Debating the value of opening statements

Today I gave a lecture before the combined Tokyo Bar Associations in Kasumigaseki. The lawyers were particularly interested in the theory and practice of opening statements. I presented my experiences during the World Trade Center bombing trial. There was an abundant amount of physical evidence tying the defendant to the plot and it was my challenge to develop a theory of innocence and convey that to the jury in my opening statement. I urged the view that lawyers should try to present an alternative view of the evidence to the saiban-in, rather than relying on reasonable doubt arguments. At least one lawyer seemed skeptical of this view: "how do you give a B story without knowing what the evidence will be at trial?" I answered that Japanese lawyers will have a more complete picture of the evidence before trial than American lawyers do, owing to Japan's more liberal discovery rules, and so they can plan ahead and will have the tools to create compelling opening statements. To be sure, not all cases lend themselves to creating opening statements that present a competing view of the evidence, but I believe most do. Since most people leap to conclusions and then look for evidence to confirm their early conclusions, it's particularly important for defense lawyers to counter the government's detailed portrait of guilt with an alternative view, much like the great director Kurosawa did in Rashomon.