Dzhokhar Tsarnaev: Opening Statements

Thursday, January 15, 2015

Good morning:

I write today about the purpose of an opening statement in a jury trial in a criminal case and distinguish it from a closing argument, which I regard to be considerably less important. Generally speaking, if a defendant’s lawyer has failed to persuade jurors that a reasonable doubt exists before closing arguments, nothing the lawyer says during closing argument is going to prevent a guilty verdict.

After a jury has been selected and sworn, the lawyers have an opportunity to preview their respective cases for the jury. We call this opportunity the opening statements of counsel. Notice that I use the word ‘statement,’ rather than the word ‘argument.’ A statement is a description of the evidence that will be introduced during the trial. An argument is an interpretation of the significance of that evidence. When lawyers give their final arguments, after the evidence has been admitted and both sides have rested, they are summarizing their respective cases and attempting to persuade the jury to either return a verdict of guilty (prosecutor) or not guilty (defense).

Most lawyers believe closing arguments are the most important part of a trial. I disagree because, in my experience, jurors have already formed an opinion about the guilt or innocence of the accused before closing arguments. If a lawyer fails to take care of business during the evidentiary part of the case, they are not going to be able to change juror’s opinions no matter how persuasive they believe they can be.

As I’ve said many times, jury selection is the most important part of the trial because lawyers are selecting the people who will decide the case. Select the wrong people and there will be little to no chance of winning. Opening statements come in a close second because that is the first time that a lawyer can tell the jury about his case.

Since prosecutors have the burden of proof, they go first. Opening statements by prosecutors are like road maps with many sentences that begin with this phrase, ‘We expect the evidence will show that this defendant (fill in the blank). You will hear from witnesses who were present when he did it and they will tell you what he did. If done properly, everyone in the jury box will think the defendant is guilty.

Although the defense is not required to give an opening statement, only an incompetent fool would reserve or waive it. Particularly in a lengthy and complex case like the Boston Marathon Bombing case, the prosecution may take several months to put on their case. Defense has to say something to persuade jurors to reserve judgment until the case is over. This requires focusing their attention on weaknesses in the case.

We will get a much better idea about the strength of the government’s case when they give their opening statement. We will also be able to tell what the defense will be.

Opening statements should happen sometime during the first two weeks of February.

FYI: Judge O’Toole denied a new defense motion for a continuance of the trial based on the extensive publicity about the Paris terrorist attacks, which they claimed might adversely influence prospective jurors against Dzhokhar Tsarnaev.

13 Responses to Dzhokhar Tsarnaev: Opening Statements

  1. MDX says:

    People like Scarborough are great at using one instance in a time series event to “prove” a witness a liar.


    From my read of the witness statements, taken as a whole, and the forensic evidence, it is my opinion that Brown was subject to a hail of fire as he turned and tried to raise his arms to give up.

    So what disproves my opinion?

    No hits to the arm when they were fully raised as indicated by wound tracking?


    If I shot a person body mass center with their hands raised then that would be shooting a person with their hands raised.


    If I shot and missed while the hands were raised, but scored hits to other parts of the body that caused my victim to crumple forward, then that would still be shooting while the person had their hands raised.

    And what would a witness see and hear?

    There were 11 shots in two closely spaced bursts in a span of about 6.5 seconds.

    So a so-called lying witness could have heard shots while Brown had his hands raised and assumed those shots hot because he did fall dead, did he not?

    And that witness is being truthful because they report exactly what their vantage point tells them. How is a person at a distance going to know if a report of a gun equals a strike?

    No, a liar is a witness who was not at the vantage point they claim or one that adds more information than their vantage point can provide.

    Enter witness 40.

    Witness 10 is given a lot of value by Wilson supporters.

    This witness reports seeing a charge.

    From that vantage point (far behind Wilsons back looking out a windshield), it is very hard, if not impossible, to determine the relative velocity of Brown to Wilson. So this witness most probably saw Brown stagger forward and, after being killed on his feet, violently pitch forward, thus interpreting this as a rush.

    As this little tome shows, a trial was needed to properly sort things out because it is easy to make a prima facie case for the guilt of Wilson based on testimony and evidence.

    It is NOT the job of a Grand Jury to determine guilt or innocence.

    Because there was no trial, Wilson can still be tried at a later point in time.

    So did the Right Wing really win?

    Lets say demographics change in that county in tens years to the point wherein there is a new prosecutor elected to right old wrongs.

