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A prosecutor with 10 years experience offers useful bits of wisdom
concerning opening statements and final argument
Question: When do you begin thinking about your opening statement and final argument?
Answer: Because you’re doing so many cases back to back, you may not be able to prepare as much as you’d like or you should. Right now, I’m only doing child abuse cases and so sometimes you get a defense attorney who says that s/he's not going to take a deal (plea bargain), and you know that from the beginning. It depends on what your timetable is, how busy your docket is, and how much time you have to devote to preparing whatever you have set for trial. So generally your level of prep depends on how many cases you have set for trial. Some cases take longer to prepare, depending on how complicated the facts and evidence. One of the most important things in pretrial prep is organization so that when you’re in front of the jury you won’l lose your stride.
Question: When do you begin to prepare for trial?
Answer: Everybody needs to find his/her own comfort level. It depends on what I have going on and what I have set for trial. There is no cookie-cutter answer. You must take into account what’s going on in your professional and personal life. So, it really depends on when I prepare. Typically, by the week or the weekend prior to the week the trial is set, you need to be ready. There’s no set deadline time. There must be a measured pace you work at. Give yourself ample enough time to be competently productive.
Question: How and when do you (if you do) develop a theme of the case? Do you try and maintain that constant theme in both your opening statement and closing arguments?
Answer: When you’re preparing an opening statement, if you can discover a theme, that’s important. That’s where you have to use your creativity, and sometimes it’s very hard to come up with a theme. Pretend you're painting a picture or writing a book. Put a title on it. A lot of times you can work in the same themes again and again in similar cases. The themes must be consistent with the facts. for example, in a child abuse case you may have a defendant who is well-respected in the community. A lot of child abusers fit this profile. They’re people pleasers, they’re the type of person no one would expect to do that. In such a case, I’ll just say, "The abuser is constantly working to create that type of appearance because of the deep dark secret he has.” It's sort of a Dr. Jekyll and Mr. Hyde type of theme that I develop; the community gets to see the kind and benevolent Dr. Jekyll and the child gets to see the wicked, malevolent, venomous Mr. Hyde. One thing for the jury to get past in child abuse cases is the outward appearance of the defendant: It’s really hard to believe that someone who looks like my next door neighbor or my buddy that I have lunch with at work is really interested in having sexual relations or contact with children. My theme goes to the weakness of my case: It's that there are two sides to this person. In your theme, you use buzzwords, e.g. "nightmare” or “nightmarish.” You use these buzzwords throughout your argument. Another example, something you might use in a rape case might be “and the nightmare continued when he drug her into the house” and/or “she relived the nightmare when she had to have the rape kit done.” Another example, in a dope case, a theme might be “In the middle of a quiet community sits a den of poison!” or “taking back the neighborhood” or the amount of dope is “small but deadly” or “poisoning our children.”
Question: Do you talk to other prosecutor’s about your cases, and do you incorporate their ideas into your own?
Answer: Steal all that you can. If a good lawyer is making an opening statement and you can steal away for a few minutes to attend, do it. You'll generally hear or see something that you can add to your own kit bag. Find some colleagues to bounce things off of. You’ll have your own non-lawyer friends that you can go to and bounce things off of without violating any confidences. Most of your creativity is going to flow from the equity of your own sweat.
Question: How do you handle objections in either your opening statement or jury argument?
Answer: It depends in part on your relationship with the defense lawyer. When you're trying a case and you've got a good relationship with defense counsel, they’re not going to give you a lot of trouble about stuff you both know is petty. If you know me or my reputation as a prosecutor, you know I will try a clean case. You can protect your record by making objections in a civil manner, and you can make the same objection and be an ass in your manner. I suggest this to beginning lawyers: Always remember, regardless of what side of the table you’re sitting on, don’t be an ass. At times you do want to object if the other side is over the line. I know defense attorneys who object to break the prosecutor's rhythm, but that's a double-edged sword. Sometimes the facts are spun by the opposing side, and they seem to hurt, but you want to put your poker face on. As a prosecutor who has no right to appeal, deciding whether you have a valid objection to the defender's opening statement or jury argument is a real art,
Question: Does the identity or personality of the presiding judge affect your opening statement and/or jury argument?
Answer: You don’t need to spend much time considering this because the law on opening statements is the law. It won’t be a surprise. Some of the judges are quirky with what they'll let in and not let in. If, for example, you want to have visual aids to illustrate during opening, you’ll probably have to have to discuss it with defense and court to show that your visuals will be admissible at trial as real or demonstrative evidence.
Question: Same question as the last one, except does the identity or personality of the defender, your opponent, affect your opening and/or argument?
Answer: As for the defense attorneys, you have good attorneys and bad attorneys. Some of them will know the law and at times you push the envelope in opening between what is opening and what is argument. Technically, the opening statement isn't supposed to be argument. Of course, in a real sense the whole trial is argument. Your opening statement, even it it's all about the story of the case, is in part an argument about what happened. Just like every time the prosecutors you work with, they get to get up and talk to the jury, they want to impress them with their perspective, their command of the courtroom and their command of the facts. Whenever you’re speaking to the jury, you’re trying to, at the end of the day, convince them of your perspective. So while opening statement is supposed to be limited to what you expect the evidence will show, you want to frame it in the most convincing, persuasive manner possible.
Opening and Argument
Interviews
with
Prosecutors
copyright © 2009 Ray Moses
all rights reserved
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A prosecutor with six years experience shares some
suggestions on opening statement and argument
- Using phrases like the "evidence will show" or "everything I tell you about the facts of this case will be supported by the testimony of witnesses" or "you'll learn from the evidence" detracts from the story. These phrases take the jury out of the moment. Use one sentence at the beginning of your opening statement to make it clear that everything you say will be backed up by evidence. Don't say it again, unless opposing counsel's objection to "counsel testifying" is sustained.
- It's important in opening to get the attention of the jury quickly and then to tell the story of your case. Think about telling the story from a certain witness' perspective, e.g., the victim, the arresting officer, rather than from the bird's eye view of an all-knowing narrator.
- Never fake or over-dramatize.
