Opening Statements: What to Expect as the Hernandez Trial Kicks Off

Now that it appears that jury selection is almost complete in Fall River in the Odin Lloyd murder case involving former NE Patriot tight end Aaron Hernandez (Commonwealth v. Hernandez, No. BRCR2013-00983) and Opening Statements are nigh — that is if we all survive another "storm of the century" around here, I thought it might be helpful to share some insight on Opening Statements for those not overly familiar with the criminal justice system, and to offer my opinion on what I expect the prosecution and defense to say when we do get to them later this week. First, let me explain what Opening Statements are, and what they are not.

As Judge Susan Garsh is certain to instruct the 12 permanent jurors and 6 alternates she plans to empanel today and swear-in soon after, Opening Statements provide lawyers the opportunity to preview, or outline, for jurors the evidence they expect the jury will see and hear as the trial unfolds. For this reason they are sometimes colloquially referred to as "Coming Attractions," "Tables of Contents," or "Road Maps" regarding the prosecution's case and any evidence each side plans on presenting. Judge Garsh will also be very clear to the jury about what Opening Statements are not; they are not evidence. She will remind the jury of this several times, along with the fact they are required to keep an open mind and not form any opinions as result of the Openings because, again, "Openings are not evidence of anything and no evidence has been presented to you." She will use this as a segue to further remind jurors that "Mr. Hernandez is presumed innocent" and that the burden of proof remains with the prosecution and does not change unless or until they have reached a verdict. She will also instruct jurors that Opening Statements "are also not Argument, and that the parties will have the opportunity to argue about the evidence and any reasonable inferences they think the jury should draw from it at the close of the evidence but not before." She will likely remind the lawyers of this during their Openings, as well, if any or both side(s) strays too close to the line.

If a jury "view" is planned, as appears to be the case here regarding the industrial park in North Attleborough, MA, where Mr. Lloyd's body was found, and the inside of Mr. Hernandez' home, which is located not too far away from there, lawyers are also allowed to give a brief "View Opening" or "View Statement" to the jury before they head out (by bus) for that purpose. In these, lawyers are permitted to briefly discus what the jury will be "viewing" and to point out things they'd like them to pay particular attention to, look out for, or be mindful of, without going into detail as to why.

View Openings usually precede actual trial Openings, with the common sequence being the View Opening first, then the Jury View happens. After this, the judge (who goes on the View with the lawyers, jurors and court officers on the same bus), jury and lawyers return to Court for the trial Openings. Because of this, judges keep tight reins on, and limit the substance of, View Openings given that the lawyers will be able to provide the missing detail and substance (if they choose), and explain why they asked jurors to take particular notice of certain things, during the actual Opening Statements.

In our criminal justice system, the prosecution always gives an Opening Statement in jury trials. (This is not always so in jury waived/bench trials.) The defense may if they choose, but are not required to. This is because the prosecution bears the burden of proving guilt beyond a reasonable doubt throughout the trial. By contrast, the defendant doesn't have to prove anything, say anything, or even present any evidence; hence the difference. Because of this, the prosecution also always opens first, before the start of the evidence. (For this same reason, many states such as Massachusetts also give the prosecution the "last word" by having them go last during closing arguments. This places the defendant, who "closes" first, at a disadvantage, causing many states—-like California, where I recently tried a murder case—to adopt the more reasonable federal model where the prosecution who closes first, is followed by the defendant, but still get the last word, but only via brief rebuttal.) A defendant who elects not to open right after the prosecution does may alternately defer giving their Opening until after the prosecution has rested altogether and immediately before they begin their own defense case in chief, if they have one. A defendant is also free to decline to give any Opening at all. This is rare, and usually an "old school" tactic to re-emphasize that the defendant has no obligation to do, or prove, anything. Judges can, and will, limit the amount of time each side will have to give its Opening Statement and I won't be surprised if Judge Garsh (who runs a tight courtroom) will follow suit. Because this is a murder case, though, I expect her specific time allotments to still be generous.

