In State Court in Florida the rules allow for waiving or preserving your opening statement in a criminal trial. Also, in Florida, a lawyer can only tell the jury in opening statement, contrary to what most television legal dramas present, what you expect the evidence will show–you cannot argue inferences from those facts. (Albeit, voice inflection and tone, pauses, etc. can, if done properly, blur the line between what the evidence may show and argument).
If you said something in opening that is not “proven up” in the trial, the prosecutor will surely hammer home your omission in his or her closing. However, the jury, if they trust you, should be reminded that you have no burden to prove your case and when the case began you had no idea that the government would not even meet it’s burden of proof beyond a reasonable doubt so therefore you had no obligation to put on the small amount evidence that you didn’t. (A trial lawyer must be careful with this last concept because if your case is substantially overstated in opening, you will lose credibility and trustworthiness, which are necessary to win your case).
Albeit opinions vary on this issue, and I don’t like to say “never,” I believe it would be the extremely rare case when a trial lawyer would want to waive an opening statement.
If you have had a successful voir dire (lawyer term for jury selection) wherein the people on the jury trust and respect you because in short, you have shown great respect and honor towards them, delivering a convincing, trustworthy detailed story in opening can devastate opposing counsel’s case provided you don’t lose that credibility and trust throughout the rest of the trial. You must show them throughout the rest of the case what you said in opening is actually true.
Hopefully most of your client’s story can be told through cross examination of the State’s witnesses themselves. If you waive opening, the jury won’t even know what points, especially subtle points, you are making during cross examination of the State’s witnesses that add to you and your client’s credibility.
For more on effective trial practice see other articles in this blog and Pensacola and Florida lawyer Jim Jenkins website.
A large part of Gerry Spence’s chapter on “opening statement” in his book “How to Win at Trial” talks about the days when some defense attorneys waived their openings which he believes is generally a horrible idea. Gerry was recently voted “America’s Greatest Living Trial Lawyer” at the age of 81. He remains a master communicator– he will concede he is not a great orator, although he does have a commanding voice and, with his size, has a “commanding presence.” In my opinion, neither of these things have made him the great trial lawyer he is. Often times great orators are NOT great communicators. He is one of the most effective court room communicators because of the trust and relationship he develops with the jurors.
I had a shocking surprise a few years ago when in a 1st degree murder trial the prosecutor waived his opening statement soon after asking me, immediately before the judge entered the Courtroom, if I approved of where he had placed the lectern from where we were going to present our openings. I told him “It was fine.” The next thing I know the judge asks “Mr. [Prosecutor] are you ready to present you Opening Statement?” The Prosecutor said “Judge, the State will waive it’s opening statement.” I did have to pull myself together a bit, get up off the floor and adjust my opening after the very experienced murder case prosecutor “seemed” to sandbag me when he waived opening. (After the statement, “Is is OK with you Jim where the lectern is for opening statement?”). During the first 10 seconds of my stunned state I felt like objecting but there was nothing wrong with what he did procedurally. As I stood before our jury, I considered telling the jury what I truly thought, something to the effect “I cannot believe this prosecutor just waived his opening statement in a First Degree Murder Trial! What do you think about that?” Of course, I bit my tongue and proceeded as planned with due modifications because some of the opening I had prepared and practiced over and over was going to comment on was to counter what I believed the prosecutor was going to say when he was going to present in his opening.
The jury heard my story as it pertained to every witness the State called as a witness in it’s case in chief and I was able to “prove up” everything I said in my opening about each witness. Through cross exam I confirmed the same exculpatory evidence of my client’s story in opening by questioning the State’s witnesses accordingly. Our credibility was maintained and in light of the evidence the State actually had, we obtained a very positive result for our client.
For more on Gerry Spence please see www.triallawyerscollege.com or click on his name in this sentence.