➡️ Katie’s Sidebar: A (non-exhaustive) List of What I Am Looking for in tomorrow’s Opening Statements? 👀
• As a housekeeping matter: how long will Judge Merchan give both sides to do Openings? My best guess is 60-90 minutes for each side.
(Remember court recesses early at 2 pm ET tomorrow and Tuesday, and the prosecution said they’re putting on a witness tomorrow. So Merchan will want to move things along.)
• As a housekeeping matter: how long will Judge Merchan give both sides to do Openings? My best guess is 60-90 minutes for each side.
(Remember court recesses early at 2 pm ET tomorrow and Tuesday, and the prosecution said they’re putting on a witness tomorrow. So Merchan will want to move things along.)
• Themes: I cannot stress this enough. Themes are *so important* because they give the jury something to relate to/connect with when listening to the evidence and it helps jurors follow your theory of the case.
Let’s say you’re the prosecution and you’ve got a murder case and the defendant is a woman who allegedly killed her boyfriend. Your theme might be: “Hell hath no fury like a woman scorned.” And your case theory might be that she killed him because she was angry that he dumped her for another woman.
You introduce the jury to your theme in Openings (frankly it gets previewed in some small and subtle ways during jury selection) and you weave your theme into your case all the way to Closing Arguments.
Themes can sometimes be movie lines, song lyrics, fables, parables, etc. Again, something that’s relatable for a jury and that a juror can connect with.
Let’s say you’re the prosecution and you’ve got a murder case and the defendant is a woman who allegedly killed her boyfriend. Your theme might be: “Hell hath no fury like a woman scorned.” And your case theory might be that she killed him because she was angry that he dumped her for another woman.
You introduce the jury to your theme in Openings (frankly it gets previewed in some small and subtle ways during jury selection) and you weave your theme into your case all the way to Closing Arguments.
Themes can sometimes be movie lines, song lyrics, fables, parables, etc. Again, something that’s relatable for a jury and that a juror can connect with.
• Roadmaps: Openings are supposed to be a roadmap for the jury to get an idea of your anticipated evidence and witnesses. I’ll be listening carefully to hear what “the evidence will show” and who will be called to the stand and how it’ll be presented. To be clear, this doesn’t mean that you’ll hear the exact order of the witnesses, but you should hear some idea of who will be called. It’s not exhaustive, but the bigger names should be identified.
Pro-tip: It’s crucial to remember that in a criminal case, the defense has NO burden to present any evidence or any witnesses. The burden of proof - beyond a reasonable doubt - is on the prosecution. The defense doesn’t have to present any witnesses or any evidence.
Pro-tip: It’s crucial to remember that in a criminal case, the defense has NO burden to present any evidence or any witnesses. The burden of proof - beyond a reasonable doubt - is on the prosecution. The defense doesn’t have to present any witnesses or any evidence.
• Objections: Opening Statements are not supposed to be arguments. That’s why they’re called “statements”. Argument before the jury is reserved for Closing Arguments. I’ll be looking to see how argumentative either side is during their Openings. We will get an idea based on the objections.
Pro-tip: Sometimes objections are lodged simply for the purpose to disrupt or interrupt the flow of an opposing attorney so keep in mind not all objections are valid ones or for the right reasons.
If the judge sustains the objection, then it was a proper objection (presumably). If the judge overrules the objection, then it wasn’t proper in either form or substance or both (again, presumably).
Pro-tip: Sometimes objections are lodged simply for the purpose to disrupt or interrupt the flow of an opposing attorney so keep in mind not all objections are valid ones or for the right reasons.
If the judge sustains the objection, then it was a proper objection (presumably). If the judge overrules the objection, then it wasn’t proper in either form or substance or both (again, presumably).
• Trump taking the stand: Listen very carefully to the Defense’s opening as they’re required to basically advise if Trump will be testifying. I personally don’t think Trump takes the stand, and that decision may hinge on Judge Merchan’s ruling on the prosecution’s Sandoval notice tomorrow, but Trump is too much of a walking/talking disaster to testify.
• Demonstrative Aids: Openings can, and should, be visual events. I’ll be watching out for what photos, documents, PowerPoints, blow-ups, etc. each side uses in their Openings. These things help the jurors be more engaged and invested in the Opening Statements.
Pro-tip: Lawyers are supposed to show the other side what they intend to use beforehand so any objections can be resolved before anything is shown to the jury.
Remember: Jurors only receive the evidence that is admitted. They are not supposed to see or hear inadmissible evidence. So if a lawyer is using a demonstrative aid in their Openings, that aid has to be vetted before the jury sees it.
Pro-tip: Lawyers are supposed to show the other side what they intend to use beforehand so any objections can be resolved before anything is shown to the jury.
Remember: Jurors only receive the evidence that is admitted. They are not supposed to see or hear inadmissible evidence. So if a lawyer is using a demonstrative aid in their Openings, that aid has to be vetted before the jury sees it.
• Who is up at bat: I’ll be looking to see which lawyer does Openings. Sometimes when there are multiple attorneys on a trial team, they’ll split up Openings and Closings so I’ll be curious to see who is delivering Openings tomorrow on each side.
• Surprises: Sometimes the Defense doesn’t do its Opening right after the Prosecution does theirs. Sometimes the Defense says that they’re reserving their Opening Statement for the beginning of their case-in-chief, so I’ll be looking out to see if that’s what Trump’s team does tomorrow.
Pro-tip: This move can be powerful if done the right way because then the Defense will have had the benefit of hearing the DA’s Office’s entire case-in-chief before it presents its Opening.
Pro-tip: This move can be powerful if done the right way because then the Defense will have had the benefit of hearing the DA’s Office’s entire case-in-chief before it presents its Opening.
Some parting thoughts:
Openings are the first time that the jurors really gets to hear what this case is all about. They may think that they know what it’s about, but it’s really Opening Statements that set the table.
Openings are a fantastic way for the prosecution, especially, to win over jurors because if they can get the jury to buy into their theory of the case from the Opening Statement, then the jury sometimes looks for the evidence during the trial that fits with their understanding of the prosecution’s case. And like I said before, a great theme will stick with a jury all the way through.
(Thank you all for coming to my litigation skills class lol. You are now able to go and do Opening Statements.)
Openings are the first time that the jurors really gets to hear what this case is all about. They may think that they know what it’s about, but it’s really Opening Statements that set the table.
Openings are a fantastic way for the prosecution, especially, to win over jurors because if they can get the jury to buy into their theory of the case from the Opening Statement, then the jury sometimes looks for the evidence during the trial that fits with their understanding of the prosecution’s case. And like I said before, a great theme will stick with a jury all the way through.
(Thank you all for coming to my litigation skills class lol. You are now able to go and do Opening Statements.)
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