The question is often asked; during a criminal jury trial when should defense counsel win the jury over to his client's side? The most obvious and correct answer is at the first chance that he gets, and that is during the opening statement. After defense counsel's opening the jury should be so convinced of the defendant's cause, that all of the prosecutors witnesses will be viewed through the lens of defense counsel's opening, and more easily enable defense counsel to cross-examine each witness for the prosecution through the eyes of the defendant, with the defendant's theme of the case already planted in the jurors minds.
It is well settled that most jurors, like people in general (in spite of instructions from the judge to contrary not to make any opinions until all the evidence is in), do in fact take sides early on in any given case. Like people in general, jurors, make decisions, either consciously or unconsciously to like or dislike someone, there is no escaping that fundamental fact of human nature. Therefore, it is essential that during the defense opening statement that defense counsel present all of the facts which he or she honestly believes the evidence will show and why that evidence means that his or her client is not guilty of the crimes charged. The opening is not the time to talk about the criminal justice system, it is not the time to speak in platitudes, or generalities, it is the time to speak about your client and the facts which show that your client cannot be guilty of the charges.
Therefore, the opening must be fairly detailed and fact sensitive, and in all cases be much longer than the opening by prosecutor. It is the first, and probably the best chance to win your case. If you do not win your case at the opening, you usually will not win your case, because the time summations role around the jury has long decide who they want to win. The jury wants to hear your side of the story at the beginning, give it to them at the beginning and win your case.
Vincent J. Sanzone, Jr., Esq.
January 5, 2009, Elizabeth, New Jersey