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After a jury has been picked and before opening statements are to begin in a complex white-collar criminal case, the presiding judge’s preliminary instructions to the jury will invariably include the following admonishment, which will be repeated throughout the trial: Do not make up your minds during the trial about what the verdict should be and keep an open mind until after you have gone to the jury room to decide the case and you and your fellow jurors have discussed the evidence. Only the most optimistic of criminal defense attorneys can avoid being reminded of the challenges ahead when hearing these words. Why the angst? The instruction is a clear reminder that the prosecution starts the trial with several key advantages regardless of the strength of the defendant’s case. Jurors have difficulty keeping an open mind Whatever view a defense attorney has of the conflicting research concerning whether jurors make up their minds about a case on the basis of opening statements (see, e.g., Hydrite Chemical Co. v. Calumet Lubricants Co., 47 F.3d 887, 891 (7th Cir. 1995) (Posner, J.)), it is reasonable to suspect that even the most conscientious jurors have difficulty keeping an open mind throughout a trial. Add to this that many jurors, even those who pledge they are willing to reserve judgment on whether the prosecution can meet its burden of proof, have a strong suspicion at the beginning of trial that the defendant committed the offenses charged. Why else, according to this line of thinking, would the prosecution have devoted substantial resources to investigating, indicting and trying the defendant? Then add in that the prosecution, because it delivers its opening statement and presents its evidence first, gets the benefit of the rule of primacy � the notion that what jurors hear first has the greatest impact on them and substantially influences how they perceive the evidence that follows � and the challenges ahead are apparent. Given the prosecution’s head start, it is difficult, if not impossible, to conceive of a complex white-collar case heading to trial where it would be advantageous for defense counsel to waive the opportunity to give an opening statement or to reserve addressing the jury until after the prosecution’s case in chief. It also is difficult to conceive of a case where it would be sufficient in an opening merely to remind the jury through various rhetorical devices what the judge has in all likelihood just told them � the defendant is presumed innocent; the indictment is not evidence; the prosecution has the burden of proof beyond a reasonable doubt; keep an open mind. So what should you as defense counsel say in an opening statement to attempt to catch up to the prosecution before any evidence has been presented? In simple terms, state as much as possible about the defense theory of the case without undermining the presumption of innocence. Like most other trial strategy calls, deciding what to include in a more detailed opening statement requires careful balancing of competing considerations. Probably the most important objective for the opening statement is to convey several themes you can sell to the jury. An effective theme � a reason to acquit the defendant � must have two qualities. It must appeal to the kinds of people on the jury based on their experience and moral groundings. And it must be simple. Complex themes never work. Simplicity is paramount, particularly in factually complex trials extending over many weeks. In order for the jury to grab on to a theme, the opening statement must describe facts on which the theme is based. Here of course is where the proverbial rubber meets the road. Never promise more than the evidence can deliver An overriding concern is avoiding promising more in an opening statement than will be established through the evidence actually admitted at trial. As a trial lawyer, you must get the jurors to like and trust you. That leads the jurors to want to believe you, and that in turn, if the evidence supports you in some way, may cause them actually to believe you. You will lose credibility if material evidence does not come in at trial as you predicted it would during your opening statement. So what are your options? By thoroughly investigating your case before trial, you can identify the testimony and documentary evidence that must be admitted in order for your themes to have a chance of succeeding. This evidence becomes your focus. Where admissibility of critical evidence will be contested by the prosecution, file an in limine motion and seek a ruling from the judge in advance of delivering your opening. Where you remain uncertain whether a witness will provide certain testimony or a particular document will be admitted, hedge a little in your opening. If phrases like “I believe” or “I suspect” or “apparently the prosecution’s witness will testify on cross-examination to X, Y and Z” are used only sparingly, you will blunt effectively a prosecution closing argument that you over promised, without having undercut the persuasiveness of your own opening statement. And if, in spite of your best efforts, certain evidence does not come in as you predicted in your opening statement, the jurors may not hold it against you, especially if you have been able to build your credibility with them during the course of the trial. Another tension you must balance in preparing an opening statement is to argue the defense case without having the judge rule that your opening is argumentative and therefore objectionable. If not overused, simply stating that “the evidence will show” and “I will prove to you that” will frequently protect a potentially argumentative statement in an opening from a successful objection. In addition, trial judges often define the line between facts, which are permissible, and argument, which is objectionable, very differently. Many judges will allow a defense attorney to set forth conclusions, draw inferences and attack the credibility of witnesses in an opening statement, provided counsel first lays out the facts upon which these “arguments” are based. Accordingly, there is no substitute for knowing the practice of the judge presiding over your trial. Consult with other lawyers. Obtain transcripts of other opening statements. In order to avoid disruptive objections early on in front of the jury, learn in advance where your judge’s line is and stay on the right side. A further concern sometimes raised about more fact-oriented defense openings is that they tip off the prosecution, enabling it to alter its proof during its case in chief to meet an otherwise unanticipated defense. If you have reason to believe the prosecution is unaware of a key defense, then by all means lay in the weeds during the opening statement. These circumstances are relatively uncommon in complex white-collar cases, however. The prosecution has extensive investigative tools and typically devotes substantial resources over an extended period to investigating a case and preparing it for trial. Moreover, in an attempt to stave off indictment, defense counsel often will have already made a detailed presentation to the prosecution about certain strengths and weaknesses in its case. Detailed openings help tamp down bad facts A more detailed opening statement also enables you to address weaknesses in your case more effectively with the jurors. Because concessions, if made in an opening statement, may relieve the prosecution of certain elements of proof, they must of course be weighed judiciously. However, where important facts cannot be credibly contested by you, and you can make the prosecution appear to be just piling on and wasting the jurors’ time if they present evidence on the issue, you must seriously consider candidly acknowledging the problem in your opening statement. The more detailed your opening is regarding other aspects of your case, the easier it is to keep your bad facts from sticking out like a sore thumb. Just mix in with your description of the many elements the government is required to prove the few that are not in dispute and explain why. Handled correctly, your bad facts will fade into the background and the jurors will have in mind your themes as the prosecution puts in its case in chief. Identifying some of the considerations involved in preparing an opening statement in a complex white-collar criminal case, as we have done here, is easy. The hard work comes when a defense attorney is required to balance these considerations and make judgments in the heat of battle regarding what will sell and what stays and what goes. Those calls can only be made by an attorney with intimate knowledge of the facts and the client’s risk tolerances. It is hard work, but the reason trial lawyers like to start the day early. Dan K. Webb and J. David Reich are partners at Winston & Strawn who concentrate on major civil, regulatory and white-collar criminal cases. Webb, the firm’s chairman, previously served as the U.S. attorney for the Northen District of Illinois. Reich previously served as an assistant U.S. attorney for the District of New Jersey.

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