. 1:7-1(a); see State v. Williams, 232 N.J. Super. 414, 418-419 (App. Div.), certif. denied, 117 N.J. 63 (1989). If the defense chooses to make an opening statement, it must do so immediately after the State’s opening statement. R. 1:7-1(a).
The function of the opening statement is to apprise the jury (and not the defendant) of facts to prepare them for the evidence which they will hear. State v. Lynch, 79 N.J. 327, 336 (1979); State v. Stamburger, 209 N.J. Super. 579, 581 (Law Div. 1985). The State generally should lay out the facts that will establish the defendant’s guilt on each element of each charged offense. However, if the State fails to do so, the appropriate remedy generally is not to dismiss the case by declaring a mistrial but to allow the State to reopen and allow the defendant to assert whatever prejudice he or she suffered as a consequence of the reopening. State v. Lynch, 79 N.J. at 334-336; State v. Portock, 205 N.J. Super. 499, 507-508 (App. Div. 1985); State v. Stamberger, 209 N.J. Super. at 581-582.
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