Get it right the first time; that’s the main thing.
— Billy Joel
I. Overview
Opening statement is one of the most important phases of the trial. In my opinion, it’s even more important than closing argument because, by the time closing argument rolls around, most of the jurors will have already made up their minds.
The opening derives its power from its position at the front of the trial. While it’s true that, in voir dire, you may have been able to refer to certain aspects of your case, in opening statement you get to tell your client’s story as a story. Capitalize on this critical moment by telling a memorable, fact-driven story that is interwoven with your theme and your theory.
Also, fight for control of the conversation by assigning labels to some of the more important people and events associated with your trial. This is all done with the ultimate goal of convincing the jurors that, despite the fact that the prosecution goes first, you have a story that is worth looking forward to. So, be interesting. Be entertaining. Be outraged. Let the jury know that the prosecution isn’t the only player in the courtroom.
Finally, be informative. Don’t be vague. [Unless it’s a driving while license suspended case or something, and you really have nothing to say. In that case, your only chance might be to be vague and then hope that something unexpectedly breaks your way at trial.] Educate the jury as to where the fight is. Are you claiming, for example, that your client is not guilty on all counts, period? Are you trying for a lesser included offense? Are you saying that your client is guilty of some, but not all, of the charges? Alert the jury as to what evidence matters, and what is merely the prosecution’s window-dressing.
Given that you are not allowed to argue in opening, achieving all of these goals may seem unrealistic. It’s not. A thoughtfully constructed fact-driven narrative can be just as persuasive as any closing argument. If done properly, when you finish your opening, the jury should know your story, and they should be prepared to incorporate the evidence into your version of events.
II. Tell a Story
Perhaps because they’re unclear as to what the term “argument” encompasses, some attorneys struggle with the rule against argument in opening statement. I think of argument as being any explanatory comment that I make with regard to the facts. In opening, you can state the facts, but don’t comment on them.
Let’s say, for example, that you lost your motion to suppress statements. As a result, your client’s confession is coming in. At trial, you want to argue that the confession is false – your client just made it because the police threatened to charge his girlfriend if he didn’t implicate himself in the crime. In opening, you say, “Officer Jones then told James that he would charge Stephanie if James didn’t sign the confession.” This is proper, because it’s a fact. After this, however, you further say, “When James heard this, he felt hopeless. He felt like the world was closing in on him. There was nothing he could do but sign the confession.” You can’t say this in opening, because it’s argument. [You can say it in closing, of course.] These are not facts. These are inferences that you have drawn from the fact that James’ girlfriend was threatened.
So, what to do? The answer: show don’t tell. State facts that would lead the jury to arrive at the conclusion that you’re trying to make on their own. Like this:
“Officer Jones then told James that he would charge Stephanie if James didn’t sign the confession. James said, ‘Stephanie had nothing to do with this.’ Officer Jones said, ‘Oh yes she did. It was her car. She’s accountable, same as you.’ When he heard that, James started to sweat. He asked for a cigarette. Officer Jones said ‘no.’ James asked to go outside for some air. Officer Jones said ‘no.’ Officer Jones pushed the paper closer. He leaned forward and looked James in the eye. ‘Do the right thing,’ he said. ‘Tell me what really happened.’”
These are all facts, but they’re colorful facts. They paint the picture that you want the jury to draw (James felt hopeless) without actually saying, “James felt hopeless.” By using facts in this way, you can get jurors to empathize with James.
In addition to the trick of avoiding argument, there is also the question of how to construct your statement so that it states your theme and successfully lays out your theory. The principles of opening statement construction are simple: tell a story that has a beginning, a middle, and an end. Work through the events chronologically, pausing to discuss particular people or events along the way.
Remember that the jurors expect to be entertained. They’ll never admit this, of course, but they’re used to television. They want drama. Tell an interesting story. Get their attention. When you’re through, they should feel a spark of outrage starting to develop in their bellies.
III. Urge the Jury to Filter the Evidence Through the Prism of Your Theme
What exactly is a theme? I like Paul Bergman’s explanation [from Trial Advocacy in a Nutshell]: “A theme conveys the message that beneath all the testimonial complexity is a simple truth that merits a favorable verdict.”
My definition is simply this: A trial theme answers the question: why is the defendant on trial? In the context of a criminal case, another way to ask this question is: why is the prosecution accusing an innocent man (or, if you’re trying for a lesser included: why is the prosecution accusing this man of more crimes than the ones that he actually committed?)?
Notice that the prosecution always and instantly has a great answer to the question why is the defendant on trial. Their answer is: because he’s guilty. When they flesh out their themes, they look to answer the further question of: why did the defendant commit the crime? In answering this question, they look to the great human motivations: greed, fear, anger, lust, vengeance, etc. Defense lawyers should do the same. After all, jurors understand these motivations. The difference is, instead of attributing these motivations to the defendant, a defense lawyer attributes them elsewhere, such as to the police, or a jilted lover.
For example, your theme might be that your client’s ex-wife wants to profit in their divorce, and so she’s falsely accusing him of domestic battery (greed). Or that she’s upset that he has re-married (jealousy).
