INTRODUCTION - MAKING A COMPELLING AND PERSUASIVE OPENING STATEMENT
[I suggest that you read the CCJA monograph Opening Statements in Criminal Cases on the CD for a more comprehensive discussion of the constructive, compelling, and convincing opening statement coupled with numerous examples of what prosecutors and defenders may say in the opening statement. Because the end (jury argument) depends upon the beginning (opening statement), you should also consult the Jury Argument in Criminal Cases web site.]
The primary purpose of an opening statement is for counsel, at the beginning of the case, to share with the jury the issues and a storybook summary of what counsel believes s/he can support with competent testimony and admissible evidence. We all enjoy hearing a well told story. It's in opening that you enthusiastically acquaint the jurors with the plot, the place, and the flesh and blood characters. If you represent the defendant, a portion of your story may center on what the other side won't prove, that is, what the evidence won't be. Secondary purposes of opening include attributing favorable human qualities to your client, facing and neutralizing frailties in your case, and establishing a harmonious presence with the jurors. The ideal opening statement smoothly paves the road to the verdict you seek.
A good beginning puts you on the right track. The way the jurors view you will influence their level of interest and assessment of the evidence you present and the arguments you make. We've all hear the old bromide, "You never get a chance to make a first impression." This is especially true of trial lawyers. Although jurors are constantly grading your papers, the initial impression that you make is of great importance in shaping, defining, and channeling the overall judgment that the jurors will make of your credibility and competence. Juror perceptions of your credibility and competence will influence their receptivity to your evidence and your arguments. How you deliver your opening will affect the jurors' attitudes toward the information you want to convey..
LOOKING GOOD FROM THE GET-GO
Obviously, what you have to say in opening statement is of importance in creating juror belief in your character and credibility. You don't convince jurors merely by pointing your good looking clothes at them. [As Aesop said: "It's not only fine feathers that makes fine birds."] But, how you look, what you do, and how you do it may matter more at the beginning of the trial in building juror confidence than what you say. Nonverbal cues such as personal grooming, dress, jewelry; facial expression, gestures, and mannerisms play a part in establishing your ethos (integrity and credibility). The quality of your voice, your posture, your hands, and your willingness to make eye contact all work to your persuasive advantage or disadvantage. I have discussed these aspects of nonverbal communication in connection with jury argument on another web site. Rather than repeat that material here, let me simply refer you to the preparation page and the delivery pageof that web site. Some things relative to your appearance cannot be altered. For example, even though lawyers with mature faces may be accorded more credibility than young lawyers with more childlike "Howdy Doody" faces, young advocates can't and wouldn't want to put gray in their hair and wrinkles on their brows and necks. Weight and body tone is a factor that may or may not be within the advocate's power to control. But every trial advocate can do things with head and facial hair, dress, grooming, jewelry, etc., to enhance his/her physical appearance. The goal is to maximize physical appearance in a manner that cues the jury to the lawyer's competence, friendliness, and trustworthiness. Just remember that it is human nature to do what people we like ask us to do. Be pleasant and courteous in demeanor and willing to smile when appropriate.
OPENING WITH A LIVELY HOOK
When you pick up a book, how do you know what it's about? The cover may tell you a bit, but I'll wager that you read the dust jacket. The dust jacket of a book tells us in one or two paragraphs the high points of the story. It is the hook that makes us want to know more. If it works, we buy the book. The hook of your opening statement is akin to the dust jacket of your case. It arouses the juror's interest.
How can you learn to construct a pithy synopsis of your case that might serve as the attention grabber or hook for your opening, while also floating the theme of your case? Here's a suggestion. Look at and study the structure of news stories. News writers learn how to condense the facts of a case to a few sentences. Consider the following examples and notice that each is different in structure, i.e., the first is a fact based hook, the second is a character based hook, and the third is a theme based hook. :
Sample Defense Hooks
"This is a photograph of Bill South (displaying photograph of deceased). Bill was 25 years old when he was shot to death by this defendant (pointing), Oscar Eastwood. This defendant was the 29 year old ex-boyfriend of Glenda Williams. Ms. Williams was cooking breakfast for Bill, when this man (pointing at the defendant), Oscar Eastwood, crashed through the front door of Ms. Williams' apartment and fired three bullets from this .38 snub-nosed revolver (displaying the weapon) into Bill's back."
"For most of us, convenience stores are a place to stop and shop. But for David North (looking at the defendant) a convenience store is a place to stop and rob."
"When the prosecutor read the indictment, I saw the looks of horror on all of your faces. This is a despicable crime. What could be more terrible than shaking a helpless 6-month-old baby to death? I just want you to know that this woman, Mary Riley, (putting her hand on the accused's shoulder) did not commit this crime. Mary Riley is not guilty. And that brings us to what Judge Smith has given us twenty minutes to talk about -- getting blamed for something you didn't do."
Sample Prosecution Hook - Enron Case
"The government will take you inside the doors of what was once the seventh largest corporation in this country, Enron. In the year before Enron declared bankruptcy, two men at the helm of the company told lie after lie about the true financial condition of Enron, lies that propped up the value of their own stock holdings and lies that deprived the common investors of information that they needed to make fully informed decisions about their own Enron stock. You will see that the Defendants Lay and Skilling knew key facts about the true condition of Enron, facts that the investing public did not know. With that information, Defendants Lay and Skilling sold tens of millions of dollars of their own Enron stock. The victims in this case, the investing public, their employees, those who did not have that information, those who were not able to sell their stock before Enron entered bankruptcy were not as fortunate as these two men. These men are Defendants Ken Lay and Jeffrey Skilling. This is a simple case. It is not about accounting. It is about lies and choices. This case will show you that these Defendants worked to lie and to mislead. They violated the duty of trust placed in them. They violated it by telling lie after lie about the true financial condition of Enron."
Lay was convicted on all counts. Lay died some weeks thereafter at a ski resort.)
They say a bad beginning makes a bad ending. Get off to a good start, when the jurors' retention curve is at one of its two highest points, by developing a good hook.
PREADMITTING VISUAL EVIDENCE FOR USE IN OPENING
Most of us know that standards of professional conduct prevent us from displaying tangible evidence to the jury in a manner that would tend to prejudice fair consideration of such evidence. Normally, we have to wait to display our evidence until such time as we make a good faith tender of it. Suppose, however, that you would like to utilize a "tell and show" opening statement in which you use one or more items of demonstrative, documentary and/or real evidence, e.g., photos, letters, weapons, clothing, maps, diagrams, contraband, etc., in the case to enhance your oral telling of your case story. In other words, you support the content of your opening statement with a manual or electronic, e.g., PowerPoint, display of visuals. Can you do this without violating the law of evidence and/or ethical rules of conduct? Top me the answer should be affirmative, but you will need to make a pretrial showing to the trial judge regarding the relevance and admissibility of the items that you want to display during your opening. The way to get the ball formally rolling is to file a Motion to Preadmit in which you inform the court of your desire to use certain items of tangible evidence during your opening statement and attach an affidavit containing a lawyer or witness offer of proof of foundational facts that render the item admissible. Informally, you may wish to speak to the other side and inform them of the evidence you wish to display, together with available predicating information concerning the the particular item(s) of evidence. Many times you can reach mutual agreement with the opposition that allows each side to display certain items of evidence during the opening statement without objection. If your request is contested, you may be required to present a live witness proffer (tender) of testimony demonstrating the admissibility of the item of evidence.
