Opening statement for defense

Opening statement for defense

There are two contrary considerations involved when defense counsel decides whether to make an opening statement before any evidence is heard. These considerations are flexibility and coherence. Counsel need not make his or her opening statement until the completion of the prosecution's case. In such an instance, counsel should inform the court, when asked if he or she intends to make an opening statement, that it will be reserved until the completion of the prosecution case. This allows the defense the greatest maneuverability in deciding which witnesses to call, and the strategy to take in response to the evidence actually produced by the prosecution. Where the defense strategy consists of a gradual development of the weaknesses of the prosecution's case, or the strength of the prosecution's case is unclear to the defense, it is usually best to reserve an opening statement.

On the other hand, where the defense is unlikely to change, and "educating" the prosecution as to the defense's nature is unlikely to weaken the prosecution's case, an opening statement following that of the prosecution is best. To the extent the prosecution's opening statement creates a belief, based on emotions, that the defendant is guilty, an immediate response may be the most effective short-term response.

Many computer crime cases receive considerable pretrial publicity. If that publicity appears to have prejudiced the jury against the defendant, an opening statement before the start of testimony may be particularly desirable to counteract the publicity.

One of the major considerations in a computer crime defense is whether the defendant will take the stand. In determining whether the defendant takes the stand, defense counsel must consider whether the client's testimony and presence will help or hurt his or her case. Defense counsel may choose not to give an opening statement before trial because it would require indicating whether the defendant is going to testify.