Introduction
1) “Who here is against child molesters? It is OK if you care about child molesters. I’m sure everyone here cares. But there would be no justice for victims of child abuse if we waited until we found 12 people who don’t care about child molesters. Child abuse is more common than we care to believe. There may be some in this room who have been affected by child abuse. This case is not about your abuser. To you, I ask you to hold me to my burden. Do you promise to hold me to my burden?” (You can add that you know your burden and you are prepared to meet your burden.)
2) “What do child molesters look like?” Discuss that child molesters come from all walks of life, including trusted people such as clergy, coaches, doctors, and politicians. Consider having the panel point out some famous people who have been convicted.
3) “Do you think a child molester is more often the stranger on the corner in a white van or is it more often a close friend or relative of the child?”
a) “What about that relationship makes it easier for that perpetrator to abuse the child?”
b) “Do you think the abuser chooses his victim? Are certain children more vulnerable? What might they look for?” (For example, those with special needs or behavioral issues.)
The law
Prosecutors need jurors to commit to “yes” or “no” answers. Examples of why this is important: There are some questions you wouldn’t accept noncommittal answers to: “Do you love me, honey?” “Will you be faithful to me when you go to Las Vegas?” You wouldn’t accept “I think so” or “I’ll try.”
On or about
1) “Do victims of child abuse always make immediate outcry?” [No.] “Why not?” [Answers will probably include shame, fear, guilt, threats, loyalty to or protectiveness of perpetrator, etc.]
2) “Does anyone here think they might hold it against a victim if she did not make immediate outcry of the abuse?”
3) “How many people here would be unable to convict, even if I prove my case beyond a reasonable doubt, unless the complainant made immediate outcry?”
4) Discuss a child’s calendar.
5) Other examples, such as cold cases.
Commitment Question No. 1: Would anybody here require me to prove an exact date the assault took place?
State’s evidence: What it may not be
1) “I can’t get into the facts of the case at this point, so I can’t tell you whether I have any particular type of evidence. I am asking these questions for a reason, even though many of my questions will be in the form of hypotheticals. Even if my hypotheticals may sound rather silly, I have to be sure you can follow the law.”
2) “What kind of evidence do you expect to see in a child sexual abuse case? What kinds of things do you expect me to bring you to prove my case?” [Answers will probably include eyewitnesses, DNA, medical evidence, video of offense, and a confession.]
3) “Let’s start with eyewitnesses. How many witnesses are usually around when a sex offender decides to molest a little boy?” [None.] “Of course not! The defendant is the one who gets to pick the time and place to commit the offense. The only witness is probably going to be the victim.”
4) “What about DNA? Is DNA always recovered in every sexual abuse case?” [No.] “Why not?” [Answers will probably include that there may not have been any transfer of bodily fluids, offense might be fondling only, offense may not have been reported due to delayed outcry, evidence may not have been preserved or collected, etc.]
5) “How many people feel like you would have to have DNA before you could convict?”
Commitment Question No. 2: How many people here would require me to present DNA evidence before you could find someone guilty of a serious charge like aggravated sexual assault, even if other evidence convinced you beyond a reasonable doubt?
6) “What about medical evidence? Is there always going to be injury or trauma in a sexual abuse case?” [No.] “Why not?” [Answers will probably include that the offense was not necessarily violent, contact might not involve penetration or might be fondling only, injuries can heal if outcry is delayed, etc.] This is good place to go ahead and start discussing delayed outcry and why the State is not likely to have medical evidence.
Further explain that even with immediate outcry, the State often doesn’t have evidence. Explain that experts will say, “Normal is normal.”
7) “What about a video of the offense or a confession? Anyone think I’m going to have these?” [Probably not.]
8) “What about a police offense report? Do I get to simply introduce the offense report? Why not?” Explain hearsay.
State’s evidence might be the word of a child
1) Discuss the one-witness rule. “Why would the law allow you to convict on the word of just one witness?” Give jurors an example and ask the panel if the case should still be prosecuted.
• “Where do these cases most often happen? How many witnesses are there?”
• “Between the perpetrator and the child, who decides where a child is molested?
• “Between the perpetrator and the child, who decides how many witnesses are around when a child is molested?”
