My advice to trial lawyers – throw out the trial advocacy books filled with old wives’ tales, and study human behavior. The opening arguments in the Zimmerman trial are a good example of using the psychological principles of primacy and recency. The audience remembers the first thing you say and the last far better than that sandwiched in the middle. And the impression the jurors get from the opening colors their perception of the evidence as it unfolds.
The state painted Zimmerman as an out-of-control thug. “Fucking punks. These assholes always get away… From those hate-filled words that he used to describe a perfect stranger.” He “profiled, followed and murdered an unarmed teenager.” He “stalked” Trayvon Martin. He wantonly disregarded the order of the police dispatcher. Imagine this as your first impression of a person.
This character assassination had to be answered and overcome in the jurors’ minds. Perhaps something along these lines:
George Zimmerman is a responsible young man. He went to college. He has a job. He is married. And he volunteers to help his friends and neighbors by being the police liaison to his neighborhood watch.
He lives in a neighborhood beset by crime. On this evening he sees a suspicious stranger sneaking around his town home complex, his face and head covered, and rather than ignoring the possible threat to his neighbors, he calls the police. He asks them to send help. But that takes a while. He follows the man at a distance all the time informing the police dispatcher what he is doing.
Did he intend to commit murder that night? Did he act with a “depraved mind” which Florida law defines as done from “ill will,” “hatred,” “spite,” or “evil intent” such that is shows “an indifference to human life?”
The State prosecutor never answered that question; never once did he explain George’s alleged intent to kill, but I will. Who would call the police, ask them to send an officer and give them a detailed description of everything you were doing if you intended to kill?
[while speaking to the jury I would put two photographs on the powerpoint screen]
After the shooting George sat with the police for many hours and fully explained what happened. He told them that he shot the suspect only after the suspect knocked him down, punched him and slammed his head repeatedly into the concrete. Only when he feared for his life and feared the suspect was going to grab his gun, did he take his weapon out of its holster and shoot him. Not in ill will, hatred or evil intent, but from fear for his own life.
This perception of George Zimmerman is radically different than the first one. The jury will give a completely different intention to his actions based on what they take from the opening. What they hear first has a disproportionate impact, either positive or negative, on how they view his actions as it comes from the witnesses.
And Zimmerman has the advantage of the recency effect. In the final argument the state gets to go first and last but the opening argument is the only time the defendant gets the last word. There is no rebuttal. The jury will be influenced by the last thing they hear.