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.