- In cross, consider leaving a question with an obvious answer unasked so that you can use argue the answer as an obvious logical deduction or inference in closing, e.g., "Why didn't he call the cops after he had just been shot at? Because it didn't happen. We all would have called 911 if somebody pointed a weapon at us and shot."
- Possible case themes usually present themselves during pretrial preparation. Sometimes a better one may pop up during presentation of the case. Don't shoehorn a theme into a case where it doesn't fit.
- Use visual aids in a variety of forms and modes. Use a large paper-pad (flip-chart), a video platform, a monitor, blowup pictures, etc. If you have a blowup picture, walk it in front of the jury during opening or argument. Walk slowly along the jury rail and don't move the picture until the juror looking at it has moved his eyes from the picture.
- On the burden of proof beyond a reasonable doubt issue, prosecutors might say, " There is no definition of proof beyond a reasonable doubt, but if you know it in your heart and your gut, that's all you need. The issue of burden of proof boils down to a couple of simple questions: "Did this happen or not?" and "If it did, did the defendant do it?"
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A prosecutor with 10 years of experience
talks about opening statement and jury argument
Question: When trying a case as a second or first chair, do you watch your trial partner's opening statement and/argument, and do you watch the defense counsel during their open and close?
Answer: When you’re trying case with someone else and they’re actively participating, you’ve got to know exactly what they’re going to talk about ahead of time. Every time you appear in front of the jury, you want them to be impressed with the fact that you’re competent and confident with what is going on around you. With really good attorneys on both sides, it’s a wrestle for control of the courtroom. Make sure you’re confident, head up, shoulders back, eyes focused, not stumbling over words, poker-faced, and not reacting to things that hurt your case. By your courtroom manner and demeanor, you're trying to communicate to the jury: "I’m confident, and I’m right.".
Question: As a prosecutor, how do you react to or treat the defendant during your opening statement and/or jury argument?
Answer: Don’t be too respectful to the defendant. Note that this is not the case with opposing counsel. The defense counsel is "Mr. or Mrs. so and so." You don’t want to say Mr. or Mrs. Defendant or “this gentleman.” Refer to the accused generically as “the defendant” or use his/her whole name. Where appropriate, you can let jury hear your distaste or disgust with the accused. Be careful with sarcasm. Jurors don't like it. They say that sarcasm is the last refuge of the defeated wit.
Question: What do you do when their are facts in the case that are not favorable to you?
Answer: Let the jury know that you have some bad facts and you’re not afraid of the problems. In a child abuse case, I might tell the jury, "You’re not going to like what you hear from so and so or the way that they parent, etc." Make sure that you’re forthcoming with bad facts and try to find a way to spin them in your favor. To amplify the example, when I've got a dysfunctional parent as my witness, I might say, “You’re not going to like the way this person parents his child. You’re not going to like the things that went on between this person, the victim, and the defendant. In this kind of case, you’re not going to be surprised that there is dysfunction in the household.”
Question: Do you have a standard set of “stock” arguments that you use over and over?
Answer: You’re going to make a lot of the same arguments. In the opening, you’re going to do less argument and more storytelling. You’re couching your argument in the form most favorable to your interpretation of the facts, pointing your finger at the bad guy, and spinning the evidence your way. In argument you’re talking and trying to convince people more aggressively than you are allowed to in opening statement. But, after you have done this for ten years, you generally find that the arguments are the same, only the facts change.
Question: Do you try and memorize your opening or argument or do you use notes?
Answer: You never want to wing an opening statement or final argument. With opening statements, I never use notes. If I need notes for opening statement, I don't know the story of my case well enough to try it. With argument, I use notes because, although certain people will write their close beforehand, I find it’s not practical. The best trial lawyer in our office writes out her argument and practices her closing before every case. Theoretically, you can write your close before you try a case. You should know how most things are going to unfold. But, you can’t always anticipate everything the defense attorney is going to do, and that’s why you have to be ready to adapt. I’ll have notes written all over my pads, and I’ll take my argument notes with me when I rise to talk to the jury. We are allowed to move about the courtroom in argument. I'll put my notes, open to the first page, on the table in front of me and begin to talk to the jury. I may talk for five minutes just covering the material on the first page of my notes. During this time I never touch my notes. If I need to look at them, I'll pause and look at them. The silence won't bother the jury. Most of the time I won't need to look at them, but if I do, they are there. When I've covered the subject matter that's on the first page of my notes, I’ll flip it over, look at the next page and see what I’m talking about next. Then I'll move away from the notes and refocus on the jury. I'm never holding notes in my hands when I argue.
Question: Do you use visual aids?
Answer: If you have good visuals, use them. But keep in mind that if you use visuals, you’re going to have to visit with the defense attorney and the judge beforehand. I think visuals in the coming years or so are going to take off. People are going to become more familiar with PowerPoint and trial Director and Sanction, and there will be more “throw down” visuals so that prosecutors can take them from an inventory bank of pre-prepared hard copy and computer visuals, and you won’t have to do all the work yourself. The big offices will have trained electronic technology staff to prepare visuals ready for you. Juries are beginning to expect more and more of that because of what they’re seeing on television. Personally, I use them infrequently. It depends on what I use during the trials. Blowups of aerial maps are one of the things I like. If you have a case involving DNA, charts become important. If you got a victim who is sympathetic and is dead, their picture (when they were still alive) becomes very important. Also in conjunction with maps a good suggestion is, try and keep things familiar with the jurors, like landmarks that they will immediately recognize For example, use the name of a park instead of saying 4505 Fannin. Typically, you’re only going to have an address, and if you can give the jury something more tangible, e.g., the name of the neighborhood, it makes things more real.
Question: How do you incorporate physical gestures into your jury speeches?
Answer: Opening starts with, not only what you say, but also body language, eye contact, and how you move. Learn how to control yourself. Confidence is a big asset. You have to be comfortable with yourself and with talking to people. Sometimes an opening may have to be thrown together at the last moment - that’s a fact of life if you are just trying a bunch of stuff in misdemeanor court where you can't always be sure which case will be tried and the trial lasts less than a day. The last thing that comes is being comfortable with the topic you’re dealing with. You’ve got to get confident with your subject matter. That comes with being smart, getting ready, and getting out there and doing it.
