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January-February 2011

Jury selection in FV assault cases

How to engage the venire panel in discussion, strike panelists for cause, and select a jury that will carefully consider your case at trial

Dana Nelson

Assistant District ­Attorney in Travis County

Editor’s note: This article is taken from the upcoming publication Family Violence Resource Notebook for Prosecutors, which will be available in spring 2011. The notebook will include sample forms and information on investigation, pretrial issues, and trial issues in DV cases. In addition, TDCAA will publish another domestic violence resource, Investigating & Prosecuting Domestic Violence Cases by Patricia Baca and Ellic Sahualla in fall 2011.

Jury selection procedures are infinitely varied within a courthouse, a county, and certainly this state. Use the information in this article like a buffet of choices to include in jury selection on a family violence case. The goal of jury selection is to give potential jurors information, build their trust with the prosecutor, and let the court know what issues may come up in trial. While prosecutors can provide some information about the criminal justice system and family violence, voir dire is not an appropriate forum to effectively change any panel member’s beliefs about family violence.

The basic format of voir dire is to engage the panel in discussion. Panel members should do most of the talking. Always ask strike-for-cause questions as an issue is discussed if your judge will permit. The most useful strike-for-cause question is: “The law is X. Can you follow that law?” If a juror can be struck for cause, do not attempt to change her mind or persuade her to your point of view. Invite others who agree with that juror to identify themselves. Let them go.

Some parts of jury selection are the same for every case. Each prosecutor has to find his own way to handle these basics. Start with a set opening that is the same for every jury selection. This helps get a basic feel for the panel and prompts questions to be sure to cover with every group of potential jurors. This set includes:

Identify everyone in the well of the court.

  • Do any panel members know any of those people?
  • Do any panel members know each other?
  • Potential challenge for cause: “Can you make your decision based on the evidence and law from the court and not based on your personal relationship?”

Read the list of witnesses.

  • Do any panel members know any of those people?
  • Explain the purpose of jury selection.
  • Create an opportunity for privacy so that panel members may identify themselves to discuss personal matters in private.
  • Orient the panel to the court and the case.

Explain that this is a criminal case, not a civil case.

  • “Who can tell us the differences between a civil and criminal case?”    
  • “What happens to the loser of a civil case?”
  • “What happens to a person convicted of a crime?”
  • “Whom do the lawyers represent?”
  • “Who is the prosecutor’s client?” (Be sure to make the point that prosecutors are not required to do what a victim asks us to do.)
  • “Will anyone require the State to prosecute the case the way the victim wants?”

Proof issues

Next, address the types of issues that arise in all criminal cases, especially those issues relevant in the family violence context.

Burden of proof

While most prosecutors cover this in every case, the discussion in a family violence trial should identify panel members who will hold the State to a higher burden of proof. Very few panel members are aware that they may do this, but it happens frequently. After trial this is expressed as, “There just wasn’t enough evidence.”

Here, it is most important to preempt the defense voir dire that will characterize “beyond a reasonable doubt” as impossible to attain. Often the defense will describe “clear and convincing” as “the burden necessary to take your children away.” The prosecutor can preempt this description before the defense gets the chance to address the panel by describing the same burden as the one necessary to protect abused and neglected children. This depersonalizes the issue for panel members and lets the prosecutor determine the language for trial. The most important idea for a jury panel to understand is that the burden is not “beyond all doubt” and is not “100 percent.” Sample questions might include:

  • “Is there any person who cannot sit in judgment of another?  Not that you would prefer not to but who, for personal moral or religious beliefs, cannot sit in judgment of another?”
  • “Is there any question you have not been asked that you should have been asked?”
  • “Any questions for the prosecution?”

Elements

After the opening set of jury selection, move to the elements of the offense. Ask the panel how one person can commit the offense against another. Avoid asking questions in a personal way, for instance: “How would you, panel member No. 2, assault panel member No. 3?” Both panel members have been put in the position of mentally defending themselves instead of thinking about the question. Instead ask, “How can one person assault another?” At this point, avoid discussing the family violence aspect.

Often the panel will respond with a diverse set of assaults including some behavior that is not criminal. Use this opportunity to narrow their examples to the offense in the case. For example, sexual assault does not require injury; statements that are demeaning or rude, like emotional abuse, are generally not crimes; offensive touching that does not cause injury is a lesser crime; aggravated assault requires serious bodily injury or a deadly weapon. During this discussion, explain how serious bodily injury is different from injury.

After the open discussion of possible elements, provide the elements of the offense in your case, including the mens rea. Ask the panel how can a jury know what the mens rea is. Balling a fist or statements made just before or after can indicate the person’s intent. Remember that “intent” is different from “plan.”

Next discuss the element of injury. Emphasize that pain is enough to satisfy this element. Is a hair pull painful? Think back on the well-publicized case in 2010 when one female soccer player pulled another player down by her hair. Consider playing the clip or showing panelists a still photo from this clip, and ask panelists if they have seen this video clip. Then ask a panel member who has seen it to describe it to the other panel members. Then ask:

  • Would it satisfy the element of for assault?
  • How can a jury know about whether a person experienced pain? Can the panel members follow that law?
  • Does anyone disagree with this law? Can everyone follow this law?
  • This is a family violence case. What are your thoughts about prosecuting family violence as a crime?

