Opening Statements and Will I Tip off the Government as to my theory of defense

How much detail should you reveal in your opening statement?

Some lawyers fear revealing their defense in the opening statement and allowing the Government to adjust their case based on the opening. That can occur; what I do to prevent that is focus on the facts that I know for sure I can prove in the opening, that the Government cannot dispute. Having a motion hearing, allows a lawyer to give a more detailed opening statement because the testimony is locked in.

I prefer to make as detailed opening statement as I can.  I do not believe in the theory of holding back for fear of tipping of the Government for a few reasons; first, the Government, likely knows your theory of defense.  Second, when you leave things out, you do not deliver as effective and confident opening statement.  The more facts and details you can get into from the start the better.  There has been research showing that a jurors begin to decide cases immediately.  Most believe that by the time the Closing Statements are delivered, most jurors would know how they are going to vote.  It is important to start getting jurors to accept your theory of the case from the start of the trial.

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Two recent high profile criminal trial showed some excellent techniques for opening statements.

The first was the Owen Labrie trial; I liked how the defense attorney described a Trial as a miniature event in someone’s life.

I thought that phrase was a good way to suggest to the jury that this was an isolated incident in someone’s life.  In the Labrie case, I think the defense was suggesting what happened was a misunderstanding that his client regretted and not a criminal act.

Though convicted of a serious crime, the evidence in the case suggested it happened in a short period of time.  In a DUI case, we are looking at how someone reacts to the pressure of dealing with the police and performs on physical exercises.  What we often do not know is the level of anxiety, the degree of fear of the police, sense of intimidation when unsure of what is next, but the police suggest that how some one performs on those exercises is a good indication of whether they are drunk.  Can we really make that judgement about someone in a split second and pin our entire opinion on such a short snap shot?  I think the challenge in opening and closing argument is to bring that fact out.

In the Aaron Hernandez opening statement, the defense lawyer mentioned his grandfather’s watch and said you cannot really have a good handle of evidence unless you inspect it.  The watch appeared simple but when you look close you can see it was intricate.  He urged the jurors to examine the evidence carefully as he was asking the jurors to think more critically about the evidence.

A few days ago, my daughter was playing with a quarter that dropped on the floor; I spun it.  Her eyes lit up, never having seen that before.  She tried to do it but could not spin it.  That is sort of how are clients are with field sobriety tests.  They are not really sure what to do but judged harshly if they cannot get it perfect.  As lawyers the essence of our job is to tell creative stories to help the jury advocate for our viewpoint in the deliberation room.

For further, reading you can see Attorney DelSignore Blog on tips for being a top DUI Lawyer.

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