There are certain mannerisms, if you listen to people who talk about effective speaking and body language. Sometimes if you want to make a point, you should get on your toes or holding your hand pointed. As for opening, you can stand and talk to the jury from one position. I think it’s distracting to pace up and down the bar in front of the jury the whole time you’re talking to the jurors.Some lawyers move around a la Colombo, but I would look like an idiot if I tried to do that. Other lawyers appear to be in control of the courtroom when they are there without moving around very much. So two different styles of movement may each be effective. As for me, I start off telling my story, and then I’ll take an “attention step” (a small move to the left or the right). Once I take this “attention step,” then I’ll tell them more additional facts.
Another thing, don’t turn your back on the jury, and try not talk all the time with your hands because when you want to make a point, and if you’re moving your hands all the time, then you’re going to not be effective with moving them when you really want to emphasize something important. Use your hands for emphasis. If you’re moving them all the time, you lose your ability to be effective with them. So, I might talk to the jury with my hands next to my side or clasped gently in from of my solar plexus. Sometimes I fight moving my hands too much. You want the jury to focus on the facts of the case and not on your flying hands.
Question: Do you pay attention to particular jury members when giving your opening statement or closing arguments, or do you focus on the entire panel?
Answer: It depends. There are times when you want to make eye contact with certain jurors. You’re going to solicit information in voir dire that you may want to revisit with that juror when you’re hitting on a topic that the two of y’all discussed during jury selection. You can look at that juror and loop what that person said in voir dire because you’re trying to firm that juror up. Also, you don’t want to stand on top of the jury bar because you lose perspective of your periphery. I generally stand back about six or eight feet.
Question: Do you thank the jury at any time during your opening statement or final argument for their time and service?
Answer: It depends on my feel from the jury. It’s a different group of twelve each time. I pay attention to the jury to see if they are very closed with their emotions. If I think they want to get it over as quickly as possible, I won't take up time with thank you's. If I think they want to hear a thank you from me, they'll get one. I think you have to consider, maybe intuitively, the dynamic that has been established in deciding if you’re going to thank them. I know some prosecutors and defenders who get up in argument and automatically thank the jurors for their service right at the beginning. I never do that at the beginning. Some prosecutors say “thank you very much for service, your attention and your patience" at the end, right after they ask for a guilty verdict. If I am going to thank them, I generally wait until the end to do it.
Your question doesn't directly ask about this but let me say that in opening statement and argument, you always want to have a good exit line that you’re comfortable with. Your exit line needs to be something that you’re not going to have to think about. It doesn’t have to be anything fancy. At the end of the opening statement prosecutors should always make a very brief plea for law enforcement. For example, a prosecutor might say, "At the end of the evidence, I’m going to ask you to hold the defendant accountable for what he has done, thank you.” or “At the close of evidence I’m going to ask you to return a verdict of guilty.” And, of course, you follow through with that at the end of argument by asking for a verdict.
Question: How does word usage affect your opening statement or jury argument?
Answer: You want to talk in commonalities. There is a broad spectrum of people that are left over when you and your opponent exercise your strikes of people that each of you would really rather not have on the jury. So you want to talk in commonalities that everyone on the jury can understand. You want to define technical jargon and legalese to make it easily understood by all members of the jury. Don’t leave the jury hanging out there with words that you have become familiar with that but that they can get confused with. Define things for them; for example, “turkey dope” is fake dope, not the real thing that gets passed off as the real stuff, usually in reference to crack cocaine.
Question: Do you change your tone or demeanor in your opening statement and final arguments?
Answer: You’ve got use inflection. You can use inflection to generate sympathy, to evoke different emotions, anger, sympathy, and compassion. You wouldn’t want to scream certain facts to the jury, and so you use inflection to stress certain points.
Question: Do you come out the gate in the opening as a gentle giant and then more accusatory than in the closing?
Answer: Yes. You’re considerably more aggressive in closing in terms of body language and what you’re saying than you are in opening statement. Opening is still important for perspective and you don’t want to over promise in opening, especially when you’re dealing with a child victim because you don’t know for sure what the child is going to say when s/he testifies. Also, you don’t want to provide too many details in opening. You’re giving a broad story because sometimes you get bamboozled by your witnesses. You don’t want to look like an idiot when you over promise on what your witness is going to say. Better UPOD (under promise - over deliver) than OPUD.
Question: In opening statements, do you address the burden of proof?
Answer: Never in opening statement. You should have talked briefly about the burden of proof and presumption of innocence in voir dire and gladly accepted them as the rules of court. In voir dire you might say, "The defendant is entitled to a presumption of innocence and I don’t want anyone deprived of that."or "Everybody accused of crime in this country walks into court presumed innocent. Can you promise me that you will afford the defendant with that right? Will you also promise me that if the State proves to you beyond a reasonable doubt that the defendant is guilty of what he has been accused of that you’ll return a verdict of guilty? You’re taking an oath to render a verdict that is consistent with the law and the evidence to a true verdict render consistent with the law and the evidence. Before you can get into that box, you have to be able to do that. You can hold me to my burden, but once I meet that burden, can you make me a promise that you’ll follow the law."
Then, in your final argument, you can say to the jury, “You made me a promise, every one of you made a promise. You took the oath to follow the law and to a true verdict render. I have met my burden, and I have proven to you thus and so …”
Question: Do you speak with jurors after a trial is completed?
Answer: When you’re a beginning lawyer, the jury will often have ideas for you. I have had several 11 to 1 hung juries, and I always want to know what went wrong. You learn things by talking to them. Even if it’s a guilty verdict, you learn what they deliberated over.
Question: Do you to watch other attorneys make opening statements and jury arguments (prosecution or defense) to gather ideas?
Answer: You bet. The really good ones I will watch as often as I can. It’s a great way to learn. Look for the close case where the lawyers on both sides are good. The slam-dunk capital murder case is not really worth seeing.
