Washington Criminal Defense Magazine, August 2005, Vol. 19, Page 5
Article written by Peter Mazzone

ON THE TOPIC OF OPENING STATEMENTS

Much of what I have learned about trial work comes from studying the great lawyers of our time coupled with the experience of conducting over one hundred trials throughout my career. In my mind, the works of Herbert Stern, Gerry Spence, Edward Bennett Williams, and Robert Fogelnest have greatly influenced my philosophy and outlook on trials and persuasive trial techniques. Most of the materials I mention in this script, are in large part derived from the combined works of these great lawyers. I have peppered in my own experiences wherever appropriate.

A. Opening Argument Not Opening Statement

Perhaps contrary to conventional wisdom, I am of the opinion that the most important portions of a trial are voir dire and opening argument (yes, argument). This is especially true for trials that last longer than three to four days. The reason for this is simple: first impression. During voir dire, the jury formulates their first impression of you as an advocate and try to determine whether you are a person deserving of their respect and, more importantly, worthy of their trust. Likewise, during opening argument the jury gets the first chance to evaluate the strength of your case and whether there is any validity to your version of events.

In this article I summarize those aspects of opening argument that increase your chances of convincing a jury that they must believe you, and must view the case from your perspective.

First, in order to persuade the jury, we must reject the notion that an opening is simply a statement of what the evidence will show. Rather, opening is 1) an argument, 2) aimed at convincing the jury, 3) that you know exactly what happened, 4) that you will present them with honest and truthful evidence about the case, 5) and that, in the end, they will also know exactly what happened. Above all, the argument must be memorable, captivating and forceful.

B. Argue strongly and vividly

Do not to worry about law school pedagogy about argument in opening being improper and objectionable. Although technically true, a boring statement can be turned into a persuasive argument by simply choosing words that are vivid and powerful. For example, it makes absolutely no sense to use phrases like "the evidence will show that", or "you will hear from John Smith that". This approach is weak and unpersuasive. It is much more powerful to say "I will prove to you that", or "we will produce live testimony demonstrating that" and so on. These phrases can easily translate argumentative and objectionable statements into strong and persuasive arguments.1

An example may illustrate the point. Let's assume that you would really like to say that your eyewitness, Mr. Smith, is the only one that should be believed. This is clearly objectionable and argumentative during opening "statement". However, it is easy to convert this statement into powerful, unobjectionable material by saying "we will prove to you that Mr. Smith was there. We will call him to the witness stand and prove to you that he had an unobstructed view of what happened. We will demonstrate, through live testimony, that he had the best and clearest view of the crime."

C. Be the Master of Facts

By far the most important thing you can do in preparing for your trial is to know all the facts inside and out. The reason for this is simple. The jury knows that you, as the lawyer, know exactly what happened. They would like to know everything you know before they make a decision. So you must tell them - everything. It does not matter that some of what you tell them actually hurt your client. You have to tell them! By doing this you will persuade them to rely on you, believe in you, and trust you throughout the trial.

Opening arguments should be long and detailed. Mine are rarely less than an hour long. The idea that short openings are best because people are unable to listen and concentrate for long periods of time is simply not true. Most people have no problem sitting through a long movie, as long as the movie captivates their attention. Your opening argument must do the same. It must develop the characters, describe the surroundings, develop a story, and come to a conclusion in a very lively and interesting way. In short, your opening should let a story develop much like a movie on a screen, or painting on a canvas.2

This approach has many benefits. First, as we all know, prosecutors generally follow a script when making their opening statement. It generally goes something like this: "Ladies and gentlemen the evidence in this case will show that on such and such a date, Mr. Smith shot Mr. Jones. We expect to show that he did this intentionally. At the end of the trial we will ask you to find Mr. Smith guilty as charged." Rarely do their opening statements last for more than twenty minutes. And even more noteworthy is that prosecutors almost never provide details in their opening that corroborates what they think they will prove.

The best way to counter this is by delivering a very detailed argument which incorporates all of the facts not included in the prosecutor's statement. Subconsciously this encourages the jury to rely on you for the facts that they will need to decide the case. It also helps the jury realize that they must believe you because you know all the details of what happened. And finally, this approach will inspire the jury to trust you because they'll know that they will have to rely on you, and you alone, for the complete scoop on the facts.