    IMO, from a purely objective view, Wilson would have been better off with a trial because he would have been lamely prosecuted just like Zimmerman and found not guilty, thus avoiding double jeopardy.

  2. Malisha says:

    The right wing reports support for the “Black Lives Matter” movement as if it is some kind of criminal conspiracy:

    Eye opening. Now they have graduated to claiming that the allegation that Brown had his hands up in surrender when he was killed has been “disproven.” Proof that it was disproven is simply that Washington Times reported it so.

    Fascinating how mass criminalization works; whoever opposes it is seen as a criminal conspirator.

    • Diamonique says:

      Scarborough has been spewing that crap for a long time. Every time that discussion comes up on his show he says the hands up thing was disproven by the grand jury. Every time he says it I want to throw something at my tv.

      • gblock says:

        Yes, somewhat like the way that Fogen was “proven” innocent at his trial – except in some ways even worse, because it;s not the job of a grand jury to prove anything.

  3. Malisha says:

    OT, forgive me. But I wonder if Jeralyn Merritt believes Fogen’s story that the girlfriend threw the bottle at HIM. It would seem to me that based upon her believing Trayvon Martin attacked Fogen, she should now believe that his latest girlfriend tried to brain him with a wine bottle. Dontchathink? 😆

    • Since I know Jeralyn personally, I’d prefer not to comment.

      • Malisha says:

        I know. I’m sorry, I couldn’t help an extra dig at her. I look back, at times, at the people who supported Fogen (including Jonathan Turley, Jeralyn Merritt, Alan Dershowitz, Angela Corey [yes, she’s in that category and even Cashill noticed that she deliberately threw the case) and I find myself blaming them MORE than the racist inadequate pompous impotent bully they canonized because they actually had brains.

        The second interview coward-cop Serino conducted with Fogen was SUCH a tell:

        CC: “What was it you said there, fuckin’ punk?”

        Fogen: Yeah. fuckin’ punk.

        CC: That was not a punk.

        Fogen: sullen silence

        CC: He was a good kid, family cared about him, blah blah…

        Fogen: sullen silence.

        More than anything else, this typifies the conduct of the proFogenites: they remained sullen-silent when any suggestion of the non-guilt of the victim was brought up. To Turley, Merritt, Dershowitz, and yes Corey, Trayvon Martin was OK to kill. He didn’t even HAVE TO deserve it. It was a freebie to kill him.

        In my angriest moments I want them to be magically transformed into people who must live the rest of their lives as people who are “OK to kill” and who KNOW IT.

        • MDX says:

          Dershowitz is on record as stating that Fogen faced a bigger man.

          That statement is a lie.

          A)Because both Fogen and his victim were at the same point on the Earth’s surface, they were subject to the same gravitational force. So, because humans are composed of the same matter, a 207 pound Fogen occupies more volume than his 150 pound victim, thus being larger.

          B)Man, in the English speaking world, means a person who has reached adult age, so only an idiot or liar would refer to a 17 year old as a man.

          But, this does point to the shit that resides in the minds of these people.

          In case A, the African has inbred qualities that make their body mass composition “different”.

          In case B, a male of African decent can never be a child or teen.

          As a white man, I do get the privilege of verbally “dressing down” a weenie like Dershowitz loudly and publicly to his face and in the word of Billy Jack “their ain’t a G;d damn thing he can do about it”

          If a white person is truly not racist, then “their problem” become “my problem” and “their people” become “my people”.

          It is how divide and conquer is defeated.

          The union:

          • bettykath says:

            “In case B, a male of African decent can never be a child or teen.”

            This statement could generate a good discussion. Black men were traditionally called “boy”, suggesting that they were never adults with adult rights or responsibilities. But you do make a point in that they can never be a child. Case in point is 12 year old Tamir Rice in Cleveland who was perceived as being 20-something. A major step forward would be for all African Americans to be perceived as they actually are, not as a stereotype.

        • bettykath says:

          I agree with all but Serino. Serino did suggest that fogen was a pathological liar on the stand and, according to the mother of the boy who was outside, Serino said that he thought he was dealing with a liar and he was trying to find the evidence. He also is the one who initially charged him. I think Serino was trying to do a conscientious job but was outnumbered.

          • gblock says:

            He seems to have been somewhat conflicted. He was trying to do a conscientious job, but he wanted even more to cover his ass and not get himself into trouble on the job.

  4. Diamonique says:

    When the trial gets going, are we going to be able to get daily updates? Streaming twitter feeds, blog updates, something?

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