[Note: There is no uniform statutory, case, or rule-based law concerning the visual display of evidence in opening. If the concept is considered novel in your locale, your trial judge may take some gentle nudging to agree to it. Indeed, there is some judicial reluctance to allow prosecutors to identify and use specific documentary or real evidence in opening statement because these items may not come in as evidence. See Commonwealth v. Parker, 882 A.2d 488 (Pa. Super 2005) where, in a bizarre opinion authored by Judge Bender, the Pennsylvania court held that the trial court's decision to permit the prosecutor to display of a handgun in the Commonwealth's opening statement of an attempted murder, aggravated assault, possession of an instrument of crime, and violation of the Uniform Firearms Act case, was unreasonable "especially in light of the fact that defense counsel acknowledged that the gun would later be used during the trial, shown to the jury and admitted in evidence"; the majority opinion held that the display served no legitimate purpose but constituted harmless error; the more logical concurring opinion by Judge Olszewski queried why the prosecutor should not be allowed to visually display evidence that she could properly talk about. Eventually the Pa. appellate court got it right, overruling Judge Bender in Commonwealth v. Parker, 919 A.2d 943 (Pa. 2007) and holding that displaying tangible evidence during opening statement is proper so long as counsel intends to introduce the item and there is no question as to its admissibility. See alsoState v. Hawn , 2003 WL 22470962 (Ohio App. 2003); Guerrero v. Smith, 864 S.W.2d 797 (Tex. App. - Houston [14 Dist.] 1993); People v. Williams, 456 N.Y.S. 2d 1008 (1982); Wimberli v. State, 536 P.2d 945 (Okla. Crim. 1975). See also Prosecutors reference in opening statement to matters not provable or which he does not attempt to prove as ground for relief, 16 ALR4th 810; Reference to Matters Not Proved, 75A Am. Jur. 2nd Trials, Section 527. Some courts allow counsel to verbally refer to exhibits in opening statement, but won't allow the exhibits themselves to be shown at that juncture. See Smith v. Kansas City Southern Ry. Co., 846 So.2d 980 (La. App. 2003). Other courts may limit the practice to exhibits that have been exchanged by the parties and approved by the court well prior to trial. See Young v. City of Providence, 301 F. Supp.2d 187 (D. Ct. R. I. 2004) where a well-known and widely lauded defense attorney/law professor was publicly censured for filing a false pleading in connection with use of a diagram in opening statement. When trial courts refuse to allow evidence to be displayed in opening, the error, if any, may be deemed harmless on appeal. See Ray v. State, 527 So.2d 166 (Ala. Crim. App. 1987). Often, the matter is viewed as one of trial court discretion. See Beavers v. State, 217 N.W.2d 307 (Wis. 1974). Here are a few starter sources that you can consult if you want to gather some favorable authority concerning the technique of using visuals in opening statement: State v. Smith, 130 P.3d 554 (Hi. 2006);State v. Sucharew, 66 P.3d 59 (Ariz. App. 2003); State v. Caenen, 19 P.3d 142 (Kan. 2001); West v. Martin, 713 P.2d 957 (Kan. App. 1986); Pickren v. State, 500 S.E. 2d 566 (Ga. 1998); James v. Heintz, 478 N.W.2d 31 (Wis. App. 1991); People v. Green, 302 P.2d 307 (Cal. 1956): State v. Sibert, 169 S.E. 410 (W. Va. 1933). See also, Zwier & Galligan, Technology and Opening Statements: A Guide to the Virtual Trial of the Twenty-First Century, 67 Tenn. L. Rev. 523 (2000). One of you best arguments in support of being able to display evidence in opening is "If I can talk about it in opening, I should be allowed to show it " ]
TO OPEN OR NOT TO OPEN
If you are trying a case, you must have some prosecutorial or defensive theory. If you have a case theory, the rule is : MAKE AN OPENING STATEMENT. If you're a prosecutor and don't have a case, dismiss the accusation. If you're a defender with no defensive theory, plead. There's a reason they call it the "opening" bell. It's your chance to talk to the group of red-blooded, air breathing, bipeds who will decide your case. They want and need some guidance about what this case is all about. Opening statement is your opportunity to give them that guidance. You can't afford to squander that opportunity.
PREPARING YOUR OPENING STATEMENT
[Much of the advice, particularly the EIGHT-STEP PROGRAM technique, that I would offer regarding preparation of an opening statement is similar to that contained in the advice for preparing a jury argument. Rather than repeat that advice here, I refer the reader to that preparation page of the jury argument web site.]
As a courtroom lawyer, you are both writer and performer. If you read the Eight-Step Program on the jury argument web site, you will know that I believe you must do a "write-out" of your opening statement as part of the prepare-produce-practice-present process. Remember, you must write for the ear, not the eye. You'll be speaking these words; the jurors won't be reading your opening. Preparation of opening statement requires editing. If you are a beginning lawyer, your main job in editing your first write -out will be taking out things that are not part of the story of your case. Most of those things that are not part of your story are argument.
After you have written your opening and edited it, you must practice your delivery. Rehearse by using a mirror or video camera. (Note: The video is better practice. The danger with the mirror is that, like Narcissus, you become too interested in watching yourself during delivery and go off message.) Rehearse at least three times. Watch and listen to your presentation. Time yourself, so you can end just a wee bit before the judge says, "Your time has expired, counsel." Don't try to memorize your entire opening, but have the beginning and ending paragraphs down pat. At trial, you will deliver your opening in a manner that will appear to the jurors as more extemporaneous than memorized. If you have done a write-out, reduced your write-out to key words and rehearsed, the words you deliver at trial will string themselves out in the right way.
You will never, never, never read your opening statement verbatim to the jury. Don't be a slave to your notes. It's okay to refer to notes during opening, but you will lose a bit of persuasive momentum every time you consult them. Don't hold your notes in your hand, even if they are on a 3X5. Put them on the corner of the ledge in front of the witness box or the counsel table. (Note: One of my prosecutor friends likes to put her notes on the corner of the defense counsel table.) Prepare your opening statement notes in the manner suggested on the Eight-Step Program for jury argument. (Note: I limit the quantity of notes my students are allowed to a 3x5 card containing only key words from the write-out. By the end of the opening statement course, they are weaned from any notes) If you believe in your story, you will know it. The idea is - let your case speak through you!.(Note: If you doubt yourself, on the evening before you are set to deliver your opening statement, go into a dark room, turn off the lights and deliver the entire opening in the dark).
Law schools teach us to speak in abstractions and generalizations. Since 1871, law students have been taught by the appellate case analysis method. We all spent a lot of time reading casebooks. Most of our law professors fancied questions more than answers. The cases that we studied in law school involved facts that have already been determined at the trial court level. There were few, if any, law school courses in the psychology of persuasion or communication theory. Instead, we were taught to "think like a lawyer." That translates into being boring, emotionless, analytical, calculating, and coldly logical. If we appear before a jury "thinking like a lawyer," there is a good chance the jurors may view us as phony and disingenuous. When jurors sizes a lawyer up as a "cold fish", they can easily think that lawyer doesn't care about his/her case. Opening statement is the time to shed the "lawyer" image and elevate your performance. It's your opportunity to show the jury that you are a good storyteller with a passionate belief in your case. The earthly truth is that a substantial part of your effectiveness in opening statement is in the presentation and not in the substance. Substance is important but, as a trial lawyer, you must be concerned with presentation issues such as tempo, timing, location, voice, gesture, word choice, neurolinguistic word order, etc. [These are discussed on the delivery page of the jury argument web site. For more information, take a look.]
WHAT'S YOUR STORY?