D. Incorporate Damaging Facts Into a Unifying Story

Do not hesitate in telling the jury the bad facts. Even novice lawyers know that they can't hold back such facts. If you do, you will forever lose the jury's trust. But it is not enough to simply tell them the damaging facts. You must incorporate them into a unified theory of your case. This is the ultimate aspiration of any great lawyer. To incorporate the bad facts into the opening argument and use them to their client's advantage. This is difficult at times, but it can be done in most, if not all, cases.

You cannot simply state the bad facts. You must affirmatively assert them and argue them. For example, if your star witness, Mr. Smith, is a convicted felon, you cannot simply say "you will hear from Mr. Smith that he has a lengthy criminal history, but he was there and he saw what happened." This is lame. Instead, you should proceed as follows:

"we will prove to you that Mr. Smith was a trusted member of the gang we've already introduced. We will show you that they trusted him because he had dealt with them in the past. Indeed, we will present evidence to demonstrate that on five prior occasions he had been convicted of various crimes just as they had. This is why they trusted him and this is what enabled him to be right in the thick of things when this crime occurred, It is for this reason that he was able to witness the assault firsthand, and the only reason why he knows who did it."

This latter approach will certainly be more likely to get the jury to believe Mr. Smith. This is because you have argued a very good reason for them to believe him.3 In a recent murder case I tried I spent quite some time arguing that my client was a very knowledgeable and successful drug dealer. For this reason, I argued, he would know better than anyone that it was necessary to carry a firearm to a drug deal. Given his experience, I told the jury, he knew when self-defense or defense of others was necessary during drug any given drug transaction. Because of his expertise, I argued, he believed he had to shoot the buyer (the victim in the case) during his last drug deal, so that his best friend would not be shot by the buyer. The jury eventually acquitted him and he walked out of jail.

E. Use Lots of Visual Aids

The best way to argue a detailed opening is to use diagrams and outlines throughout the presentation. This helps the jurors see the facts, remember them, and recall them during deliberations. At the same time it helps your opening argument unfold in an interesting, vivid and memorable fashion.

I am not a fan of pre-fabricated diagrams and outlines. I prefer to spontaneously sketch them or write them out in front of the jury. This method has several advantages. First, because it takes some time to sketch the diagrams or write out the outlines, it allows the jury to actually follow along while you are presenting the facts. And, while it takes some skill to simultaneously speak and sketch, these tasks can be accomplished with some preparation if you have mastered the facts. You need not worry about slowing down your argument. Most lawyers speak too fast for the jury to readily digest what they are saying anyway. As long as your argument is interesting and lively, moments of silence will add to the intensity of your presentation.4

Producing diagrams from scratch in front of the jury also bolsters their perception of your command of the facts and, more importantly, their belief in you as a sincere, honest and well prepared presenter of the case. In most cases, these "rough" diagrams will become "the" diagrams for the case and will be more trustworthy than the pre-fab, fancy, color diagrams prepared by the police, prosecutors or so-called experts. I generally encourage this by having each witness add something, however minute, to my diagrams as the trial moves along. If you do this, at some point, it will become irresistible for the prosecutors to use your diagrams with their witnesses and eventually everyone will begin referring to "your diagram" as "the diagram."

It does not matter that in some instances the judge will not let the jury take the sketches back to the jury room during deliberations (although usually if enough witnesses have used the sketch for their testimony, or added stuff to it during their testimony, the judge will allow it if you move for their admission). This is because by virtue of using the diagram repeatedly during trial, it will be imprinted in their minds and available for recall. Moreover, if the judge allows the jury to take notes during trial, then most jurors will have some version of your diagrams in their notes. In any case, your version of the facts is the one that will be freshest in their minds.

Outlines can also have the added benefit of reassuring the jury that you have proven to them what you promised them in opening. As noted, one of the ways to turn an argumentative and objectionable opening statement into a powerful and unobjectionable opening argument is by using phrases like "I will prove to you" or " we will produce testimony to show that." Usually, when I say this to the jury I write down my promises on a sketch pad during my opening argument. Then, after I have produced the evidence during trial, I return to my sketch pad during closing and ask the jury to determine how I did. Once they determine that all my promises have been fulfilled, they feel comfortable in putting their trust in me, and giving more credibility to my version of the facts.

