January-February 2007

Opening statements

“The State’s opening statement should have the narrow purpose of stating what evidence will be presented in order to make it easy for the jury to understand what is to follow—it is not an argument.”2

We have been programmed since childhood to listen to stories, and indeed, in its most basic form, an opening is simply a story. By making a cogent, concise opening statement, you are availing yourself of the rule of primacy. In other words, the jury will hear and remember your version of the facts first.

If you aren’t sure how long your judge will allow you for an opening statement, be sure to ask beforehand so you can fit any time constraints. You want to be able to address the crucial points of evidence as they relate to the elements of the offense.

Consider these examples. A great songwriter, in a three-minute song, can tell a heart-wrenching story that lasts in your memory for years.3 Likewise, a motion picture is often 60 or so two-minute scenes strung together in a (hopefully) coherent and interesting story.

If your judge gives you only five minutes for a no-test DWI opening, you can still make 20 strong statements, each lasting 15 seconds or less, about the evidence.4 The key to a successful, understandable, and coherent opening is to then join those individual elements together into a story or a theme.

Things you can’t say

•    Never, ever refer to whether the defendant testifies. Ever.
•    Don’t tell the jury that what you say is not evidence. The judge may tell them so, the defense attorney may tell them so, but don’t reinforce the concept by saying it yourself.5
•    The opening statement is a statement of what the evidence will show; it is not an argument. If you argue, defense counsel will object, and the judge will sustain it. This is bad because it makes you look like you are not following the rules; it interrupts the flow of your opening statement, and at this time in the trial you have the total, undivided attention of the jury.
•    Don’t overuse the phrase “what the evidence will show” or use the dreaded analogy of “an opening statement is like a roadmap.”
•    Don’t use police jargon. Be sure to break down facts into concepts that laypeople can easily understand.

At the same time, when giving your opening, try to take your time. Speak slowly. Explain relationships between witnesses and why they are important in the context of “what the evidence will show.” Tell the facts that the witnesses and evidence will prove. Tell them opinions of expert witnesses who will testify. Use demonstrative evidence. Make sure the jury understands exactly what evidence proves the elements in the trial and why.6

Developing a theme

This is often the most difficult part of opening argument.7 Discuss this beforehand with your coworkers or, if you are in a small office or all your fellow prosecutors are horribly busy, use the TDCAA user forums to discuss and develop your themes. It is a quite useful exchange of ideas.8

Let’s say that your case involves feuding neighbors whose dispute has lapsed into a physical assault (I know this never, ever happens, but just use your imagination and bear with me). You might begin the theme in voir dire by asking the panel a few questions such as, “What is a good neighbor?” The panelists will respond with various attributes possessed by good neighbors.

Your theme could then continue through opening argument. You could label the 911 reportee who is uninvolved in the neighbor fracas as being a “good neighbor” who sees the assault on the victim and calls the police to make it stop. Perhaps another “good neighbor” is the person who saw the assault, intervened, and provided first aid to the injured victim.

Of course, in closing argument, you would then tie it all together to show reasonable deductions from the evidence. You might argue that two “good neighbors” (i.e., those not involved in the conflict) both saw the incident and clearly decided the victim was indeed the actual victim.9

Get the bad stuff out there

I tell the jury about my case’s weaknesses first, during my opening statement. If there are law enforcement mistakes or witness issues, I will lay them on the table for the jury in the opening statement. That way, by implication, the jury not only knows that the State of Texas is seeking the truth, but also that the State of Texas doesn’t want to hide any relevant facts from the jury, and that in spite of whatever the damaging evidence is, the State of Texas still thinks the defendant is guilty.

The thunder of your defense attorney is stolen on these issues and the jury will remember that you told them about the kinks in the evidence first. Tarrant County Assistant Criminal District Attorney Betty Arvin also suggests that you disclose your weaknesses in opening. Most importantly, Betty says the theme must embrace the weaknesses but not in an apologetic or defensive manner.

What kind of weaknesses are we talking about? Sloppy police investigations, recanting witnesses, accomplice/ criminal witnesses, hostile witnesses, and witnesses who don’t present well are just a few examples.

Motion in limine

A savvy defense attorney will file a motion in limine regarding prosecutors’ opening statements. The State should also file a strong motion in limine. Develop a good one, then modify it according to the lawyer or the case you’re handling. Some areas I find useful to seek to prohibit are:
•    not expressing his personal opinion regarding the evidence, investigation, or prosecution of the case;
•    not expressing any discussions that he has had with his client or anything that his client has said to him (doing so makes the attorney a witness);
•    not expressing what other attorneys or expert witnesses might say about his defense theory;10
•    absolutely not saying that the attorney will advise his client whether to testify. It is the client’s decision, not the attorney’s;
•    anything that the evidence may not show. It’s unethical, and the defense attorney will beat you over the head with it in closing argument. Do take note, however, if the defense makes promises in its opening that it doesn’t keep.

