Always Be Closing: Using voir dire to argue misdemeanor cases

By Ryan C. Calvert
Assistant District Attorney in Brazos County

“A, B, C. Always be closing. Always be closing!”

Alec Baldwin boomed those words as he tried to motivate a group of underperforming salesmen in a famous scene in the film Glengarry Glen Ross. While Baldwin’s character encouraged salesmen to use any means necessary to separate customers from their money, prosecutors can put the mantra of “Always be closing!” to a more positive (and ethical) use in the execution of our singular objective: justice.

In a courtroom, an effective closing argument is simply the final extension of a message the prosecutor should have conveyed during every phase of trial. Done properly, voir dire is the leading edge of your closing argument.

Primacy

When prosecutors imagine ourselves in trial, we most commonly envision delivering a closing argument. That’s where we experience our “Law & Order” moment. We get to bring together passion, emotion, and logic to overcome flawed defense arguments.

But psychology tells us that by the time a case gets to closing argument, jurors have already made up their minds. The “primacy effect” is a well-known and documented psychological phenomenon, which says that the earlier people receive information, the better they accept and recall it. For example, one study found that when people read a series of statements about a person, the amount of time they spend reading the items declines with each new piece of information.1 Even more telling for prosecutors, participants in another study were shown two lists of character traits that contained identical traits, but in reverse order. Participants who read the list with positive traits shown first had more favorable impressions than those who read the list with negative traits first.2

Thus, jurors’ impressions of our case and our positions are formed long before we stand to deliver a closing argument. By using voir dire to begin the message that will carry through to closing argument, prosecutors take advantage of the primacy effect and begin “closing” before the defense lawyer ever speaks. Consequently, voir dire is most effective when everything a prosecutor does, says, and asks during jury selection has a case-specific objective.

What are the objectives of voir dire?

Successful prosecutors enter each voir dire seeking to achieve specific objectives:
1) Prepare jurors to overcome that case’s potential weaknesses;
2) Identify and eliminate jurors who cannot (or may not) overcome those weaknesses;
3) Establish that case’s themes and arguments;
4) Educate jurors on the law governing the case;
5) Protect strong jurors from defense challenges for cause; and
6) Establish credibility with jurors.
Achieving each objective requires prosecutors to spend time planning voir dire presentations, tailoring them to the facts, legal issues, and most especially, potential weaknesses of the specific case being tried.

Focus on your weaknesses

One of the biggest mistakes I often see young prosecutors make is to use a “stock” or generic voir dire for each type of case. I have seen inexperienced prosecutors, moments away from jury selection, calling down the hall to colleagues, “Does anyone have a [fill in the blank] voir dire I can use?” As a young misdemeanor prosecutor, I was often guilty of that same mistake. I tended to conduct every DWI voir dire the same way. After all, a DWI is a DWI, right? Likewise with assault family violence or theft cases.

It took a “not guilty” verdict on a DWI with a .24 BAC and a crash to teach me the flaws in the “one-size-fits-all” approach.

The defendant in that case was a doctor who, after the crash, was extremely apologetic, kind, and cooperative with police. So cooperative, in fact, that by the end of the video, he and the arresting officer were showing each other photographs of their respective children. When I spoke to the jury after the verdict, jurors said they felt that being arrested and going through a trial were punishment enough for the defendant, whom they all liked and for whom they felt sympathy. At the time, I complained bitterly that I lost because I had a “bad jury.” In time, I realized that the jurors didn’t fail. I did.

In that case, I spent the vast majority of my time in voir dire discussing intoxication, as I always did on DWI cases. But proving intoxication was the strongest part of my case. Unfortunately, I never discussed or asked any questions about my case’s biggest weakness: sympathy for the defendant. Rather than covering topics that jurors might actually struggle with in that specific case, I wasted my limited voir dire time discussing an element that would be easily proven.

An essential question that prosecutors should ask prior to voir dire is, “How can I lose this case?” The answer to that question largely dictates where the prosecutor must spend the limited amount of time provided for voir dire. The prosecutor must thoughtfully consider what topics he must cover. For example, if the issue is intoxication in a DWI, then the bulk of voir dire should be spent on that topic. If, however, the main contested issue on a DWI is operation of a motor vehicle, then that case’s voir dire should look very different.