When you stand up in court to deliver your opening statement, you'll be providing the jurors with factual information that is intended and designed to create an embedded memory. As the case unfolds this embedded memory will cause each juror to perceive the evidence in accord with your theory of the case, i.e., the fact- based reason why you are entitled to the jury's verdict. In opening you will try to convey a view and feelings to your listening audience. Your view will be slanted toward building a story of the case that will evoke the ultimate response you seek - a favorable verdict.
You are in charge of developing your opening. When you sit down and begin to prepare, look for the story of your case. Easily said, but how do you find the story of your case? Like Michelangelo's statutes that waited in marble for his chisel to set them free, there is a story inside every case waiting to be released by you. In truth, there is a whole universe of potential stories in every case. Your job it to find the right one and set it free in front of the jury. When you start constructing your story, you'll need to visualize it, just as the juror will. Visualization may be easier if you try the cartoon method of construction - basically trying to tell your story in five simple boxes, frame-by-frame.
Stories are based on facts, not abstractions. Keep in mind that your opening is when the jurors will begin to form their first mental pictures of your case. You want the mental images to be vivid, but they also have to be factual. They must make logical sense. The story must be simple in the sense that the jurors must be able to fully grasp it. If it is a complex case, you must make it simple with visuals, e.g. relationship charts, timelines, etc. Stories generally have a beginning, a middle, and an end. The content of a good opening statement depends on your ability to organize. There must be continuity and uninterrupted flow of action. Too much detail and it bogs, too little, and it has no legs. The best approach in planning may be to do a write-out that is too detailed. As you polish it, prune it of unnecessary detail and modifiers, e.g., adjectives and adverbs.
Where your story begins will depend on the story you want to tell. The prosecutor's story will typically begin with the criminal conduct. The defense story may begin at a different time. For example, in a self-defense case, the defense might begin its story with earlier violent relationships between the accused and the complainant to show why the accused thought she was in danger of deadly attack; in a duress case, the defense might begin with a story of prior threats to injure the accused's child if the accused didn't act as dope courier; in an entrapment case, the accused's story might begin with the acts of a government informant that seek to induce the accused into committing a crime. The defense story may center on events that transpired after the offense, e.g., shoddy police investigation, threats and violence by police at the station house that coerce the accused to confess, the faulty, unreliable, and overly suggestive lineup. The defense story might even be about the accused's good character.
Can you sum up your case with a distinctive theme? Try to find that theme. It might help you to find a theme if you try to complete the following sentence: "Ladies and gentlemen, this is a case about (describe the case with a succinct thematic one-liner)."
Look for the drama of your case. Elements of the crime and the burden of proof are important in law school, but they are not very dramatic subjects. Yet, many prosecutors spend inordinate time in their opening detailing the elements of the crime. Meanwhile, defenders harp on the requirement that guilt has to be "proven beyond a reasonable doubt," i.e., My client may be guilty, but they can't prove it. There a is certain amount of drama in every criminal case. So, how do you find the drama in your case, decipher it, and reveal it to the jury in your opening? You must know the entire case. Know your case and know the opposition's. Where is the conflict. Where is the agreement? What are the facts that are beyond dispute, the one's that won't be seriously contested? The dramatic part is the part that isn't dull. It has action, and its about human relationships.
You may want to build some suspense into your story. The goal with suspense is to engender a sort of pleasant excitement in the jurors as they put together the evidence and arrive at a decision, rather than having everything spelled out. With suspense, you don't leave a trail of irrelevant bread crumbs. Instead, leave a path of bright colored stones that clearly guides the jurors to the desired conclusion. [For more detailed discussion of case story, see Pretrial Preparation]
TIPS for OPENING STATEMENT
- Look and sound good from the start. Put your best foot forward. You won't get a chance to make another first impression. Dress to impress your message. Develop your speaking voice. Learn to use your body as a communicative tool. Learn to use the right words at the right time. The jurors have preconceived notions about how a lawyer is supposed to look and sound. They expect you to be their trusted guide, information provider, entertainer, and persuader. You have to garner their attention and hold it. You have to tell the factual story of your case in a way the creates a response and memory that slants the case your way. These are some of the same skills you utilize at jury argument, where you are less restricted in your analysis, inferences, and exhortations. To hone your storytelling skills, read some short stories out loud.
- When you have planned and prepared your opening, ask yourself, "Are there important background facts that I have erroneously left out?"
- Be prepared that the trial judge may diminish the weight of your opening statement by issuing a prefatory instruction somewhat as follows: "What you will hear in the next few moments are the opening statements of the lawyers. What the lawyers say is not evidence. The purpose of the opening statement is to foreshadow or predict for you what the evidence will actually be. It will be up to you after hearing all of the evidence whether either side has proved or correctly predicted what the evidence will be. I caution you that what you hear in opening statement is not evidence. The evidence will begin when the first witness begins to testify."
- Opening statement is simultaneously a visual, auditory, and kinesthetic experience. Don't miss the opportunity to "tell and show." As a rule of thumb, try using at least one and no more than three prepared visuals in your opening statement. Be sure to obtain the court's advance approval by a motion to preadmit and, if necessary, a pretrial hearing. Premark the preadmitted visual before you begin your opening.
- If you are allowed freedom of movement, give advance thought to your positioning in the courtroom, i.e., where you will start, end, and move in between. Get rid of physical barriers between yourself and the jury. Avoid the lectern if possible. If you have to use a lectern, don't hide behind it. Turn the lectern so it faces your left side if you are right-handed and vice versa and you face the jury without obstruction. If the court has a "wingspan" rule requiring you to stand within arms length of the lectern and won't allow you to turn it sideways, come out an arms length. If you are allowed to move freely about the courtroom during opening, stand directly in front of the jury, but don't get stuck in one spot. Move as you speak to keep the juror's attention. Choreograph your movement from spot to spot to coincide with topic changes, as though each movement were a new chapter in your case story. Movement about the courtroom reflects your confidence, but it does more than that. It allows your body to stay in rhythm with your story. Stay within an informal conversational distance, i.e., 5-10 feet, from the jurors. Use distance as a tool. Close the distance when the point is of key importance. But never crowd the jury. Move in and out, not side to side. Don't pace, and don't turn your back on the jurors while speaking. .
- Show 'em your eyes and your hands! When you show your hands, get them away from your sides, and let them move naturally. Remember the old joke that says that about the only time you see a male lawyer's hands in his own pockets is when he is addressing a jury. Maintaining proper eye contact may be easier if you visualize the jurors, their faces, hands, and clothes, when you rehearse. Gestures, head nods, etc., are discussed more fully in the argument site.
- Be enthusiastic about your message.
- In planning your opening statement, use the "cartoon method" of telling your story described on the jury argument web site. This method requires you to visualize the story of your case as though it were a four-panel cartoon. Think of the four most vivid visual images of your story with voice bubbles (balloons) above each of the actors. Make sure your your verbal and visual story paints those mental pictures for your jurors.
- Start your opening with a strong attention-getting "hook" that grabs the jurors' attention and floats your case theme before the jurors.
- Remember the principle of primacy that tells us that, all other things being equal, jurors are more attentive and receptive to information at the beginning of the opening statement. The principle ofrecency tells us that jurors remember best that which comes last. This means that the beginning and ending of your opening are crucial parts of the speech. Normally, the Eight Step Preparation Program teaches advocacy students to memorize thoughts not words. But you your should know the words of the beginning and concluding portions of your opening statement cold, i.e., these are the only portions that you should be able to deliver upon command or at the drop of a hat.
