By Anshu “Sunni” Mitchell
Assistant District Attorney in Fort Bend County, &
Jamie Felicia
Assistant District Attorney in Williamson County
Jury selection is an important phase of any trial. In a child abuse trial, many prosecutors believe jury selection is the most important phase of the trial. The composition of the jury, as with any case, will represent the single biggest unknown variable the prosecutor faces at trial. However, it is the jury’s understanding, even before opening statements, of the difficult emotional and medical issues in a child abuse case that make or break a case. No matter how well you prepare, how strong the evidence, or how convincingly you present the case, it may not matter if the jury is not prepared for the evidence in a child abuse case.
No other crime invokes as much anger and disgust as a child sexual abuse case. People may have different views about drug offenses, for example, or about whether a murder was justified, but public opinion about child sexual abuse is united and strong. The challenge for the prosecutor is to focus and direct those strong feelings appropriately. This process starts and ends with you educating the jury about the law and the unique evidentiary issues in a child abuse case.
Threshold considerations
Child abuse cases are almost always hotly contested in the guilt/innocence phase of the trial. Unless you have a very high likelihood of the defendant’s DNA on the swabs taken from the child’s vagina during an acute SANE exam or some other strong corroborative evidence, you should probably focus on the guilt/innocence phase of the trial during jury selection.
What are the major weaknesses in the case? Delayed or unconvincing outcry? A lack of corroborating evidence? The complainant herself—misconduct, a bad attitude, or perhaps the fact that close family members do not believe her? Is the biggest weakness in the case the fact that the defendant enjoys a reputation as an upstanding citizen and portrays the image of a person who would never do such a thing? List the main avenues of attack the defense will likely take, and think about how you can address them on voir dire. Do not avoid difficult issues in voir dire; instead, hit them head on and confidently.
Goals of voir dire
Regardless of the specific facts and issues in the case, a child abuse voir dire should have several important goals. You should seek to:
• educate the panel about the unique issues in a child sexual abuse case, such as delayed outcry, one witness testimony, and the lack of medical or scientific evidence;
• dispel preconceived notions jurors have about who is a typical child molester and get jurors to understand there is no blueprint for a child abuse victim or how s/he will testify;
• commit the panel to following the law on evidentiary issues, such as one-witness testimony;
• fortify State’s jurors and eliminate unfavorable jurors; and
• qualify jurors on the relevant punishment range and prepare them for potential lesser-included offenses.
This article talks about two of those goals: education, and preparation and commitment.[1] There’s also a sample voir dire below.
Goal: education
Introducing the offense. Introducing the panel to the offense is essential and must come first due to the “mob” attitude you will often encounter when prospective jurors find out the defendant is charged with a sex-related offense against a child. More often than not, as soon as they are informed of the nature of the accusation, you will see a change in the attitude of the panelists. Typical reactions range from grim acknowledgment to disgust to open anger.
Acknowledge this change in mood. Tell them you understand the way they feel and that you expected that reaction. Explain that strong feelings of revulsion and sadness are normal but are not a valid excuse from jury service. Advise the venire that this is not a referendum on the popularity of child abuse. Point out that no one is “OK” with child abuse. Emphasize why their service is so important, and do not be afraid to use a little bit of guilt to motivate them. After all, if everyone who was offended by sexual abuse of children and disliked hearing about it were excused from jury duty, child abuse cases could never be tried. Or, worse, they would be heard by jurors who are not offended by sexual abuse of children.
Make sure to distinguish having a bias against sex offenders from having a bias against the defendant, who, as you may want to remind the panel, is presumed innocent at this point in the trial. Many panelists will raise their hands and say something like they do not believe they would make good jurors because they feel that they are biased against sex offenders. Make sure they understand that this is not an excuse from service.[2] Also explain to them that they do not know the facts of the case yet and that every case is different; make quick use of hypotheticals to calm emotional jurors.
