After the jury is selected, the first time they get to hear from the attorneys is during opening statements. Every criminal trial kicks-off with opening statements. The prosecutor goes first and gets to make the first impression before the jury. The prosecutor explains the criminal charges against the defendant and why the defendant is guilty. The prosecutor is permitted to present an opening statement first because the State has the burden of proof in a criminal trial.
The defense attorney makes an opening statement after the prosecutor has already landed the first punch and described to jury in great detail why the defendant will be proven guilty. The prosecutor’s opening statement is basically and accusation, and the jury will be curious of the State’s accusations about the defendant are true. This puts the defense attorney at a great disadvantage. An experienced criminal defense attorney can react to the prosecutor’s opening statement and take the steam out of the prosecutor’s case. The defense attorney can use a compelling theme and create a story that will captivate the jury and bring them back to the defendant’s side.
What makes a good opening statement?
Anyone facing a criminal trial must understand what makes a powerful opening statement. A client must assist the attorney in the preparation of the defense since he or she has first hand knowledge of both the charges and the defenses that can be used at trial. This includes the opening statement.
A jury must know who the defendant is. The defense attorney can humanize the defendant. The prosecutor will paint him or her as a monster or someone who is guilty of a crime. The defense attorney can explain personal traits of the defendant, and that he is more than just a person charged with a crime. He has a family, a spouse, children. He lives, works, when to school and volunteers in the community. He is not a person who would commit the awful crime alleged by the prosecutor.
The theme to the opening statement is key.
After the prosecutor provides an image of what the State believes the defendant did, they may try to tug at the jury’s emotions by asking for sympathy for the victim. The defense attorney must create a theme that captivates the jury. This theme must create a gripping and persuasive story, so the jury can sympathize with the defendant instead of the prosecutor.
An opening statement is a performance.
While a criminal trial is not like the movies or television, and is not on a stage, make no mistake that the defense attorney must present a forceful performance in front of the jury. The members of the jury are not paying spectators, but they are more important because they are the ones who will decide whether or not to return a verdict of “not guilty” for the defendant.
Everyone who has seen the movie My Cousin Vinny knows what not to do during opening statements. In the movies, one defense attorney slept though the prosecutor’s opening statement and the other attorney stuttered and could not utter a single statement before the jury. This Hollywood storytelling makes for a good movie, but it is not far from the truth. It was also written in part by trial lawyers.
Criminal defense attorneys are not paid actors, but they better be prepared to perform for the jury during the opening statement. You never see an actor read a script on stage. That wouldn’t be very convincing. A defense attorney must never read during an opening statement. In order to convince the jury, a defense attorney must be credible. An attorney who reads from notes will not appear credible in front of the jury. Any attorney who reads an opening statement will not be entertaining in front of the jury, and the jury will become bored, tune out, and not pay attention. If this happens, the defense may never recover.
Instead, it is important for the criminal defense attorney to make eye contact and connect with each member of the jury while delivering the opening statement. The attorney must feel comfortable to walk around the courtroom and in front of the jury box during the opening. If an attorney stands still behind a podium or at counsel table, he runs the risk of boring the jury. Finally, the defense attorney must sell the compelling story of his client and the defense during the opening. If this happens, the defendant will score points in the opening round and can start the trial with the jury on the side of the defense.
Contact My Office Immediately
I am a New Jersey criminal trial attorney board certified by the NJ Supreme Court. New Jersey’s criminal trial procedures and rules of court are extremely complex and carry significant consequences. If you or a family member face criminal charges or a trial in New Jersey, contact me immediately so I can review your case and the evidence against you and advise you as to all possible defenses to make sure that you are properly represented.
I am skilled in all aspects of criminal trials. I have delivered countless opening statements before juries and have tried these criminal cases all the way to verdict in New Jersey. Please contact me now by email, by phoning 908.264.7701, or by completing the form to the right to schedule your complimentary 30-minute strategy session.