- Recognize that your opening statement differs from your jury argument. In opening statement, you tell the jurors what the evidence is. In jury argument, you tell the jurors what the evidence means. In opening, stick to the facts or absence of facts. Don't argue. Over the objection of opposing counsel, you will typically not be allowed in your opening statement to argue the merits of your case. This means that you won't be permitted to spend much time in opening telling the jurors what the evidence means. In opening, you won't be allowed to urge inferences or exhort the jurors to action (the so-called "call to action or duty" or the prosecution's "plea for effective law enforcement"); in many courts, you won't be permitted to focus on impugning motives, attacking credibility, justifying conduct, displaying inconsistencies of testimony, stressing matters of common knowledge, or drawing analogies These things come at the end of the case in argument. Yet, the story you tell in opening statement, when properly crafted and delivered, can be a mini-argument in itself. You accomplish this when the structure of your opening invites the jurors to use their power of inductive reasoning to draw their own common sense conclusions and inferences from what you say, without any express urging or exhortation from you. [Note: If you insist on overtly arguing during opening statement, do it very briefly at the beginning when the opposition is least likely to interrupt you with an objection. There is typically what one might call a "grace period" of less than a minute at the outset of opening statement when advocates are loathe to object to the opponent's words. It's not necessarily out of courtesy. I think it is more because lawyers don't want to appear to jurors as too aggressively trigger-happy in interrupting opposing counsel with an objection at the very start of the opening. Here's a brief example of what seems to border on defense argument at the very outset of opening statement in a recent case where a criminal lawyer was charged with aiding terrorism: "Thank you very much, Your Honor. I do have something to say: Members of the jury, for forty years in this town Laura Norder (the defendant), right here in this court house, has been building for justice and not terror. And when the end of this case comes and I stand before you, I submit that the evidence will show that anybody who says different, claims different, argues different, either sees these things very differently, is relying on faulty intelligence, or is acting from outright desire to mislead you." The other spot when you might make a mini-argument is at the very end of your opening statement when it is clear that you are concluding.]
- As mentioned, you probably won't be allowed to spend much time in opening statement explaining what the evidence means; this is typically reserved for jury argument at the end of the case. However, in opening statement you may want to use the forensic technique of foreshadowing, that is, indicating your future argument beforehand by creating an expectation in the jurors' minds. You do this in opening statement when you come to a key part of the story by making a parenthetical statement, an aside, to the effect that "This is an extremely important part of what happened, and later in the case we are going to talk about it and have you understand why it's so important."
- Weave a common theme that begins in your opening, winds its way through your direct and cross and then cinches up your case in argument. You can begin in opening to embed your case theme by using key words and phrases that reflect the theme. The first step, your opening, prefigures your last step, the jury argument.
- Be succinct and substantive in your opening. Your story of the case has to have legs. Standing alone and juxtaposed against the opposition's opening, your case story should support the verdict you seek. That said, pare it down to its lean and mean form. Cut out the foamy, frothy, fuzzy, fizzy, fluffy filler. Strive for eloquence that fits your linguistic comfort zone. Catch phrases are great, as long as they are substantively relevant. You don't want to appear too rehearsed. The idea is to be authentic and spontaneous in manner while speaking extemporaneously, i.e., preparing and practicing your opening in advance but not memorizing its exact words.
- Prosecutors are at a storytelling disadvantage in opening that sometimes leaves them open to objection. The rules require the prosecution to open first. In opening statement, due to the burden of proof and the presumption of innocence, prosecutors are typically not allowed to anticipate defense testimony. They can't talk about what the defense evidence will be. Defense lawyers should consider objecting to prosecutors telling the jury what evidence the defense is going to present. The ground for such a defense objection is, "We have no burden to prove anything, and we object to the prosecutor placing such a burden on us by speculating on what evidence s/he anticipates we will introduce. The rules restrict the prosecutor to telling the jury what the prosecution expects to prove, not what the defense may or may not do."
- Defenders should utilize the advantage of going second and getting the last word. Unlike jury argument, prosecutors normally have no right to rebuttal at the opening statement phase of the criminal trial. Defenders have three advantages at opening, i.e., (1) hearing the prosecutor describe the prosecution's evidence before having to indicate what the defense evidence will be, (2) being able to refer to what the prosecutor has said in opening in explaining the defense evidence, and (3) being in a position where the prosecutor has no opportunity to make a rebuttal opening and is,therefore, limited to objection. Defenders should listen closely to the prosecutor's opening and incorporate, dispute, or spin useful facts from it into the defense opening. For example, the defense may want to discuss its iron-clad evidence that will prove the opposition's claims fallacious.
- Don't overstate your case. Don't make promises in opening that you won't be able to keep. Having the last word in opening may encourage you to gild the lily. Don't do it. An able prosecutor will make notes of your promises in opening statement and remind the jury in final argument of a litany of unkept promises the defender made in opening statement.
- Be careful in opening statement not to expand the admissibility of otherwise excludable evidence, i.e.,don't open the door! For example, in a recent wife-murder case the defense claimed in its opening that the deceased and defendant had an idyllic marriage and were "soul mates." This overstatement opened the door to devastating proof by the prosecution that the defendant had an ongoing relationship with a male prostitute.
- Be cautious in what you concede to the opposition.
- Your words are magic. They have the power to make mental images appear and disappear. They need to be the right words spoken at the right time. Borrow from others who have said it well. Read or listen to the opening statements of other lawyers. Written transcripts are available. Court TV broadcasts some fascinating trials conducted by terrific lawyer talkers. Record them and watch. [One of the best transcripts of opening statements that I have encountered came from the prosecutor and defense lawyer (Florida's Roy Black) in the Marv Albert case. Each side told a great, though different, story. It's included in the Opening Statements in Criminal Cases portion of the practice material DVD. Read the entire transcript out loud to get the true flavor and feel of a good prosecution and defense opening statement. Of course, you will never, never, never read your opening statement to your jury. Opening statement is when you tell the story, not read it.] You may find a few useful tips about the role of the opening statement in trials on a site sponsored by a non-lawyer jury consultant. Note that, at the bottom of this page, I have added several Internet resources that reproduce opening statements from various noteworthy cases. Paladin members will also find a link to a whole page of transcripts of openings.
- Shape the story you tell in opening to appeal to the values, e.g., sense of justice and fairness, righting a wrong, preventing a wrong, etc., of your audience - the jury. This means you have to know your audience. Who are you pitching to? Read this article on how Generation X and Generation Y view the world differently from each other and from their elders. See Jury Selection.
- Tell the heart of your story in the present tense, concentrating the jurors' attention on the relevant conduct and event(s) and not on what each witness will testify to in court. Eschew the " Witness X will testify to blah-blah-blah. Then Y will testify to blah-blah-blah. Then Z will testify to blah-blah-blah." method. You'll get the jurors on your side of the case during your opening by helping them mentally visualizing what happened in real life, not what is going to occur in the courtroom.
- Never read your opening statement to the jury. It's always more persuasive to work without notes. I eschew notes because they detract from sincerity. Of course, when faced with a temporary brain vacuum, it's comforting to be able to reach for a sip of water and glance at key word notes that will stimulate the cortex. If you think you need notes as a reminder or security blanket, make yourself a key word outline from your opening statement write-out. Make the key word outline on one 3 X 5 index card by going through your write-out, highlighting the key words, and writing them on the 3 X 5 card. You can place the card in a convenient place, e.g., counsel table, the lectern, your hand, etc., where you can refer to it if necessary. Here's an old trick - If your note card is out of sight, e.g., on the lectern, you can disguise your reference to it by placing a glass of water nearby. As you reach for the water to wet your whistle, you can glance down at the key words and refresh your recollection.