Evidence

Ask the panelists what kinds of evidence they wish the prosecution would present to prove the elements of your case. Later ask what they would require the prosecution to present. Panel members who require specific evidence can be struck for cause. Their wish list usually includes:

  • offense reports
  • video of offense
  • medical records of injury
  • photos
  • a third-party witness, preferably unrelated to either party
  • victim to testify
  • defendant to testify
  • criminal records of defendant and victim
  • entire history of the relationship
  • character witnesses
  • forensic evidence

Here are suggestions for how to address each of these issues:

1. Offense reports: Explain how these are not admissible because the officers must come to testify for the jury. This gives the jury an opportunity to judge the credibility of the witness. This may lead to questions about the discovery process and how the jury will know if there are discrepancies between the report and the testimony. This also presents  an opportunity to discuss officer credibility.

2. Video of offense: Do any panel members keep a video camera recording in their homes at all times just in case a crime is committed there?

3. Medical records of injury: Most jurors want this, but some require it. Do panel members go to the doctor for every scrape and bruise? What if you do not have health insurance? Is the ambulance free? (The ambulance, of course, is not free and the cost can be a major factor.) Some panel members expect a doctor visit “in anticipation of litigation” or the issue goes to the victim’s credibility.

4. Photos: Ask the panelists to think of types of assaults that meet the elements already discussed that would cause pain but no visible injury, such as a punch to the stomach. Here, they can agree that there was injury but there would be no photographic proof. Also consider asking about how injuries appear over time. Have any panelists seen a bruise on their body yet couldn’t remember how it got there? What other types of evidence can prove injury: victim testimony, third-party witnesses, limping, a statement about pain at the time, such as “ouch”?

5. A third-party witness: Similar to video cameras, do any panelists keep a neutral third party sitting in their living room just in case they are assaulted at home?

6. The victim to testify: What are some feelings a victim in a family violence case would have about testifying at trial? Jury panels usually raise common feelings such as fear, embarrassment, anxiety, and love for the defendant. They may also raise feeling remorseful about reporting the crime, including exaggerating to get defendant in trouble. This may be an opportunity to discuss witness credibility in general.

7. The defendant to testify: Many panel members very much want the defendant to testify in a family violence case so the defendant can explain any justification for the offense. What does our constitution say about an accused person testifying at his trial? Explain the 5th Amendment right not to testify. Why do we have this right? What are some reasons a defendant might choose not to testify? The law requires that jurors not discuss at all during deliberations whether a defendant testified. Can you follow that law? This discussion provides an opportunity for a broader discussion of the defendant’s rights.

8. Criminal records of defendant and victim: Consider using an example from a non-family violence offense like robbery. If a jury hears evidence about seven other robbery convictions of a defendant, they would be more likely to convict based on the record rather than the evidence in the current case. (Be sure to refer to “a” defendant not “this” defendant.) Considering the defendant’s record in determining his guilt would not be fair. The prosecution is interested in presenting a fair trial. Explain how the law permits jurors to know criminal history information only under certain circumstances. Then ask the panel why. What policy could be served by this rule? Can they follow that law? This is also an opportunity to discuss the judge as a gatekeeper.

9. Entire history of the relationship: This issue is unique to family violence cases. The jury really wants to know everything about the relationship as though it will be deciding a family law matter. Explain that the prior conduct in the relationship can be presented to the jury only in very limited circumstances. Ask jurors to presume that they will not have this information.

10. Character witnesses: Some panel members think this is very important. Explore why this is so. Whom would a witness choose to be a character witness for them? Are those people objective and unbiased? How credible are they?

11. Forensic evidence: Prosecutors understand that the primary purpose of forensic evidence is to prove the suspect’s identity. In family violence cases, identity is seldom an issue. Consider asking the panelists to raise their hands if they watch “CSI” once a week. Keep their hands up if they watch twice a week. Three times? Or more? Then discuss what is different about real life from the TV show: The panelists’ tax money is not spent to buy Hummers for crime scene technicians; they are often not licensed peace officers; they do not arrest suspects; they do not interview witnesses or interrogate suspects. Also, consider asking how many family disturbance calls they believe local law enforcement respond to in a year. Then tell them the actual number. This comparison makes it hard to maintain that the State should do DNA testing on the victim’s fingernail scrapings in every family violence case.

Credibility of witnesses

The jury alone decides the credibility of the witnesses and the weight to give each piece of evidence. When judging the credibility of a witness, all witnesses must start off with an equal footing. Then after you begin to hear about their experience and training and see them testify, jurors determine how credible they are.

  •  Is that fair?
  • Has any panel member been responsible for hiring at their work or conducted an interview? To those panel members, how important is the interview?
  • How do they determine if the person interviewed is being truthful?
  • “Do you compare what that person says with their application or resume?” This is similar to cross-examination based on a prior written statement. How consistent does the panel expect the person to be? Is there anything wrong when it is too consistent?
  • What about references? What can be learned from them? (These are comparable to corroborating evidence and character witnesses.)