Prosecutors are trained to identify factual issues that may prevent a case from being proven beyond a reasonable doubt. Jurors, though, often consider two distinct questions when deliberating:
1) Has the case been proven? and
2) Even if the case is proven, should I convict the defendant?

To succeed, the prosecutor must often address both questions in voir dire. During trial preparation, some potential issues to consider include:
• sympathy for the defendant;
• unlikable victim or witnesses;
• cooperating witnesses or co-defendants (“snitches”);
• inconsistent testimony;
• inability of witnesses to recall details;
• absence of eyewitnesses;
• absence of physical or forensic evidence;
• the “who cares?” factor (for example, shoplifting from Walmart or possession of marijuana);
• circumstantial evidence
• poor police work;
• uncooperative victim;
• absence of harm to the victim or society; and
• delay in reporting the crime (especially in child abuse and domestic violence cases).

Before conducting voir dire, ask yourself (and teammates) whether jurors may struggle with any of these issues in your case. If the case has a potential weakness unrelated to the facts of the crime itself, address the issue head-on in voir dire. If the evidence proves the defendant’s guilt beyond a reasonable doubt, but for some other reason, jurors are unwilling to convict, then those jurors are subject to challenge for cause and must be struck from the jury. (More on challenging jurors for cause in a bit.)

Let’s practice evaluating two very different assault family violence cases for their potential weaknesses.

Case One:
• Defendant and victim are married with two children
• Defendant becomes angry with victim over finances
• Defendant pushes victim into a wall
• Defendant punches victim in the face
• Victim calls 911 immediately and reports that her husband hit her
• Officers respond quickly and victim tells them what happened
• Defendant denies touching victim and says the two simply “had an argument”
• Officers note obvious swelling on the victim’s eye and damage to the wall
• Victim later recants and tells prosecutors that defendant never struck her
• Victim does not work outside the home

Case Two:
• Defendant and victim are dating
• Defendant learns victim is cheating on him and confronts her
• Defendant slaps victim in the face two times
• Victim does not call 911 immediately but goes to the police department the following day to report the assault
• Officers note that victim has slight redness on her face but no obvious injury
• Victim is cooperative with prosecutors and wants defendant punished
• Victim has prior convictions for possession of a controlled substance and theft

What potential weaknesses or issues in each case might a prosecutor want to address in voir dire? In Case One, you’ll definitely need to address recanting or uncooperative victims, witness credibility, and totality of the circumstances. In Case Two, minor or invisible injuries should be discussed, as should having an unlikeable victim and delay in reporting an assault.

Although Case One and Case Two involve the same crime, the prosecutors’ voir dires should vary substantially from each other. To prepare jurors to overcome each case’s potential weaknesses, the prosecutor must structure the discussion to address those case-specific concerns. A generic domestic violence voir dire fails to adequately address the unique weaknesses of either case, while potentially wasting valuable (and limited) time on areas that may not be relevant.

It is important to note that the examples in this article are not intended to be word-for-word scripts of voir dire, nor are they appropriate in every case. A critical component of trial preparation is determining which areas must be covered in voir dire and how the prosecutor plans to approach them. Additionally, prosecutors must conduct voir dire and every other phase of trial in their own unique styles. The purpose of these examples (and this article as a whole) is not to dictate what prosecutors must say or do, but rather to illustrate ways we might tailor voir dire to the circumstances of a specific case. The goal is for prosecutors to find ways to make voir dire an active component of the persuasive process in the eyes of jurors.

Let’s get into some details about how to address the weaknesses in both cases.

