Chapter 4 OPENING STATEMENT - Indiana University Maurer ...

1 Chapter 4 OPENING STATEMENT INTRODUCTIONA fter the jury has been selected, the parties give their OPENING OPENING statements introduce the jurors to the parties competing theoriesof the case. OPENING statements generally are fairly short, and focused on thekey facts you will present. They are told in chronological order, as much likea story as possible. OPENING statements help jurors understand the natureof the dispute, focus on the key evidence, and place witnesses and exhibitsin their proper are four main purposes to be accomplished in OPENING statements:cPresent a clear picture of the case its major events, participants,instrumentalities, disputes and the interest of the jurors in your case and general theoryso that they want to hear your evidence.

2 If jurors become bored (orworse, if they become antagonistic), they may be inattentive whileyou present your rapport with the jurors, speaking to them as intelligent peopleand communicating your sincere belief in your cause. This continuesthe process of establishing bonds with jurors that was begun in thevoir the defense, the OPENING STATEMENT presents the opportunityto alert jurors that there will be two sides to the case so they donot make up their minds too trial practitioners assert that the OPENING STATEMENT is the mostunderrated and overlooked part of the case. While you may have been ableto begin to talk about your case in voir dire, this is your first opportunity topresent it as a cohesive whole.

3 While you cannot expect jurors to reach adecision in your favor based solely on your OPENING remarks, you can makeeffective use of the principle of primacy to begin this persuasion process. Toooften, lawyers squander this opportunity to present their theory and highlightthe pivotal evidence. Instead, they choose to read the pleadings, bury theimportant facts in a boring mass of trivial details, sacrifice coherence to plodthrough a witness-by-witness summary, ignore the facts in favor of broadgeneralizations, or waive OPENING OPENING statements are not arguments, although you occasionallywill hear them referred to as such. OPENING statements are supposed to belimited to informing the jury of the facts you intend to prove. The temptationto argue to discuss legal standards, debate the respective credibility ofwitnesses, make inferences, and speak in broad terms about justice and truth may be almost irresistible at times.

4 Not only is succumbing to temptationobjectionable; it may not be wise. After all, it was the evidence that convinced147 0001 VERSACOMP ( ) COMPOSE2 ( )07/31/02 (13:12) The Trial Process: Law, Tactics and EthicsJ:\VRS\DAT\03106\ --- --- POST1 1/1 you to go to trial, and it will be evidence that carries the jury. This is youropportunity not to tell the jurors that you have the evidence on your side, butto show them. As Lloyd Stryker, one of the great trial lawyers put it, Evidenceitself is eloquence, and the facts, if properly arranged .. will shout louderthan you possibly could. 1 The most common problem seems to be that lawyers cannot resist overstat-ing the evidence. Over 100 years ago, the first treatise on trial practicewarned:[Never] overstate the evidence.

5 Clearly right as this rule is, few aremore often violated. Advocates very frequently exaggerate, and theresult is generally disastrous, for jurors are quick to resent what theyconceive to be an attempt to deceive them. Not only this, but they arevery apt to think that all that is stated must be proved or else no casecan be made out, and when the proof falls short of the STATEMENT theyare quite likely to conclude that the advocate has no case. There isyet another reason supporting this rule, and that is this: where theevidence is stronger than the STATEMENT , the advocate secures creditfor modesty and candor, and these are great virtues in the eyes of thejurors. It is never to be forgotten in stating the facts that keen andhostile eyes are watching, and that an unrelenting enemy is on thealert ready and eager to expose the least misstatement or may be that the Roman priests were.

6 Able to deceive Jupiterby chalking over the dark spots of the sacrificial bull; but, if they were,he was not so keen-eyed as an opposing counsel is likely to be, forchalking dark spots in a STATEMENT of facts will not deceive will not supply the place of NOTEHow important is the OPENING STATEMENT ? In Charles Becton and TerriStein, OPENING STATEMENT , 20 TRIAL LAW. Q. 10, 10 (1990), appears thefollowing STATEMENT : Empirical studies conclude that after hearing openingstatements, 65 to 80 percent of jurors not only make up their minds aboutthe case, but in addition, in the course of the trial, they do not change theirminds. This oft-repeated assertion is false. See William L.

7 Burke, Ronald , and Michael J. Brondino, Fact or Fiction: the Effect of the OpeningStatement, 18 J. CONTEMP. L. 195 (1992). Jurors do not make up their mindsduring OPENING statements (before they have heard any evidence). This pieceof misinformation is usually attributed to the research of the University ofChicago Jury Project, but no actual source is ever cited, and all that theChicago Jury Project found was that the real decision is often made beforethe deliberation begins. Most jurors reach a tentative decision at the end ofthe trial, after closing arguments, and most verdicts reflect the majority stentative decision. HARRY KALVEN & HANS ZEISEL, THE AMERICAN JURY488 89 (1966). According to the late Hans Zeisel, no data were ever collected1 LLOYD PAUL STRYKER, THE ART OF ADVOCACY 53 (1954).

8 2 BYRON K. ELLIOTT & WILLIAM F. ELLIOTT, THE WORK OF THE ADVOCATE 206 07 (1888). 148 OPENING STATEMENTCH. 4 0002 VERSACOMP ( ) COMPOSE2 ( )07/31/02 (13:12) The Trial Process: Law, Tactics and EthicsJ:\VRS\DAT\03106\ --- --- POST21 1/1 that could support a conclusion that jurors make a decision after openingstatements. EXAMPLE OF AN OPENING STATEMENTIt is difficult to provide you with a representative OPENING STATEMENT ,because their length and detail vary widely with the complexity of the more complicated the case, the longer and more detailed your openingwill need to be. However, the following example,3 presents the issues dis-cussed in this Chapter , and should give you a feeling for the scope andorganization of a typical OPENING it please the Court, and you, Ladies and Gentlemen of the Jury:Our defense is that the witnesses for the State who have attemptedto identify Anthony Zirille are mistaken.

9 This man, Anthony Zirille,was nowhere near the scene of this hold-up when it occurred. As amatter of fact, he was more than 35 miles away. Like many a mystery,this one is a case of mistaken Zirille is a hard-working young man from Niles. He liveswith his mother and younger sister while he works two jobs to try tosave money for college. He wants to become the first member of hisfamily to attend college. All that is threatened now, because he findshimself accused of a robbery. But accusations are not evidence, andthe judge will instruct you that the state must prove his guilt beyonda reasonable doubt with will the evidence show? It will show that the crime wascommitted by two men who arrived and fled in a sport utility Zirille owns no will show that the hold-up men were armed.

10 Anthony Zirille ownsno gun, and no gun was ever found that can be connected to will show that the crime happened way down here [pointing tolocation on a map] south of the city on Western Avenue, aboutmidnight. At midnight, Mr. Zirille was at his second job at a tavernand restaurant on Deerfield Road in the town of Niles [pointing tolocation on a map]. That is about 30 miles northwest of the scene ofthe crime. Anthony Zirille s working hours at the restaurant were from6 to midnight. The testimony of the restaurant owner and twoother witnesses who were patrons of the place will be that on the nightin question, March 13, Anthony worked steadily from 6 o clock in theafternoon until midnight.