Conflict in testimony

Consider discussing the panelists’ attitudes towards victims during selection. This can contribute to your theme of the case, anticipate difficulties, and avoid jurors who have difficulty with certain victims. Generally, juries want the case presentation to meet their expectations. This is true about the types of evidence the prosecution presents as well as how a victim behaves throughout the process, including at trial. Jurors’ expectations are based on their own experiences and images presented in the media. For better or worse, jurors expect victims of family violence to be very afraid all of the time, to leave the perpetrators immediately after an assault, and to continue appearing meek and timid without any self-confidence indefinitely. But victims who still love the perpetrator and are willing to tell a preposterous lie like the stereotypical, “I fell down the stairs,” also fit into the TV movie version of a victim. Consider asking the panelists what feeling they expect a victim in a family violence case to have about testifying at trial against her loved one. Emphasize the characteristics that are present for the victim in the particular case.

For a case with an uncooperative victim, emphasize responses like fear, love, and economic dependence. If the victim stayed with the perpetrator, talk about how many victims are unsheltered in your jurisdiction or note how there is more shelter space in the United States for pets than for victims of family violence. For cooperative victims, emphasize how the victim of a stranger would feel coming to court.

  • Are cooperative victims entitled to want the defendant held accountable?
  • What does the panel think about family violence victims, who are more likely to be uncooperative? Are they also entitled?

Imperfect FV victims are like all victims: They are chosen by the perpetrators. Whatever their imperfections, can the panel refrain from holding them against a victim? Can they follow the law even if they do not like the victim?

Panel busters

Family violence history or experience

Family violence experience is the single most important topic to cover with panelists. If the format of jury selection permits only limited examination of the panel, this is the only topic that should be covered.

This is a question for the entire panel: “Have you, a family member, friend, or coworker had experience with family violence?”

Explain the question to the panel and clarify any questions panelists may have. Ask any panel members for whom the answer is “yes” to raise their hands. Then ask each potential juror for an explanation. Remind the panelists that if they would like to answer privately, they should let the court know now.

Some panel members will ask if this includes sexual abuse, and it should. Be ready for many panel members to answer this question “yes.” In my experience, roughly one third to one-half of every panel does so. The follow-up question for each juror is, “Based on your experience, can you serve as a fair and impartial juror in this case, meaning, can you base your decision solely on the evidence you will hear during trial?”

Some of the responses will include panel members looking for a way out of serving on the jury. However, the majority of panel members who say they cannot be fair have a legitimate reason. This group will include prior victims of family violence, child witnesses of abuse in their homes, friends and family of “wrongly” accused perpetrators, and perpetrators. Be prepared for a wide range of responses. Be sure to demonstrate empathy for the panel members’ experiences. Consider concluding this section by reminding the panelists that they have probably thought they were alone in their experiences or perhaps felt very different from other people because of it, but looking around in the room with a randomly selected group from their community, you can see that they are not alone.

If any panel member has expressed she cannot be fair because of her personal experience with family violence, let her go. Victims of family violence are very difficult to predict as jurors in these cases. Some victims are very judgmental of the victim in the case. Their experience is compared to the current victim usually not to the State’s favor: “This victim should have left like I did” or “This victim was not abused as badly as I was.” The trial can also be emotionally difficult for victims of past violence and result in a traumatic experience for a juror.

A helpful hint: Be on the lookout for victims who become really upset during jury selection. If possible, have a victim/witness counselor or coordinator available just in case.

One-witness rule

Do not discuss the one-witness rule with a panel unless there will actually be only one witness testifying at trial. The question that establishes a potential challenge for cause on this issue in most criminal cases is: “Assuming you believe one witness beyond a reasonable doubt, would you vote not guilty just because the State presented only one witness?”
This misses the mark in family violence cases because some panel members will say they could not ever believe one witness beyond a reasonable doubt, assuming that the single witness would be a victim. In reality, the single witness would more likely be an officer, but the prosecutor is not able to clarify that for the panel in the jury selection context. Therefore, avoid discussing the one-witness rule in voir dire unless it is relevant to your case.

Limiting instruction of prior family violence conviction

In cases of Assault/Family Violence Enhanced and Assault/Strangula-tion Enhanced where a prior conviction or multiple convictions are alleged in the indictment and are part of the case in chief, the jury charge will include a limiting instruction. This instruction states that evidence of the prior conviction cannot be used to prove whether or not the defendant committed the current offense. This instruction will be in the jury charge even if the defendant stipulates to the prior. However, many panel members are determined to not follow this instruction. Some panel members have said that if they know the defendant has been convicted before, they cannot set that aside. (Also note this really complicates qualifying a jury on punishment.) This issue is such a panel buster, consider leaving it to the defense. Oftentimes they will not cover it. If they do, the prosecutor can object to any mischaracterization of the law.

Challenges for cause

In addition to the previous potential challenges for cause for panelists who say they cannot be fair and follow the law, remember that a conviction or active case for any panelist for an assault/family violence by a man against a woman is a crime of moral turpitude, which will subject that panelist to a challenge for cause.