Evaluating Case One

Here, the largest hurdle the prosecutor must overcome is that the victim will testify the defendant is innocent (a common occurrence in family violence cases). For jurors to see past that testimony and convict the defendant, they must first clearly understand the family violence dynamic. The reasons victims recant, the inequality of power in abusive relationships, and the enormous pressures placed on victims to protect their abusers must be forefront on jurors’ minds from the very beginning of the trial, and the prosecutor is responsible for focusing jurors on these issues. Through the prosecutor’s questions, jurors can educate each other on why victims of domestic violence recant. Consider the following example:

“Juror No. 1, why might a victim of domestic violence not want the abuser prosecuted?”
“Fear.”
“Fear of what?”
“That the person will do it again, or it will get worse because she told.”
“Juror No. 2, your neighbor says fear of retaliation. Can you think of any other reasons?”
“Embarrassment.”
“Embarrassment about what?”
“Having to talk about a family secret.”
“Juror No. 3, how do people often feel about someone they’re in a relationship with?”
“Love.”
“Can love be a factor in why a victim may not want to prosecute?”
“Yes.”
“Juror No. 4, does domestic violence affect only the victim?”
“No.”
“Who else can be impacted by violence in a home?”
“Kids.”
“Sure. If a victim has kids with an abuser, could that be a factor in why the victim may not want law enforcement involved?”
“Yes.”
“Why?”
“Because they want to keep the family together.”
“Juror No. 5, what is something that victims of domestic violence might need or depend on an abuser for?”
“Financial support.”
“Financial support only for themselves?”
“No, also for their children.”
“Absolutely. So can money be a factor in why many victims of domestic violence don’t want law enforcement involved?”
“Definitely.”
“Juror No. 6, because of all these reasons we’ve talked about, do you think victims of domestic violence sometimes actually try to protect their abusers from law enforcement?”
“Yes.”
“Like what?”
“By not reporting it or lying about it.”
“Juror No. 7, do you agree with your neighbor that sometimes victims of domestic violence lie about what happened to protect their abuser?”
“Yes.”
“If we have evidence that proves abusers are guilty, do you think we should prosecute domestic violence cases even if victims are not cooperative or lying about what happened?”
“Yes.”
“Why?”
“Because domestic violence is dangerous and you don’t want it to get worse.”
“Juror No. 8, when a victim is being assaulted and picks up a phone to call 911, what is she thinking about in that moment?”
“That she needs help.”
“Right. And when does she need it?”
“Right now.”
“Sure. What is she thinking about a year or two after that 911 call, when the case against her loved one finally goes to court?”
“All those reasons why she doesn’t want him in trouble.”
“So, if a victim of domestic violence does not want an abuser in trouble, should we prosecute those cases, Juror No. 9?”
“Yes.”
“Why?” (And so on.)

By asking jurors why a case should be prosecuted despite an uncooperative or recanting victim, the prosecutor prompts the jurors themselves to argue the case for the prosecution. Jurors’ responses in voir dire about why a law must be enforced later become a prosecutor’s closing argument compelling those jurors to convict.

Another effective technique is to ask which members of the panel have experienced domestic violence in their homes. Sadly, every jury panel will include people whom domestic violence has touched in some way. The prosecutor can ask those jurors whether the victim ever notified police. Most often, jurors will say no. Even jurors who indicate that police were called typically concede that law enforcement was not notified the first time abuse occurred. The prosecutor can then ask those jurors why police were not called. Jurors will cite the same reasons for not involving law enforcement that the victim faces in the case now on trial: love, family, fear, financial dependence, etc. This discussion changes the family violence dynamic from a theoretical concept to a real-world occurrence. By bringing this issue to the forefront during voir dire, the prosecutor prepares jurors for the fact that the case’s victim will recant and also equips jurors to see beyond the surface-level fact that the victim is uncooperative and instead look at whether an assault occurred.

Even when jurors understand why victims of domestic violence want to keep abusers out of trouble, some still feel that the matter is a family issue and should not be prosecuted without a cooperative victim. The following approach can be effective in addressing those jurors:

“Juror No. 13, I talk to many people who feel that if the victim of an assault does not want law enforcement involved, then we should stay out of it, especially when we’re not talking about an assault with severe injuries. How do you feel about that?”
“I tend to agree.”
“That’s fair. Clearly, if someone was severely injured, that might be different, but if we’re talking about minor injuries, you just don’t think a person should be convicted of a crime if the victim doesn’t want that to happen, right?”
“Right.”
“So if you’re honest with yourself, even if the evidence proves to you beyond a reasonable doubt that the defendant committed an assault, you would not convict if you also learned that the victim doesn’t want him prosecuted, right?”3
“Yes.”
“Thank you. I appreciate you letting me know that. I know that many people feel that way. Who else agrees with that?”

