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Lawyers are permitted to say things (e.g., "rhetorical flourishes" and "excusable hyperbole") during opening statements and closing arguments that would not be permitted during the evidentiary phase of a trial.

I have seen judges prohibit jurors from taking written notes during opening statements or closing arguments. But I believe I see court reporters recording the opening and closing statements. So are those part of the record? And if so does that mean that a judge can cite them in a ruling or decision on the case?

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    – feetwet
    Oct 11, 2022 at 0:10

2 Answers 2

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Yes. Opening statements and closing arguments are part of the record, but they are not evidence on the merits of the case.

Courts often cite them in their rulings on various issues, especially because they are strong indicators of a party's theory of the case and what the jury was being encouraged to consider when rendering a verdict.

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Opening and closing statements are normally taken down and do form part of the record. Appellate courts could consider them, but not as evidence. If improper statements are made during the opening or closing, those could be a reason for overturnign a verdict, or granting a new trial.

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    they are not evidence, may not bring in new evidence and may not reference things not in evidence which should have been put into evidence.
    – Trish
    Oct 9, 2022 at 21:53
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    Opening and closing statements are also important for determining if an issue has been preserved for appellate review.
    – ohwilleke
    Oct 9, 2022 at 22:29

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