when can a defense attorney make an opening statement

Once the jury has been selected, a criminal trial begins with the prosecution’s opening statement. After the prosecution opens, the defense has an opportunity to make an opening statement. A strong defense opening statement will do the following: Tell a story.

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What is a good opening statement for a defense attorney?

Sometimes it is the position of the defense that the defendant is not guilty of the charge as alleged, but is guilty of a lesser charge. (For example, my client struck the victim with a stick, but the stick was too small to count as a “assault with a deadly weapon.”)] CONTRADICT THE STATE’S THEORIES: A common defense attorney strategy in opening statements is to start …

What is an opening statement in a criminal case?

In a typical criminal trial, after they have selected the jury, the prosecution and defense have the opportunity to give an opening statement. (For information on jury selection, see Jury Selection in Criminal Cases. To read about closing argument, see Closing Argument in Criminal Trials .) The opening statement allows both sides to give the judge and jury an overview of the case, …

How do you write a mock trial defense opening statement?

Apr 20, 2020 · An opening should establish the credibility of the attorney giving it so the jury is persuaded to trust the testimony, documents, and other evidence eventually offered for its consideration. An opening statement is a factual narrative that should last no longer than is needed to keep the jury’s attention.

What happens if a lawyer goes too far in an opening?

In the opening statement, a lawyer should provide the jury with a theme that will serve as ... a defense lawyer’s theme may focus on an employee’s “refusal to accept his own failure”. Perhaps the ... Despite the rule against arguments in opening statements, lawyers still can be persuasive.

Who makes opening statements first?

An opening statement is made by the attorney for the plaintiff. The attorney for the defendant may then make an opening statement. The purpose of opening statements is to outline to the jury what each side contends the evidence will establish.

What do the lawyers for the defense attempt to do during the opening statement?

A common defense attorney strategy in opening statements is to start critiquing the state's case, and letting the jury know that there are two sides to the story. ... In theory, you can reserve your opening statement until after the prosecution has rested, but this is rarely done (particularly in mock trial competitions).

What is a defense opening statement?

The opening statement is the lawyer's first opportunity to address the jury in a trial. Generally, the party who bears the burden of proof (plaintiff in a civil case or prosecution in a criminal case) begins the opening statements, followed immediately after by the adverse party (defendant).

What makes a good defense opening statement?

A strong opening statement will use catch-phrases that will characterize the defense. For example, informants “sell their testimony”; the prosecutor “holds the jailhouse key”; the defendant was “in the wrong place at the wrong time”; the alleged victim “started the fight and the defendant ended it.”

Are opening statements considered evidence?

The lawyers each make an opening statement outlining what they intend to prove. Jurors should understand that these opening statements are not evidence. Afterward, the plaintiff is usually the first to present evidence to support his or her position, and the defendant follows with his or her evidence.

How do you structure an opening statement?

Opening Statement ChecklistState your theme immediately in one sentence.Tell the story of the case without argument.Persuasively order your facts in a sequence that supports your theme.Decide whether to address the bad facts in the opening or not.Do not read your opening statement. ... Bring an outline, if necessary.More items...•Oct 30, 2015

What does an opening statement and attorneys explain in an opening statement?

Opening statement: The opening statement is the time during which the attorney may speak to the jury and describe the case. ... It is during the opening statement that attorneys will tell the story of the case and what they hope to prove using the evidence that will be presented.

What are examples of opening statements?

Opening statements include such phrases as, “Ms. Smith will testify under oath that she saw Mr. Johnson do X,” and “The evidence will show that Defendant did not do Y.” Although opening statements should be as persuasive as possible, they should not include arguments. They come at the end of the trial.

Can you discuss the burden of proof in opening statement?

The purpose of opening statements by each side is to tell jurors something about the case they will be hearing. The opening statements must be confined to facts that will be proved by the evidence, and cannot be argumentative. The trial begins with the opening statement of the party with the burden of proof.Nov 28, 2021

How do you prepare for a mock trial?

Tasks for each side:Develop a theory of the case. Brainstorm. ... Identify case themes. Brainstorm as many as possible. ... Create opening statements, directs, crosses, closing arguments, and witness profiles using: Timeline. ... Identify evidence to try to keep out.Create a Master Trial Notebook which contains the following:

How do you write a defense statement for court?

How to write a defence?Defendant should reply on each allegation in particulars of claim. ... As well as a particulars of claim, defence must contain statement of truth.It is up to claimant to prove his position, that's why defendant may ask to provide solid proof for each allegations it wasn't stated in claim.More items...

How do you write an attorney closing statement?

Generally, closing arguments should include:a summary of the evidence.any reasonable inferences that can be draw from the evidence.an attack on any holes or weaknesses in the other side's case.a summary of the law for the jury and a reminder to follow it, and.More items...

What is the best defense strategy for opening statements?

A common defense attorney strategy in opening statements is to start critiquing the state’s case, and letting the jury know that there are two sides to the story. Studies show that jurors often make up their mind about a case right after opening statements, so you need to start strong. Also remember that as a defense attorney, you ...