- Keep in mind that, when you are arguing your case at the end of the evidence, you want to be able to say, "Remember in opening statement I told you that I would stand here in at the end of this case and tell you (state the crucial facts from your opening statement)." The opening connects to the finalargument through the evidence. As they say, "The beginning is in the end, and the end depends upon the beginning."
- Quit when you're ahead. Keep your story short and pithy. As they say, true eloquence consists in saying all that should be said, and that only. Give the jury the information they need to help them do their job. Respect their time and attention. Your job is to talk. The juror's job is to listen. As long as you tell a good story and explain the operative law in succinct layman's language, they won't finish before you do.
- On occasion, your client's case will be joined with other co-defendants for trial. Each counsel will be entitled to give an opening. When your case is joined, try to go first in delivering your opening statement. Being first allows you to take advantage of the so-called principle of primacy, i.e., the jury's attention and receptivity level is highest at the outset of the openings. If you can't go first, go last to gain the benefit of principle of recency, i.e., the jury remembers best what it hears last.
OBJECTIONS DURING OPENING STATEMENT
Here are some of the objections that may be lodged during the opposition's opening. statement. See also the CCJA List of Trial Objections and the List of Trial Objections to Jury Argument. You'll need to check out the statutes and ruling case law in your jurisdiction to determine exact ground rules for opening statement. For example, do the statutes and/or case law of your state permit the defense in its opening statement to refer to evidence promised by the prosecution in its opening? Does your state allow the defense opening statement to mention facts that the defender anticipates eliciting on cross-examination of witnesses the prosecution mentioned in its opening statement? What if the defender thinks the prosecution is going to call an impeachable witness that the prosecution didn't mention by name in its opening. Can the defense talk about the impeaching evidence it plans to extract from such potential but unnamed witness?
This list of objections will be useful when you plan, prepare and write your own opening statement and when you listen to the opposition's opening statement and try to sort out the impermissible from the permissible. Consult your jurisdiction's Rules of Professional Conduct, Advisory Ethics Opinions on the Ethics page (1) as well as the ABA Standards - Prosecution Function - Opening Statement - Standard 3-5.5 and ABA Standards - Defense Function - Opening Statement - Standard 4-7.4 See also Model Rules of Professional Conduct, e.g., Rules 3.4, 8.4.
Argumentative: "Objection. Counsel is trying to argue the case in opening. The purpose of opening is for the prosecution to state the nature of the accusation and the facts which are expected to be proved by the government in support of the accusation (or the defense to state the nature of the defense(s) and the facts to be proved in support thereof)." "Counsel is arguing inferences rather than stating his version of facts." Tip: If a witness could say it in testimony, you can say it in opening statement. If a witness couldn't say it in testimony, it probably qualifies as argument. For example, argument would include drawing inferences and stating conclusions from the facts. Argument would also include evaluating the merits of the evidence. Tip: It's really not necessary to argue in opening. Let the facts argue for you. You can be very persuasive by picking a good descriptive or ethical theme (1), telling a good story (1), looking and sounding good (1), and presenting your client in the most favorable light consistent with the facts.
Anticipates a Defense: "Objection. That assertion is contrary to and infringes the presumption of innocence and the prosecution's burden of proving each element of the offense by suggesting that the defense has a burden to put on proof. The prosecutor is anticipating what evidence the defense will produce, despite the fact the s/he knows that the offense has no duty to produce any evidence or even cross-examine any witness." The prosecution opening statement should tread lightly in anticipating the evidence that the defense will or won't present. [Note: We all know that the rebuttable presumption of innocence is the foundation of the adjudicatory American trial; we also know that the prosecution has the constitutional due process burden of proving its case beyond a reasonable doubt, see In re Kinship, 397 U.S. 358 (1970). Check your state Constitution's Bill of Rights (1) and your state statutes for similar protections; for example, Art. 38.03 CCP in my home state, Texas, provides, "All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt." When you object to the prosecution's statement, include separate grounds with appropriate references to your state Constitution and state statutes and/or rules.]
Asserts an Unprovable Fact: "Objection. That is an assertion that will not be proven by any evidence."
Injects an Inadmissible Matter: "Objection. That statement injects an inadmissible matter." One should not refer in opening statement to potentially inadmissible facts, e.g., a defendant's confession the allegedly coerced nature of which has yet to be determined by the trial judge.
Injects an Irrelevant Issue: "Objection. That assertion injects an irrelevant issue."
Instructs the jury on the law: "Objection. Counsel is instructing the jurors on the law." It is the customary role of the judge, not the lawyers, to provide the jurors with the applicable law of the case. Sometimes judges will instruct the venire on crucial issues of law as an incident of voir dire during jury selection. In states that allow lawyer participation during jury selection, the trial judge may allow the lawyers to discuss the law of the case as it pertains to the ability of a potential juror to serve. At any rate, discussion of the law in opening statement must be spare. It will typically be limited to a short statement of the principal legal rule that governs the case. For example, the prosecutor might say, "This is a murder case. If I'm right, at the end of this case, Judge Suggs is going to instruct you that in this state it is a crime for one person to kill another person without justification or excuse. When such a killing is done intentionally or purposely, the crime is murder."Tip: If you are going to mention the law of the case in opening statement and don't want to sound like you are encroaching upon the trial judge's prerogative to inform the jury of the applicable law, say "If I'm right, Judge (insert the judge's name) is going to instruct you at the end of this case that (insert the crucial point of law)."
Misstatement of Law: "Objection. That was a misstatement of the law."
Assertion of Personal Belief or Opinion: "Objection. That is an improper expression of counsel's personal belief (or knowledge) and injection of self into the opening. statement." [Note: You can typically avoid this objection by eschewing use of the personal pronoun "I" combined with the words "think" or "believe." You can still include personal references to yourself without indicating your personal opinion or belief about evidence or a witness.] One example of improper expression of opinion in opening statement occurs when counsel expresses opinion about the credibility of a witness, often a witness for the opposing party.
Unfairly Prejudicial Remark that Seeks to Poison the Jury's Mind Against the Defendant:"Objection. That is an inflammatory and overzealous remark unfairly seeking to poison the jury's mind against the defendant. It's a finger to the eye that departs from the proper purpose of the government's opening statement which is simply to outline its case so the jury can better understand it."
Confusing and Misleading Statement: "Objection. That statement is confusing and misleading."
A NOVEL SUGGESTION: OPENING BEFORE JURY SELECTION
In most jurisdictions, opening statements come after the voir dire jury selection process pursuant to statutes or rules governing the order of trial. See Art. 36.01 Tex. C.C.P. In at least one state, Idaho, provision is made for having opening statements before the jury voir dire. In Idaho the parties may, with the trial court's consent, present brief opening statements to the entire jury panel prior to voir dire; on its own motion the trial court may require counsel to do so. If you have no set-in-stone rules governing the order of trial, you might consider asking the trial court for permission to make an opening statement prior to voir dire. Obviously, you wouldn't make such a request if you thought it would not benefit your chances of selecting a favorable jury.
ANOTHER NOVEL SUGGESTION: MOVING FOR A DIRECTED VERDICT IMMEDIATELY AFTER THE PROSECUTION'S OPENING
If the prosecution's opening statement contains a concession that necessarily prevents a conviction, the defense might make a motion for directed verdict. If the trial court is amenable to this approach, before granting this motion it will probably give the prosecutor an opportunity to correct any error or omission.
