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Dzhokhar Tsarnaev: Opening Statements

(photo: Marcin Wichary/flickr)

After a jury has been selected and sworn, the lawyers have an opportunity to preview their respective cases for the jury. We call this opportunity the opening statements of counsel. Notice that I use the word ‘statement,’ rather than the word ‘argument.’ A statement is a description of the evidence that will be introduced during the trial. An argument is an interpretation of the significance of that evidence. When lawyers give their final arguments, after the evidence has been admitted and both sides have rested, they are summarizing their respective cases and attempting to persuade the jury to either return a verdict of guilty (prosecutor) or not guilty (defense).

Most lawyers believe closing arguments are the most important part of a trial. I disagree because, in my experience,  jurors have already formed an opinion about the guilt or innocence of the accused before closing arguments. If a lawyer fails to take care of business during the evidentiary part of the case, they are not going to be able to change juror’s opinions no matter how persuasive they believe they can be.

As I’ve said many times, jury selection is the most important part of the trial because lawyers are selecting the people who will decide the case. Select the wrong people and there will be little to no chance of winning. Opening statements come in a close second because that is the first time that a lawyer can tell the jury about his case.

Since prosecutors have the burden of proof, they go first. Opening statements by prosecutors are like road maps with many sentences that begin with this phrase, ‘We expect the evidence will show that this defendant (fill in the blank). You will hear from witnesses who were present when he did it and they will tell you what he did. If done properly, everyone in the jury box will think the defendant is guilty.

Although the defense is not required to give an opening statement, only an incompetent fool would reserve or waive it. Particularly in a lengthy and complex case like the Boston Marathon Bombing case, the prosecution may take several months to put on their case. Defense has to say something to persuade jurors to reserve judgment until the case is over. This requires focusing their attention on weaknesses in the case.

We will get a much better idea about the strength of the government’s case when they give their opening statement. We will also be able to tell what the defense will be.

Opening statements should happen sometime during the first two weeks of February.

FYI: Judge O’Toole denied a new defense motion for a continuance of the trial based on the extensive publicity about the Paris terrorist attacks, which they claimed might adversely influence prospective jurors against Dzhokhar Tsarnaev.

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Frederick Leatherman

Frederick Leatherman

I am a former law professor and felony criminal defense lawyer who practiced in state and federal courts for 30 years specializing in death penalty cases, forensics, and drug cases.

I taught criminal law, criminal procedure, law and forensics, and trial advocacy for three years after retiring from my law practice.

I also co-founded Innocence Project Northwest (IPNW) at the University of Washington School of Law in Seattle and recruited 40 lawyers who agreed to work pro bono, assisted by law students, representing 17 innocent men and women wrongfully convicted of sexually abusing their children in the notorious Wenatchee Sex Ring witch-hunt prosecutions during the mid 90s. All 17 were freed from imprisonment.

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