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A prosecutor of 30 years provides theses tips regarding
opening statement and jury argument
- Try to align yourself with the jury. Spend some extra face time establishing knowing eye contact with theones who you think are on your side. Don't write off the ones who seem uninterested in your spiel. Appearances can be deceiving. Of course, like any other endeavor involving groups, some people will like you and some people will not. Just remember that likability of the messenger is part of the persuasion formula.
- Don't start your opening statement by introducing yourself to the jury if the intorductionhas already been made, e.g., where you or the judge have already done this in jury selection or trhe judge has done it before openings begin. You don't need to do it again. To do so puts the spotlight on you and takes it off the story of the case. For defenders, I'd suggest this: If your client has not been introduced to the jury yet, you should definitely introduce him/her. If your client is half-way across the courtroom, have him/her stand up and come over to where you are standing for the introduction. You may even say a couple of complimentary biographical things about him/her provided that these facts will be proved by the evidence. If your client is already seated close to the jury, you can move to where s/he is, have him/her stand up, and introduce him/her to the jury from there.
- In argument, when you are going over the testimony, don't just repeat it in the "You heard witness one say blankety-blank, witness number two told you blanakety-blank, etc. Instead, tell the story of yiour case in storybook form. Try to pull the essence of your case together in one or two visuals.
- Always end your opening and argument on a high note. That means a healthy combination of logic and emotion.
- In jury argument, ask the fact-finder for the outcome (verdict or punishment) you want.
- Never try to wing an opening statement or argument. Each had to be well planned and organized. Practice your opening and argument the day before; it'll take a few hours to get it right.Then on game day, you will be ready.
- Look for a catchy phrase that you can use as a theme. Don't hesitate to filch (steal) someone else's theme if it works in your case. Ask your colleagues if they have any suggestions for a theme. Some of the best ideas get passed around and used several times.
- Start and end your case with your theme. That means you put it in your opening and argument. The jury never forgets a good theme, if it's apropos to the case.
- Don't argue in opening statement. Convince and persuade. Your goal is to lean the jurors in your direction from the start.
- In argument, don't hesitate to give the jurors well-deserved praise, but avoid syrupy flattery. Tell them you know they all have good common sense. Never talk above them on any issue, even if you think they should know all about it. If you patronize them (adopt an air of haughtiness toward any of them) or condescend them (appear to lower yourself to what you appear to think is the inferior level of any of them), they will dislike you.
- In delivery, use alliteration in your word choice. Use voice and volume fluctuation. Differ in your tempo and rhythm. You are not a disc jockey, but your voice is one of your major courtroom tools. A good voice will help keep the jury's attention.
- Avoid the overuse of notes while you are giving your opening statement and argument. When you have your nose buried in your notes or are reading from them it detracts from the appearance of sincerity. If you know your case, you don't need to read your opening or argument.
- Use visual aids in your opening and argument to bring your points home. You don't have to get fancy with it. Just use a dry erase board or a flip-chart and you are on your way. Average jurors aren't fancy people, and more than half of them probably don't know how to use PowerPoint.
- Always give an opening statement. Never waive your right. This gives you facetime to tell the jury what your case is about.
- When the other side objects to what you are saying in opening or argument, just pause, don't even look up, and continue like it did not bother you one bit...even if you lost on that objection. This shows that jury that the ruling had no effect on you either way.
- When giving your opening statement, remember, it is your client's case (the government) that deserves all of the attention and not you. It is not time for you to be an actor. If you are too slick you may entertain the jury, but they may not trust you.
- Listen to what the other side has to say in their statements, and then rebut. If you are a defense lawyer and the prosecutor has a closing shot at you that you are not allowed to rebut, you will have to make and an anticipatory reply, i.e., anticipate what the prosecutor is going to say in closing argument and refute it before it is said. With refutation/rebuttal you take the wind out of the other side's sails.
- Talk to the jury like they are normal human beings with feelings, and not legally trained robots. I like to approach argument as though I was talking to a good neighbor over the backyard fence.
- Prosecutors should call the defendant by his surname (last name) or simply as the defendant, not by his given name. Defenders typically refer to the victim (Thye call 'em the complainant.) by surname. This is less personal than their first name. You want to be polite, but you don't want to humanize the opposition.
- Study the basic objections that are available in criminal cases and read your jurisdiction's appellate cases about permissible and impermissible argument. When you object, do it powerfully and stand your ground, even if you are unsure.
- Practice, practice, practice and everything will fold into place!
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Interview with a Misdemeanor Court Prosecutor
Concerning Openings and Argument
QUESTIONS RE OPENING STATEMENT
Question: Do you always develop a theme in your opening statement, no matter what the case is about. When you use a theme in opening, how do you weave that theme throughout the rest of the presentation of your case?
Answer: By "theme" I assume you mean a catchy phrase or a snappy sentence that sums up the case. I don't always start with an explicit theme. Sometimes a theme will arise unexpectedly from the testimony. If you keep your ears open, it will be there. If so, I may have to mention it for the first time in argument rather than opening statement. If you can find a theme pretrial, and you can mention it in opening without sounding cheesy do it, but don't stress out over-developing a theme in opening. When you start trying cases, start
a list of generic themes. They often recur.
Question: How important do you believe the opening statement is, especially in typical misdemeanors like DUI (DWI)?
Answer: Always do an opening no matter what the case. Preparing it makes you think about your case pretrial and it gives the jury a road map and provides you more face time in front of the jury. It is one of four times you get to speak to the jury, the other three are voir dire and argument where you speak directly to jurors and cross-examination where you speak to them indirectly by testifying in your leading questions. I know some prosecutors are of the mentality that sometimes in misdemeanor cases it is a waste of time, but I always do one no matter what! I use it to bolster my case into a seamless story. I use it, without arguing, to educate the jurors a bit about the application of the law to the facts.
Question: How deeply and minutely do you delve into the facts in your opening statement? Is there any rule of thumb on how thoroughly a prosecutor should flesh out the story of the case in opening?
Answer: Don't ever overstate your case in opening. You'll probably have to eat your words. Give them just enough to want to hear more, but not so much that you totally give away every aspect of your case to the other side. Leave the jurors wanting more. You can foreshadow a key part of your case by telling them to listen in the evidence for much more crucial information about this key subject.