When can you reserve opening statement?

So take the opportunity to shoot holes in their case. In theory, you can reserve your opening statement until after the prosecution has rested, but this is rarely done (particularly in mock trial competitions).

Do lawyers have to cover all of the time restrictions?

However, it also does seem like there are some inconsistencies that are not terrible relevant, and you do not have to cover all of them due to the time restrictions. Even in real trials, lawyers make tactical decisions to not cover everything they possible could due to the limited attention span of jurors.

What is the opening statement of a case?

The opening statement allows both sides to give the judge and jury an overview of the case, including what they plan to prove and how they plan to prove it (what evidence they will offer in support of their claims). Prosecutors and defense attorneys generally have considerable latitude in what they're allowed to say in opening statement.

What happens if a lawyer goes too far astray in an opening statement?

Intervention. If a lawyer goes too far astray in an opening statement, opposing counsel can object—if the objection is proper, the judge will cut off the lawyer and potentially admonish the jury not to consider what he or she just said.

What does a prosecutor say about escaping prison?

A prosecutor commented that the defendant had escaped from a prison camp shortly before abducting the victim. Even though evidence of other crimes by a defendant aren't usually admissible, the prosecutor had a reasonable expectation that evidence of the escape would be admitted.

Can a defense attorney argue in an opening statement?

Prosecutors and defense attorneys generally have considerable latitude in what they're allowed to say in opening statement. That said, they're not allowed to "argue" (argument is saved for closing), nor are they allow to refer to inadmissible evidence or facts they don't intend to or can't prove.

What is the opening statement?

An opening statement is a factual narrative that should last no longer than is needed to keep the jury’s attention. An opening statement is a factual narrative that should last no longer than is needed to keep the jury’s attention. It should preview, in an understandable way, the anticipated testimony and evidence.

What is the importance of an opening statement?

An opening statement, therefore, needs to be carefully planned. It should offer an understanding of the dispute and the parties involved in it. It should give an overview so the jury can better understand the evidence that will later be presented. An opening should establish the credibility of the attorney giving it so the jury is persuaded to trust the testimony, documents, and other evidence eventually offered for its consideration.

What should a trial counsel do after introducing the theme?

After introducing the theme, trial counsel should present the client’s case in the best and most accurate light possible, telling the story in a way that will make the jury want to decide in the client’s favor. Jurors often base their decisions about disputes on the impression received during an opening statement.

What happens if a plaintiff's counsel introduces bad facts?

If plaintiff’s counsel introduces the bad facts about the plaintiff’s case, defense counsel may not need to address them, or defense counsel may need to clarify and put them in what he or she regards as the more proper context. Addressing a bad fact out of context, however, can lead jurors to give it undue weight.

What happens when a lawyer reads only from notes?

When lawyers read only from notes or fumble for words, they appear unprepared, and opportunities are lost. Trial counsel should be well prepared and make eye contact, leaving the jury with the impression the attorney is pleasant, professional, and competent, and knows the facts and believes in the client’s case.

Why should an opening be given to the jury?

An opening should establish the credibility of the attorney giving it so the jury is persuaded to trust the testimony, documents, and other evidence eventually offered for its consideration.

Why is an opening important?

An opening should order important facts to support the dispute’s theme. A successful opening also will tell an engaging story from a client’s perspective, describing logically what happened. Chronological organization is often employed because jurors may have an easier time following a linear story.

What is the opening statement of a trial?

The opening statement is one of the most important components of any trial. It is your first opportunity to present the case to the jury, and to shape the jury’s perspective of the entire trial. The opening statement also is your first opportunity to present yourself to the jury, and to establish the kind of credibility that will persuade jurors to trust the testimony, documents, and other evidence that you eventually will submit for their consideration. A superb opening can set you on a path toward winning the case, but a disastrous opening may be difficult to overcome. Thus, the content and the presentation of your opening statement must be developed with care.

How to convince a jury to like your client?

Use the opening as an opportunity to persuade the jury to like your client. Explain your client’s motivations, and give the jury reasons to feel camaraderie with your client. If you represent an individual plaintiff, convince the jury of your client’s integrity, and persuade them that your client is not just out to make an easy buck; rather, your client suffered real harm. Obviously, a lawyer representing an individual against a corporation may have an easier job personalizing the client, but a management-side lawyer can personalize their client as well, and the need to do so cannot be underestimated. For example, rather than focusing on the corporation itself, a management-side lawyer should tell the jury about the people who comprise the corporation – the relevant supervisors, the human resources representative, and/or the company’s owner. Familiarize the jury with these individuals’ names, and their roles in the drama, so that the jury will be considering the actions of people versus people in the case, rather than a single, sympathetic plaintiff against a huge, faceless corporation.

Do you waive the opening statement in a bench trial?