Once you have introduced the panel to the offense, you should begin the most important part of voir dire: educating the prospective jurors on the issues they will confront in a typical child abuse trial, preparing them for the evidence the State will present, and committing them to following the law.
Education. Many jurors approach the subject of child abuse having preconceived ideas and believing popular societal myths about it. Jury selection is your opportunity to correct this and dispel the myths, such as:
• a medical exam on a victim of child sexual abuse will usually provide evidence of injuries;
• DNA or other forensic proof will be present in sexual abuse cases;
• a victim of sexual abuse will hate the perpetrator;
• mothers always protect their children against sexual abuse and support them if it happens;
• mothers always believe their child;
• contested divorces and child custody battles often lead to false allegations of child abuse;
• children often lie about sexual abuse and can be led to say anything;
• false allegations of child abuse are a problem;
• physical force or threats are necessary to commit a sexual assault;
• a defendant could not possibly commit an offense in the same home (or the same bed!) as other witnesses without those witnesses knowing it;
• children often make up allegations of sexual abuse to gain attention or get revenge;
• children often fantasize and are unreliable as witnesses;
• child victims should cry or show emotion when testifying;
• if a teenage victim consents, it is not the adult’s fault;
• the victim usually makes outcry immediately after the assault;
• the victim should have resisted the assault and called for help right away;
• you can tell if someone is a sex offender just by looking; and
• respectable people don’t sexually abuse children.
These are just a sampling of some of the myths you may need to dispel during jury selection. They may not all be applicable to this particular case, but when analyzing the weaknesses in the case prior to trial, decide which of these myths, or similar myths, you need to address.
The “typical” child sexual abuse case. The most common misconception the panel will carry into voir dire is about what a “typical” aggravated sexual assault of a child case involves. The high-profile cases that get the most media attention—the ones that prompt Amber Alerts to put the public on the lookout for abducted victims—are often stranger-on-stranger kidnappings and sexual assaults, where the perpetrator has no relationship with the victim. In fact, as prosecutors and investigators know, such high-profile cases are rare, and a “typical” child abuse case has few, if any, of these sensational ingredients. More likely, you will be prosecuting a case where a relative or acquaintance sexually abused the victim.
Debunking the myths. How do you debunk these preconceived notions and popular myths? You ask questions. Ask the panel what first popped into their minds when they learned what kind of case you were presenting. Did anyone think of a stereotypical, sensational fact scenario? Ask how many people think of that as a “typical” child abuse case. Cover common misconceptions and myths in the same way. Ask, “How many people here believe that ___?” inserting the applicable myth from above into the blank.
Sometimes prospective jurors subconsciously believe these myths, but when these erroneous beliefs are explained and discussed, they will adopt the new information and be prepared to function with it. Find out who believes the myths and who does not. Consider doing this early, even through the use of a scaled question, to determine the true beliefs of your prospective jurors before you begin educating them.
If jurors indicate they agree with any of the myths, find out why they believe them. You may be able to get a juror disqualified for bias. Remember to use open-ended questions to draw out responses because no one wants to believe that he or she is not fair and impartial. Through voir dire, you should be developing the same theories and arguments you will make later during trial to explain the facts of the case. Carefully note any jurors who seem troubled or doubtful or who seem to believe the myths of the “typical” child abuse case. You may need to peremptorily strike them later.
Use prospective jurors who have had experience with child sexual abuse to debunk some of these myths. This lets the jurors hear the realities of child sexual abuse from fellow jurors who have no stake in the outcome of the case. By incorporating and looping the jurors’ own words and beliefs into your theme and echoing them during the trial, you enhance the presentation of evidence and make the case more persuasive.
Be careful about any prospective juror tainting the panel with extreme emotional or inflammatory remarks or “testifying” about facts pertinent to the case.[3] If a member of the panel begins to go into too much detail, politely stop him, thank him for his thoughts, and keep moving through voir dire. If a panelist insists on speaking in detail, ask the court permission to question the juror privately at the bench.