Advance rulings

If the crucial evidence in your trial involves a confession or the admissibility of evidence still subject to a suppression hearing that won’t occur until after the trial has started and your opening argument made, I always go on the record outside the jury’s presence to ensure that I will be allowed to make statements of what that evidence will show. All judges I have dealt with allow you to proceed with your evidence, knowing that I would not risk mentioning evidence if there were a valid admissibility issue.

Likewise, have exhibits and charts or diagrams admitted demonstratively for the purpose of opening statement. Then you can argue from these items, giving the jury a visual memory and a way to connect what will happen in trial.

For example, in a murder trial I tried awhile ago, nine witnesses were to testify to a different part of the shooting. One saw all of it; some saw different parts of it, and their testimony corroborated the first witness’ testimony; some saw the killer with the gun after the murder, and one saw the killer dispose of the gun. Yet another saw the killer with the gun before the murder; the defendant actually informed this witness that he was taking the weapon to a football game to kill a rival. As I told the story to other prosecutors before trial, even they were confused over the similarity of witnesses’ names and had a hard time remembering who saw what.

Then there were the experts: the medical examiner, ballistics expert, firearm examiner, fingerprint techs, fingerprint examiners, crime scene unit, and gunpowder and lead residue expert, not to mention the detectives and police officers who pursued and ultimately apprehended the killer.

I made a chart that grouped the witnesses into the above categories, and as I spoke, I pointed with my old-fashioned telescopic pointer to each witness’ name as I explained what their testimony or evidence would be. Several of the crime witnesses had some very complex but similar names, and the visual helped jurors identify who would say what. The chart reappeared in closing to recap the testimony. This type of graphic can be made on your computer word processor and then simply blown up to poster size and mounted to a foam poster board—it does not have to be fancy. But it should be large so the jury can easily read the type from a distance. Keep it as simple as possible, because too much information will just confuse the jury.

Betty Arvin suggests, and I strongly agree, to hold back a strong fact that will come out in evidence (if you have other strong evidence). If you have a crucial fact that is a lynchpin between bits of circumstantial evidence, consider holding it back and letting the jury discover it as the story unfolds at trial, thus filling in a crucial gap. I like this tactic because it awakens the jury’s interest to the importance of the particular evidence in question. By letting the jury think they discovered the crucial link, you can still tie up the loose ends in closing argument, arguing why this link is so important to the circumstantial evidence, and the jury’s interest will be very focused on this matter.

If you have unprepared witnesses or evidence whose admissibility is seriously challengeable, then I urge caution. It is best to not use this type of evidence in your opening. You can always correctly say something generic such as: “Witness Smith will tell you what she saw that night at the bar, the night the victim was injured.”

It is not unusual for a witness to not really want to speak with you in a forthcoming manner before trial due to nervousness, claimed forgetfulness, hostility against the State, etc. You can easily deal with such witnesses as in the above example in case you must put them on for some other crucial reason.

The one-two punch

Some lawyers say that trials are won or lost beginning with voir dire. Whether you subscribe to that theory, common sense tells us that the opening statement is the perfect follow-up to a strong voir dire. If you have done your voir dire correctly, then your newly impaneled jury is hungry for the real story. You’ve talked all about the legal issues and talked around the general factual concerns of the case, but opening statement is your time to command the most attention of the jury. They are fresh and still very interested in exactly what occurred in the case, and you can keep their attention because you are the first one to talk.

I’m no psychologist, and I can’t say I begin to understand the wherefores and whys of some human behavior, but I do know that forceful language can be very persuasive in convincing the jury that you truly believe in your case. If you don’t believe in your case, how can you expect the jury to believe in it? I say, “The evidence will show…” But don’t oversell the case, and always keep the tone appropriate to the type of case you are handling.

I generally present my argument in the chronological order of how the events developed, but occasionally you may want to present one, such as a circumstantial case, by discussing each piece of evidence that connects the defendant to the crime. Or if there is a really strong piece of evidence, then I might open with that and then backtrack to the story.

For example, in a spousal abuse case, I might begin by saying that Annie Abused showed up at the ER and looked like someone had beaten her badly with a banjo. She was bleeding and had to seek medical care. She got 20 stitches and had a broken nose, broken teeth, and a crushed cheekbone. She was excited, visibly shaking, very emotional, crying uncontrollably, and exhibiting all the signs of a person who had been beaten.

“EMS will tell you that Annie said Willie Wifebully had beaten her. You will hear doctors say that Annie told them that Willie Wifebully had beaten her. The police and 911 operator will tell you that Annie told them that Willie Wifebully had beaten her. Two weeks after the beating, Annie told the judge in the protective order hearing that Willie Wifebully had beaten her.