Question: Some of the evidence teachers tell us to use the phrase "the evidence will show" in opening statement to forestall an objection by the other side that you are arguing your case. To me that sounds kind of cold and disconnected. Is there a better way to approach it?
Answer: Don't slather your opening with a bunch of "the evidence will show" or facsimiles such as "you'll learn from the evidence," unless the opposition objects that your are arguing during your opening and the judge sustains. Those phrases detract from the smoothness of your storytelling, almost like commercials in the middle of a TV movie. It takes the jurors out of the moment. Of course, if you know from prior experience that the judge requires it, say it once at the beginning of your opening before you begin to tell the story of your case and not again unless required. As a prosecutor, you want the jurors thinking about what happened at the scene of the crime not what the witnesses are going to say in court. When you say "the evidence will show" you are telling the jurors what's going to happen in court and not what happened to bring the defendant into court.
QUESTIONS/ANSWERS RE JURY ARGUMENT:
Question: What is your procedure for preparing for jury argument?
Answer: Make a bullet point outline of what you plan to say in argument, but don't ever carry it or hold it during the argument because it will become a crutch and you will end up reading right from it. Reading your argument to the jury is the kiss of death.
Question: How do you prepare to attack what the defense attorney will say in his closing?
Answer: Listen carefully to what the opponent says during argument. Take brief notes of key statements of the opponent's argument so you can shove it back in their face on rebuttal. If you've taken notes of overstatements of what they will prove during their opening statement, you can also remind the jury of those broken promises or pledges in final argument. Sometimes the judge, even in misdemeanor cases, will give you a brief recess between the close of evidence and arguments. Use it to gather your thoughts about what you can say to refute the defense. In the worst case scenario in a misdemeanor case the judge may go directly from the evidence phase to the jury charge and argument without any break.
Question: What is your practice when it comes to objecting during the defense lawyer's opening and/or argument?
Answer: As a prosecutor I have no appeal from the judge's' rulings on objections during argument. The defense may get a reversal from what I say but it doesn't work vice versa. So I object to the defense argument as little as possible, unless what is being said really hurts my case in an legally unacceptable way. It looks bad for a prosecutor to be jumping up like a jack-in-the- box objecting to what is being said by the lawyer representing the accused person.
Question: Do you use visual aids during your opening and/or closing?
Answer: Not so much in opening and closing but all the time in direct and cross-examination. It is being done more and more in argument because we recognize that many jurors are visual learners. I would say if you use visuals during argument in a misdemeanor, use two or three. You don't have enough time to effectively use many more than that. Some very persuasive lawyers have prepared several PowerPoint slides to augment and supplement their oral presentation. Visuals can be very powerful, but don't ever rely on them to the exclusion of your oral words. I think you are using too many visuals if your jurors are looking at the visuals rather than at you for more than 25% of the time during your argument.You have to carry the water, not your visuals.
Questions: Do you use notes or do try to memorize the entire argument?
Answer: Even though misdemeanor arguments are short and I probably could memorize my argument, I don't try to memorize everything I want to say in the exact form I will say it. I do have several stock entrance lines and several stock exit lines that I use over and over. So I guess you could say that I memorize the first and last paragraph of my argument. I always want to start and end with power and not stumble in getting in and out. I don't wan' to start by saying "Where should I start?" and I don't want to end by saying "I can't think of anything else to say. So I guess I'll end here." But other than the entrance and exit lines, I deliver the rest of my argument extemporaneously in my own words. I always rehearse my argument a couple of times, and sometimes my delivery is almost exactly how I rehearsed it. But sometimes I wind up using entirely different words. The idea is to know the points you want to cover and have clear confidence from your rehearsal that you know how to communicate the important thoughts. If you melt down or have a brain fart, you can always take a glance at your bullet point outline to get back on track.
Question: How much time do you spend addressing the jury charge or court's instructions to the jury?
Answer: I always read the jury instructions very carefully to make sure they are correct. In fact, I have a notebook with the standard jury charges, prosecution and defense, that are given for the common offenses and defenses we see in misdemeanor court. I read the relevant ones before the case just to refresh my memory about what elements of proof will be be involved. But I don't really argue from the instructions to the jury unless there is really some complex legal issue such as the burden of proof the defense has regarding excuse defenses where they have the burden of persuasion. If I do that my goal is to make sure the jurors don't get confused about the elements of a crime or defense and the burden of proof. Sometimes,, by way of explanation I may relate the facts I've proved directly to the written words of the jury charge and check the elements of the offense off on a visual as I discuss how the evidence proved them.
Question: In this jurisdiction the prosecution is allowed to both open and close the jury argument. And the closing portion of the argument is not limited to rebuttal. That being the case, do you make both an opening argument and a closing argument at the end of the case.
Answer: As you say, In my jurisdiction, like many others in the country, the prosecution is allowed to open and close the jury argument. In all the other states I know of that have that system. the prosecution's closing is limited to rebuttal of the defense argument. Unlike those jurisdictions, in our state prosecutors are not limited to rebuttal in the closing portion of the argument. So here the prosecution doesn't have to give the defense anything to shoot at in opening jury argument. Frankly, because of this peculiarity in our law, in a very simple case I may waive the right to make an opening jury argument and reserve the right to close. If there are any complex legal issues, I may deliver an opening argument and try to help the jury understand the jury charge (instructions). But I always save the juicy argument for the closing. Of course, when you get the last word and the opponent can only object and not answer your argument, you're in a strategically strong position.
GENERAL QUESTIONS RE SPEAKING TO JURIES:
Question: Did you say earlier that you rehearse your jury speeches?
Answer: All the time if I have time. Usually, I will close my office door and just mentally go over what I want to get out and then give the argument orally. If not there, I may practice the argument at home. If I'm jammed for time, I do it in the car coming to work.
Question: Has it been beneficial for you to watch other attorneys make jury speeches?
