February 26, 2021 Articles

Opening Statements in Criminal Trials: Characterizing Evidence and Timing

It’s not just a question of how, but also when.

By Cheryl D. Stein
Presenting evidence without an opening statement is like asking jurors to put together a jigsaw puzzle without the picture on the cover of the box.

Presenting evidence without an opening statement is like asking jurors to put together a jigsaw puzzle without the picture on the cover of the box.

iStock | Wavebreakmedia

Opening statements have often been compared to movie trailers: Both are intended to provide an overview of the story to be told, to pique the audience’s interest, and to highlight certain important elements that should receive particularly close attention.

It is generally true that prosecutors and defense counsel are not legally required to make opening statements in a criminal trial. It is a very rare case, however, in which it would be strategically wise for either not to open. The jury wants to understand what the case is about from the outset. A concise opening statement containing a clear outline of the evidence that will be presented gives the jurors a framework that helps them to assimilate the evidence. Asking the jurors to listen to the evidence without the aid of an opening statement is like asking them to put together a jigsaw puzzle without showing them the picture on the cover of the box. It can be done, but it is a much more laborious exercise.

Less obvious are questions of how to characterize the puzzle pieces and when to show the cover picture—both topics discussed in this article. 

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