Special issues in voir dire

By Ryan C. Calvert
Assistant District Attorney in Brazos County

Why do prosecutors lose cases when our ethical responsibilities require us to prosecute only defendants whom we know are guilty? Why are defendants often acquitted, even in cases with seemingly strong evidence?

            The simple answer is that some issue prevented jurors from seeing what we see. In a jury trial, citizens are brought into the alien environment of a courtroom and asked to apply unfamiliar law to complex factual scenarios, despite having no legal education or experience. The person responsible for ensuring that jurors understand both the law and how to evaluate the facts is the prosecutor. The mechanism prosecutors use to equip jurors for success is voir dire. In short, juries are as good as the prosecutors who seat them.

            In the struggle to select and prepare a jury to do justice, prosecutors face some common pitfalls, including the following:
            1)         circumstantial evidence
            2)         Law of Parties (the defendant is not the primary actor)
            3)         unlikable victim or witnesses
            4)         one-witness cases
            5)         elimination of strong State’s jurors by the defense

            A jury’s ability to overcome these issues can mean the difference between “guilty” and “not guilty,” between justice and injustice. A jury’s capability to understand and evaluate a case is determined not by the jurors themselves, but by the prosecutor. By identifying when these issues might affect a case and determining how best to address them in voir dire, the prosecutor makes a just and accurate outcome far more likely.

Circumstantial evidence
A common challenge prosecutors face is the absence of direct evidence of a defendant’s guilt, such as eyewitnesses or a confession. In other words, the prosecutor’s case is circumstantial. Circumstantial cases require jurors to bring together multiple pieces of evidence that in and of themselves are not definitive, but when taken in combination with each other, they prove what happened.

            During the trial of a circumstantial case, the defense lawyer will argue that every piece of the State’s evidence has a possible innocent explanation. The obvious (and fatal) flaw in this argument is that it requires jurors to consider each piece of evidence in a vacuum, without regard to any other evidence. Therefore, the value of circumstantial evidence comes primarily from its relation to all other known facts. By way of illustration, while it’s true that wearing a ski mask does not make one a bank robber, when a man is wearing a ski mask, carrying a gun in one hand and a bag of money in the other, and running out of a bank while being chased by the bank’s security guard, that person is a bank robber.

            Circumstantial evidence is most often associated with crimes such as murder, robbery, or burglary. The concept of building a circumstantial case, however, applies to a vast array of crimes, including misdemeanor DWIs. After all, unless a defendant admits he is intoxicated to the arresting officer at the time of the traffic stop, the prosecutor’s proof of intoxication while driving is always circumstantial. An arresting officer can only form an opinion that the defendant is intoxicated based on various observations made at the time of driving. A blood test merely shows that a defendant’s alcohol concentration was above the legal limit an hour or more after he was driving. Yet, when taken in combination—the officer’s observations that a defendant was driving at 2:00 a.m., failed to maintain a single lane, smelled strongly of alcohol, had glassy bloodshot eyes, showed all possible clues on HGN, could not follow instructions or maintain balance on the Walk and Turn or One Leg Stand, and had an alcohol concentration above .08 an hour later—the suggestion that a collection of innocent explanations exists simultaneously to account for all of that evidence is unreasonable. As Yankee great and American philosopher Yogi Berra once said, “That’s too coincidental to be a coincidence.”

            To prepare jurors to accept a circumstantial case, prosecutors can draw upon limitless examples and hypotheticals. A simple yet extremely effective example which prosecutors might use to illustrate the strength of circumstantial evidence is the jigsaw puzzle. Each puzzle piece represents a piece of evidence in a case. When the pieces are considered together, they make a clear and undeniable image, even if certain pieces are still missing.

            The puzzle is just one of many potential illustrations of circumstantial evidence. In this area, prosecutors can get truly creative. One example I occasionally use is a short video clip from the classic movie Raiders of the Lost Ark. The clip shows the film’s heroine, Marion Ravenwood, running through the streets of Cairo being chased by a man with a knife. Marion runs through a darkened doorway, followed a second later by the villain. Immediately after the knife-wielding man disappears through the doorway, the audience hears a metallic “Clang!” and the man’s unconscious body falls back through the doorway. A moment later, Marion emerges from the door with an iron skillet in her hand and runs away. 

            After watching the clip, jurors typically have no doubt that Marion hit the man with her skillet, despite the fact that they did not actually see it happen. When asked how they can be sure what happened without seeing it, jurors respond with the known facts:
            •          Marion is running with a skillet in her hand,
            •          she disappears into a doorway followed immediately by the man trying to harm her,
            •          the instant the man goes through the doorway, there is a sound of metal striking something hard,
            •          immediately thereafter the man collapses back through the doorway, and
            •          Marion instantly emerges from the same door and runs away, still holding her skillet.

            Now, is it theoretically possible that some unseen person was lurking just inside that doorway with another metallic object, waiting to hit the second person that comes through the door? Yes. But when combining all the known facts, such a scenario is not reasonable. And if there is only one reasonable explanation for what happened, then there is no reasonable doubt. Such an analysis is a useful model for any case based upon circumstantial evidence.

            Occasionally, some jurors balk at the example and creatively seek to invent alternate explanations for what they just saw on the screen. In doing so, these jurors accomplish two things: First, they make the prosecutor’s job easier when deciding whom to strike, and two, these jurors ensure that their jury service will not extend beyond voir dire. Jurors who instinctively look for exotic ways to explain away large amounts of circumstantial evidence are ill-suited to hear circumstantial cases.

