The purpose of the opening statement is to introduce the parties and counsel to the jury and to provide a roadmap of what the evidence will show and what the jury will be asked to decide. The opening statement should not be argumentative. It is an opportunity for the defense to marshal the significant facts in a logical fashion that makes sense and leads to one conclusion, a defense verdict. The opening statement may be the most effective piece of advocacy during a trial and, as such, should be delivered in a calm, logical manner that brings the jury to your side. Like all aspects of the trial, the opening statement should be driven by the defendant's theory of the case.
After voir dire, this is the jury's first contact with the defense lawyer. Given the fact that first impressions are hard to change, counsel should be very conscious of dress, grooming and body language. The lawyer must attempt to come across as honest, sincere, considerate and credible. Avoid using complicated legal terms. Try to speak to the members of the jury in clear and simple terms that they will understand.
Since the prosecution has the burden of proof in a criminal case, it makes the first opening statement. The defense then gives its opening statement. While the defense is permitted to defer its opening statement until after the prosecution has rested it case, this rarely makes sense.
In preparing for the opening statement, the defense lawyer should develop a theme that will be set forth in the opening. The theme can be a word, phrase or simple sentence that captures the controlling or dominant emotion or theory of the defense; it should be brief and easily remembered by the factfinder. For example, in a case is which the defendant was charged as an accomplice, the defense may refer to the defendant as an "unwilling accomplice" who was forced to participate in the crime.
Every opening statement is different and it is impossible to address all of the issues that may arise. The following sets forth some very basic principles. The basic structure for the opening statement should be an introduction, the body and the conclusion.
- Introduction: Begin by introducing yourself to the factfinder and telling them who you represent. Explain the charges that have been filed against your client, make clear your denial of guilt and set forth any and all defenses. With respect to the client, it may be helpful to give some additional introductory information. For example, it may be helpful to say that the client has no criminal history, is an upstanding member of the community and is employed. Anything that may enhance the credibility of the defendant or will generate empathy from the factfinder can be helpful. This is also the time to introduce the prosecution's heavy burden of proof (i.e., beyond a reasonable doubt) and to explain how it cannot meet that burden.
- Body: While the opening statement is not considered evidence, it is the first opportunity for the defense to explain what the evidence will show. In the body, the defense should tell a story that identifies the "plot, the setting and the characters." It should place questions in the minds of the jurors that they should be asking when they hear the prosecution's case. Defense counsel should communicate a theme that will run through the entire defense. The theme should incorporate the character of the defendant, the relevant facts and the law to be applied.
- Chronology: The body of the opening should provide a timeline of the events as they occurred. This gives the defense a logical framework in which to describe how and what happened.
- Description: To help the factfinder visualize what happened, provide a description of the scene of the alleged crime, the evidence that will be presented and the witnesses that will testify. Remember to restrict your discussion to evidence that will be admissible at trial. If real or demonstrative evidence will be discussed during the opening, you may want to consider a pretrial ruling on admissibility.
- Credibility: If the defense will utilize witness testimony, briefly discuss the credibility and qualifications of each witness in the opening. For example, if expert witnesses will be used, describe their qualifications. The opening is also the time to begin to impeach the credibility of the prosecution witnesses and to minimize the prosecution's likely attempts to impeach the credibility of the defense witnesses. For example, if a defense witness' credibility can be impeached based on criminal history, this is the time to minimize the prosecution's attack by explaining how it has no bearing on the witness' testimony.
- Facts: The defense should allow the facts to argue the case by setting forth the facts in such a manner that there is only one logical conclusion. It is also the time to briefly apply the facts to the law. While the court will define the applicable law, the defense should attempt to show how the facts do not support the prosecution's case but support a not guilty verdict.
- Conclusion: The defense should always conclude by telling the factfinder that you want them to return a verdict in your client's favor and what that verdict should be. Simply reiterate the best facts and state how they support the desired not guilty verdict.
Common Pitfalls of Opening Statements
The most common pitfall to avoid in opening statements is making promises that cannot be kept. Defense counsel must ensure that the facts are set forth accurately and that the defense can support the facts as stated. The prosecution will, obviously, highlight and attack any area in which the defense has failed to fulfill the promises it made in the opening. Failing to meet the promises made in the opening statement can significantly impact the credibility of the defense and, as such, highlight weaknesses.
As noted above, the opening statement is not considered to be evidence. Many lawyers make the mistake of telling the jury this during their opening statement. Unfortunately, this results in giving the jury the mistaken impression that what is set forth in the opening is not important.