Having prosecuted numerous first degree murder cases myself, I can tell you, from a general standpoint, prosecutors like to lay out their case in Opening Statements in painstaking and methodical detail in an effort to show the jury, upfront, just how overwhelming and incontrovertible they believe the evidence of guilt to be. This is even more pronounced when the evidence is largely circumstantial, as it appears to be in Hernandez. In those situations, prosecutor's do what they can to slowly and deliberately pile inference upon reasonable inference in a true "connect-the-dots" schematic until a guilty finding (as they see it) is not only logical, but inescapable. Even though a prosecutor's opening is evidence of nothing, it is their singular goal to make so compelling a presentation regarding what the evidence is likely to be against the defendant that the jury has no choice but to make up their mind from the outset, despite all the judge's caution to the contrary, and before a single witness has testified.

Prosecutors will also try to play to the jury's sympathy, to the extent they can get away with it, by lingering in excruciating detail over the particulars of the victim's death; often getting past appropriate objections about inflaming the jury's passion and playing to the jury's sympathy in first degree murder cases by previewing the alternate theory of liability of death by extreme cruelty and atrocity which, because it must be proven during trial, permits them to go into more gruesome detail about the manner and means of death than is ordinarily allowed in Opening Statements. Seasoned prosecutors are also often taught, and it is a good practice, to telegraph in their Opening certain vulnerabilities in their cases (that they know the defense is likely to exploit during trial) as if to suggest they will be non-issues or nothing to worry about when later raised by the defense. Indeed, really good lawyers on either side know how to go one step beyond this and "spin" apparent vulnerability into actual strengths as though they were integral to the theory and fabric of the case from the get-go.

As a long time defense attorney who has defended, and tried, numerous murder cases, I can tell you defense attorneys typically tend to opt for one of three standard approaches, if they do elect to open. They will either devote the bulk of their evidence to pointing out all the flaws, inconsistencies , weaknesses, "holes" and implausibility in the prosecution's evidence as just outlined, but conveniently ignored ("the Reasonable Doubts Opening"); or they will proactively outline a defense of their own, laying out all the cards they intend to play upfront as a challenge to the prosecution and a signal to the jury they feel they have nothing to hide and are convinced the evidence will exonerate their client. The third option is to simply remind the jury of their promises, duties and obligations as jurors, the presumption of innocence and the un-shifting burden of proof, and to remind them the importance of keeping an open mind. One only gets so far with this approach, as the judge is likely to chastise him or her for repeating instructions she's already given ("It's for the judge and not the lawyers to instruct the jury as to the law!"), and jurors can often sense when a defense attorney is using this approach to either mask unpreparedness, or because he or she has "nothing." Still, incorporating muted references about this into either the first or second standard defense-opening approach, or into a combination of both, is not only common, but effective.

While somewhat uncommon, objections may be made during Opening Statements by either side. The preferred practice is to wait until the adverse side is finished and raise them at an immediate sidebar. Because no evidence has been presented they are not as frequently made as they are during Closings, and because of the respective attributes and function of each, objections are less frequent by an exponential value during both Opening Statements and Closing Argument than they are during Evidence. For the prosecution, though, the chief restraint is to refrain from commenting on the defendant's anticipated proof; suggesting the defendant will have no defense to the evidence the prosecution will be presenting; extrapolating to what the defendant must have been thinking when he or she did what they say they will prove was done; or challenging the defense to answer certain unanswered questions. While natural in ordinary discourse, when touched on by the Prosecution, such references constitute impermissible and unconstitutional burden shifting that could result in an immediate mistrial.

For the defense, the restraint is not to promise in their Opening something they aren't certain they can deliver (jurors remember things like this); not to necessarily tip their hand or "paint their client into a corner" too early, which he or she won't later be able to escape from; or inadvertently open a door that has already been closed to the prosecution by pretrial rulings, or that is better left closed, regardless. And of course, for both parties, the biggest restraint is not to argue, a proscription that is harder to observe than it looks, particularly when one feels his or her cause strongly, but is easier to work around and through when one has given as many Openings as I have.