SAMPLE OPENING STATEMENTS ON THE INTERNET
.
- I have edited an analyzed two opening statements delivered in two murder cases by truly gifted trial advocates. These two edited openings and my comments on them may be found at the top of this page in the red and green buttons at the tail end of the table of contents. The cases are labeled as "The Wig Shop Murder and "The Durst Case."
- Here's the 25-page opening statement of the prosecution by government prosecutor Robert Spencer and the 30-page opening statement of the defense by defender Edward MacMahon in the highly publicized trial of Zacarias Moussaoui (U.S. v. Moussaoui) on multiple conspiracy counts centered on the 9/11 attack. (1 - Wiki)
- These links take you to the opening statements for the prosecution and defense in the 1997 "Oklahoma City Bombing" trial of Tim McVeigh.
- This is the defense and prosecution opening statements at the second double-murder parricide (parent killing) trial of Lyle Menendez (one of the two infamous Menendez brothers - Eric being the other) in People of California v. Menendez.
- Here's a Video excerpt from defense opening statement of attorney David Rudolph and a Videoexcerpt from the prosecution opening statement in the case of North Carolina v. Petersen, a fascinating uxorcide (wife-murder) case that every student of criminal law should watch in the French-made documentary entitled "The Staircase."
- Here's a brief Video excerpt from the defense opening statement from the case of Florida v. Butler. Take the time to watch the superb documentary film - Murder on a Sunday Morning - that takes you inside the defense preparation and presentation of a real murder case.
- If you would like see what an opening statement in a murder case looks like, take a look at the transcript of the opening statements for the prosecution and defense in the Danielle van Dam child kidnapping and murder case. This trial took place in San Diego, California, in 2002. The defendantDavid Westerfield was convicted and received a death sentence.
- You'll find the prosecution and defense opening statements from the McMartin Preschool Abuse Trialon this page.
- Here is a transcript of an opening statement in the case of United States v. Petersen, et al - a fraud prosecution.
- Here is the transcript of the defense opening statement in U.S. v. Rosen, a case involving the charge of making false reports to the Federal Election Commission (Case Background)(Judge's Analysis of Opening)
- This is the transcript of the opening statement for the prosecution (1), (2) in the so-called "Plague Case," U.S. v. Thomas Campbell Butler, M.D.
- Take a look at the prosecution's opening statement in the 1873 trial of Susan B. Anthony for illegal voting.
- The defense opening from the 1893 murder trial of sweet little Lizzie Borden in Massachusetts v. Borden for literally "whacking" (with an axe) her parents is also worth the read.
- Here's the transcript of the opening statements for the prosecution by Sir Edward Clarke and for thedefense by Sir Edward Carson in the English case of Wilde v. Queensbury, a case in which Oscar Wilde prosecuted Lord Queensbury for criminal libel.
- The prosecution's opening statement in the 1889 English murder trial of Florence Maybrick is part of the inquiry into the "Jack the Ripper" murders. Florence stood trial for poisoning her hubby, who was a suspect in the Ripper murders.
- The prosecution (New Orleans' DA "Big" Jim Garrison) and defense (Irvin Dymond) opening statements in the 1969 trial of New Orleans' Clay Shaw (Louisiana v. Shaw) for conspiracy to assassinate President John Kennedy may be of interest to those who saw the the Kevin Costner movie "JFK." (1 - Costner's movie jury argument at Shaw's trial in "JFK) Shaw was acquitted.
- Here's a glimpse of counter-culture lawyer Tony Serra's opening statement in California v. Bear Lincoln.
- This page by civil defense lawyers about their preparation and delivery of a visual opening aided by technology is useful, plus, the fact that it contains their opening statement.in defense of an accusation of civil fraud. Here's another one, a plaintiff's opening in a very interesting and successful civil rightssuit brought against the FBI and the Oakland, California police by an environmentalist.
- Convicted "D.C. Sniper" John Muhammad shows us how not to make an opening statement in this rambling lecture about "truth" where he tells his version of the story about the proverbial child's hand in the cookie jar (He makes it his child.), but manages never to mention the evidence or the facts he intends to prove.
- This transcript of opening statement delivered on November 21, 1945 by Justice Robert H. Jackson, Chief of Counsel for the United States at the 1945 War Crimes Tribunal, provides you with some splendid examples of persuasive oral advocacy.
- Many students of forensic rhetoric have been impressed by the prosecution opening statements of Telford Taylor at the 1946 War Crimes Tribunal trial of the German doctors for alleged atrocities in the name of medical science. See also The Medical Case - Transcript of General Telford Taylor's Opening Statement.
- You may get some ideas for your prosecution criminal opening statement by reading the prosecution's opening statement at the impeachment trial of President William Jefferson Clinton
- Here's are the openings at the other presidential impeachment trial in U.S. history - this one ofPresident Andrew Johnson. This is the link for the transcript of the 1868 prosecution opening statement by Congressman Benjamin Butler ( a former Union Major General who himself seemed to be crooked as the Snake River - his brother was a war profiteer in confiscated Southern cotton while General Butler ruled the nearby Port of New Orleans with a iron hand) and the defense opening statement by Benjamin Curtis (Attorney for Johnson)
- For comedic relief - From one of my top ten legal movies, to the right sidebar on YouTube, superstar Al Pacino, as defense counsel Arthur Kirkland, in And Justice for All delivers the classic opening statement that defenders from time-to-time only wish they could give (wiki). And how about Spencer Tracy in Inherit the Wind?
- More comedic relief is found in the transcript of plaintiff and defense opening statement in Wile E. Coyote v. Acme.
- YouTube Videos of opening statements : prosecution opening in Ohio v. Miller, an obstruction of justice case; prosecutor opening in a murder case; defender opening in a murder case; and others that you can easily find on YouTube.
- What About Jury Arguments: Opening statement and jury argument are joined at the hip. The theme you develop at the beginning of your case in opening winds its way through the evidence to your final argument at the end of the case. Consult the CCJA web site dedicated to Jury Argument in Criminal Cases for guidance in planning, preparing and delivering your jury argument. You'll also find references to some 40 other transcripts and videos of jury arguments posted on the web site of the "Opening and Closing" course. [Note: There are also transcripts of jury argument from 18 famous criminal cases in the 550-page The Last Word.]
A FEW EXAMPLES OF WHAT YOU MIGHT SAY, AS A DEFENSE LAWYER, IN OPENING STATEMENT
(Introduction) Ladies and gentlemen, my name is (name of defense counsel). Together with my colleagues over here at this table, I'm proud and privileged to represent this man (indicating the defendant). Today is one of the two times - the other is jury argument - that I get to talk to you directly about this case. This is an important time, and I am going to try my best to communicate what happened in this case.
(Stating your theme) This is a case of / This case is about (state your theme, e.g., jealousy, greed, lust, etc.)
(Setting the scene for your story) To begin to comprehend what happened here, we have to go roll back the clock to (state time and place where your trial story begins).
(Let me walk you back) Let me walk (take) you back to (state the place and time).
(Boil the case down) If we could boil this case down to everyday language, it would be this: (without exaggeration, state the competing theories of the case in the form that best highlights the merits of your theory and deflates the merits of the opposition's)
(Client not guilty) Members of the jury, (name the defendant) is not guilty, not guilty, not guilty.
(Discounting opposition's theme and asserting yours) This is not a case of (state the prosecution's theme, e.g., see no evil, hear no evil). This is a case of (state the defensive theme, e.g., there was no evil).