Goal: preparation and commitment
Evidentiary issues. The law does not require medical or scientific evidence to support a conviction for sexual assault.[4] Prospective jurors are challengeable for cause if they require a particular type of evidence the law does not require to convict a defendant.[5] In determining whether a venire member can follow the law, it will help if the prospective jurors understand why the law does not require any particular type of evidence for conviction so long as the State proves the case beyond a reasonable doubt.
While educating jurors about the relevant law and testing their feelings about the strengths and weaknesses of the case, make it clear to the panelists that they will be called upon to follow the letter of the law and will be expected to do so if they take the oath as a juror. Jurors must un- equivocally promise they can follow the law. Some of the commitments you should consider obtaining in a child sexual abuse case are:
• Jurors will not require medical evidence to convict if the State proves its case beyond a reasonable doubt.[6]
• They will not require scientific or DNA evidence to convict if the State proves its case beyond a reasonable doubt.[7]
• Witness testimony is evidence.
• They can convict on the testimony of one witness as long as they believe that witness proves the indictment beyond a reasonable doubt.[8]
• They will not require the complainant to testify if the State proves its case beyond a reasonable doubt.[9]
• They would not automatically believe an adult over a child.[10]
• They would not automatically disbelieve a child.
A prevalent misconception, thanks to the “‘CSI’ effect,” is that there will be some physical evidence of the crime presented at trial. Prospective jurors assume that there will be something other than the victim’s testimony to prove that the defendant committed the crime. Even if you are fortunate enough to have something tangible to corroborate the word of the victim, it will rarely be as conclusive and damning as what the panel has seen on television.
Once you have educated the panelists about some of the basic issues they are going to face in a child sexual abuse case, you must specifically prepare them for the evidence by which you are going to prove the case. More specifically, you must prepare them for the lack of evidence in the case. Rarely will you have eyewitnesses, medical evidence, DNA, a video of the offense, or a full confession. More likely you will be going to trial with little more than the testimony of the victim. It is absolutely essential that you prepare the jury for this. They cannot be surprised.
Find members of the panel who understand the practical realities of a child abuse case. Look to members on the panel who might be able to help explain why certain types of evidence are not always available. Remind them that the abuser is the person in control of the evidence. Go through every sort of evidence you can conceive and establish why the jury should not automatically expect to see it. Cover the types of evidence you may not have in the case and talk about the very practical reasons the case may not contain such evidence. Take the “CSI” effect to task. If you do not hit the “CSI” effect head-on and discuss in detail the evidence this case may not have, prepare for a not-guilty verdict.
If you do have DNA, medical evidence, a confession, or other strong corroborative evidence, you may want to devote more voir dire time to punishment issues. But even if you are fortunate enough to have a seemingly strong case, you still need to cover the issues above and ask challenge questions because:
1) you never know with absolute certainty what evidence will be admitted;
2) the defense will almost always advance alternate explanations for the evidence you have regardless of the quantity or quality of it; and,
3) undesirable jurors will often disqualify themselves answering the challenge questions about the State’s possible lack of evidence. After all, you probably do not want a person who would require particular kinds of evidence on the jury even if you do have it.
“Sell” the case low on voir dire and then over-deliver in trial.
Child testimony, “on or about,” the “one witness” rule, child behavior, and other issues. One of the first topics to discuss with the panel is how children think and view things differently from adults. The purpose of this discussion is to get a commitment from each panelist that he or she can view the events presented by the complainant’s testimony through the eyes of that child.
Point out that children do not mark time the way adults do. Talk to the panel about a “child’s calendar” and how children mark dates and times. Use examples such as Christmas, summer vacation, or the child’s birthday to remind the panel about how children mark time. Show how a typical child’s ability to tell when something happened is usually linked to some other important event in his life (e.g., the same week he had a birthday and got a bicycle, which house or apartment he lived in, or where he went to school at the time). Explain that if the State had to prove a date certain for child sexual abuse cases, there would rarely be a conviction. Explain that the law provides that as long as the jury finds that the case was brought before the statute of limitations has expired, then it does not matter what date is pled.