F. Never Argue the Trilogy During Opening

Many lawyers I have seen over the years insist on talking about the presumption of innocence, burden of proof and reasonable doubt trilogy in their opening. I have never been able to figure out why they would want to do this. Typically some version of the following will be included during their presentation:

"Ladies and gentlemen I urge you to keep an open mind during this trial and hold the state to their burden of proof. Please keep in mind as you listen to the testimony that Mr. Smith is presumed innocent throughout these proceedings, and can only be found guilty if each and everyone of you agrees that he is guilty beyond a reasonable doubt."

This has no place in any opening statement. Hiding behind legal abstracts is not powerful, not persuasive, and does not advance your cause in any way during the opening argument. All it does is suggest that you know something the jurors don't, namely that your client is guilty, but that the prosecutor may have a tough time proving it. In the juror's minds, the words above may best be translated as follows:

"Ladies and gentlemen of the jury, you should try to apply every legal loophole that you can to this case. If you do, you may actually be able to vote not guilty at the end of the trial. The reason for this is because although my client is probably guilty, the prosecutor may not be able to prove it due to some legal technicalities that the judge will tell you about later. So I don't feel so bad in asking you to find him not guilty because even though I know the actual truth, I'm still playing within the rules."

Similarly, it is outright silly to say something like "remember that we don't have to prove that he acted in self defense, they have to prove that he did not act in self defense beyond a reasonable doubt." If he acted in self defense open on it! Say it! Assume the burden! You can get much more mileage by arguing as follows:

"We will prove to you that Mr. Smith had no choice but to kill Mr. Jones to save his own life! No less than three witnesses will take the stand and tell you that they saw what happened. We will demonstrate to you that Mr. Smith had already suffered two black eyes and four broken ribs before he took the knife and stabbed Mr. Jones to save his own life. We make these promises to you knowing full well that we have to deliver on them BEFORE you render your verdict."5,6

It's pretty clear that the latter argument is much more persuasive than the former statement. Nonetheless, lots of lawyers insist on using the presumption, burden, proof trilogy during opening. Most often, their reason for doing it is either because they believe they have no defense, no witnesses, or because their client cannot take the stand. This explanation is meaningless. The reason is because even though they may not have any witnesses or their client cannot take the stand, they nonetheless can present their defense through cross examination of the state's witnesses.

If you need to build your defense by cross examining the state's witnesses, that is still a defense! So say it! Open on it! Argue it!

"We will prove to you that Mr. Smith had everything to gain by fabricating his story to the police. We will introduce evidence to demonstrate that he gained 5,243 days of freedom by lying to the authorities about the events that led up to the shooting. And, if he repeats those lies in his testimony, we will prove to you that his testimony is false."6

In my view, the presumption of innocence, burden of proof and reasonable doubt trilogy is something to strongly argue during closing, not during opening. This is because the main thrust of opening is to persuade the jury to look at the facts from your perspective as the trial unfolds. Using the presumption, burden, doubt trilogy does not advance this objective. The situation is altogether different in closing when the job is to win over those people that have not yet been persuaded. There, the focus is on arming them with arguments they can bring up to their fellow jurors on how to best decide the client's fate. So have your defense ready, and argue it dynamically, forcefully and persuasively without getting bogged down in legal minutiae.

G. Argue by Not Responding to the Prosecution

One of the things I try to avoid like the plague is responding to any challenges made by the prosecution. The point of the opening argument is to present your story in a forceful, vivid and persuasive way. It is not to fall into a trap set up for you by a savvy prosecutor.

I generally have my detailed opening argument well planned out before I go into court. And while I may pepper my argument with corrections and disagreements that I may have with the prosecutor's opening statement (remember they make opening statements, not opening arguments), I never accept their challenges. I argue my story to the jury, I captivate them, and I persuade them into accepting my version. So do the same, put in the time, argue your story, and give your client another chance at life.

WACDL, July 2006
Article written by Peter Mazzone

DIRECT EXAMINATION – TELLING YOUR STORY THROUGH YOUR WITNESS

1) The Philosophy of Direct Examination

Direct examination does not get the glitz and glamour that other trial segments do. Cross examination, closing argument, and even voir dire get much more attention. This is probably because criminal defense lawyers rarely have a good story to tell, and even less frequently have any witnesses to call. As a result they don’t get many chances to develop their direct examination skills. Indeed, many criminal defense lawyers, including experienced ones, believe that the best strategy at trial is to keep their defendant - or other potential witnesses - off the stand due to the baggage they bring with them (e.g. criminal background, poor verbal skills, etc.). As a result, even when they can put on a case through direct examination most criminal defense lawyers rarely do, and miss the opportunity to make their strongest case.