Answer: Extremely helpful. Take advantage of this whenever you can. Watching other trial lawyers ply their trade gives you exposure to techniques that you might not have otherwise considered. When I know good lawyers are arguing in another court and time is available, I go and watch. It's like surgeons watching more experienced surgeons doing their thing.
Question: How do you incorporate physical gestures into your jury speeches?
Answer: This is something I don't like to think about too much during trial. I don't want to appear choreographed. But body language and gestures are a non-verbal way of communicating. The one thing I don't want to do is have my non-verbal communication at odds from what I am try to say orally. Everyone communicates non-verbally. For most people it is subconscious, but a lawyer definitely needs to avoid inconsistent and distracting mannerisms. One of the things you can do is make friend with the court bailiff and ask him/her to give you an honest critique at the end of every trial. They can often tell you bothersome things you do or say.
Question: Do you speak with jurors after a trial is completed? If so, what do you ask them?
Answer: I try to talk to the jurors. Sometimes they just want to get out of the courthouse. But sometimes they are more than willing to discuss the trial. Basically I ask them to critique my presentation and ask what if anything swayed them one way or the other. Then I let them ask me any questions that they may still have about the case. This is one of the best ways to get feedback on your performance and how real people, the ones you have to convince and persuade at the courthouse - not some suit who is judging you in mock trial competition, feel about your performance.
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INTERVIEW WITH A FELONY COURT PROSECUTOR
RE HER REFLECTIONS ON OPENING AND ARGUMENT
QUESTION: Some lawyers say you have won or lost case your case at the end of opening statements. What do you think?
ANSWER: I disagree with the notion that a trial is won or lost in voir dire or in the opening argument. The jury may start leaning your way early on, but I believe the jury continues to evaluate information throughout the trial.
QUESTION: How should the prosecutor deal with reasonable doubt?
ANSWER: Regarding the arguing of reasonable doubt, I start with this in voir dire. I begin by getting the juror to commit to finding reasonable doubt in a traffic violation and analogize that to a serious crime; they both have the same burden. I sometimes ask a rhetorical question like "How many jails are empty?" Thus, demonstrating that jurors find this burden of proof all the time in trials.
A phrase often used in our office when talking about reasonable doubt is "You will know it 'in your heart and gut'."
In cases that are serious and difficult, during my pretrial planning I will think of the facts of my case that will remove all reasonable doubt. At the end of the case I will use a flip chart or slides that list the ways I have proved all of the elements of my case. This is often a long list and visually powerful.
QUESTION: What about how you discuss the presumption of innocence that clothes the defendant?
ANSWER: Regarding presumption of innocence, I don't formally address this concept very often. Usually the judge does this, but if the judge doesn't say anything about it, I do. The way I do this is by saying that everyone has constitutional rights that men have fought wars over and how important they are. Sometimes I will tie this back into reasonable doubt with the "in your heart and gut" phrase letting the jury know that the presumption of innocence is what we call a rebuttable presumption that lasts only until the evidence shows the guilt of the defendant beyond a reasonable doubt.
QUESTION: How do you deal with informer testimony in jury argument?
ANSWER: I remind the jury that "crooks hang out with crooks." I may say, "If you're on your way to hell you're going to see the devil." I use these phrases when talking about the fact that the informer is often a criminal too. I will also say, "Who do you think the defendant chooses to confide in? Criminals like him." I may say something like "Even though the informer is a criminal what else do I do - let the defendant go?" When dealing with the issue of cooperating accomplice witnesses I do the same thing as I do with informer testimony.
QUESTION: What do you say about prior inconsistent statements that have been used by defense counsel to impeach your witness?
ANSWER: I remind the jury that everyone has memory lapses sometimes and that memories fade. If the witness made a prior statement and now is saying, "I don't remember.", I remind the jury that the witness may not have realized when making a statement to the police the amount of trouble he/she would be getting the defendant into and now regrets the statement made. Sometimes there is evidence that may allow me to ask the jurors to argue the distinct possibility that the witness has been intimidated to change his/her story and is fearful of retaliation for telling the truth.
QUESTION: How do you counter the defense argument that there has been eyewitness misidentification of the defendant?
ANSWER: As to the credibility of eyewitness testimony, I may argue to the jury, "It is common sense that when you are staring at a man with a gun pointed at your heart, you will always remember that face. This is a situation that sharpens the memory."
QUESTION: Do you have any favorite quotes that you use in jury argument?
ANSWER: A quote I like is paraphrased from Mark Twain: "When you're telling the truth, you don't have to worry about the details." On punishment, I also like, "Everyone screams for justice until they are charged with a crime, and then they cry for mercy."
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Questions posed to a felony court prosecutor
regarding opening and argument
QUESTION: How do you handle the definition of "reasonable doubt"?
ANSWER: I start out by saying, "Everyone's heard reasonable doubt talked about on TV. You know that I have to prove this case to you beyond a reasonable doubt. The funny thing is, we don't have a definition for reasonable doubt. The exact meaning of proof beyond a reasonable doubt is entirely up to you jurors. We do that the law is clear that proof beyond a reasonable doubt is not the same as proof beyond all doubt. If you'd actually seen it happen, that would be a situation where you would be satisfied beyond all doubt. You'd actually be a witness. But, of course, if you were a witness to the crime, you couldn't be a juror in the case. To answer whether the proof shows the defendant is guilty beyond a reasonable doubt, you may find it useful to ask yourself: Am I confident in my heart and in my mind that this person is guilty as charged?" [Note: Some defense attorneys will try to suggest that there is a legal definition of "reasonable doubt." This is fine if the legislature or high court of your jurisdiction has adopted a definition, but most jurisdictions shy away from it. Always be listening when the defense is arguing, and hit the defender with a misstatement of law objection if s/he tries to give the jury her/his own homegrown definition of "reasonable doubt" under the guise of it being an legal definition. For some reason, homegrown defense definitions make reasonable doubt it sound equivalent to "any" doubt".]
QUESTION: In argument, when do you discuss the jury charge?