Perhaps, you have a murder case and your argument is that, in an effort to close the case quickly and satisfy the public outcry, the police framed your client (corruption, political pressure, fear). Perhaps the police just got the wrong man (laziness, incompetence). Perhaps the prosecution is overcharging your client because they’re so outraged at his conduct (vengeance). The possibilities are endless.
Just remember that the purpose of the theme is to provide a framework for the evidence, so that the jury can understand what it means in the larger context of your story.
Let’s say, for example, the prosecution spends three days putting on DNA evidence. If, in your opening statement, you explained this evidence by saying, for example, that the sex was consensual and the girl is just now changing her story because she learned that your client was cheating on her with someone else (vengeance) then the jury will understand that, despite the length of time the prosecution has chosen to spend on it, this evidence is not really significant to the central issues in the case. If, however, you don’t set forth your theme in opening, the jury might assign too much importance to this evidence.
Where to Find Themes
Themes are everywhere. They form the framework for all art that relies on a narrative structure. Look for them in novels, movies, TV shows, and your own life. Try to pick some favorite books and movies and distill them down into a one word theme. Sometimes it’s easy, because the title will tell you (The Shawshank Redemption). Other times it will be more difficult. Or, there can be multiple themes. At times, Star Wars can be said to be about reconciliation, revenge, oppression, liberation, and more. [I’m talking about the original movies of course. Please don’t ever mention those later abominations to me.]
There is no right answer. Pick the theme that resonates the most with you, given the particulars of your case.
IV. Use Opening Statement to Lay Out Your Theory of the Case
Whereas your theme explains why your client is on trial (someone else’s greed, dishonesty, corruption, etc.) your theory explains how it happened. It identifies the moments, decisions, people, and actions that caused your client to find himself in the trial chair.
Let’s say, for example, that your defense is that your client was arrested because of a shoddy police investigation and the prosecution’s over-reliance on an unreliable eyewitness. These mistakes can be boiled down into several different themes, including incompetence, corruption, and confusion. But how do these themes reveal themselves in the evidence? That is your theory.
For example, let’s say your client is charged with murder, but there is another suspect who was never arrested and who is just as likely to have committed the crime. Your theory could be that the police botched the investigation by:
• failing to follow leads that pointed to the other suspect;
• failing to preserve potentially exonerating evidence;
• relying too much on the statement of an eye witness; and/or
• assuming your client’s guilty just because he was found near the crime scene.
As evidence of each of these comes out at trial, say, for example, by bringing out that the other suspect had a violent history, or by cross examining on the fact that the police failed to try to match a shoe print that was found at the scene to the shoes that were being worn by the other potential suspect, you bring your theory to life.
V. Marry Your Theory to Your Theme
Note that it is not enough to simply have a theory. A theory only works if it is married to a theme. Thus, you must provide an explanation for why things happened the way they did in order for your story to be credible.
In other words, it’s not enough to simply show that the police botched the investigation, you must also show why they botched. Perhaps they were poorly trained. Perhaps they were under political pressure to solve the case quickly. Perhaps they had a history with your client and didn’t like him. Whatever.
There are many possible themes. Choose the one that resonates with you the most given the particulars of your case and explain how your theory bears it out. It is through the unification of your theme with your theory that your story evolves from the disingenuous rants of a sleazy defense attorney, into reasonable doubt.
VI. Claim Labels
You labelled me. I’ll label you.
— Metallica
Labels are the terms that you assign to the various people, events and whatever else in the courtroom.
Here’s my favorite example of a “label war:”
My client was accused of breaking into his former lawyer’s house for the purpose of stealing items to sell for drugs. Things got out of hand and my client, allegedly, strangled the lawyer to death. The murder happened on the second floor of the home and, in order to get his lawyer up there, my client had to place the lawyer [notice, I refuse to call him the “victim”], who was in poor health, into one those electric-powered chairs that disabled persons use to ascend stairs.
Throughout the trial, the prosecution referred to this device as the “electric chair,” as in: Officer, what did the defendant tell you he did after he strapped Mr. Smith to the electric chair? And so on.
We, on the defense, however, preferred to call this the “mobility chair,” as in: Officer, isn’t it true that James secured Mr. Smith in the mobility chair so that Mr. Smith wouldn’t fall and hurt himself?
This may seem like a small thing (hey, when ya got lemons…), but I wasn’t about to allow the prosecutor to own this piece of evidence in that way.
Anyway, prosecutors love using labels. You can use labels too. Here are some ideas on how to strike back:
Instead of the defendant, the accused, or Mr. Smith, or, simply, James.
Instead of the victim, the complaining witness.
Instead of the People or the government, the prosecution.
Instead of the confession, the statement.
Finally, avoid using legal terms or trial labels that the jurors probably don’t know. for example, instead of saying “on direct, you testified …”, say, “when Mr. Jones was questioning you, you said …”
Labels are simple, yet powerful, tools. They can help to give you ownership over the conversation. Don’t just concede the right to name things to the prosecution. Use labels to claim possession over some of the language in the courtroom.