By W. Clay Abbott
TDCAA DWI Resource Prosecutor in Austin
As a brand-new misdemeanor prosecutor, I was all ready for trial.
I got sent to JP court my first hour in the office, and mock trial in law school had prepared me to direct-examine a witness, object, respond, lay predicate, and argue. No panic—a Class C bench trial was something I could do.
A week later, I had a jury trial with the chief, and I remember thinking, “Why has no one taught me a thing about jury selection?” Two weeks and two trials later, there I was, selecting a jury. I was bad. I got better, but it happened mostly by learning from my mistakes.
Many years ago, I was asked to create training videos on jury selection in DWI cases. I had seen a couple of pretty bad examples, and the overwhelming logistics of such a project led me to say it could not be done. But the Texas Department of Transportation gave us the money, TDCAA gave us support, and great Texas prosecutors volunteered to help. The team that has made most of the DWI training videos on our website agreed to produce the videos and gave me a discount on the usual fee. I am very pleased to say I was wrong: It actually IS possible to create videos on DWI voir dire from scratch. We actually did it!
And now you can watch them. Go to www.tdcaa.com/resources/dwi, and you will find two half-hour training videos named “Jury Selection in DWI Prosecution” and “Special Issues in Jury Selection in DWI Prosecution.” I hope they provide new and experienced prosecutors something I did not have: training and modeling of how to pick a jury.
Now a cautionary note: Do not use these videos as a script. Like closing argument, jury selection is effective only if it is authentic. To be authentic, a trial attorney must know himself and be true to his own style. What you see in the videos will work only if you internalize it and present in your own way. Another important thing I learned in trying cases is that I could never be my trial heroes—I had to do what they did but stay true to my personality. To show how different prosecutors approach jury selection individually, I gathered eight very good DWI prosecutors with eight very different styles. No one on the planet can do everything all eight do as well as they do it, but my guess is that anyone watching the videos will have several “hey, I can do that!” moments. That is by design.
“Jury Selection in DWI Prosecution”
The first video, “Jury Selection in DWI Prosecution,” covers issues that are central to almost every DWI case. We made an effort to show both content and technique.
Content includes introducing yourself, walking through the selection process with the panelists, asking them why DWI matters, and of course the big one: educating the jury on intoxication. When it comes to intoxication, DWI jury selection is very difficult. Jurors know about this crime, and that is both good and bad. They need to be encouraged to remember what they already know. Prosecutors do that in several ways: by asking the question, “How do you know if someone is intoxicated?”, using “Mom’s sobriety tests,” and introducing the “red bouncing ball” scenarios, and all of these are demonstrated. (If you don’t recognize what these methods are, then this video is definitely for you.)
The bad side of jurors’ experience with DWI is also explored. Prosecutors must help the jury understand that “intoxicated” does not necessarily mean “drunk.” Empowering the jury’s common sense while teaching the legal definition of “intoxication” is a difficult dance that is demonstrated in several ways in this video. There is probably more in the video than a court’s time limitations may allow, but our hope is that offering several examples will give the individual prosecutor at least one idea he or she can adopt, improve on, and execute.
Several techniques are also demonstrated. Getting panelists to open up is paramount in jury selection. No prosecutor is so persuasive that he can change all the long-held opinions of every member of the panel—this was certainly my biggest weakness early on in selecting juries—but the last three segments show various styles of interaction with the jurors. Both videos demonstrate the use of “scaled questions”—and again, if that term is unfamiliar, then you need this video. Getting answers that can justify and avoid strikes for cause is demonstrated. The technique of “looping” bad answers to find more suspect jurors is included, as well as the equally important technique of letting jurors correct other jurors. Being persuasive without being argumentative is hard, and watching it done by prosecutors who do it well may help avoid a bunch of trial and error.
Although the video is basic in its scope, my hope is that skilled trial attorneys will also benefit by finding ideas to steal. Watching this video should have the same net effect as our constantly watching each other. I am so jealous I never used Dallas County ACDA Lauren Black’s “SFSTs as Olympic judges” bit. (Watch for it—it is simply brilliant.) Once a trial attorney has nothing left to learn, he really has nothing left to offer his community.