So what am I expecting in terms of the substance of the actual Openings in Hernandez? Much as they did in two separate marathon bail presentations, I expect the prosecution to lay out the evidence against Mr. Hernandez slowly, deliberately and methodically, with near mathematical precision, carefully linking it bit by bit, separate piece by separate piece, into a solid chain they will ultimately say cannot be broken. Like a card shark playing a strong hand, I see them laying each piece of evidence on the table in escalating sequence, one after the next: the GPS tracking; the cell tower pinging; the matching tire tracks to Hernandez' rental; the shell casing from his same rented vehicle; the timing of gunshots in connection with the surveillance of the Hernandez vehicle entering and leaving the industrial park; the gun-waving surveillance video footage captured shortly thereafter. In short, the prosecution will attempt to show there is so much evidence here there can only one possible conclusion upon completion of the evidence: guilt beyond a reasonable doubt. They will also confidently provide jurors with an air-tight timeline that they will claim leaves no margin for error that Hernandez was anywhere else, or doing anything else, but exactly what the charges allege he was doing. They will hedge against the obvious deficiency of eyewitness testimony by referencing all the scientific and ballistic evidence they plan on presenting, in an effort to couch their case as more scientific than circumstantial to play to jurors' CSI predilection, and will use the extreme cruelty and atrocity "exemption" to curry favor from, and sympathy by, the jury without overtly endeavoring to do so. They may also finally reveal cooperating witnesses, if there are in fact any, red-flagging any deals they've made with them to take away the sting and eliminate the efficacy of the defense team's certain attacks on them for having done so—although I'm still skeptical about Shayanna Jenkins, since an immunity deal for her without a commensurate dismissal of her perjury indictment provides neither adequate protection nor sufficient relief. And they will rely on the law of joint enterprise liability to explain away the lack of anyone saying who actually did the shooting before the defense can (and will) try to make an issue out of it.

On the defense side, count on an Opening. Indeed, bet on it. Bet heavy too that it will be aggressive, combative, hard-hitting and full of indignation (at least to the extent Judge Garsh will allow it before cautioning the defense against arguing). Do not expect a lot of mealy-mouthed reiteration of presumptions and obligations. The seasoned litigators on the defense team will come out swinging. Expect them to point out from the start "everything you'd expect to see in a first degree murder case, you aren't once going to see in the Commonwealth's case here...." no eye-witness to the shooting; no evidence of who pulled the trigger; no recovery of a murder weapon; and no discernible motive. While the law does not require the prosecution prove any of these, the defense sure won't be talking about that. Instead, expect the defense to say the absence of any , and all, will not only lead to reasonable doubts , but also suggest irresponsibility and a "rush to judgment" wholly inappropriate and unfair with stakes as high as their client is facing. They are likely to mention Hernandez' $40M contract, his beautiful home, and Superstar Status—you bet they'll be playing the celebrity defense card too—-as precise reasons their client wouldn't, and couldn't, have done this. They will use pithy phrases like "House of Cards" and "breaks in the chain of evidence," and to the extent there will be cooperating witnesses, they will malign and impugn them and do everything to "dirty-them-up" before they've even made an appearance. They are also likely to suggest the jury should look askance at the underlying investigation (directing the jury's attention to deficiencies and short-comings they plan to expose) and view the prosecutor's and their motivation to charge Hernandez with murder with a jaundiced eye. I don't expect them to definitively lay out any possible defense(s), but instead to leave that powder somewhat dry. I do, however, think they may drop hints about the latter in their Opening, nibbling around the edges without really committing, while still signaling what could be coming. In the end, I expect the Defendant's Opening to sound much closer to a Closing than the Prosecution's will, and that Judge Garsh, while providing periodic admonition, will allow them far more leeway in that regard.

Imagine. I'm only talking about Openings here; what some describe as the least important adversarial stage of any trial. (Other experienced trial attorneys like me disagree). Just think what will follow; and the Closings? All I can say is, to quote Mr. McGuire (Walter Brooke) in the Graduate: "Plastics"; as in the C4 variety. But that's not only a topic for another day, but for another day far into the future. Until then, as I've already said, buckle your seat-belts and hang onto your hats. Despite the utmost respect and sympathy for the Mr. Lloyd's family, and with sincere sensitivity to the astronomical jeopardy Mr. Hernandez is facing, I still have to say it. We're in for one heck of a ride.

About the author:

Brad Bailey was a felony prosecutor in Manhattan (NY) and an Assistant District Attorney in Middlesex County (MA) where he prosecuted murders, sex crimes and serious narcotics trafficking cases. He went on to prosecute federal drug crimes and the mafia/organized crime as an Assistant U.S. Attorney for the U.S. Attorney's Office in Boston. A five time Super Lawyer and Top 100 Trial Attorney, he is AV rated by Martindale and has been a member of the defense bar since 1999, and uses his vast experience on both sides of the law to defend clients accused of felonies in both state and federal courts in MA, NY and throughout New England and across the country. He routinely represents clients charged with murder at trial, and on appeal.