Now that there is a jury in the Chauvin case, what will we see on Monday morning when the trial begins? Assuming the first 14 jurors arrive in court unscathed by illness or more publicity, the judge will excuse the 15th juror, who is serving as an insurance policy until Monday.
COVID-19 precautions in the courtroom limit the number of alternate jurors to two, the last two jurors chosen. So, 14 people will listen to the testimony of witnesses and hear the arguments of the lawyers, but only 12 will deliberate.
The judge will begin by giving the jury what are called instructions, which are the rules they must follow in and out of court. He will give them information about the three charges, while reminding the jurors that Chauvin is presumed innocent and that the burden is on the state to prove him guilty of each crime.
The judge will also tell the jurors that it is Chauvin’s constitutional right not to testify if he so chooses. We may know more about whether Chauvin will testify after the defense opening statement on Monday, although he does not have to make that decision until after the state is done with its case.
A successful opening statement is a story told so well that the listener arrives at your conclusion.
Something that may surprise and frustrate the jurors is that they will be told that they may not talk about the case amongst themselves until deliberation. The idea is that they listen to all the evidence, arguments, and instructions before they begin to deliberate, and that all 12 are present during deliberations.
What, exactly, do jurors talk about once they exhaust the usual topics of occupation, family, hobbies, and the Minnesota weather? Jurors in one Hennepin County trial began to count one lawyer’s repetitive use of the word “correct” and, during breaks, they compared their numbers.
After the court instructs the jury, each side will give an opening statement, starting with the state. It is a mistake to refer to an opening statement as an opening argument because the lawyers are not legally allowed to argue their cases.
The opening statements
Strategically, a lawyer shouldn’t try to argue because the jurors haven’t heard any of the evidence. The goal should be to lay out the case as persuasively as possible, providing an effective framework through which the jury should view the evidence.
Mark Bowden, a journalist and the author of “Black Hawk Down,” told a story that describes the difference between an opening statement and a closing argument. He was a young reporter assigned to a local police department, when police asked if he wanted to come on a “big” drug raid. They went to a public housing project, seized small amounts of drugs and petty cash, and held a press conference to announce their “big” drug bust.
Bowden had a dilemma. The accurate newspaper headline should have been, “Cops Perpetrate a Fraud on the Public.” He didn’t want to lose his police beat, or his job, so he wrote the most descriptive story he could. Anyone reading his story would conclude that the police had perpetrated a fraud on the public without him saying it. A successful opening statement is a story told so well that the listener arrives at your conclusion.
Many lawyers inaccurately quote a famous study as saying that jurors decide the case after the opening statements. What the study does say is that the jurors will be leaning toward one side after hearing an effective opening statement. Not only do you want them leaning your way, you want the jurors to view every witness though the framework you’ve provided.
We should know each side’s theory of their case after hearing their opening statements. A theory is simply the elevator pitch the lawyer would use to convince someone of the righteousness of their case.
For example, the state will walk the jury through the improper restraint used by Chauvin, which was the substantial cause of George Floyd’s death.
We can expect the state to carefully go through the medical examiner’s findings as to what killed George Floyd. The state will also walk the jury through the MPD’s policies on use of force and restraint, as well as the training Chauvin received on the dangers of positional asphyxiation and the importance of placing a person into the recovery position.
The defense will open next. There is always a great deal of anticipation when the defense rises to try to explain away everything the state just said. Based on motions filed by the defense and the defense’s questioning during jury selection, we can expect the defense to try to create doubt about the cause of Floyd’s death.
The defense’s narrative will be that Floyd died tragically from the drugs in his system, his heart problems, and his struggles with the police.
Either side can use visual aids during their opening, if they are shown to the other side and approved by the judge. The prosecution often uses PowerPoint slides to show the elements of each offense so that the jurors understand the charges.
The configuration of the courtroom, due to the pandemic, will substantially change the way the lawyers can move in the courtroom. Normally, lawyers like to move in front of the jurors to make eye contact and engage with all of them. In this trial, they will be confined to a podium, behind plexiglass, to give openings, closings and to question witnesses.
The gallery where the public usually sits has been removed to make room for the socially distanced jurors, who will be spread throughout the courtroom. This will create a challenge for the lawyers to really engage with all the jurors.
As soon as opening statements are over, the judge will tell the state they can call their first witness, and off we go.
Mary Moriarty was a public defender for 30 years, most recently for Hennepin County. She welcomes readers’ responses to mmoriarty@spokesman-recorder.com.