November 17, 2020 Articles

Dos and Don’ts of Evidence-Based Opening Statements

An accessible guide of what to do and what not to do in opening statements from the perspective of an experienced criminal defense attorney.

By Ezekiel E. Cortez

It was the best of times, it was the worst of times. . . .
—Charles Dickens, A Tale of Two Cities (1859) 

In the opening statement to his masterpiece, Dickens may have arguably (pun intended) violated the most sacred rule, or the biggest “don’t,” of opening statements: Don’t argue your case during opening.

In opening statements, we are instructed to give the jury only a “road map of the evidence.” That directive can be limiting and stifling of our roles as advocates who must persuade and win over the jury from the opening. And so this brief article is written as an accessible guide to some dos and don’ts for non-argumentative exploitation of evidence during openings. It is written from the perspective of a battle-tested trial advocate devoted to federal criminal defense, but the principles can be applied in trying cases in other areas of the law.

Even during the start of my first jury trial back in 1984, one of the very best of trial judges cautioned, “Counsel, I don’t want to hear any arguing of your case during your openings. Just tell the jury what evidence you have.” Though, as a defense attorney, I had no duty or burden to have any evidence, I understood what the good judge expected. Explicit argument was then, and is to this day, forbidden. E.g., United States v. Dinitz, 424 U.S. 600, 612 (1976). In Dinitz, the Supreme Court stated:

An opening statement has a narrow purpose and scope. . . . It is to state what evidence will be presented . . . , and to relate parts of the evidence and testimony to the whole; it is not an occasion for argument. To make statements which will not or cannot be supported by proof is, if it relates to significant elements of the case, professional misconduct.

In preparing your opening statement, you need to first plan your opening from the perspective of the evidence that you know will be admissible or is very likely to be admitted. For this simple reason, the dos and don’ts for opening statements in the suggested partial list that follows are based on the Federal Rules of Evidence.

Dos

1. File in limine motions (Rule 104).

It is here where you may control, or at least find out, the specific evidence that your judge will allow and that you can best use in your opening. Without a pretrial ruling on the specific evidence that will come in, you may in part be flying blind with respect to controversial pieces of evidence.

2. Identify powerful pieces of evidence for opening (Rules 401 and 402).

Not all evidence in a case is equal. Some items are powerful facts or documents that can be highly persuasive in opening without being argumentative. These are the tools you can use to “show” and not simply “tell.” Each case will have some of these tools. The best for you may be found in your adversary’s arsenal. Steal your adversary’s thunder and you will be on your way to persuading the jury from the opening.

3. Prepare demonstrative evidence for opening (Rule 611(a)).

Once you have identified evidence that is persuasive in itself, convert it to a demonstrative, such as in a PowerPoint or mounted on an enlarged foam-core board, and then use it to persuade without arguing. Think of a photograph of a scene that powerfully shows the theme of your case. Or a piece of evidence that detracts from your adversary’s theme. Of course, be mindful of any court rules and procedures concerning demonstratives, such as providing an opportunity to opposing counsel to review and raise objections before you make your opening.

4. Have a list of the supporting Rules of Evidence for your objections and bases for admission.

Once the drama and breakneck speed of the jury trial begins, you will need a user-friendly list of Rules of Evidence you anticipate will surface in the midst of trial. Think of all objections that your adversary’s evidence will trigger and the rule supporting each objection. Also think of all supporting rules for the evidence you will want to introduce or highlight. Having these ready before your opening will help you to address any potential objections on the fly and to raise objections during your adversary’s opening if that makes strategic sense in your particular case.

5. Plan to use at least one of your adversary’s pieces of evidence.

Over the decades of trials I have had and those I have observed, one persuasive principle keeps emerging: To persuade, use a piece of evidence to which your adversary has committed in his or her opening (or evidence you anticipate that your adversary will use in his or her opening if you are the plaintiff in a civil case). This is not difficult to do. Just refer to it; politely ask counsel to provide it to you and note, without arguing, how that piece of evidence does not really say what your adversary said it says. You can even do this with your adversary’s PowerPoint if necessary. Be creative and polite as you do this. Once evidence is published, it is up for grabs.

Don’ts

1. Don’t forget to identify evidentiary issues.

In an anecdotal survey of 14 colleagues of varying levels of trial experience, when asked what aspects of evidence enter their planning of their opening statement, only three (two were prosecutors) said that they considered evidence issues for opening. If you are the defense, never promise to introduce any specific evidence during opening. It is imperative that you take time to identify evidentiary issues that will or may surface in opening.

2. Don’t promise testimony of a witness.

As the criminal defense, even if you are sure you are calling a particular witness, never promise it during opening. Things may change radically during trial. And do not promise in opening that you will prove anything; you don’t have any burden to prove a thing (of course, you will need to adjust this accordingly if you are the defense in a civil action and have a burden concerning an affirmative defense or a counterclaim).

3. Don’t forget to study the exhibit list.

Where there will be an exhibit list before trial begins, study it closely for admissibility issues. Even rulings on in limine motions can change during the testimonial phase of trial. Surprisingly, many lawyers overlook this critical part. You want to keep in mind evidentiary issues from opening through closing.

4. Don’t forget to inspect evidence at the end of trial and before closing.

This is not necessarily a “don’t” for the opening statement per se, but it is something to be done as a general matter, and specifically in connection with your and your adversary’s opening statements. It is not uncommon to have pieces of evidence that your adversary never actually introduced during the trial phase, and you will want to be sure that you proffered whatever you needed. If your adversary promised something in his or her opening and failed to adduce evidence at trial in support of that promise, be sure to point that out to the jury in closing. Likewise, make sure you introduced all of the exhibits you needed in order to follow through on anything you said in your own opening statement. Any evidence that was not introduced should not go to the jury. And once your Federal Rule of Criminal Procedure 29 motion for judgment of acquittal has been denied for the second time, no additional evidence should be allowed.

This simple list is focused on only the opening statement. It is limited only by your specific issues and by your imagination and creativity.

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Ezekiel E. Cortez

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Ezekiel E. Cortez is the owner of the Law Offices of Ezekiel E. Cortez in San Diego, California.

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