united-states criminal-law trial rules-of-evidence
Can an attorney refer to testimony made in preliminary hearings during their opening or closing arguments?
<p>Can an attorney refer to testimony made in preliminary hearings during their opening or closing arguments?</p>
<p>For example, let's imagine that in a preliminary hearing before the trial has started, a cop  testifies and during that testimony describes the defendant as &quot;crazy&quot;. Can the attorney for the defense then re-iterate that in the opening argument, saying &quot;patrolman so-and-so even called my client 'crazy'... etc&quot;.</p>
<p>Taking this one step further, can an attorney show portions of the transcript from a preliminary hearing to the jury? For example, let's say that a witness gives testimony during the trial that contradicts what the same witness said during a preliminary hearing. Can the attorney show the transcript of the prior testimony to demonstrate that to the jury?</p>

<p>In closing arguments, an attorney should only refer to evidence that was admitted at trial.</p>
<p>In opening arguments, an attorney may refer to evidence that the attorney reasonably believes will be admitted at trial, and if the attorney has grounds to admit the transcript as an exhibit, could do so. If not, the attorney could still reasonable state:</p>
<blockquote>
<p>the evidence will show that an arresting officer described Mr. Jones
as &quot;crazy&quot;</p>
</blockquote>
<p>without showing a transcript or explaining where it comes from (on the theory that the officer will either testify to that effect at trial or will be impeached at trial with the transcript for testifying in a contrary manner).</p>
<p>Usually the transcript can usually be admitted only for impeachment, so usually it wouldn't be admissible absent contrary testimony at trial. But there are exceptions that apply to that rule which could make it admissible and hence proper to reference or show in opening arguments.</p>