Despite the fact that there is no longer a statute of limitations in child sexual abuse cases, explain to the panel that the statute of limitations for indecency, sexual assault of a child, and aggravated sexual assault of a child used to be 10 years. Then the legislature expanded the period to the complainant’s 28th birthday. If you ask the panel why the legislature would provide even more time for sexual assault cases, someone will eventually say that children sometimes do not tell about the abuse for a long time. Explore why children do not tell. The panel can provide answers: Children are afraid; someone threatened them; they are embarrassed or ashamed; the abuser is someone well-known in the community; they feel no one will believe them; etc. Ask the panel if a delay in outcry means the abuse did not happen. Ask if anyone thinks that the law of “on or about” is unfair and should not be applied to child sexual abuse cases. And finally, remind the panel that the Texas Legislature felt strongly enough about this issue and the importance of prosecuting child molesters to protect our children, that the Legislature completely did away with the statute of limitations.
Before you delve into the law on one-witness testimony, consider stepping away from sexual abuse for a while and talk about a different type of case. Take your pick—an aggravated robbery case works well. Present the facts to the panelists and make them be the victim. “You are walking to your car at night and are totally surprised by a man with a knife who demands your wallet or purse.” Explain how police take a statement to preserve the victim’s memory, but how the police officer cannot testify about the offense because only the victim and defendant were present. Explain how an arrest is made after identification, how no “hard evidence” was recovered in your hypothetical case (the wallet or purse is gone), and how the panelist (victim) will have to come to court and testify. Explain the law of one-witness testimony at this point: “If the jury believes your testimony and your testimony establishes each element of the aggravated robbery case beyond a reasonable doubt, that is all it takes for a guilty verdict.”
Now show how a child sexual abuse case tracks the other type of case you just described. How a statement is taken from the child at the child advocacy center, how a medical examination is done but evidence is rare, and how everything may come down to the testimony of the victim. Go to the bottom line about what the evidence may be. Let the panel know that at the end of the trial, the State’s only evidence may be the word of the child victim. You want a member of the panel to ask: “So you’re saying that all you’ve got is the word of a child, just he-said/she-said?” Murmurs of agreement may run through the panel, as if the question is in everyone’s mind. Some people will look uneasy. Others may scowl and shake their heads. Stay calm. Do not panic. This is exactly what you want.
The prospective jurors are now face-to-face with the same issue that 12 of them will confront in the jury room: Can they convict on the basis of the victim’s testimony alone? It is time to commit the jurors favorable to the State to following the law and get the remainder disqualified. Ask each panelist individually: Can you find the defendant guilty on the word of one witness—and that one witness could be a child—if you believe the witness’s testimony beyond a reasonable doubt as to each and every element of the crime? This is your single most important challenge question during jury selection in a child sexual abuse case. Period. So take your time and get a solid answer from each person on the panel. If someone seems to struggle with giving you a straight answer, you must either nail them down on a strike for cause or later use a peremptory strike. Jurors who cannot commit to following the law are disqualified, and you should be able to successfully challenge them for cause.
While committing the panel to following the law on evidentiary issues, you should also prepare them for the child victim and her testimony. There is almost always something about the victim for which the jury needs to be prepared. The complainant may be exceptionally shy or reluctant to testify. She may exhibit incongruous behavior—actions, words, or emotions that superficially seem inconsistent with what one would expect from someone who has been victimized—or she may misbehave or have some prior bad acts. The issue could be delayed outcry or recantation. Or you might be concerned about something the complainant could do during her testimony: freezing up, recanting on the stand, feigning forgetfulness, or even acting inappropriately. Examine and try to predict the potential weaknesses in the case.