ANSWER: Toward the second half of the argument. Jury charges can be wrong; so be sure to have a charge conference where you get to preview what the judge is going to say to the jury. When you talk about the jury charge, make it noticeable. Try to use the court's
copy or a copy that the jury sees you get from the court clerk or reporter. Position yourself so that the judge is in the background at some time when you are talking about the important parts of the charge. Turn and indicate the judge when saying "Judge Snuffbucket
tells you in his instructions that ..."
QUESTION: What do you do in your opening statement or jury argument that grabs the attention of the jury?
ANSWER: Opening statements are hard. You need to be thoroughly prepared and know the case. You are also giving the defense a preview of your case while you are telling the jury about it. For these reasons, some prosecutors will try and skip giving an opening statement. My motto: Talk to the jury every time you can. Don't ever skip your opening! Keeps it short and don't make too many promises. If you make too many promises, you'll get nailed with the ones you didn't keep and made to look foolish. It's called overstating your case. Try to tell a trial story with a central catchy theme that is the banner of your case, e.g., "This case is about (personal responsibility, someone who is just plain mean, doing what's right, etc. I present the opening in the same order as the case will unfold. But I try to do it in story form, not the boring old "you're hear the first witness testify blah, blah, blah…"
QUESTION: How about a tip on jury argument?
ANSWER: We get to open and close the jury argument. always give an opening and closing argument, sandwiching the defense in between. Have fun in your final argument. It's why you went to law school. Give it some life. Use your voice and word choice.The idea
is to persuade and refute the opposition. This is where you can really feel like a lawyer.
QUESTION: Do you have a favorite line, phrase or saying you've used in trial?
ANSWER: No, that's too scripted. [He may have had his fingers crossed on that last answer. I got the feeling he just didn't want to give up any gems.] I don't write out arguments. I don't want it to look too stilted. Don't let it sound like a memorized speech. No matter how good you are at doing it, the jury will see through it.
QUESTION: What is your style in opening and closing?
ANSWER: When I was just starting out: loud, aggressive, and boisterous. Bombastic maybe. Now with more experience, I try to be
very logical. I like to build my case brick by brick so that it all dovetails together.
QUESTION: Any last bit of advice for novices?
ANSWER: Be confident. The more you try, the more effort you make in preparing, the better you'll be in presenting. Also, things change so often during trial that you've got to be flexible. Try a few things from a good lawyer's style out for a little while. The more you
experiment, the more you'll gravitate to your own style. Keep trying cases. There is no substitute for performing in front of a real live jury. That's the great thing about prosecuting. There's always some new and interesting case waiting for you tomorrow.
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Interview with an Experienced Prosecuting Attorney
Re Opening Statement and Jury Argument
QUERY: What suggestions can you make about developing a personal style in jury arguments?
RESPONSE: More than anything, make sure that you develop your OWN style. Don't abandon your own personality to mimic the style of another lawyer, no matter how successful s/he may be. Jurors have a way of sensing that you are trying to act your part. How they know you are not being yourself is just human nature. We've all spotted phonies in the real world. That's what jurors do. Some, maybe all, of them will sense from what they see and hear that you are not being yourself, and this will work against you. Juries hate blowhards and gasbags. The best thing that a beginning lawyer can do is cautiously experiment until he/she finds a style that suits her/him. You can try to adapt some techniques you observe others lawyers do to your own style. But never try to transform yourself wholesale to match the personality of another lawyer. Take a look at Woody Allen's movie ZELIG; it's about the ultimate contortionist or human chameleon who changed personality and physical appearance, including ethnicity, to match those around him. In the end, if you are too fawning and obsequious or if you try to sugarcoat yourself to please all the jurors, you cease to be an individual.
QUERY: What are you most successful strategies for making an impactful jury argument?
RESPONSE: The first thing that you should do is develop a theme - brief explanation of why you should win the case. To do this, you should look at your facts as a whole and try to figure out what the story is for the particular case. You should then figure out how to tell that story to the jury in the opening statement, the evidentiary stage and the argument. As you tell this story in opening, you should remember what affects people the most -- human emotion. Play up the emotional aspects of the case to your advantage. For example, if you are prosecuting a child molester, really humanize the victim and emphasize the horrible breach of trust that lead to the abuse. Use a couple of visual aids to help tell your story, because this grabs the jury's attention. As you conclude your story in opening, be sure to end on an emotional high point to maximize the impact.
QUERY: How do you brainstorm for themes, phrases, proverbs, parables, analogies, metaphors, quotes, etc., to use in your jury arguments?
RESPONSE: Use your colleagues to brainstorm for specimens of eloquence. Figure out which two or three people in your office always seem to have good ideas, and bounce your proposals off them. These same people can also act as sparring partners and can play the devil's advocate when you rehearse your jury arguments. Also, ask court reporters for helpful tips. They may know of effective themes/word uses that other attorneys have used. Court reporters can also tell you the truth about any annoying habits that you have that may distract the jury. A court reporter cured me of cracking my knuckles during trial. A clerk told me I said "um" too much. She was right.
QUERY: Do you have any special tips for giving persuasive and convincing jury arguments?
RESPONSE: This is supposed to be the most exciting, moving part of your time with the jury. Lots of lawyers, defenders and prosecutors alike, drop the ball here. Be sure to have a firm grip on your entrance and exit lines, but deliver the rest of it in your own words straight from the heart. Ditch the notes. When lawyers use notes at closing, they lose the interest of the jury and the internal passion dies out of their voices when they dive into their notes. The idea is to give a planned argument in a style or manner that appears almost spontaneous. Never wing it with a totally impromptu jury argument. What you gain from the spontaneity you lose in having an argument without organization and structural integrity. The good argument is actually more extemporaneous than spontaneous. You've given some thought to it. Maybe even practiced out loud. On the other end of the spectrum, you' never try to memorize exactly what you're gonna say. In organizing the structure of my argument, I like to first use a strong statement of my facts, followed by a rebuttal or refutation of the other side's argument, followed by a final strong bulletproof and and moving conclusion.
QUERY: What is one big mistake that you've seen baby lawyers make in jury argument?