Direct examination can be just as important, if not more important, than the other portions of a trial. If a criminal defense lawyer has a case (as opposed to no case at all) his or her chances of prevailing at trial increase exponentially when evidence is presented through the client and other witnesses. Regardless of the baggage that a defendant or other potential witness brings with them to the stand, it can be neutralized and easily overcome by a skillful direct examination.

The objective of direct examination, like all portions of a trial, is to argue your case to the jury. This is done by conducting a clear and memorable presentation, that is both credible and invulnerable to cross examination, through your witnesses.1 The presentation should be a smooth-flowing story carefully directed by you, and should build on the points you made during voir dire and opening argument.2 In addition, the direct examination must demonstrate to the jury that you know the facts of the case better than anyone, that you are trying to present the facts as honestly and completely as possible through your witnesses, and therefore, they can continue to trust you. This article is a summary of the methods I use to try and achieve these goals.

2) The Preparation of Direct Examination

Preparing for direct examination requires the lawyer to know the exact nature of the story he or she wants to present to the jury. It cannot be done off the cuff. It must be well thought out ahead of time and prepared in some detail. I usually do this by generating a very detailed manuscript of my client’s version of the incident (as well as each witness’ portion of their story) through detailed interviews. This not only helps the client (and every other witness) recollect his or her thoughts about the events, but also prepares the witness for testimony. In addition, the manuscript I generate becomes my guide to their direct examination during the trial.3

I generally read through the manuscript several times so that I have it essentially committed to memory. Then, I highlight the facts I want to elicit from that witness during their direct examination, and jot them down in my trial notebook in telegram format. If the witness happens to be my client, the defendant, then I simply highlight the portions of the manuscript that I want to bring out at trial and keep the entire manuscript in my notebook for easy reference to details. I never worry about the questions I’ll ask because I have found that all that does is cause me to become stiff and choppy during my presentation. If I know the answers I want, the questions that will elicit those answers will spontaneously come out as I am conversing the story with the witness.

Do not fool yourself into thinking that your witness will not be receptive to writing out a detailed version of the facts for you. If the witness is your client, the defendant, he or she will certainly want to help the case, and will do just about anything to aid you. In addition, if the client is in jail, he or she will have plenty of time, and will usually feel better knowing that they are spending their time helping their case rather than playing cards in the jail module. If the witness is not your client, my experience has been that they are usually eager to help anyway. But even if they are not, you can accomplish the same result by using an investigator.

Another tool that is required in preparing for direct examination is a visit to the alleged crime scene. This is probably the single most important part of trial preparation in general, and in direct examination preparation in particular. Once you have visited the alleged crime scene, you are in a much better position to determine which parts of your client’s story are relevant or irrelevant, should be emphasized or de-emphasized, or are vulnerable or invulnerable to cross examination. In addition, knowing details about the crime scene allows you to demonstrate your mastery of the facts of the case, and in so doing, fosters trust and respect from the jury.

Finally, with respect to preparation for direct examination, I’d like to note that aside form having my client (or any other witness) write out a detailed version of their recollection of the incident (I may have them do this several times if the trial date is continued for a long amount of time), I never rehearse the testimony with them. In my opinion this is not only unnecessary, but it is counter-productive and may actually hurt the defense’s case. There is nothing more fraudulent in appearance than rehearsed testimony. Therefore, I don’t do it. I do prepare the witness by talking about their story and discussing various aspects of it with them many times before trial. However, I never discuss with them the specific questions I will ask.

3) The Presentation of Direct Examination

In order to be effective, a direct examination has to be clear and memorable. Presenting the story through your client (or a particular portion of the story through a witness) in a clear and memorable way involves 1) asking lots of questions to ensure that the story is easily understood, 2) asking the questions in a way that promotes a smooth- flowing story, and 3) making the story memorable to the jury by using many visual aids not only to illustrate the story, but also to emphasize certain portions of it.

As noted, I generally have a list of answers that I need from a particular witness in telegram format in my trial notebook. During my examination, I generally ask this from the first row of spectator seats (if I feel an informal setting will work with the jury), or directly behind the jury box. This not only allows me to look at my notes if I have to, but it also allows the jury to volley back and forth between me and my witness as I ask questions and s/he answers. I generally ask many questions to control the tempo of the testimony, looping when necessary to emphasize certain points. For example, if my client is claiming that he shot someone because they were about to pummel him with rocks, I may ask looping questions to highlight certain aspects of the story:

Question: As you’re telling her to stop what is she doing?
Answer: She’s grabbing some rocks off the ground and lifting them up over her head and throwing them down at me.

