Jul
25

No Opening Statemenst! -- WTF?

It surprises most people to learn that in the state courts of Connecticut, judges almost never permit opening statements in criminal cases. Lawyers get a chance to give them in state civil cases, however. And openings are permitted in both civil and criminal cases in the federal courts. Such are the vagaries of federalism.

Opening statements are a chance for lawyers to tell jurors what to expect at trial, giving a jury some sense of what to focus on in the days and weeks to come. I don’t think we do jurors any favors dropping them into a trial without any sense of what the issues are in the case. Yet we do it, over and over again.

Of course, lawyers abuse opening statements. It’s a thin line separating a closing argument, where lawyers are permitted to argue what the evidence has proven, and an opening statement highlighting what they expect to show the jury. Indeed, I wonder if there is any real line separating the two at all. Good lawyers can reframe a case with a single sentence, sometimes a simple word.

And that’s the point, really. There is a tendency among judges not to trust lawyers. We’re deemed too crafty, too slick, too willing to sacrifice the truth. The less lawyers get a chance to speak directly to jurors, the thinking seems to go, the more likely jurors are to get it right.

Jurors ought to be insulted that judges think so little of them, assuming a jury they can be so easily seduced by some fast-talking Svengali in a suit.

I’ve sat next to men and women accused of all manner of crimes and in each case, a hush falls over the room when the judge reads the charges of which a person has been accused. Jurors’ eyes narrow when they see a neighbor in the well of court accused of rape. I fear that more often than not, jurors at the very beginning of trial are looking to hear how the defendant committed the crime charged, not whether she did anything wrong at all.

Defendants are required in the state system to sit silently while the state calls them a murderer, a child abuser, a robber — the list goes on and on. It’s ridiculous, really: If I arrived home one late night and had to face questions from a suspicious spouse, I’d want to do more than merely deny misconduct; I would want to give an account of myself. Opening statements permit a party to do just that by letting them tell a jury what is important and significant in the case they are about to hear.

There are two court systems with jurisdiction, or power, over almost every move you make in the United States. The federal government’s reach extends throughout the territorial limits of the country. Each state’s reach extends only to its boundaries. There are exceptions to these general statements — in the law there are always exceptions — but federalism means that two entirely different governments have what lawyers call concurrent jurisdiction over folks in the United States, whether citizen or not. Hence the sometimes different and conflicting rules governing how court business gets done.

Jurists in Connecticut quick to condemn the giving of opening statements in criminal cases ought to ask themselves why the courthouse across the state, the federal courthouse, has no trouble with the practice.

Depriving defense lawyers of closing statements strikes me as patently unfair, yet another way in which we cross our fingers behind our back while swearing fealty to the presumption of innocence. A person can be plucked from the safety and security of their own home by way of an arrest warrant and taken, in handcuffs, to a jail and then to court where a prosecutor will tell the judge what a scoundrel he is. The press duly reports all this, as it is its right. In the meantime, the defendant, or his lawyer, has little to say: the case is brand-spanking new. The state enjoys sole use of the bully pulpit early in a case.

And the state gets the benefit of having its charges read to the jury. All the defendant gets to say at the start of trial is “not guilty.”

By the time a case gets to trial, and the overwhelming majority do not, as the accused accepts plea bargains in over 95 percent of cases, word is out on the street about the case against a defendant. The first time a defendant or his counsel gets to speak, typically, is in open court. Why not give the defense a chance to actually treat the jurors as adults capable of accepting or rejecting what they hear?

One quick answer to this question is Casey Anthony in Florida. She was defended by an inexperienced lawyer named Jose Baez. He was permitted to give an opening statement, and what an opening it was — he made promises to deliver evidence that he never delivered on at trial. When she was acquitted, some folks cried foul. Had she gotten away with murder because her lawyer cut corners and shaded the truth?

I have no idea, really. Neither do you. High-profile trials are really little more than public Rorschach tests: reporters serve up impressionistic images of what took place in open court, and the rest of us see in them what serves our politics, passions and prejudices. Even televised trials don’t really serve the search for the truth. It is a rare trial that is shown gavel to gavel, with viewers seeing all that a juror sees. And no viewer goes through the fact-finding process of a jury’s deliberation.

We give to jurors the job of finding the truth in criminal cases because we know a group can be wise in ways individuals cannot. We celebrate the role of juries in our republic.

Yet, judges still don’t trust juries. Not really. If they did, they’d let juries hear opening statements and decide for themselves where the truth lies. That’s a jury’s job, after all. Or so we say.

Related topics: Journal Register Columns
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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www.normpattis.com
www.normpattis.com

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

Disclaimer:

Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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