Can an attorney refer to testimony made in preliminary hearings during their opening or closing arguments?

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 "crazy". Can the attorney for the defense then re-iterate that in the opening argument, saying "patrolman so-and-so even called my client 'crazy'... etc".

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?

1 Answer 1


In closing arguments, an attorney should only refer to evidence that was admitted at trial.

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:

the evidence will show that an arresting officer described Mr. Jones as "crazy"

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).

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.

  • The question does not concern testimony given at trial. It concerns only use of testimony given in a preliminary hearing at trial. I would expect any testimony given at a preliminary hearing to be admissable, therefore I should be able to show a transcript. If you are claiming there is a rule that makes such testimony inadmissable, then I would want to know what that rule is specifically.
    – Cicero
    Jul 27, 2021 at 21:12
  • 1
    @Circero Federal Rule of Evidence 801(d)(1) and 804(b)(1) (and their state law equivalents) are the primary rules of evidence that govern when preliminary hearing testimony is admissible. Basically, it is inadmissible hearsay unless used for impeachment of a witness's testimony at trial, to rebut certain kinds of challenges to credibility if the witness testifies at trial, or when the witness is unavailable to testify at trial. Testimony from a preliminary hearing witness is not admissible if the witness is available but not called, or if the witness testifies consistently without challenge.
    – ohwilleke
    Jul 27, 2021 at 21:49

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