(Purpose of opening statement) The purpose of an opening statement is not to tell you what the evidence is. The witnesses and the exhibits will do that. Nor is the purpose of an opening statement for me to try to imprint on your minds every important fact. If we tried to do that, we would be here for an awfully long time. So what is an opening statement? An opening statement is sort of like getting someone ready for a trip that they have never taken before. You try to get them oriented to certain signs on the road and certain landmarks, so that, as they actually take the trip, they understand where they are going, where they are and where they have been. My purpose here today is to give you a preview of what the defense (or government) expects the evidence will show. During opening statements, we lawyers are not permitted to argue the case or to explain the meaning of the evidence. What we are allowed to do is to tell you what our defense is and to tell you what the evidence will and will not show. In jury argument at the end of the case, after all the evidence has been presented, we will come back to discuss and explain the meaning of the evidence. [Note: It's popular today for the "trial advocacy" professors and young self-designated masters of "trial theater" to denigrate the metaphors that try to explain the purpose of the opening statement as a "road map," a "birds-eye view," a "summary," a "view through the port hole," etc. Instead, the modern teaching is that one should maximize the primacy affect by going directly into storytelling without the introduction. My suggestion is that you should do what you think is best from the jurors' perspective.]
(Opening statement in lawsuit differs from politician's speech) An opening statement in a law suit might seem like a politician's stump speech where get all sort of promises for the future. We lawyers do make promises of what the facts are and what we are going to prove. But there's a big difference between the promises we lawyers make and what a politician promises to get your vote. The big difference is that in a criminal case you vote after the lawyers try to make good on their promises. With a politician you vote before you know whether s/he'll make good on them. In politics your vote is an act of faith in which you hope the politician will keep his promises. Lots of politicians break the faith we have placed in them. They come into office with a bunch of promises, and they leave with a bunch of alibis. But in this courtroom your vote is not an act of faith. You know before you vote if we lawyers have kept the promises we have made in opening statement. You will know which of the two sides has lived up to their commitments. I'll have more to say about that when we make our closing statements to you at the end of the case before you retire to the jury room to deliberate on a verdict.
(Remember this) If you don't remember anything else I'm going to say in the next few minutes, I ask you to remember this: (state the essence of your defensive theory, e.g., the defendant never conspired or agreed with anyone, the defendant used a reasonable amount of force to protect himself from a deadly attack, etc.)
(Response to prosecutor's claims) You've just heard somebody make a bunch of claims here about (name the client). as though those claims were gospel truth. What the prosecutor just said is nothing more than a claim of what s/he expects the evidence to prove. I intend no rudeness when I say, don't believe a word of it until you've heard all the evidence. You don't know what the facts are until you've heard the evidence. They (indicating the prosecutors) have the burden of proof beyond a reasonable doubt and nobody knows anything until they start to carry this burden.
(Prosecutor's story analogized to a few pages in a book) If we compare the true story of this case to a book, the government will only have a few pages. When our turn comes, we will try to present a bunch more, so you will have the whole book.
("Can you see my hand?" demonstration to show that one needs to be aware of both sides of the matter before coming to any conclusions) (Hold the palm of you hand to the jury.) Can you see my hand? No, you can't see my hand. Not until I've turned it over and showed you both sides can you see my hand.
(Charges/accusations not facts) I want to talk about this (these) charge(s) (or accusation(s)). Charges or accusations) are not facts. They are simply a claim of what these prosecutors hope to prove beyond a reasonable doubt.
(Multiple defendants - much evidence has nothing to do with the client) In this opening, as in every other point in the trial, I am going to speak to you throughout this case for one person and one person only, (name the client). There is a lot of evidence in this case that will turn out not to involve (name the client) at all and that is not offered by the prosecution about (name the client). Sometimes, I may cross-examine a witness simply to show that the evidence that the witness offered doesn't have anything to do with (name the client). When you hear evidence, please ask yourself "which Defendant does that evidence apply to? Is that evidence connected to (name the client)?"
(Prosecution goes first because it has burden of proof - defense will be putting on evidence and also cross-examining government witnesses) In trials, somebody has to go first. In this case, as in every case where the government is claiming somebody did something wrong, they go first., the prosecutors. Maybe it's because they have the burden of trying to prove it beyond a reasonable doubt. So when it is our turn, we will present evidence to raise those reasonable doubts. But even before it is our turn, we will be cross-examining the witnesses that are presented here to bring out some of these reasonable doubts. Sometimes it will be just to flesh out the details, and sometimes to show that a government witness is biased or prejudiced or even being untruthful with you or relying on faulty or incomplete information.
(Defender as being a part of law enforcement) I consider myself as being in law enforcement. Yes, I do. As a lawyer, I enforce what are the most important laws, the Constitution and the Bill of Rights.
(Defender as prosecution's adversary) I am the prosecutor's adversary, their opponent, the thorn in their side. Like any good lawyer, I am my client's champion. I represent poor people, people of color, and, in many cases, I am appointed by the court to speak on behalf of those who can't afford to hire a lawyer.
(Prosecution made its case sound like sleek, shiny sports car - but under the hood you find two mice on a treadmill - defense opening)
You’ve just heard the prosecutor describe what on the surface sounds incriminating. It’s going to be hard to keep an open mind. When you hear claims of the sort s/he just made, it’s hard not to start making up your own mind, no matter how many times His/Her Honor urges you to keep and open mind until you’ve heard all the evidence. Listening to the prosecutor, I thought that his description of the government’s case made it sound like it was some kind of beautiful sports car, sleek and shiny on the outside. But I will tell you that when we open the hood and look at what makes it run, you are going to find two mice on a treadmill.
(Opening composed of several (five) parts) This opening statement is composed of three parts. The good news is that I have just finished the first part - the introduction. Next, I'm going to tell you what the case is about. Then, I am going to walk you through some of the most relevant facts and events. After that, I'm going to spend a few minutes telling you how we are going to prove those facts and events to you. Finally, I am going to make a few concluding remarks.
(What case is about) What is this case about? Quite simply, this is a case about (begin the explanation of the case).
(Explanation of proof) How are we going to prove to you that (state the element of the offense or the defense)?
(Mentioning the anticipated jury instructions on the law) If I'm right (or correct) (or I predict that) the judge will give you an instruction (or a limiting instruction) telling you (precisely state the contents of the anticipated instruction).
(Defender's promise as an introduction or closer to the discussion of the defense story of the case) So this is (name the client) promise to you of what we confidently believe and expect that the evidence will show. This is our promise to you.
(Lawyer's promise not like a politician's) You may think a lawyer's promise is akin to a politician's promise, where you hear the promise and then you vote and then you wait to see if the person you elected keeps their promise. It's different in a courtroom. You won't vote until you hear the evidence, and you will see who keeps their promise and who does not before you write the ending of this story with your verdict.
(Truth as a one step at a time journey) Arriving at the truth is a journey that we will take one step at a time.
(Defense witness will give sworn testimony entirely at odds with prosecutor’s theory of case - defense opening) You are going to hear from a witness who will present sworn testimony entirely at odds with what the prosecutor just told you, testimony that directly contradicts the prosecution’s theory of the case
(Defense will call witnesses the prosecution could have called but won’t - defense opening) We will call witnesses that the prosecution could have called. but won’t, but for reasons that will become apparent.
(You will demand more than the prosecutor can produce - defense opening). When you have heard all the evidence in this case, you will recognize that you will honor truth and justice by telling the government that it hasn’t solved this crime and that you won’t rubber stamp it’s theory of the case. You will demand more of the government.