“The police will also tell you that when they arrived at Willie Wifebully’s house, he was intoxicated and belligerent and that both knuckles and hand were cut and bleeding from fresh injuries. The police will tell you that Willie Wifebully spontaneously told them, before they ever said a word, that ‘I didn’t beat Annie up.’

“The DNA analyst will tell you that the blood stains on Willie Wifebully’s shirt, shoes, and pants and in the home Annie and he shared cannot be excluded from being Annie’s blood.

“Two days before trial, Annie Abused told us that she lied in her first story to the police. She now says someone else beat her, a person she was having an affair with. She lied because she was mad at Willie. She can’t remember the last name of the person who beat her, but Willie Wifebully was not anywhere around at the time of the beating. She went to Willie after her beating, and that is how the blood got on his clothes and at their home.

“Finally, you will hear from a blood spatter expert who will testify about blood, how gravity affects blood, and what it does when it exits the body. This expert will testify that the blood spatter patterns on the clothing of Willie Wifebully, on the suspect’s banjo, and at the crime scene are proof that Willie Wifebully assaulted Annie Abused.

“At the conclusion of the State’s case, the State of Texas will ask you to find the defendant, Willie Wifebully, guilty of aggravated assault.”

Additional tips

I’ve read up on the subject of opening arguments lately, and I think that Betty Arvin said it best in her summary of important opening argument actions. It could not be said better than she says it:
•    Be yourself. Jurors have an amazing ability to spot a fake.
•    Practice. Try out your theory and theme on non-lawyer and lawyer friends to get feedback. Find out if your theory or theme makes sense.
•    Repetition. It is the key to getting jurors to remember important points and favorable evidence. Repeat them like a mantra throughout your opening statement and your case.
•    Appearance. Jurors expect you to look like a prosecutor:  conservative and well-groomed. Do not disappoint them.
•    Start strong and end strong. Use the principles of primacy and recency in your opening statement. Spend time constructing your first and last sentence and your first and last paragraphs. They are very important and should have an immediate emotional impact. They usually contain your theme. Don’t be afraid to start right with facts.


1  The author gratefully acknowledges the liberal use in preparation of this article of an excellent seminar paper by Tarrant County Assistant Criminal District Attorney Betty Arvin, entitled “The Need for an Opening Statement OR How to get a ‘guilty’ before you’ve put on your evidence,” which has been presented at numerous TDCAA seminars. In her paper, Betty credits papers on this topic written by Tarrant County ACDA Gregory T. Miller, Dallas County ACDA Bill Wirskye, Bronx New York Assistant District Attorney Daniel McCarthy, and suggestions and editing by Tarrant County’s Mark Thielman. I thank these people too.
2 U.S. v. Dintz, 424 U.S. 600 (1976)
3 Ladies and gentlemen of the jury, I submit for your consideration, great songs like “He Stopped Loving Her Today” by George “No-Show” Jones; “Mr. Bojangles” by Jerry Jeff Walker; “I Want To Hold Your Hand” by The Beatles, and perhaps most terrifyingly, “Dueling Banjos.” Every generation has songs such as these imprinted in the “I can’t forget this no matter how hard I try” section of their brain. They’re just great stories.
4 Fort Bend County Assistant County Attorney and TDCAA lecturer David Newell might well refer to this 15-second piece of evidence summary I speak of as a “sound byte” or a “sound byte of evidence.”
5 I am in no way implying a lack of ethics here but rather the simple application of psychology. Don’t tell the jury not to listen to you. As TDCAA’s Shannon Edmonds notes, once you say it, the jury tunes you out, and your authority is gone.
6 Always try to have a written report from your expert so that if objected to when you make a statement in your opening, your response is that it was based on what the expert said in his written report.
7 Daniel McCarthy of the Bronx County DA’s office in New York says that a theme is “a focused and cohesive understanding of the case which guides the prosecution in the presentation of the evidence.” From the lecture material of Betty Arvin, as cited hereinabove.
8 Trust me on this, I’m a lawyer. The forum is really a great resource that can help you solve lots and lots of problems and answer your questions. Remember, the only stupid question is the one that is never asked.
9 I personally struggle with developing good themes. I may have several themes developed for a trial, and then it is not until I stand up and begin speaking that a newer, more improved, more easily explained theme comes to me. The main thing is, a good theme is hard to beat, and you can learn good themes by talking to other prosecutors.
10 This actually happened last month (but was stopped by a State’s objection) in an aggravated sexual assault of a child trial in my office. (The following is paraphrased but very close to the actual statements):
Defense attorney: You know, everyone tells me that this is a crazy defense. Other defense attorneys—
Me:  Your honor, I object. Counsel is testifying.
Court: Sustained.  Jury will disregard the last statement of Mr. ___ (defendant’s attorney)