The first criminal trial of a former president of the United States turns toward opening statements this week. Criminal litigators neither win nor lose a trial based on their opening statements. But jurors will begin to form important impressions: not only of the evidence for or against the charges they will be called upon to decide, but of the attorneys themselves.
To understand the different goals and priorities of a prosecutor giving an opening statement and those of a defense attorney, we need to start with the basic principles of a criminal trial. Every defendant is presumed innocent, unless and until the evidence proves the defendant’s guilt beyond a reasonable doubt. The burden of proof rests solely with the prosecution, to the point that the defense is not required to produce any evidence at trial.
The prosecutor should be the first one to call jurors’ attention to the weak spots and potential holes in the government’s case.
The goals of a prosecutor’s opening statement are threefold: concisely provide the jury with the most compelling evidence of the defendant’s guilt, preview the weaknesses in the prosecution’s case and build all important credibility with the jury, so they view you as an honest broker of the facts and the law.
Let’s start with the first objective: presentation of evidence. When I had the privilege of serving as chief of the Homicide Section at the United States Attorney’s Office for the District of Columbia, I always told new homicide prosecutors that they should select the three strongest pieces of evidence, batch them together at the beginning of their opening statement, and use them to figuratively grab the jurors by the throat and never let go.
If, for example, in a robbery case, you have an eyewitness identification of the defendant, you found the victim’s stolen property in the defendant’s house, and you caught the defendant on surveillance video using a credit card that had been stolen from the victim, you would feature all three facts in your opening statement. It might go along the lines of:
Ladies and gentlemen of the jury, during the course of this trial you will see evidence that an eyewitness who was in a perfect position to see the defendant during the crime, positively identified this man (pointing to the defendant) as the person who robbed the victim. You will learn that the wallet stolen from the victim was recovered from the defendant’s house, during the execution of a search warrant. And you will see, with your own eyes, a surveillance video that captured the defendant using the credit card he had stolen from the victim shortly after the robbery. Ladies and gentlemen, the evidence will leave no room for doubt but that the defendant committed the crimes for which he’s been indicted. And at the end of the case, we will simply ask you to hold the defendant accountable for the crimes he chose to commit. And that accountability will come in the form of a guilty verdict.
You use the strongest evidence at the beginning of your opening statement to put the “glasses of guilt” (figuratively speaking) on the jurors through which they will then view the evidence during the trial.
The second objective is even more important than the first. The prosecutor should be the first one to call jurors’ attention to the weak spots and potential holes in the government’s case. The importance of fronting the weaknesses of your case cannot be overstated. Indeed, it’s so important that criminal litigators even have a name for it: “drawing the sting.”
For example, it’s no secret that one of the star witnesses in the New York prosecution, former Trump attorney Michael Cohen, comes with significant baggage. Cohen lied several times, including under oath in congressional testimony, before ultimately admitting he participated in the charged offenses. Cohen says that his actions were at the direction of and for the benefit of Trump, but the fact that he lied presents obvious credibility challenges that the prosecutors must address.
To do this, prosecutors will undoubtedly argue that much of the time Cohen was lying, he did so to protect his former boss and the bigger criminal fish in this corrupt scheme. The prosecutors also will likely make clear to the jury that they are not the ones who chose Michael Cohen as a witness. It’s Trump, they will argue, who selected the witness by choosing Michael Cohen as his conspirator.
The job of a defense attorney, by contrast, is simple.
By fronting the weaknesses in the case, prosecutors deprive the defense of being the ones to first bring those weaknesses to the jury’s attention. The last thing any prosecutor wants to hear during a defense attorney’s opening statement is, “Ladies and gentlemen, what the prosecutors failed to tell you is…”
Another fringe benefit of drawing the sting is that prosecutors build credibility with the jurors — the third objective of an opening statement. If the jurors see that the prosecutors are presenting the good evidence and the bad, the strengths and the weaknesses, they will develop a comfort level with the prosecutors and come to trust them as honest and honorable public servants. The job of a defense attorney, by contrast, is simple. Create doubt, highlight the weaknesses in the evidence. Focus the jury’s attention on the credibility deficits of the witnesses and the inconsistencies between witnesses. This might come as a surprise, but beyond not having to produce any evidence, the defense does not even have to make an opening statement. Or a defendant can choose to defer his or her opening statement until after the prosecution has presented all of its evidence during what’s called the government’s case-in-chief. The advantage to a deferred defense opening is that the defense can highlight and exploit any weaknesses the defense perceives after seeing all evidence the prosecution presented to the jury. The downside? The defense forgoes the opportunity to give the jury an alternate version of the evidence — a competing theory of the case — to think about and hold on to while the jury assesses the prosecution’s witnesses and evidence. Another tried and true defense tactic, particularly when the evidence of guilt is strong, is to focus on the messenger rather than the message. Attack the prosecutors. Attack law enforcement. Distract the jury from the evidence by suggesting that something nefarious has gone on in the investigation and the prosecution. There’s an old and perhaps overused saying: If you have the facts on your side, pound on the facts. If you have the law on your side, pound on the law. If you have neither on your side, just pound on the table. At the end of the day, the defense attorney is trying to find ways to inject doubt — just a little bit of reasonable doubt — in the mind of at least one juror in hopes of a hung jury. Given the quality and quantity of the evidence that has been publicly reported, which, of course, represents just a fraction of the evidence that likely has been amassed by Manhattan District Attorney Alvin Bragg’s prosecutors, I suspect we will see a fair amount of table pounding from the defense over the course of this historic trial. As both sides make their case, there will be plenty of reporting and analysis reacting to all testimony and every piece of evidence. But at the end of the day, the only opinions that will truly matter will be those of the 12 jurors, sitting in that wooden box in a Manhattan courtroom.
Glenn Kirschner
Glenn Kirschner, a former assistant U.S. attorney for Washington, D.C., is an NBC News and MSNBC legal analyst. 
