In chess black moves second; in court the defense moves second. In neither game is the second move necessarily defensive, but it is necessarily a response to the opponent’s opening—a response that can set the tone of the fight.

In chess, black’s move often determines which of the classic openings are employed, not white’s first move. In other words, white moves one of ten possible pieces (out of 16) to one of ten possible squares (16). But black (which also moves one of ten to one of 16) chooses the battle plan by moving her piece in relationship to white’s piece. She can directly confront and thereby block the opponent (preventing the piece from moving in the next turn) or can attack the opponent (forcing white to move the same piece on his second move) or can move a piece obliquely away from white’s piece (forcing white to wonder what in the world black is up to).

The same is true of defense opening statements in a criminal trial—although few defense lawyers seem to realize this.

A few very clever defense openings come to mind, though.

The Dream Team Defense Opening

In the murder trial of O. J. Simpson, the defense proposed an alternative theory of the crime in their opening statement. It was an oblique move designed to cause the jury—not the prosecution or the judge—to consider the possibility that Simpson was absolutely innocent, not merely not guilty by reasonable doubt. The rhetorical effect on the jury was to cause them to disregard the domestic violence testimony, which formed the basis of motive in the prosecution case. As Johnny Cochrane cleverly pointed out, every wife-beater is not a slasher-killer.

Chasson Defense Opening

In the Tennessee trial of nurse Sharron Chason, defense attorney Dan Warlick denied that any crime had occurred. His client’s husband died accidentally. It was a direct attack on the prosecution’s core assertion: the cause of death was intentional poisoning. Again, the defense opening was designed for the jury, not the other lawyers in the courtroom. After that, throughout the prosecution’s presentation, the jury understood the purpose behind the defense cross-examination of expert witnesses.

Neil Entwistle’s Defense Opening

I thought Neil Entwistle’s attorney made a very clever move in his opening statement (despite his ultimate failure with the jury). Entwistle was accused of shooting his wife and newborn, then surfing the web for sex, and finally fleeing to England. The defense opening was brief: “Everything is not what it seems.” It was a blocking move against the prosecution.

Considering that Enwistle was notorious when the trial started, the opening was sufficient to make me wonder what the defense might be planning to present. I suspended my disbelief during the prosecution’s case and mentally considered alternative theories of the crime. Unfortunately, the defense ultimately failed to come through with a plausible alternative theory and relied—as most defenses do—on reasonable doubt. (I’ve already written ad nauseum about the impossibility of a good reasonable-doubt defense.)

A Public Defender’s Defense Opening (Cook County Criminal Courthouse)

When I was a juror on a trial in Cook County Criminal Courthouse, the public defender opened in a bizarre way that completely baffled me at the time. In retrospect, though, it was what in chess is known as an “opening gambit.” (A gambit is offering a sacrificial piece to gain an advantage.) He acknowledged that his client had committed  felonious assault but ridiculed the idea that he had kidnapped anyone. He said he would “prove” his client was innocent of kidnapping.

The defense sacrificed the lesser charges in order to prevent conviction for kidnapping. The effect on me, as a juror, was to immediately persuade me the lawyer must be right. If he was willing to admit that the defendant had committed a crime for which he ought to be convicted, I believed he must be right about the kidnapping charge. In fact, following the prosecution’s ineffective opening as it did, it rang true.

No Opening Move—Not Available in Chess

In chess black can’t decline to move—not in the opening, not ever. When a player declines to move it ends the game; it is a concession of defeat. But in court, the defense has the option of withholding its opening until after the prosecution’s case. In a few instances, this may be effective. As far as I know, though, this is rarely done.

However, in last year’s trial of Tennessee nurse Raynella Dossett-Leath (no, they don’t seem to like nurses in TN), the defense might have been better served had they not opened with an alibi defense and a suggestion that someone else could have done it. This is especially true because, when the defense case opened, they switched to a suicide defense.

Most Openings Are Stock

Most chess games begin with white pushing the king’s or queen’s pawn two squares to the fourth rank (row) and black pushing the pawn directly opposite to the fifth rank. In court most prosecutions open by embellishing the indictment, while most defenses open by claiming erroneous, faulty investigation resulting in reasonable doubt.

The prosecution may have no choice in its opening. They wrote the indictment; they have to live with it. But the defense is different.

It seems to me that in most trials the defense would do well to adopt one of the above openings or to keep an ace up its sleeve (something a chess player can’t do).

Because the rhetorical advantage with every jury lies with the prosecution, the defense would be well served to keep its strategy secret for as long as possible. I can think of at least two ways to do this: 1) decline to present an opening until after the prosecution’s case, or 2) make a generic opening statement that sets the jury’s expectations without making specific claims, including “reasonable doubt” or alternative theories of the crime.

Only in an affirmative defense (accusing a specific person, denying the crime occurred) does an aggressive opening make sense to me; and then—afterwards—the defense has to present a substantial case to back up their claims and not merely argue reasonable doubt.

What do I mean by “a generic opening”?

Lawyers seem to forget that most jurors have never been in a criminal courtroom before. So a lawyer who sets the jurors’ expectations concerning what is going to happen will be doing them a favor and will also have the benefit of guiding their thinking during testimony.

Among the things a defense attorney should inform the jury about IMHO (non-legal) include:

1) Testimony

• Inherent bias of most prosecution witnesses as employees of the state
• Natural biases of witnesses who are relatives or friends of the victim
• Sheer number of prosecution witnesses is necessitated by arcane rules of evidence
• No Sherlock Holmes detectives in real life
• The sequence of events during the investigation, which led to the defendant’s arrest, proves nothing except that the defendant was arrested; and arrest is far from proof of guilt
• The right of the defendant not to testify does not imply guilt or that he has anything to hide, only that he may be afraid you—the jury—won’t like him if he speaks, because like all human beings he isn’t perfect (I know this is said during jury instructions, but it needs to be said up front)
• Florida v Hartsfield trial the defense opened with a statement to the effect that “you will never hear the defendant say he did it;” this is definitely not what I have in mind. Every juror in the trial thought that meant the defendant was not going to testify.

2) Evidence

• Physical evidence has inherent weaknesses—it may be suggestive, but it isn’t absolute proof of guilt or innocence
• Most defense cases are brief because it’s impossible to prove a negative—give examples such as lack of an alibi or a weak alibi
• Defense evidence is sparse because the prosecution conducted the investigation—they weren’t looking for exculpatory evidence
• Defense investigations occur long after the fact when valuable evidence has vanished—and in every single case only after the arrest
• If someone else did it, explain why the defense can’t possibly name or present that person

3) Courtroom Procedures

• The purpose of cross-examination
• How expert witnesses are qualified (especially hired-gun defense experts—almost all of the prosecution witnesses are paid to be there, too)
• What it means if a witness is termed non-responsive
• What happens in the courtroom when the jury isn’t present
• What speculation is and why it’s prohibited
• Why the jury is prohibited from “investigating”

I realize that courtroom rules prohibit opening statements from including arguments or interpreting the law. I know defense attorneys are supposed to limit their openings to what they intend “to show” through the evidence. But really all this means in effect is that they need to begin their statements with the phrase, “We intend to show” or “The evidence will show.”

For example: “As you hear the testimony of the prosecution’s investigative witnesses, keep in mind who they are. With each cross-examination we will show that the police investigators are no Sherlock Holmeses; they are state employees, paid by the state and trained to believe that every hair, fiber, fingerprint, and DNA sample taken at the scene of a crime is relevant to what happened there. We will show otherwise.”

To be continued. . . .