Chapter 14 Opening Statements
Library | How to Try a Murder Case: Pretrial and Trial Guidelines for Prosecution and Defense (ABA) (2011 Ed.) |
In some ways, homicide trials are like other trials. The prosecutor's opening statement should be the attention-grabbing trailer for the main feature film that follows. The best film trailers usually put the prospective audience in the critical moment within the film, seizing the viewers' attention with an action sequence that leaves them hungry for more, for the whole film.
The prosecution's opening statement should not be prefaced by an invitation to the jury to ignore the speaker ("Ladies and Gentlemen, what I'm about to tell you is not evidence, it is merely a road-map of the case to follow. We will first call Officer Smith who will tell you . . ."). If the judge is going to instruct the jury that statements of counsel are not evidence, there is no need to remind the jury that they are free to ignore you. In fact, the prosecutor's mission is to grab the jurors' attention and make them forget the instruction they just heard, to craft the most interesting film trailer possible—something that will compel them to listen, to buy a ticket to the movie, and to invite them to draw some initial, hard conclusions about the movie that they now want to see.
For a real life example from recent history, one need only compare the opening statements from the two O. J. Simpson trials—the losing prosecution and the winning civil suit. In the murder prosecution, the state opened its case by saying:
Your Honor, Judge Ito, Mr. Cochran and Mr. Shapiro and Dean Uelmen, to my colleagues seated here today in front of you and to the real parties in interest in this case, the Brown family, the Goldman family and the Simpson family and to you, ladies and gentlemen of the jury, good morning. I think it's fair to say that I have the toughest job in town today except for the job that you have. Your job may just be a little bit tougher. It's your job—like my job, we both have a central focus, a single objective, and that objective is justice obviously. It's going to be a long trial and I want you to know how much we appreciate your being on the panel. We appreciate the personal sacrifices you're making by being sequestered. We understand that can be difficult.1
This opening commits several cardinal sins. It is chatty and apologetic, and it tells the jury that the prosecution will have a difficult ("toughest job in town") time making its case. While this opening statement was only one of a series of blunders by the prosecution team (beginning with the decision to change the venue of the trial for political reasons), it certainly can be read as contributing to the final result—an acquittal.
Compare that opening to the one used by the plaintiff's attorney in the successful civil suit against O. J. Simpson.
On a June evening, the twelfth of June, 1994, Nicole Brown Simpson just finished putting her ten-year-old daughter, Sydney, and her six-year-old son, Justin, to bed. She filled her bathtub with water. She lit some candles, began to get ready to take a bath and relax for the evening.
The phone rang. It was 9:40 pm. Nicole answered. It was her mother, saying that she had left her glasses at the restaurant nearby in Brentwood, where the family had all celebrated Sydney's dance recital over dinner, just an hour before. Nicole's mother asked if Nicole could please pick up her glasses from the restaurant the next day. Nicole said, of course and hung up.
Nicole then called the restaurant and asked to speak to a friendly young waiter there. Nicole asked this young waiter if he would be kind enough to drop her mother's glasses off. The young man obliged and said he would drop the glasses off shortly after work, on his way to meet his friend in Marina Del Rey. The young man's name was Ron Goldman. He was 25 years old.
With the glasses in hand, Ron walked out of the restaurant to his apartment nearby, to change. He left the restaurant at 9:50 pm.2
The trailer has started setting the tone for the movie, personalizing the victims, outlining the events of the last evening of their...
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