• “We’ve talked about what types of evidence may or not be present in a case such as this and why the only witness to the actual crime may be the child.”
Commitment Question No. 3: Bottom line: If my evidence is the word of a child, and you believe that child’s testimony proves the case beyond a reasonable doubt, can you follow the law and find the defendant guilty?
2) The child’s demeanor
• “Close your eyes. Think back to your first sexual experience. Now let’s discuss it with the group. No? Why don’t y’all want to do that? Is it too personal? Are you embarrassed? Now imagine a child discussing his or her sexual experience. In a courtroom.”
• Discuss expectations of jurors—does the child have to cry? What if s/he giggles, etc.?
• “Who has two children in their family? Do those kids react the same in all situations?”
• “Do sexually abused children always act just one way? Are they always sad and depressed every minute about what has happened to them? Why not?” [Answers will likely include that children are resilient and even extremely traumatic events can be temporarily forgotten and put aside.]
• “How will a child behave on the stand in a trial such as this? Think she will cry?” Discuss with the jury all of the potential people a child has had to tell their story to and that the child may no longer cry when recounting the details.
• “Maybe be angry?” Discuss how kids may hate the abuse but still love the abuser: “It was special time with Paw-Paw.”
• “Is it possible a child may laugh or get the giggles?” Discuss nerves, fear of public speaking, and if anyone has ever had inappropriate laughter like at a funeral.
• “How about a child who just doesn’t want to talk about it anymore? Anyone have a child who gets home from school, and when you ask what she learned that day says, ‘I don’t remember’ or ‘I don’t know’? Does that really mean, ‘I just don’t want to talk’?”
Commitment Question No. 4: Is there anyone here who would be unable to convict unless the victim has always acted “like a victim” even if I prove my case beyond a reasonable doubt?
“Do children lie? Why?”
1) How many people here have ever told a lie? Raise your hand if you have lied. Keep it up if you ever lied about being sexually abused when you actually weren’t abused.
2) Why do kids lie? What kinds of things do they lie about? Do they lie to get into trouble or out of trouble? To make their little lives more difficult or to make their lives easier?
3) Anyone know someone who has denied being sexually abused when they really were?
4) What is the biggest single reason children sometimes lie? When and why do they do it? [Answer will likely be to keep from getting in trouble.]
5) Does anyone think lying about sexual abuse is a typical lie for a child? Would lying about sexual abuse ever be the best lie to keep a kid out of trouble?
6) How many people feel like, if a victim has lied about anything, he must be lying about everything?
7) How many people would be unable to convict if the victim has lied about something, even if I prove my case beyond a reasonable doubt?
Commitment Question No. 5: Is there anybody here who would automatically believe an adult over a child?
Commitment Question No. 6: Is there anybody here who would automatically disbelieve a child?
What to listen for in the testimony:
1) Details about the assault
2) Whom the child told about it
3) When it happened
4) Where it happened
5) What happened
6) How many times it happened
7) Any opportunities for the child to backtrack and get “out of trouble” or make “life easier,” versus the child providing a clear and consistent outcry
Why we have no statute of limitations, “on or about” proof, and delayed outcry
Recantation (only if it applies to your case)
1) “What can happen when a child tells someone she is being sexually abused? Can there be negative consequences?”
2) “Do you think the child ever feels pressure to ‘take it back’?”
3) “Can anyone think of why a child victim would recant an allegation of child abuse?” [Answers will likely include family pressure, threats, guilt, regret over the consequences, and—possibly—the allegation was false.]
4) “How do you think it affects a child victim when her own family is not supportive of her?”
5) “Does anyone think a child can be pressured or persuaded to recant an allegation? If they do, does that necessarily mean that the abuse did not happen?” [No.] “Would you automatically believe the abuse had not happened if a child came to court and said it didn’t happen?”
6) “Can you think of reasons why a child might not want his abuser to be convicted?”
7) “Would you want to hear evidence about what happened when the victim made her report of abuse?”
Commitment Question No. 7: How many people here would be unable to convict, even if I prove my case beyond a reasonable doubt, if the child victim has recanted the allegation or recants the allegation in court?
