There has long been a legend in our office that a prosecutor cannot tell the jury what the State expects the evidence will show the defendant's BAC was. In other words, the rumor here is that you can't say in opening "The evidence is going to show the defendant's BAC was .17, more than twice the legal limit."

I have never found any authority for this in case law. I buy that if I say the number, and then something goes wrong and the blood gets thrown out, maybe I've got a mistrial on my hands. But otherwise I can't think of any reason I can't say what I think the evidence is going to show the number is going to be... and I think it's REALLY important to say that upfront to the jury!

But if someone else has the case law to show I can't, I need to see it. Anyone got any ideas?

Same boat here, Jon. It was something that was "you just can't do that" teaching when I got here until some of us asked "why not?" If there is a statute or case law on point, no one has ever produced it to me.

Unless the result has been subject to an order of limine (perhaps stating the testing method needs a Kelly/Daubert hearing before admitting), I cannot think of any reason one cannot tell the jury of a piece of evidence they reasonably expect to be shown at trial.

I agree on one thing -- if you say it in opening and then it doesn't come in, you probably mistried your case. But how often is the BAC getting thrown out?

I tell my jury the result in opening argument every time.

If that's an actual rule, I've got lots of DWIs that will come back on me.

I know of absolutely no legal reason that you can't say it in opening. As a practice point, I might not do so. There's the possibility that it gets suppressed, yes. But it may also have more impact coming to the jury when you can elicit testimony about the effects of that level of intoxication, especially if it's a higher number.

A matter of style? Yes. A matter of law? Not so far as I've ever been aware.

And if your BAC results get thrown out, you often have bigger problems than what you said in your opening.