NEVER waive your opening statement! The opening statement is the road map for the jury. We ask the jurors not to make a decision until the close of all of the evidence. Most jurors, if they aren’t necessarily making up their minds after opening statements, are absolutely making decisions about which side they are rooting for. Do not tell the jury that what you say is not evidence. You want them to be taking your opening as the gospel. Let the prosecuting attorney tell the jury that what they say is not evidence, and thus should be ignored! Do not keep surprises or your good stuff for cross-examination or your closing argument. It is best to start arguing your case and convincing jurors early on in your opening statement. The jurors will then be attentive and watch for the evidence you have warned them about.
Do not cut your opening statement short. The court generally restricts the closing argument, but the opening statement usually does not have a time limit. You are laying out the evidence you believe will be presented. I take a great deal of time explaining the standardized field sobriety tests. This is your first opportunity to explain those tests. Use this opportunity to give the jury a road map to follow during the trial. If there are surprises in your case that you do not want to tip the prosecutor to, elude to that upcoming evidence by letting the jury know it is coming and to watch out for it. It is imperative that the jury is given a sequential story to follow along during the trial.