Consent (only if it applies to your case)
“Sexual contact with a child is a crime even if the child agrees to have sex. How do you feel about that?”
• “Why do you think the law forbids sexual activity under a certain age?”
• “Could you follow that law even if you believed the child agreed to the sexual activity?”
Commitment Question No. 8: How many people here would be unable to convict, even if I prove my case beyond a reasonable doubt, if the child agreed to the sexual activity?
Fifth Amendment and “reverse” Fifth Amendment
1) Discuss other rights of the defendant: the presumption of innocence, the right to discovery of all the evidence, the defense’s review and inspection of all the evidence, notice of State’s witnesses at trial, the right to confront the witnesses, the right to present a case, and the right to subpoena witnesses.
2) “Why would a defendant not testify?” [Answers will likely include that the defense lawyer told them not to, fear of public speaking, they don’t have to, etc.]
3) “It’s OK to want the defendant to testify; you just can’t hold it against him if he exercises his right not to do so. And if the defendant testifies, he gets no extra points.”
4) “His testimony is measured by you, just like any other witness.”
Personal experience with Child Protective Services (CPS)
“Anybody have a personal experience with CPS? Is there anyone who has been accused or has a family member or close friend accused of a crime like this or any other serious crime?” For those who raise their hands, ask: “Were they treated fairly? Did the investigation have the right outcome? Is there anything about that experience they will hold against the State in this case?”If appropriate, establish bias for challenge for cause.
Lesser included offenses
1) Discussion of how the law requires admission in charge if any evidence is raised.
2) Explain that it’s not multiple choice.
3) Explain that lesser crime means lesser time.
Punishment
1) “Texas law provides a very broad range of punishment for sexual offenses: up to 20 years for indecency with a child and up to life in prison for aggravated sexual assault. Some people consider that too broad. Is there anyone who would be unable to consider life outside of a murder case? How many people feel that, as a matter of personal conviction, you could not consider the maximum sentence of life in prison in a case where no one is dead?”
Commitment Question No. 9: How many people here would be unable to consider a life sentence in a case of aggravated sexual assault?
2) “What about indecency with a child? Some people feel the same way there, that 20 years for fondling is way too much. It could be as simple as a touching of the complainant’s breast through her clothing.”
3) “Is there anyone here who feels like the 20-year range should be reserved for defendants who actually commit some kind of sexual assault?”
Commitment Question No. 10: How many people know right now that you could never consider the maximum sentence of 20 years in prison for a defendant convicted of indecency with a child by contact?
4) Give a hypothetical about probation and a minimum sentence and shore up strong State’s jurors: “Say the defendant has just turned 17 and the complainant is almost 14. Their parents are neighbors, and the teenagers are childhood friends who have grown up together. They have dated for a long time and have consensual sex. The 17-year-old is prosecuted and found guilty by a jury. It is the first time he has ever been in trouble for anything. At trial, he expresses remorse, and both his family and the complainant’s family beg for mercy from the jury. Do you see how some sets of circumstances could warrant more lenient punishment? Can you agree that there is conceivably a case somewhere out there in which probation would be the appropriate result?
5) “The bottom line is that the law says that if the defendant is eligible, the range of punishment is from five years’ probation on the low end to life in prison on the high end. Can everyone promise that they can follow the law and consider the full range of punishment?” Make sure they are all open to full range on all potential offenses.
Judgment
“Is there anybody who, regardless of the reason why, simply cannot pass judgment on another human being? For this type of case? For any case?”
Prior criminal jury service
“Has anyone served on a criminal jury before? Did you get to do punishment? What punishment was handed down?”
Scaled question regarding punishment and rehabilitation
“My last question is a philosophical question with no right or wrong answer. I just want your honest opinion. I’m going to go row by row and ask each of you individually. Which goal do you think should be more important in our criminal justice system when it comes to sexual abuse cases involving child victims: punishment or rehabilitation? By punishment I mean the idea of deterring or preventing crime through a penalty or retribution. By rehabilitation I mean deterring or preventing crime by focusing on the offender and trying to change him. These are both important and worthy goals, and they both deserve our time and energy. But if you have to choose, which one is more important: punishment or rehabilitation?”
“Is there anything about you that we have not discussed that you think I should know?”