One way to handle these problems is by calling upon the jury panel. Find out if any of them have known a victim of sexual abuse. Ask what a child victim looks like. Can you just tell? Use any parents or teachers on the panel to encourage and enhance the discussion here. What are some of the emotions the victim felt about the abuse? Bring out the fear, shame, guilt, and anger.
Even as adults, do survivors of child abuse enjoy remembering and discussing it? Have the responding jurors think back to the circumstances of the conversation. The survivor probably spoke in private with a friend or relative many years after the fact. If an adult victim in a safe environment responds to the subject negatively, imagine how it is for a child forced to tell a courtroom full of strangers the most intimate details of sexual abuse that happened only a few months or years before and worse yet, in front of the very person who violated her.
Find out who is going to expect a child witness to testify and behave like an adult witness on the stand, and find out who realizes that testifying is not going to be easy.
Explain that there is no profile for a sexually abused child and that the list of possible behaviors can be contradictory. For example, one victim’s school grades might drop after the sexual abuse, while another child victim’s grades might actually improve because that particular child is exercising control over one of the only areas in her life that she can: schoolwork. Emphasize common sense: Children are just like adults—they have individual ways of dealing with and handling stress. Talk about a few ways people (children and adults) deal with difficult and emotional situations: Some people keep it in and bottle up their stress and rarely, if ever, talk about it. Others may talk about things right away. What if a child cries on the stand (or not)? What if a child displays “an attitude” on the stand? What if a child shows a flat affect and appears to not even care? What if the child made exceptional grades after the abuse? Lousy grades? Does it matter? Make sure the panelists can keep an open mind, and consider the child’s testimony as the truth, regardless of grades, attitude, or emotion on the stand. Commit the panelists to following the law regardless of any specific problems the child witness might have so long as you prove the case beyond a reasonable doubt.
Editor’s note: This book, Investigating and Prosecuting Child Sexual Abuse, is available for purchase on TDCAA’s website at www.tdcaa.com/product/child-sexual-abuse-2025.
[1] For a complete description of all of the suggested goals of voir dire in a child sexual abuse case, see Investigating & Prosecuting Child Sexual Abuse by Anshu “Sunni” Mitchell and Jamie Felicia (TDCAA © 2025), available for purchase at tdcaa.com/books.
[2] Wilson v. State, 436 S.W.2d 542, 544 (Tex. Crim. App. 1968) (“Mere prejudice against the crime committed by an accused is not a disqualification”); see also Phillips v. State, 656 S.W.2d 219, 220 (Tex. App.—Fort Worth 1983, no pet.) (expressing bias against offense of sexual assault is not grounds to excuse for cause).
[3] See, e.g., Young v. State, 137 S.W.3d 65 (Tex. Crim. App. 2004) (venireperson’s statement that “I have worked with abused children for 40 years, and I know they never lie about such things” would have been curable with an instruction to disregard and did not require mistrial).
[4] Rodriguez v. State, 819 S.W.2d 871, 873–74 (Tex. Crim. App. 1991); see also Tex. Code Crim. Proc. Art. 38.07.
[5] Garza v. State, 18 S.W.3d 813, 820 (Tex. App. —Fort Worth 2000, pet. ref’d); Robinson v. State, 985 S.W.2d 584, 587–88 (Tex. App.—Texarkana 1998, pet. ref’d).
[6] Garza, 18 S.W.3d at 820.
[7] Id.
[8] Castillo v. State, 913 S.W.2d 529, 533 (Tex. Crim. App. 1995); see also Lee v. State, 206 S.W.3d 620 (Tex. Crim. App. 2006) (valid challenges for cause from one-witness hypothetical).
[9] Mason v. State, 116 S.W.3d 248, 255-56 (Tex. App.— Houston [14th Dist.] 2003, pet. ref’d).
[10] Hernandez v. State, 563 S.W.2d 947 (Tex. Crim. App. 1978); see also Escamilla v. State, 334 S.W.3d 263 (Tex. App.—San Antonio 2010, pet. ref’d) (holding that there is no particular age which a child is automatically deemed incompetent to testify).