“Special Issues in Jury Selection in DWI Prosecution”
The second video contains many extensions of what was contained in the first, with the major difference being that the subject matter in this video is case-specific. For example, educating the jury on search warrants when a case included a warrant is very different from the discussion in a case where there is no warrant. And if the subject gave consent to a breath or blood test, that whole warrant discussion is unnecessary.
Both warrant situations are demonstrated in this video. Commitment or Standefer questions are demonstrated and discussed at length. Every time I see a case reversed on this issue, it tells me we all need constant reminders of what constitutes a commitment question. (Again, if you have no idea what I’m talking about, you need to watch these videos.)
We go back to intoxication and address a common issue in DWI: Does the defendant’s blood alcohol concentration (BAC) match what is seen on the officer’s video? So often we try cases where the clues are subtle while the BAC is not, or conversely where the clues are abundant but a delayed test is close to or below .08. Prosecutors in these cases must prepare a jury for this glaring issue. Again, we provide a couple of approaches: The “Lily and Bubba” and the “sick child with or without a fever” scenarios are both demonstrated. If you don’t know already, you’ll have to watch the videos to find out what those examples entail.
One of the best and worst parts of a DWI prosecution is that our witnesses are peace officers. If a juror can never trust a police officer, then she will likely never convict in a DWI trial. Exploring jurors’ attitudes and experiences with police is not easy, but here again, we demonstrate scaled questions and positive and negative looping to find out where jurors stand on this issue.
Finally, not every DWI is alcohol-related, so we also demonstrate a drugged-driving jury selection. While in some ways it is similar to alcohol, in many other ways it is totally unique.
How to use these videos
First, go to the website and just watch them—watch them with other prosecutors. One of the great strengths of prosecution is the team aspect of what we do. If I had been alone in improving my trial skills, my growth would’ve had a much flatter slope. Needless to say, I am a big believer in prosecutors, training, and group learning. No one person has all the answers, not even me. This project would have failed without a great team in front of and behind the cameras. Watch it the same way we made it—with a group and with plenty of time to pause and discuss. Chiefs and mentors, please don’t just sit your people down at a computer to view these videos. They are a great tool for experienced attorneys to use in addition to the training they are already doing. Watch them with your team and any other prosecutors you are tasked with teaching what you know.
Prosecuting in 2019 is not easy—you need all the help you can get. Diverse juries and diverse prosecution teams improve all our chances. I cannot possibly express my gratitude enough to the folks who worked so hard on this project. Busy trial attorneys gave their most precious gift, their time, and the folks behind the camera all gave some monster days. Many and varied voices made these videos what they are. See the box below for who deserves much thanks.
So much of my early instruction on jury selection was just plain wrong. Advice about the “kind of people” who made good or bad jurors did far more harm than good to my cases and my ability to do justice. More importantly, the advice made me a worse prosecutor, not better.
You won’t find a single bit of that kind of advice in these videos. Instead, you’ll find skills to get a jury talking. When our community talks and we listen, we can see that justice is done. As Andrew James, an ADA in Montgomery County, so artfully expressed in this project, “God gave us one mouth and two ears so we would listen twice as much as we talk.” Listening is the skill I had to learn to get better at jury selection. Trust what jurors tell you— make your strikes based on that and not anything you see on a jury information sheet.
I hope that viewing these training videos gives you the questions and skills you need to procure the information you need to choose the right jury on your next DWI case.
Our thanks to the following:
Texas Department of Transportation
Texas District and County Attorneys Foundation
Lauren Black, Assistant Criminal District Attorney in Dallas County
Kelsey Downing, First Assistant District Attorney in Aransas County
Jessica Frazier, Assistant Criminal District Attorney in Comal County
Stephanie Greger, Assistant County Attorney in Williamson County
Dee Hobbs, County Attorney in Williamson County
Andrew James, Assistant District Attorney in Montgomery County
Chris Nevins, County Attorney in Gillespie County
Sean Teare, Assistant District Attorney in Harris County
Allison Tisdale, Assistant District Attorney in Travis County