Why Ban Opening Statements?

During the past year, I've been surprised by the number of times jurors have requested read backs of testimony they just heard only a few days earlier in criminal cases. In some instances, it seems to take almost as long to listen to the testimony again as it did to try the case in the first instance.

I suspect that is because, in state criminal courts, we do not permit opening statements. As a result, jurors have no idea what is important once the evidence begins.

A better, more efficient, criminal justice system would permit opening statements. What would be the harm in letting jurors know what the parties think is significant about the performance to come?

There is a tendency in the courts to marginalize the role of trial lawyers. If it is the judge's role to instruct on the law, and the jury's province to find facts, then what, really, is there left for lawyers to do? We permit closing arguments, but just barely—you have to beg for more than an hour, and permission to speak for more than the allotted time is rarely granted. In federal court, even an hour is too much to ask of some judges. Gone are the days of long-winded orators whose words might make a difference.

But refusing parties the right to make an opening statement does not avoid the risk of juror confusion; it contributes to it.

Appellate courts remind us time and again that a properly instructed jury is presumed to follow the law. What would be the harm in permitting the lawyers trying the case to give the jury a road map?

There's always the danger, of course, the lawyers will mislead the jury, or—as has happened to me—the jury will conclude it doesn't like either lawyer's theory and it decides the case on some grounds independent of what the lawyers argued. We trust juries to be the conscience of a community for a reason: Their collective wisdom and multiple points of view are safeguards against easily being misled by crafty counsel. Good lawyers know well the importance of not blowing their credibility by making promises they can't deliver on.

There are anomalies; there always are. Consider Jose Baez's remarkable opening statement in the Casey Anthony case. Not only did he promise evidence he did not deliver, there is good reason to wonder whether he ever seriously thought he could prove what he all but asserted: Casey lied about her daughter being abducted by a nanny when, in fact, her daughter had drowned in the family swimming pool. She lied, he told the jury, because she learned to do so at the hands of her sexually abusive father. The message was clear: The father bore watching.

It's not clear what evidence, if any, attorney Baez had to support these claims. Legal ethics experts have been tongue-clucking since Anthony's acquittal about whether Baez crossed a line, making inflammatory suggestions he could not support with evidence.

But unusual verdicts are part and parcel of the criminal justice system. It's almost pointless to speculate about how juries decide cases, regardless of the rules of procedure followed in a given jurisdiction.

Non-Connecticut lawyers are generally shocked by two things about our criminal justice system: First, our practice of individual, sequestered voir dire; and, second, the lack of opening statements.

The trial lawyers lobby opposes changing jury selection methods. Perhaps they will get behind a push for permitting opening statements. Permitting them might just improve the efficiency of the process.



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