Studies show that upwards of 80 percent of juries make up their mind after opening statements[1]. Therefore it is important to give a strong opening statement. In all my criminal defense trials I use the following four-step opening statement.
STEP ONE: WHAT IS THE CASE ABOUT
The first thing I tell the jury is what the case is about. This is based on my overall theme of the case, which I try to limit to one or two brief sentences. (i.e. this is an argument not an assault). Some attorneys will start their opening with "this is a case about..."[2].
STEP TWO: WHAT HAPPENED
Next I tell the jury what happened without referring to any evidence. Some attorneys refer to this as the "theory of the case." This is the defendant's detailed version of the events. There is no need to retell damaging facts unless you can minimize them or explain them away.
During step 2 (the detailed theory of defense) your opening statement speak in the present tense. Hearing the events as if it’s happening in real time will connect more with jury.
STEP THREE: EVIDENCE THAT SUPPORTS YOUR "THEORY OF THE CASE"
Next I state the evidence that supports my "Theory of the Case." I usually go over the specific events that are important, and state the evidence that support those events.
STEP FOUR: WHY THE GOVERNMENT'S CASE DOESN'T HOLD WATER
Next I state why the government's case is not supported by the evidence. At this point the government will have already told the jury their "theory of the case" or version of the facts. I again I highlight the critical points of the governments case, and state why the evidence does not support those facts.
ARGUING IN OPENING STATEMENT
We all know the rules of evidence do not permit arguments in opening statements. However, as a matter of practice attorneys often do make arguments during their opening. I have used this method in almost all my criminal opening statements, and I have never drawn an argumentative objection. For a better analysis on how much an attorney can argue in opening statement see from O.J. to McVeigh: the Use of Argument in the Opening Statement, 48 Emory L. J. 107 (1999).
CONCLUSION
If you follow the above steps in your opening statement, it should allow you to quickly prepare your opening in an organized persuasive manner, without drawing any objections.
