While there are exceptions to every rule, there are few exceptions to this one: opening statements must be given at every trial, immediately following the government’s opening.
The government has just finished telling the jurors that your client is a lying, or thieving, or raping, or violent pig that preys on the lives of innocent people to advance his criminal enterprise (this theme for the government is always the same, whether the case involves homicide or health care fraud). As the government lawyer sits down, all eyes in the jury box turn to you, and very few, if any, of those eyes have openness or acceptance in them.
Now is not the time to say, “I reserve my opening until the end of the government’s case.” Translated, this may be interpreted as “I have nothing to say to you right now, but maybe I will figure something out by the end of the government’s case.” It is certainly not the time to say, “I waive opening statement.” Translated, this may be interpreted as “I am here doing
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