(Asking yourself if you are qualified to sit in judgment)
You come in here and you wonder if you are equipped to be a juror. You have never had any experience with the law, the law books, and you wonder ‘What makes me qualified to be a juror?’ The simple answer is the truest. It's the common sense you have developed by living as long as you have and undergoing the life experiences you have faced. This makes you the most qualified people in this world to be sitting in judgment in this case. So please don’t abandon that gift of common sense that you all have. Listen to the evidence, and you will do what’s right.
(Keep an open mind until all evidence in; important stuff may come near end) I ask you, please keep an open mind until you have heard all the evidence. Sometimes the very last thing you hear about some situation is the thing that decides it for you. Sometimes it's what you hear near the end that is the solution to the whole problem.
(Concluding portion of opening; defender refuses to carry burden of proof; defense will return at end of case to explain how the prosecution failed to carry its burden) I have told you what we believe the evidence will be. I am not, by doing this, going to assume a burden of proof that we don't have. No, members of the jury, the prosecutors have that burden of proving their claims beyond a reasonable doubt, and when this case is all over and the evidence is in, I will stand before you again and point out the ways in which we believe they have not carried their burden of proof.
OTHER OPENING STATEMENT RESOURCES
+ For Civil Lawyers: There's a potentially helpful web site treating the subject of opening statements in civil cases; the first sample follows the traditional structure of a plaintiff's personal injury opening . i.e., Introduction - What Are the Rules - What Did the Defendant Do - What Were the Immediate Harms - Who Are We Suing and Why - What Is Wrong With the Defense - The Long Term Harm Regarding the Injuries Inflicted on Plaintiff - Conclusion; when I looked at this site, the other samples were a mess - one of the sample opening transcripts was upside down and the other "sample openings" were transcripts of testimony not openings; if this law firm cleans up its site, this one might someday be an A-lister. Moving on, here's an 8-page paper on preparation and effective delivery of a plaintiff's opening statement in a civil tort case is also available on-line. (1 - opening in a products liability trial), (2), (3 - opening for the plaintiff in a asbestos terminal mesothelioma case). This is a sample plaintiff's opening statement in a civil wrongful death survivor's case. A civil lawyer also chimes in with a discussion of plaintiff's opening statement in a civil premises liability case. A mid-western law professor offers a lengthy discussion of opening statements and a lawyer makes suggests on how to effectively hook jurors in facially boring commercial cases. This BNAarticle has the usual suggestions re civil openings. This 19-page article discusses influence of the organizational strategy in opening statement and jury argument on juror verdict and damage awards. This isbare bones summary of opening from a college communication class. If you are interested in openings in civil cases, read what the heavyweights (1 & 2 - plaintiff - government lawyers) (3 - defendant -Microsoft lawyer) said on the Harvard cyberlaw web site in the the government's anti-trust case against Microsoft. See also (1). This paper appears to be written by a graduate communications student; it has no page breaks or headlines/captions but does quote how-to-do-it suggestions from various of credible lawyer sources. Here are opening statements (1 - 79 pages for the plaintiff, 2 - 55 pages for the defendant) in a tobacco case. Here are a couple of sample opening statements from civil cases (1 - 29 pages), (2- eviction case).
+ The Milosevic Marathon: It turned out to be wasted breath, but here is the prosecution's opening statement (1 - 1st part , 2 - 2nd part) from 12 February 2002 in the marathon trial of the late Slobodan Milosevic before the International Criminal Tribunal for the Former Yugoslavia. Mr. Milosevic acted as his own counsel and made his own opening statement (not included). He died in custody on March 12, 2006, of an alleged heart attack. Some days before his death, Milosevic had reportedly asked for medical attention, complaining that his captors were poisoning him. The seemingly interminable trial was still grinding on at the time of his demise.
+ Surfing the Web for Openings and Articles: You can find some opening statements on the Internet (1 - prosecution opening statement in a multiple victim Utah homicide/euthanasia case), (2 - mock opening statement in the Michael Jackson child molestation case). How Stuff Works has a short VIDEO of openings for the prosecution and defense in a recreated trial that follows the actual transcript of a murder case; unfortunately, the substantive quality of openings is mediocre, e.g., the "I believe" and "We believe" phrases. You will find an occasional blurb on the web from an opening statement in a case de jour. Here's one from the Scott Peterson case (1). Activists may also post transcripts of openings; here's one from a misdemeanor trespass case (1). This lawyer has a five page article (1) on opening and claims he will send you a copy of one of his openings if you email (1) him. This one (1) confuses opening statement (where you are not permitted to argue) with jury argument (where you must argue) but does offer a few useful tips on opening statement, accompanied by some rather fanciful claims, i.e., your opponent may drop books and cough loudly during opening or argument to keep the jury from hearing you. This 9-page pdf article Opening Statement as Storytelling is worth a read. This blurb on the Free Library also stresses the opening as story. Here's a thesis paper by a communications researcher on lawyer storytelling during opening and a 7-page 1987 article by a law professor on What Your Opening Statement Should and Shouldn't Do. This video (1) reproduces a prosecution opening from the transcript of an actual murder trial. This video (1), from the theater chap, the soi-disant expert who apparently hasn't read the chapter teaching that Zen detests cloying self-glorification, borrows from the literature to summarize various aspects of opening. Among several articles, a trial consultant offers some helpful suggestions on opening statements. BNA also has an article describing opening statement. This Missouri practitioner's article gives you ten points (tips) re opening, i.e., start strong, have a theme, don't give the jury unconnected facts, tell a story, use tools of persuasion, primacy, recency, avoid overstating and reveal weakness, avoid legal talk, and, lastly, end strong. A law professor posts the 32-page "opening statement" portion (1) of a book; this one will read better if you print it. A criminal lawyer publishes a paper (1) written by a trial consultant. More helpful tips - (1), (2 -DUI/DWI - ten sample themes ), (3), (4) on opening statement from practicing lawyers can be found on-line, (5 - 3 pages ALI-ABA), (6 - 5 pages), (7 - 14 pages), (8 - 15 pages), (9 - blurb from a PI lawyer), (10 - 19 pages re themes), (11 - 35 pages for prosecutors), (12 - a plaintiff's attorney). This brief blurb on opening is from a psychologist. Movie buffs may find a few film clips of interest on YouTube, e.g., My Cousin Vinny is a popular teaching tool. You will find several film clips of openings on the home page of my O & C course. Do an "opening statement" search on YouTube and you'll also find some real life samples of courtroom openings. Watch TruTV (a shadow of its former live action CourtTV self) on cable in the early part of the day for real openings from real cases.
+ Supreme Court Cases on Opening Statement: Arizona v. Washington, 434 U.S. 497 (1978); United States v. Dinitz, 424 U.S. 600 (1976); Frazier v. Cupp, Warden, 394 U.S. 731 (1969); Best, Administrator v. District of Columbia, 291 U.S. 411 (1934). Note that the Federal Rules of Criminal Procedure say absolutely nothing about opening statement and do not indicate whether the government (prosecution) must give an opening statement. Case law suggests that the government may be permitted to waive opening statement. See United States v. Welch, 97 F.2d 142 (6th Cir. 1996).
+ See the CCJA Bibliography for numerous additional articles written about the subject of opening statement in civil and criminal trials. There's also a Bibliography of Jury Argument devoted exclusively to listing written articles about how to prepare and deliver jury arguments.
Bullfight critics row on row,
Crowd the vast arena full.
But only one man's there who knows,
And he's the man who fights the bull.
(A good thought for the man or woman who stands to deliver the opening)
 |
| ||||
|  | | ||
| ||||