Note that voir dire is rarely a place to try to change jurors’ minds. One of my first voir dires as a misdemeanor prosecutor was on a DWI without a breath or blood test. I asked the jury panel whether anyone would require a scientific test in order to convict. Six jurors raised their hands. My first thought, frankly, was that these jurors were stupid. I proceeded to give them a hypothetical involving an extremely intoxicated driver who crashed his car and then told police how drunk he was. I then asked those six jurors whether they would actually need a breath or blood test to convict someone like that. All six said, “No, I guess if you had a case like that, I wouldn’t need a test.” I felt smug in knowing I had won the intellectual argument … until I remembered the facts of my case were nowhere near as strong as the facts of my hypothetical. By losing sight of my ultimate objective of getting the best jury for my case, I created a situation in which I had six jurors to strike and only three strikes to use. As it turned out, I was the stupid one that day!

By welcoming opinions that are adverse to the prosecution, the prosecutor creates a safe place where jurors who are ill-suited to that particular case can readily identify themselves. Once the prosecutor knows who those jurors are, she can effectively use challenges for cause and peremptory strikes on those jurors.

Evaluating Case Two

A key potential weakness in Case Two is the absence of obvious injuries on the victim. The defense lawyer will undoubtedly argue during the trial that if photos show no injuries on the victim, then no injuries ever existed. During voir dire, a prosecutor must certainly explain how the definition of “bodily injury” does not require visible injury. Explaining the law, however, is frequently not enough to ensure that jurors actually follow the law. The manner in which a prosecutor explains the law is as important as the explanation itself.

Jurors can more easily apply a law if they understand and take ownership of why the law is what it is. Prosecutors can help jurors understand and embrace a law by questioning them about their feelings on an issue prior to explaining what the law is. Consider the example below:

“Juror No. 10, you have long hair. If I grabbed a handful of your hair and pulled it hard, how would that feel?”
“It would hurt.”
“Sure. Have I caused you bodily injury?”
“I think so.”
“Why?”
“Because it hurt.”
“Juror No. 11, if I took a picture of her, am I going to be able to see any signs of injury like blood or bruising?”
“No.”
“Juror No. 10, are you going to go down to the hospital and get a CT scan or any other test so we would have medical records showing you were injured?”
“No.”
“Juror No. 13, I definitely caused Juror No. 10 pain, but it didn’t last very long, it didn’t cause any visible marks on her, and she didn’t require medical treatment. Do you think I caused her bodily injury?”
“I think so.”
“Why?”
“Because you hurt her.”
“Juror No. 14, do you agree that you can hurt someone without causing visible injuries like bruises or bleeding?”
“Yes.”
“If I walked up to you on the street and punched you in the stomach, is that going to cause a lot of bleeding or bruises?”
“Probably not.”
“So, is that still an assault?”
“Yes.”
“Why?”
“Because you hit me.”
“Juror No. 15, should the law wait until I rip the hair out of your neighbor’s head or beat her badly enough that it results in bruises and blood before the law says it’s a crime?”
“No.”
“Why not?”
“Because you don’t have a right to hurt people at all.”
“Juror No. 16, do you agree with that?”
“Yes, I do.”
“Well, the Legislature agrees with you. Here is the legal definition of ‘bodily injury’…”

Rather than simply giving the legal definition of “bodily injury” and asking jurors how they feel about it, the prosecutor uses the order and structure of questions to prompt the jurors to explain that the law should be precisely what it is. In the process, the prosecutor identifies jurors who are not naturally inclined to agree with that law. Following this discussion, the prosecutor is in a strong position to argue in closing that the jurors themselves rejected the defense’s suggestion that without visible injuries, there is no assault. Through this conversation, the prosecutor is already closing.

