By Hilary Wright
Assistant Criminal District Attorney in Dallas County
There are millions of ways to draft an opening statement—there is no single right way to do it. It is the State’s first opportunity to tell the story of our case. For example, a prosecutor could open a murder trial with the following:
“In October of 2018, Amanda was dropping her boyfriend off at his house when an SUV pulled up and three men jumped out. One of the men, the defendant, pointed a gun at her boyfriend and demanded his money and phone. Scared, he handed over the items and bolted toward his house.
“Afraid for her own safety, Amanda floored the accelerator and took off down the street, but not before the defendant raised his gun over the roof of her car and fired a warning shot as she drove away. That bullet travelled down the street and straight into Victor, an innocent man standing in his neighbor’s front yard. Victor never uttered a word as his body slumped to the ground and his blood spilled out onto the cool pavement. The neighbor ran to get Victor’s wife, who left their young children in the house and ran across the street to hold her dying husband.
“As the tragic end of Victor’s life unfolded, the defendant was hunting yet another victim to rob. Several neighborhoods away, the defendant and his friend spotted Clyde waiting for his withdrawal at a drive-up ATM. They approached Clyde, guns drawn, and demanded his phone and the cash—which Clyde needed to pay for his child’s daycare. When they ran off, Clyde drove after them—all he could think of was getting his money back. He came to his senses when people in the defendant’s SUV began shooting at him.
“Later, the defendant confessed to his violent acts, but nothing could save Victor’s life or undo the tragedy that befell his young family. When this trial concludes, I will ask you for justice, and you will know that the just verdict is finding the defendant guilty.”
This example is from one of my jury trials that involved four crime scenes, four crime victims, and one deceased person. I had to figure out how to make this jumbled mess of facts cohesive for the jury—some of the crimes were unfolding at the same time, and there were so many players involved. I employed a few tactics that I’ve learned from colleagues over the years to craft a cohesive roadmap to give the jurors the best guide to their inevitable guilty verdict. I share these techniques now with my fellow Texas prosecutors.
What the law says
The Code of Criminal Procedure lays out what is expected in an opening statement: “The State’s attorney shall state to the jury the nature of the accusation and the facts which are expected to be proved by the State in support thereof.” It is not required that we make an opening statement, and if the prosecution waives it, the defense cannot give one at that time either. (Waiving the opening statement might be a strategy prosecutors employ to keep the jury from hearing the defendant’s side of the story before testimony begins.) It is a statement of facts, not an argument, but that doesn’t mean that what prosecutors say cannot be persuasive.
Provide a roadmap
The opportunity for an opening statement is a gift to the prosecutor. This is the moment to tell jurors what happened and why they will find the defendant guilty at the end of the trial. At this point all jurors think they know generally what the case is about from the issues discussed in voir dire. The jury is expectant after hours of jury selection, and they are ready to know what really happened. The State gets to go first, and opening statement is one of at least three times that jurors will hear the facts of the case (the second is in testimony, and the third in closing arguments). Don’t ever be afraid to get up and give the jurors what they want: a preview of the State’s case.
In any given case, there may be different characters, different crime scenes, and different legal issues that will arise, but we don’t need to give jurors every detail or provide a list of witnesses during opening statement. Moreover, what prosecutors say in opening statement does not need to track in a timeline with the witness lineup. This part of the trial lays out the structure of a case, to act as a guide for the jurors to follow. When the testimony begins, jurors should be able to fill in the gaps with the details to get the full picture by the end of the trial.
You will note in the example from that murder trial, I did not use more than three names of the people who were involved in my case. I did not discuss who would or would not be testifying and in what order. Opening statement was not the time for details about what the medical examiner found or how all of the evidence was pieced together by the detective. The place for that is testimony. The jurors will hear that evidence from the witnesses and slide the information neatly into the space left open for them as they follow the plots on the map.
Tell a story
The No. 1 piece of advice that I got from my mentors (and continue to pass down to younger prosecutors) is to tell a story with the opening statement. We live in a world where there is an expectation, whether conscious or not, to be entertained by something we are watching. More than that, though, is the way our brains have been trained to process information. It is easier for people to understand and recall information if it is told in a story. A trial might last for a week. If prosecutors want the jurors to recall anything, we want them to remember that the evidence syncs up with what we said in opening statement.
There are different ways to present a story, and it should be tailored to the case. Some cases are heavy on legal issues, while others will come down to factual disputes. I like to craft my opening statement like I’m going to tell my mom about the case. I don’t want to weigh her down with legal issues—she was a kindergarten teacher after all, but she loves old Western movies and a good mystery too.
