Opening Addresses in Criminal Trials

An opening address is not an argument, but that does not mean it should not be persuasive.  

As an advocate if you are not engaging when you speak, you have lost an opportunity to advance your case. An opening address should feel like story telling at its best, if for no other reason than you have a captive audience. However, within that context an opening should be factual, it is not the place for rhetorical flourishes.

As the prosecutor, your opening address is your first opportunity to speak and engage with the decision maker, whether that is a Judge sitting alone or jury – for consistency we will refer to a jury as convenient synonym for both. 

An opening should provide the jury with an outline of the evidence they will hear and what issue or issues are expected to arise for determination in the trial. It is an opportunity to focus their minds on what is important and the evidence that answers those issues in your favour. A simple and known mnemonic is your opening should focus on the who, the what, the where, the when and the why.

To achieve that goal in the most engaging way, you should consider how it is you are going to tell your story, especially if there are a lot of moving parts to it. You do not want to oversimplify the case, but equally you want to make sure its easily digestible and that the important parts are remembered. To that end you should consider how much detail is required, and if it is, why. For example, it is unlikely to be important to your opening address that the curtains in the room were blue with pink flowers, but it may be important that the curtains were closed each time the offender snuck into the complainant’s room.

There are different ways you might wish to start your address. A straightforward way could be to set the scene and introduce the jury to the witnesses they will hear from in the trial. It Is timely to remember that by opening your case you are inviting the jury into someone else’s life. You want them to be invested and engaged. To assist in their understanding – consider aids to demonstrate the story and characters involved – whether it be photographs of a scene, maps, or a family tree. The use of such items requires skill and organisation, so that your opening is not interrupted by technical issues or unpreparedness by those who might need to assist in that process.

You should also speak to your counterpart in advance and ensure nothing you intend to rely upon is controversial.   

Do not open on a piece of evidence without being able to explain why it is admissible and relevant. If you think something may be particularly controversial, then it is incumbent upon you to discuss it with opposing counsel in advance. There is nothing more embarrassing than causing a mistrial because of your opening address. 

In outlining the case to be presented, it is important not to overstate the Crown case. Hopefully juries will recall consistencies with the key points you have raised in your opening address as the evidence unfolds, but they will certainly remember failings or inconsistencies. Nothing will result in you, or your case, to ‘lose face’ with the jury quicker. You can also be confident that your opponent will remind the jury of such inconsistencies in their closing address.

Although the opening address is the first thing you will present, it is often the last thing you will (or should) prepare. It is only once you have read and digested the brief, formulated a cohesive case theory and set about preparing what you require from your witnesses in evidence-in-chief (and concessions you may expect in cross examination) that you will be able to condense what is important for the jury. It is at the end of your preparation that you can be most confident as to what the jury ought to know at the start of your presentation of the case before them.

Having engaged in that task it will be apparent to you what the uncontested facts are, what the strong parts of your case are, and what are the weaknesses. While you should not ignore the latter, this understanding will help you articulate how the story is told and where the emphasis should lie. Tone and pace will assist in delivering that message.

The opening address and its detail become even more important when you are appearing in a regional setting. You should ensure that any names of places or people involved are pronounced properly. Nothing is more off putting than a jury correcting you, or sniggering, during your opening address as a result of the mispronunciation of local names.  The areas of Booval, Ebbw Vale, Aratula and Berserker (and more) in their respective court regions are time and time again the subject of entertainment as juries watch visiting practitioners attempt to pronounce them properly. We have all heard national news broadcasters mispronounce Queensland cities, towns or regions – try and make that not be you.

Use plain language when you speak to the jury, and limit the extent to which you might talk about the law when opening the case for the Crown. The clearer your story the better. For example, it is likely the Judge in their opening comments has identified to the jury the reception of pre-recorded evidence in your trial and will do so again when it is played. It will ordinarily be unnecessary for you to go through the elements of the offence the jury need to be satisfied of in their deliberations. You can only hold the attention of your jury for so long, and you may be losing valuable time by rehashing something that has already been raised and will be again. 

Opening addresses in a Judge alone trial will likely be different and the best advice is be flexible. Some Judges might simply require particulars of the offending and a summary of your witness list and how they are relevant to the Crown case. Other Judges may require a very brief, no-nonsense summary of the evidence. In any event, by the time you stand up to present your opening, you will know your brief and case theory back to front, and will be able to address the Judge’s particular requirements appropriately.

There is a slight variance between the opening in defence and that of a prosecution. This reflects the difference in their relative positions.  A defence opening can occur at two points in a trial. 

The first point in a trial where the defence will open is after the prosecution. This is a more recent but useful practice. The purpose of a defence opening statement is quite different from the purpose of a prosecution opening. It is an opportunity to identify the issues in contention and is not to be a wide-ranging discussion of the law.   

You must never open facts that will not be led as evidence in the prosecution case. If you are in any doubt as to the contents of your opening, raise it with the prosecutor beforehand. If you are concerned about losing a forensic advantage by forewarning the prosecutor prior to their opening, telegraph this issue with the prosecution and the Judge. There would be no disadvantage in providing a copy of your opening statement to the prosecutor after they conclude their opening. At that stage they may raise any issues contained in it and, if required, those issues can be raised with the Judge in the absence of the jury. 

A defence opening statement should be short and focussed. If done effectively, it can frame the parameters of the defence case and hone the jury onto the real issues in dispute.

The second point in a trial where the defence will open is when your client elects to give and/or call evidence. You should open the defence evidence with sufficient detail that it is comprehensible to the jury, but no higher. There are two reasons for this, firstly, if your witnesses do not come up to proof, your case will lose credibility in the eyes of the jury and secondly, as the defendant is in court at all times – you do not wish to appear to be coaching them as to the evidence they will imminently be giving.  

Finally, whether you are opening as a prosecutor or in defence, you must practice, practice, practice. You must know your case. While you might have notes available to prompt you or make sure you properly relay quotes, you do not want to be seen to be reading your opening address. The jury needs to have confidence in you, and the way they have confidence in you and your case, is at least thinking you know it back to front. Because, as is emphasised in this series, you should.