Question: How big are the rocks that she’s throwing down at you?
Answer: They are pretty big, about as big as footballs.

Question: Are you afraid that these football size boulders are going to hit you?

This not only serves to emphasize portions of the testimony, but also makes the story more memorable for the jury by imprinting the rocks into their mind.

Sometimes, to avoid “leading” objections, I ask “choice” questions which suggest the answer anyway, but are not objectionable. For example, if the prosecutor has been objecting to my “leading” the witness I may not want to ask the following:

Question: Was she screaming as she threw the rocks down at you?
This may trigger an objection that the judge may sustain. In order to avoid the hassle, I may ask the same thing in the following way:

Question: Do you recall whether or not she was screaming as she threw the rocks down at you?

Which is clearly not objectionable because it offers a choice. Alternatively I could also ask the following:
Question: Was she yelling or was she quiet as she threw the rocks down at you?

(Although this version is not as effective as the previous alternative, it does do away with the leading question problem).4

I also typically use transition questions to create a free-flowing and smooth story as opposed to a stilted, choppy one. For example, if it is important to continually shift from one location to another while I tell the story through my witness, I use any of the following techniques:

Question: I want to now direct your attention to the cliff that you were standing under when you first saw her. How high was the cliff? Question: Turning now to the particular house that you saw the woman come from, how far away from you was it?

Question: I would like to leave the subject of self defense and talk about the time when the officers arrived on the scene.

The purpose of all of these questions is to transition from one aspect of the story to another in a fluid way, while also ensuring that the answers from the witness flow along with the direction of the story.5

I also incorporate visual aids into the direct testimony of my witnesses as much as possible. I typically introduce visual aids during my opening statements.6 Then, as witnesses take the stand I ask each of them, if at all possible, to point out certain things on the diagrams, to add to the diagrams, or describe certain aspects of the sketches for the jury. This not only helps the witness in answering the questions, but also makes the testimony more memorable for the jury, while re-enforcing the idea that no one in the courtroom knows the facts of the case better than I do, and therefore, I’m the one they should trust. An added benefit of this technique is that it neutralizes, to some extent, all the fancy diagrams and “total stations” that the State usually introduces by pointing out that not only are the defense’s diagrams just as accurate, but they can generate theirs at will, whereas the State or the Government has to have theirs “pre-fabricated” and therefore, theirs may not be as trustworthy.

Finally, I believe that it is never a good idea to give your witnesses, and especially the defendant, preferential treatment during their direct examination. I’m generally a very “in your face” type of cross examiner. Therefore I try to be the same way to my client or my witnesses during their direct examination. It is not uncommon for me to use the following technique, in a very stern tone, if a witness starts to narrate.

Mazzone: Listen John, this is the way it works. I ask the question. You answer the question and only that question. Then I ask another question, and you answer that question. Understood?
Defendant: Yes Sir!

Or, if the witness says something that is of crucial importance to the defense, but either says it without conviction, or says it in a way that appears less than sincere, I may quickly follow-up, unrehearsed, with the following:

Mazzone: John, everybody in this room is thinking that your story is pretty convenient. They’re thinking, why should we believe this guy? He lied to the cops six months ago. What do you want to say to them?

Although this has a tendency to put the defendant on the spot, my experience has been that if defendants have a story to tell, they shine when they are asked this question cold and, assuming they are sincere, the jury usually wants to believe their explanation. Best of all these techniques point out to the jury that you do not give your witnesses preferential treatment, and are only there to present the facts in an open and honest way.

4) Final Thoughts On Direct Examination

Direct examination must be integrated with other portions of the trial in order to be effective. Therefore, the examination must be consistent with the theme of the trial that has been developed throughout voir dire, opening argument and cross examination of State’s witnesses. What the direct examination does for the defense, is that it allows presentation of the case through the client and other witnesses. This is an extremely powerful tool because most jurors want to hear the defendant testify on his own behalf and want to hear his version of events corroborated by other witnesses, if at all possible. For this reason, a well thought out, clear and memorable direct examination may swing the jury and lead to a not guilty verdict for your client. So work on your direct examination skills, help your client deliver a memorable story, and give him a better chance at freedom.