In the murder trial example, I started out by introducing Amanda so that the jury would understand the everyday task she was doing—dropping her boyfriend off at home after grocery shopping—when they were ambushed. I didn’t have to point out that their afternoon started out mundanely or that the crime could have happened to any one of us—jurors got that from the facts themselves. The story takes them down to the innocent man talking with his neighbor, another mundane and everyday task. My words are telling the story, but the facts are screaming, “This could have been you!”
Jurors will go numb and space out if a prosecutor stands in front of them and gives a monologue listing the witnesses and what each one will say. What to avoid: “First, you will hear from Willie Witness, who will tell you blah blah. Next, you will hear from Violet Victim who will say this part. Then you will hear from Eddie Expert, who will tell you yada yada.” Snooze! The jury will have already forgotten the names of the witnesses and have no idea the role they played in what happened. If the fact pattern is convoluted, the evidence will be heavily dependent on experts, or the victim is known to the community, remember that you can use evidence (such as photos) during opening statement. Doing so can keep the jurors’ attention and help you get through a rough explanation of the case. A timeline, diagram from an expert, or the photo of a well-known or especially sympathetic victim can hold the focus of even the sleepiest of jurors.
Keep it simple
It is important in this phase of trial not to get too bogged down in the details. Remember that it is OK to let some things come out in testimony. You are presenting an outline of the case in opening statements, not arguing the minutiae. You do not need to use everyone’s names in this story—in fact, sometimes it is better to describe the witnesses by their relationships to the main character or by their roles in the story. In a kidnapping case, there may be the defendant, Dexter, and the victim, Vicky, but other important characters, such as The Witness, The Wife, or a Second Victim, don’t need personalization yet. Simplifying tells the story without the jury worrying about remembering the names and identities of witnesses and how they relate to the story. Let them focus on the facts, not the names.
In my murder trial opening, the name of Amanda’s boyfriend was irrelevant at that point because I wanted jurors to focus on Amanda and the man who shot the gun at her (the defendant). It’s that action, that bullet, that killed Victor, and I wanted the jury to mentally follow that bullet down the street. Jurors learned the boyfriend’s name later and that he was a victim of robbery, but in the opening statement, he was just a supporting actor and did not feature in the murder itself.
With regard to the length of an opening statement, the judge is the time-keeper. He or she will tell the State how long opening statement can be. Cases with multiple counts or indictments and death penalty cases may get longer time limits than other cases. Keep in mind, though, that the industry standard for a movie trailer is two minutes and 30 seconds—that might be a good gauge for our own opening statements. Telling the story in our sample case took less than five minutes to lay it all out, and a concise delivery makes it easier for the jury to recall. The roadmap is set and the jurors know exactly what to expect. Of course, I cannot take all the credit, as the case itself is a compelling story, and it’s memorable because it is true and tragic.
Which brings up another good thing to remember. Prosecutors may forget the importance of an opening statement when they are set to try yet another DWI case and the facts are “plain vanilla”—just like the trial from last week and the one from the week before. We prosecutors may be dulled by the monotony of the testimony about how many clues there were in the Walk-and-Turn test, but remember that the citizens of the community who are sitting on the jury are not jaded like we are. This is the only DWI case they might ever hear about. They may have never stepped foot in a courtroom before. If we can give them a memorable roadmap for where the testimony will lead them, then we already have a leg up before the officer takes the stand.
Opening statements can be a powerful part of a jury trial. The State goes first—an advantage in itself—and we lay the foundation for how the entire trial will unfold. When the testimony or evidence syncs up with the roadmap we give in opening, there is a mental click with the jurors that the information is true because they have heard it before: from the prosecution during opening statement.
Now that we’ve set the tone for the trial, let’s call our first witness.
 Tex. Code Crim. Proc. Art. 36.01(a)3.
 “If a prosecutor waives opening statement at the beginning of trial, the defendant does not have the right to make an opening statement right then.” Moore v. State, 868 S.W.2d 787 (Tex. Crim. App. 1993). The defendant can still give his at the opening of his case after the State rests; see Code Crim. Proc. Art. 36.01(b).
 “Opening argument is not really an argument—it’s more like a guidepost or pathway.” U.S. v. Dinitz, 424 U.S. 600 (1976).
 No statute or rule prohibits a party from using physical evidence or demonstrations during opening statement. See Fisher v. State, 220 S.W.3d 599 (Tex. App.—Texarkana 2007, no pet.)(State’s use of photos of victims during opening statement harmless when photos were later admitted at trial).
 The Motion Picture Association of America mandates a time limit of two minutes and 30 seconds for a theatrical trailer. Yes, I Googled it.
 Which happens to be my favorite flavor.
 You may have studied the “primacy effect” if you took a psychology class before law school. The primacy effect, in psychology and sociology, is a cognitive bias that results in a subject recalling information presented earlier better than information presented later on.