The same principle applies in DWI cases on the issue of intoxication. Rather than simply providing the legal definition of “intoxication” and asking how jurors feel about it, consider the following discussion:

“Juror No. 1, what is something alcohol does to people?”
“It slows reaction time.”
“Juror No. 2, what else?”
“It impairs judgment.”
“Juror No. 3, does alcohol effect your vision?”
“Yes.”
“Does it make it better or worse?”
“Worse.”
“Juror No. 4, does alcohol effect your mind’s ability to process information?”
“Yes.”
“Does it make it better or worse?”
“Worse.”
“Juror No. 5, does alcohol effect your ability to physically control your own body?”
“Yes.”
“Does it make it better or worse?”
“Worse.”
“How many of you have been driving when someone cut you off and you had to jump on your brakes in an instant to avoid a collision?”
Every juror raises a hand.
“When you’re in that situation, if your ability to physically see the threat, or your ability to mentally process what you’re seeing as a threat, or your ability to physically react to the threat by turning the wheel or hitting the brakes, is impaired to any degree because of alcohol, what kind of difference can that make on the roadway?”
“Life or death” is the most common response.
“So, Juror No. 6, should the law wait until a driver is extremely drunk before stepping in and saying that he cannot drive?”
“No.”
“Why not? I mean, if he’s a little bit intoxicated but he still seems to be walking and talking OK, why shouldn’t he be allowed to drive?”
“Because intoxicated drivers are dangerous long before they’re extremely drunk.”
“Juror No. 7, your neighbor says intoxicated drivers are dangerous long before they’re extremely drunk. How do you feel about that?”
“I agree.”
“Juror No. 8, how do you feel about that?”
“I also agree.”
“Well, the Legislature agrees with you too. Here is the legal definition of ‘intoxication’ in Texas …”

Through their responses, jurors take ownership of the legal standard of intoxication, lowering their expectations of what “intoxicated” truly means, thereby addressing the potential weakness in the case of a defendant who is not obviously intoxicated on video. Additionally, this approach establishes a common theme in a DWI case: that a slightly impaired driver is both dangerous and guilty. That theme should carry through every phase of trial, from opening statement and questioning of witnesses, to closing argument. Thus, when the prosecutor argues that legal standard during closing, he merely reinforces what jurors themselves said during voir dire.4

Challenges for cause

Identifying potential weaknesses in a case is meaningless if the prosecutor fails to eliminate jurors who struggle with the issues at hand. Potential jurors who indicate that they disagree with a law, theory, or theme in the case need to be struck from the jury. The question is, by what mechanism will they be struck? Obviously, the more jurors are struck for cause, the more flexible the prosecutor can be with peremptory strikes. First, though, the prosecutor must understand the difference between questions that properly challenge jurors for cause and those which improperly seek to commit jurors to a particular result in the trial. Consider the two questions below:

“Could you ever convict a person based upon the testimony of one witness?”
vs.
“If you hear from only one witness, but that witness’s testimony convinces you of every element of the crime beyond a reasonable doubt, would you convict the defendant?”

To the average juror, the two questions sound like they ask the same thing. Legally, however, the first question is improper while the second one is proper. Essentially, the first question asks a juror how much evidence he needs for a case to be proven beyond a reasonable doubt. Caselaw makes clear that such a question calls for an improper commitment from the juror.5

On the other hand, the second question asks whether the juror will follow the law. The law requires jurors to convict once every element is proven beyond a reasonable doubt. Thus, by framing challenge-for-cause questions on the premise that the juror believes each element beyond a reasonable doubt, the prosecutor can ask about any potential weakness in a case in order to strike jurors who might struggle with a particular issue.

In Standefer v. State,6 the Court of Criminal Appeals noted that commitment questions containing certain facts of a case are appropriate, so long as they 1) go to a legitimate challenge for cause, and 2) do not contain unnecessary facts. The basic formula is, “If you believe each element of the crime beyond a reasonable doubt, but you also learn [fill in the blank with a potential fact], will you convict the defendant?” Consider the following example from a domestic violence voir dire:

“Juror No. 1, if the evidence convinces you beyond a reasonable doubt that the defendant intentionally caused bodily injury to a family member, but you also learn that the victim does not want to prosecute, can you promise the court that you will still convict the defendant?”