Lawyers often agree to waive the opening statement in bench trials, but waiving the opening generally is not a wise move. Just like jurors, a judge needs an overview of the case before the evidence is presented, so that the evidence will have some context. Thus, unless the case has been assigned to the same judge for a long time, and you are certain the judge (and the judge’s clerk) knows your case extremely well, do not waive the opening – just make it shorter and less dramatic. Also, feel free to address more law during your opening in a bench trial. Clarify for the judge what legal questions will govern the case, and what standards the judge will need to apply.

How long is the opening statement in a bench trial?

Usually for a bench trial, the opening statement is less than one half in length , and less time is put into the planning because judge’s don’t value the opening as much. But I do think you want to let the judges know what your strong points are ahead of time, much like a jury trial.

What is the job of a defense lawyer?

The defense lawyer’s job is to make sure that his or her client gets a fair trial, and that means that the defense lawyer must advocate for the client’s point of view. An mock trial opening statement is scored both on the content and also on delivery.

What is the difference between opening and closing?

The main difference is that an opening is an opening statement, but a closing is a closing argument. So the opening is not the opportunity for you to argue your case. Rather it is the time to tell the jury what evidence you believe will be presented so they know what to look for later on throughout the trial.

What happens when a defense lawyer is acquitted?

Usually when a defendant is acquitted (found “not guilty”), the jurors make that decision based on the fact that there was some small measure of doubt in their minds as to the defendant’s guilt.

Is opening statement important?

Yes, it is an important distinction to make. Opening statements are for outlining your case or “telling a story”, and closing arguments is for summing up your case and arguing. However, sometimes I will sometimes sneak a little arguing into my opening.

What is the opening statement?

The opening statement provides the first impression of the case and shapes the impressions of the jury. The opening statement provides the first impression of the case and shapes the impressions of the jury. An opening statement forecasts to the jury the evidence they will see and hear during the trial—it allows the jury to know what to expect ...

What makes an opening statement effective?

Themes and storytelling are what make opening statements engaging and effective. The story of the case tells the jury what happened chronologically either from the viewpoint of the plaintiff or defendant. When giving an opening statement, the lawyer should place her side in the best possible light and tell a story that will make ...

Why should lawyers engage their audience during trial?

Lawyers should engage their audience during trial, and effective themes combined with engaging stories can fight juror boredom . Lawyers have a better chance later of persuading the jury if the jury likes their opening statements.

Why did Sarah Sanders and her son separate?

They separated a few weeks ago because the Respondent began drinking much more than usual, threatening her life, insulting her, and encouraging the kids to join him. That is why we are here today, ladies and gentlemen of the jury.

How do lawyers connect with jurors?

Lawyers can connect with the jury by telling an enjoyable story. These stories are persuasive and become embedded in a juror’s mind when they make sense, are stated in plain language, and have a beginning, middle, and an end. For example, tell the jury how they will learn about the plaintiff’s lack of knowledge.

Why do lawyers have one sentence themes?

Emotionally based themes often serve as anchors, creating impressions for the jury that linger until the time the verdict is decided. Themes keep the jury’s attention and help them organize information.

What does a lawyer do when a plaintiff introduces a bad fact?

A lawyer must essentially make a determination on a case-by-case basis as to whether to introduce the bad facts. If plaintiff’s counsel introduces the negative information, it may not be necessary for defense counsel to bring it up again in her opening statement.

Why do defense lawyers reserve opening statements?

Nevertheless, some defense lawyers may prefer to reserve opening statements because they will have the benefit of hearing the plaintiff’s evidence before deciding exactly what to say. ...

Who makes the opening statement in Ohio?

In Ohio, Ohio Revised Code §2315.01 mandates that an opening statement be made by both the plaintiff and defendant. Under case law construing that section, however, a defendant may move the court for permission to defer its opening statement until the conclusion of plaintiff’s’ evidence.

Who must make an opening statement in a prima facie case?

In some jurisdictions the party with the burden of proof, normally the plaintiff, must make an opening statement that demonstrates a prima facie case. In others, there is no legal requirement that either party make an opening statement.

Why reserve opening statement?

Reserving the opening statement in such a situation will prevent the plaintiff from altering its case in chief to blunt the anticipated defense. The defendant might also reserve his opening statement when he has more than one defense to raise, and cannot make up his mind which one to raise until he has heard the plaintiff’s case in chief.

Mary Dawn Beebee

Whether or not to defer the Opening Statement is a decision that is best left up to your defense counsel. If you feel you need to continually second-guess your attorney, then you need to get another attorney.#N#I have practiced criminal defense law for over 25 years and I have done trials both ways for various reasons involving trial stategy.

Andrew Michael Limberg

The consensus among defense attorney is to never defer an opening statement because, as you correctly pointed out, juries form strong opinions early and the defense needs to give them it's strategy to keep in mind from the start of the trial.

Barry Franklin Poulson

I have attended the Michigan Criminal Defense Attorney (CDAM) trial college trial and advanced track and Death Penalty training at Gerry Spence's Trial Lawyer's College in Wyoming. NEVER has there been a suggestion to defer the opening.