Do defense lawyers always give opening statements? Should they?

The prosecution almost always makes an opening statement in order to seize the first opportunity to color the jury’s impression of a case. In turn, defense attorneys usually counter with another opening, orienting the jury with the theory of defense and the evidence in support of it. (For example, “The evidence will show that my client acted in self-defense; you’ll see the bruises he received from the alleged victim.”)

But some defense attorneys routinely, or depending on the facts of the case, waive the right to give an opening statement. Some theorize that skipping opening statement is an effective way of communicating to the jury that the prosecution has the burden of proof. After all, the defense theoretically doesn’t need to prove anything, but rather simply raise a reasonable doubt as to guilt. Others pass on opening statement in order to avoid forecasting defense strategy to the prosecution. However, with modern reciprocal discovery, the defense must disclose a variety of information to the prosecution before trial, making it tougher to mount a “sneak attack.”

Most criminal defense lawyers believe that they shouldn’t pass on the chance to shape the lens through which the jury will view the evidence. Some jury-behavior studies show that hearing only from the prosecution at the start of a case leads jurors to simply accept the law-enforcement version of events.

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