RESPONSE: I come from a jurisdiction where the prosecution gets to make an opening argument and also a wide open closing rebuttal argument. My advice is that it is a big mistake for prosecutors not to give an opening argument. Too many prosecutors waive the right to give an opening argument and simply reserve the right to give the closing where they unload on the defense. You should take every opportunity that you have to speak to the jury. When you sandwich the defense, you are really attacking from both sides. That's a good position as long as you don't get get hit by your own bullets. That means you opening covers the noncontroversial stuff, saving the fireworks for the closing portion
Also, baby prosecutors tend to be too rote in the delivery of their opening argument. Instead, these lawyers should try to tell a story rather than following some opening statement formula they've read in a book.
Finally, baby prosecutors spend too much time on the defendant's case and not enough time developing their own. Always remember where you have the burden of proof. If you have the burden, the defense is often using most of its time to take pot shots at your case. They spend most of their time tearing your case apart. You should spend most of your time showing that your story is impregnable.
QUERY: Can you recall any sort of effective demonstration that you've done or seen seen done in jury argument?
RESPONSE: There are a lot of things one can do. One of the most memorable I have seen was a slight-of-hand movement I saw done by a local defense attorney several times. In a case where he had the burden of proving an affirmative defense by a preponderance of the evidence, the attorney would approach the jury, pencil in hand. Then he flipped his pencil in the air. As the jury watched, he somehow managed to catch the pencil lengthwise on his finger, balancing it like a scale. The attorney then said: "When it comes to proving your case by a preponderance of the evidence, we have to prove our defense only by the greater weight of the believable evidence. The scales of justice don't have to move much. All that is necessary is that our believable evidence outweighs theirs by the weight of a feather. " He then moved his finger slightly so that the pencil tilted and fell. I don't know if it was effective, but his manual dexterity with the pencil certainly captured the jury's attention.
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A Misdemeanor Court Prosecutor's Insight into
Opening Statement and Jury Argument
Question: When do you begin thinking about your opening statement and closing argument in misdemeanor cases?
Answer: Honestly, in misdemeanor court, when you have five trials set on one day and not a lot of time to prepare, the answer is about 10 minutes before I give it, at least for an opening statement. Jury argument - I'm thinking about it as trial progresses - writing down argument points as trial progresses. Sometimes, if I know what case is going before hand, I'll spend more time thinking about some of the key points I want to hit in closing, jot them down, and stick them in the file.
Question: When do you begin to prepare for trial?
Answer: The moment a case is set for trial. At a minimum, I have to file subpoenas, motions, and begin to identify any problems that need to be fixed. Then there's usually a gap from the time I get all that done until the weekend before trial. The weekend before is when I'll work on developing a strategy, questions for direct & cross, any exhibits I plan to use, and a closing.
Question: How and when do you (if you do) develop a theme of the case? Do you try and maintain that constant theme in both your opening statement and jury arguments?
Answer: It depends, sometimes I'm really involved in a case, and I have a theme ready to go once the case is set for trial. Other times, it's a day before trial, sometimes the morning before trial, sometimes during trial. As for maintaining a theme from beginning to end, it's not as easy as it sounds. As a misdemeanor trial progresses, you have to be ready to adjust your theme. A lot of times, it's hard to get a clear, on target theme out in your opening statement (in part because judges want it short and want it limited solely to what you intend to prove). So in a typical DWI, I'll may wait and see how the case develops and what the defense attacks and then work a theme around that to use in closing.
Question: How do you handle objections in either your opening statement or jury argument?
Answer: Do I object to defense arguments? Only if the opposing attorney refers to something not in evidence or violates a motion in limine. Otherwise, I never object. As for defense objections to my arguments, I've come to expect them. That way, when it happens, I don't jump up and look all surprised. When it happens, I simply wait for the judge to rule and then continue as if it never happened.
Question: Does the attitude of the misdemeanor trial judge affect the nature of your opening and/or argument?
Answer: Yes, particularly with regard to my opening statement. What I learned in law school as it relates to opening statement is much different in practice. Judges want it short and nothing even slightly argumentative. If I'm going to put out a theme for the jury to consider, it usually has to be in about two sentences or less. On the other hand, in jury argument you can say a lot more in the nature of arguing the logical inferences that you want the jury to draw from the evidence they it has heard. You can help the jury understand how to apply the law in the instructions to the facts. If you can get along well with the judge and the judge knows you will stay in the record and make an argument that will pass legal scrutiny, there is a a lot of freedom in what you can say
Question: What do you do when you have bad facts in your case?
Answer: Hit them head on - I mean, beginning with voir dire of the jury panel. For instance, if I have a recanting victim in a assault on a family member case, I'm asking the venire panel why they think a victim would recant. Or if I don't have a scene video on a DWI case, I'm talking to the panel about it and explaining how they can still convict without those things.
Question: Do you have a standard set of "stock" arguments that you use over and over?
Answer: For DWIs, which you try a lot of in misdemeanor court, yes I do make some of the same arguments I made in one case in another case. That's natural because some of the same issues come up in most DWIs. Now do I have a script that I use, no. The standard arguments have to be adjusted or tailored to the particular case because no fact situation is exactly like another, but you do wind up arguing some of the same things in many of the cases
Question: Do you use visual aids?
Answer: During opening, no. During my case-in-chief evidence presentation, absolutely. And as many good ones as I can come up with. During closing - it depends. I try to use a couple of visuals. If you use too many visuals in argument in a ten, fifteen or twenty minute argument, they can be too much of a distracting crutch.
Question: Do you pay attention to particular jury members when giving your opening statement or closing arguments, or do you focus on the entire panel?
Answer: Both, but I try to make myself focus on each of the jurors. I may spend a bit more time in argument making eye contact with the jurors that I've felt aren't committed to my verdict.
Question: Do you thank the jury at any time during your opening statement or argument for their time and service?
Answer: No. I usually do that after the verdict - guilty or not guilty. As for closing, I sometimes tell them, "I'm not going to thank you folks for your time and service at this time because you are not done with your job. The most important part of your job has yet to be done - sorting through the evidence and arriving at the proper verdict based on the law the judge gave you and the evidence that was presented to you." I want the jurors to go back into the jury room knowing they still have a very important task to accomplish - finding the defendant guilty.
