The State’s Opening

In criminal trials, the prosecution always makes the first move. In chess white moves first. The advantage to moving first in both games is that the first to speak gets to establish the shape of the battle.

In chess, white can choose to move either of two knights or any one of eight pawns; can choose to attack the king-side or the queen-side of the opponent’s line; can take a conservative, defensive stance or a risky attack stance.

In court, the prosecution gets to choose the crimes with which to accuse the defense; can choose risky first-degree, capital murder, for instance, or a slam-dunk manslaughter. The prosecution’s opening has the potential to determine every move it’s opponent will make.

“My” Trial: The State’s Opening

But most prosecutors open in exactly the same way in every case. They present a fleshed-out version of the indictment. Very few prosecutor’s seem to consider the jury when they write their opening statements, it seems to me (a former juror, not a lawyer). They seem, instead, to face the jury but address the judge and their opponents.

The prosecution’s opening statement in the trial in which I served as a juror is an example: it turned the indictment into “purple prose” that prepared me to hear evidence of a brutal, serial, child-rapist and kidnapper. As a result, when the evidence presented an entirely different story, I was baffled and most of the other jurors were, too. (It was this conflict between the charges and my sense of the crime that made jury-duty stressful.)

Last year CNN In Session covered a Tennessee trial in which a man named John Collett was accused of murdering his neighbor who was angry because he thought Collett’s pigs had killed his Chihuahua. When the neighbor confronted him, Collett coldly, calmly pulled out a gun and shot him five times—at least that was the prosecution’s opening. In fact, the evidence showed that the neighbor trespassed on Collett’s property riding a four-wheeler and threatened his elderly parents (who were on their front porch) with a shotgun. The prosecution’s opening was an interpretation of the indictment and of TN law, not an address to the jury.

The Jury Speaks—Always the Last to Speak

In “my” trial, the jury found the defendant not guilty of the absurd kidnapping charge, but guilty of two assault charges. In the Collett trial the jury found the defendant not guilty of murder.

Chess Lesson No. 1

Be sure you know how to follow up your opening move.