The opening statements of the first criminal trial involving a former president of the United States are scheduled for this week. A trial is neither won nor lost by criminal litigants on the basis of their introductory statements. However, jurors will develop significant perceptions not only of the evidence supporting or refuting the accusations they are called to determine, but also of the attorneys representing the opposing side.
To comprehend the divergent objectives and priorities of a defense attorney and a prosecutor in their opening statements, it is necessary to first examine the fundamentals of a criminal trial. A defendant is afforded the presumption of innocence unless and until the evidence establishes culpability with greater than a reasonable doubt. The prosecution bears the entire burden of proof; consequently, the defense is not obligated to present any evidence during the trial.
A prosecutor’s opening statement serves three purposes: first, to succinctly present the most persuasive evidence that establishes the defendant’s guilt; second, to allude to the prosecution’s weaknesses; and third, to establish the prosecutor’s crucial credibility with the jury, so that they perceive them as an ethical intermediary between the facts and the law.
The initial objective to be addressed is the presentation of evidence. During my tenure as chief of the Homicide Section at the United States Attorney’s Office for the District of Columbia, I consistently advised newly appointed homicide prosecutors to consolidate their opening statements with the three most compelling pieces of evidence. The intention was to emotionally captivate the jury and prevent them from disengaging from the case.
In the case of a robbery, for instance, your opening statement would include all three of the following: an eyewitness identification of the defendant, the discovery of the victim’s stolen property in the residence of the defendant, and surveillance footage of the defendant using a credit card that had been stolen from the victim. It might proceed as follows:
By presenting the most compelling evidence in the opening statement, you metaphorically place the jurors in the “glasses of guilt” through which they will subsequently evaluate the evidence presented during the trial. The significance of the second objective surpasses that of the initial. It is the responsibility of the prosecutor to initially draw the jury’s attention to the vulnerabilities and possible deficiencies in the government’s case. Highlighting the vulnerabilities of your case is of the utmost importance. Indeed, it is so critical that it is referred to by criminal litigants as “drawing the sting.”
For instance, it is not a secret that former Trump attorney Michael Cohen, one of the star witnesses in the New York prosecution, carries considerable baggage. Prior to finally confessing to his involvement in the alleged offenses, Cohen engaged in a series of falsehoods, including in congressional testimony while under oath. Cohen asserts that his conduct was directed and intended to benefit Trump; however, his lying establishes clear credibility issues that must be addressed by the prosecutors.
Prosecutors will undoubtedly contend that Cohen engaged in substantial dishonesty with the intention of safeguarding his former employer and the more substantial criminal entities implicated in this corrupt enterprise. Additionally, it is probable that the prosecutors will explicitly inform the jury that they did not select Michael Cohen as a witness. They will contend that Trump designated the witness through his selection of Michael Cohen as his conspirator.
Through the act of exposing the case’s vulnerabilities in advance, prosecutors prevent the defense from being the first to alert the jury to those deficiencies. In the opening statement of a defense attorney, the last thing a prosecutor wants to hear is, “Ladies and gentlemen, what the prosecution neglected to inform you of is…
The third objective of an opening statement is for prosecutors to establish credibility with the jury, which is an additional advantage of drawing the ambush. By observing the prosecutors present both favorable and unfavorable evidence, as well as the strengths and weaknesses of the case, the jurors will develop a sense of confidence in the prosecutors and regard them as trustworthy and honorable public servants.
In contrast, the role of a defense attorney is straightforward. Strike doubt and draw attention to the flaws in the evidence. Direct the jury’s interest towards the witness credibility deficiencies and the incongruities that exist among the witnesses.
This may come as a surprise, but in addition to not being required to present evidence, the defense is also not required to deliver an opening statement. Conversely, a defendant may elect to postpone delivering his or her opening statement until the prosecution has completed its presentation of all evidence during the phase referred to as the government’s case-in-chief. A benefit of a deferred opening is that it permits the defense to exploit and emphasize any vulnerabilities it discovers after reviewing all of the evidence presented by the prosecution to the jury. The drawback?
The defense declines to present the jury with a competing hypothesis of the case, which is an alternative version of the evidence, for them to consider and retain during their evaluation of the prosecution’s witnesses and evidence. Another well-established defense strategy is to place the blame on the messenger rather than the message, especially when the evidence of culpability is substantial. Oppose the prosecution. Confront law enforcement. Assert that the jury has been diverted from the evidence by implying that the prosecution and investigation have been involved in illicit activities.
An old proverb advises, perhaps redundantly, that one should emphasize the facts when they are in their favor. Hammer the law if you have it in your favor. If neither side is in your favor, simply apply pressure to the table. Ultimately, the objective of the defense attorney is to induce reasonable doubt, albeit a small amount, in the thoughts of at least one juror with the hope that the case will remain unresolved.
Considering the magnitude and caliber of the evidence that has been openly disclosed, albeit only a fraction of what Manhattan District Attorney Alvin Bragg’s prosecutors have presumably amassed, it is my suspicion that the defense will engage in considerable table pounding throughout this momentous trial. Extensive reporting and analysis will accompany each side of the argument, responding to each piece of testimony and piece of evidence. Nonetheless, in the end, only the twelve jurors’ opinions, which are contained in that wooden cage in a Manhattan courtroom, will truly matter.