This question is proper under Standefer. Because the law requires jurors to convict once the elements of assault are proven beyond a reasonable doubt, the question goes to a legitimate challenge for cause. Additionally, the question contains only those facts necessary to establish the challenge for cause, namely, that the victim does not wish to prosecute.

Earlier, I discussed creating a safe place for panel members to express unpopular or controversial views. Fear of judgment or embarrassment may cause potential jurors to hesitate before openly expressing opinions, such as “drugs should be legal” or “stealing a small amount from a store like Walmart should not result in a criminal conviction.” Moreover, virtually no jurors wish to be seen as “unwilling to follow the law.” Indeed, when trying to strike a juror for cause, many prosecutors make the mistake of asking the juror, “So you can’t follow the law?” The tone of that question automatically makes jurors defensive and inclined to say things like, “If it’s the law, I’ll follow it.” As a result, the prosecutor has to burn peremptory strikes on those jurors.

Consider the difference in these two approaches:

“So, if the evidence proves to you that the defendant possessed marijuana, the law requires you to find that person guilty. Will you follow the law?”
vs.
“Marijuana is legal in several states, and many people feel it should be legal here. A lot of people tell me that even if I prove beyond a reasonable doubt that a defendant possessed marijuana, there is no way they could convict someone of a crime for something that they don’t feel should be illegal in the first place. If you’re honest with yourself, is that how you feel?”

Which tactic do you think is more likely to result in a juror being struck for cause? By validating the positions of jurors who disagree with the prosecution, prosecutors can more easily identify other jurors who share those views, thus making them easier to strike. Once a single juror expresses such views, welcome the juror’s input and call for other, perhaps less-vocal panel members who agree. Again, the objective in voir dire is not to change jurors’ minds. Rather, it is to identify those jurors who cannot guarantee that they will render a true verdict based on the law, as their oath requires.

Take ownership

The philosopher Ralph Waldo Emerson once said, “Shallow men believe in luck or in circumstance. Strong men believe in cause and effect.” Too often, prosecutors blame a “bad jury” for an acquittal. In reality, a loss at trial is usually caused by a prosecutor failing to adequately prepare the case, failing to identify the case’s issues, or failing to plan and execute a voir dire tailored to address the specific case’s potential weaknesses and establish themes that will persuade jurors to do justice. By waiting until closing argument to articulate to jurors why we are right, we entrust our case to the luck of the draw with regard to who is in the jury room. Voir dire is our opportunity to lay the foundation for every argument we make in a case and to ensure that those jurors who make it into the “comfortable chairs” of the jury box are both aware of and ready to overcome any issues our case may have. We largely control who our jurors are and how well they are prepared for our specific case. For that reason, we must always be closing.

Editor’s note:  This is the first of three articles on voir dire that this journal will publish. Keep an eye out for the next two issues to read about special issues in voir dire and jury selection in punishment cases.

Endnotes

[1] Susan Belmore & Michael Hubbard, The Role of Advance Expectancies in Person Memory.

[2] S. Asch (1946), The Journal of Abnormal and Social Psychology.

[3] Note that under Standefer v. State, 59 S.W.3d 177 (Tex. Crim. App. 2001), this is a proper commitment of a juror because it goes to a legitimate challenge for cause and contains no unnecessary facts.

[4] It is important to note that the above example is an abbreviated version of what should be a longer discussion with a jury panel where responses are extensively looped to others on the panel to foster an active exchange among jurors. “Looping” simply means asking jurors to respond to the statements of other jurors. Once a legal definition has been provided, it is critical that the prosecutor attempt to strike for cause any jurors who indicate that they may not be able to follow that law. 

[5] See Castillo v. State, 913 S.W.2d 529 [Tex. Crim. App. 1985]; Medina v. State, 2004 WL 764444.

[6] 59 S.W.3d 177 (Tex. Crim. App. 2001). Also see “Staying on the right side of Standefer” by Zack Wavrusa in the May–June 2019 issue of this journal.