            Establishing this theme of looking at the “totality of the circumstances” in voir dire is an effective way to prepare jurors to overcome the potential weakness of a circumstantial case. Prosecutors can preempt the defense’s chief argument (that there are innocent explanations for all of the State’s evidence) by asking jurors two simple questions:

            “Is it reasonable to consider pieces of evidence one at a time instead of looking at them in context of each other?” and “Why not?”

Through this discussion, the prosecutor prompts jurors themselves to reject the defense’s theory of the case before the defense lawyer ever has a chance to speak. 

Law of Parties
Prosecutors commonly try cases where multiple defendants acted together to commit a crime. Such scenarios in Texas invoke the Law of Parties,[1] which states that all people who solicit, encourage, aid, or attempt to aid in the commission of a crime are guilty of the same crime, regardless of whether a defendant was a primary or secondary actor. Misdemeanor prosecutors confront Law of Parties issues on theft, burglary of a motor vehicle, and  assault cases. In felony courts, Law of Parties scenarios are more common, often playing a role in drug, burglary, robbery, and even murder and capital murder trials.

            In most “parties” cases, one or more co-defendants are factually less culpable than others. The getaway driver in an aggravated robbery, for example, is less culpable than the person who threatened the victim with a gun. Yet by law, both defendants are guilty of the same crime. Some jurors struggle with this concept, feeling that it is unfair to a defendant who was not the primary actor in a crime. Thus, in cases involving the Law of Parties, a prosecutor’s voir dire objectives should include the following:
            •          ensuring that the jurors clearly understand the Law of Parties,
            •          making clear that the extent of a defendant’s involvement in a crime may be considered in determining what punishment is appropriate, and
            •          identifying and eliminating any jurors who disagree with the Law of Parties or feel that they cannot apply it.

            Consider the following discussion:
“Juror No. 10, the New England Patriots won the Super Bowl—again—this year. Members of the winning team get Super Bowl rings. Tom Brady is the Patriots’ quarterback. He deserves a ring, right?”
            “Yes.”
“What about the punter? Should the Patriots’ punter get a ring?”
            “Yes.”
“Why? He’s the punter. Don’t you think the quarterback is more important to the team winning a Super Bowl than the punter?”
            “It doesn’t matter. The punter is a part of the team. He should get a ring too.”
“Juror No. 11, players aren’t the only ones who get rings. Even coaches and front office staff get Super Bowl rings as well. Those folks never even set foot on the field. Should they get rings?”
            “Yes.”
“Why? They don’t even play!”
            “No, but they have their jobs to do too, so they’re still helping the team.”

“Juror No. 12, your neighbors say that people who contribute to the team should get rings, even if their job is less significant than other players or if their role doesn’t even require them to be on the field. How do you feel about that?”
            “I agree.”
“Why?”
            “Because everyone has their job to do and they are still a part of the team.”
“Does everyone agree with that?”
            Jurors agree.
“Well, if you understand that, then you understand the Law of Parties. …”

            Through simple examples like this, prosecutors can cause jurors to accept the Law of Parties before they even know what it is. Jurors typically grasp the concept that members of a team share in an outcome, regardless of what each teammember’s individual role was. At its core, the Law of Parties stands for the same principle. 

            Many jurors will naturally (and appropriately) feel that less-culpable defendants should be treated less harshly. Thus, an effective prosecutor makes clear to jurors during voir dire that, despite being convicted of the same crime, different parties might receive vastly different punishments (just as a quarterback’s and punter’s salaries differ from one another). This knowledge can save jurors from being struck for cause when they feel strongly that the extent of a defendant’s role should count for something.

            Even when jurors understand the Law of Parties, though, some will still believe the law treats less-culpable defendants unfairly by convicting them of the same crime as primary actors. By welcoming these opinions, prosecutors flush out those jurors who must be struck. The ultimate question jurors must answer is whether they will convict a defendant if evidence proves beyond a reasonable doubt that he participated in a crime, even if he was not the primary actor. If the answer to that question is “no” or, in the alternative, if jurors cannot promise the court that the answer will be “yes,” then those jurors may be struck for cause.

Unlikable victim or witnesses
How often do prosecutors lament before a trial, “The jury is going to hate the victim!”? Victims and witnesses to crime are frequently people whom jurors will dislike. Many victims and witnesses would, on other days, be criminal defendants. Nevertheless, the laws that protect the most loved and respected members of a community must also protect the drug dealers, gang members, and thieves. Thus, when a prosecutor knows that jurors will dislike a victim or witness, that issue must be addressed in voir dire.

            Theodore Roosevelt once said, “No man is above the law, and no man is below it.” This quote is an effective way to begin a conversation with a jury panel about unlikable victims. Asking jurors what that quote means prompts them to talk about how the law applies to everyone. Prosecutors can follow up by giving jurors hypotheticals about crimes committed against those whose choices or lifestyles contribute to making them victims. By initiating a frank and honest discussion with jurors about whether victimizing a criminal is any less of a crime, the prosecutor prompts jurors to state what will become a theme of the prosecutor’s case: “The law should protect everyone equally.”

            Through this discussion, the prosecutor defuses the issue of a “bad” victim. Though the prosecutor cannot disclose the specific facts of the case during voir dire, this discussion tells jurors what to expect. The prosecutor gets jurors’ permission to present a victim who is flawed. Some jurors may, nevertheless, struggle to convict a defendant for committing a crime against a victim who is also a criminal.[2] The question a prosecutor must ultimately pose to jurors is whether they can promise to convict a defendant once each element of the crime is proven beyond a reasonable doubt, even if jurors disapprove of a victim or his choices. Again, any jurors who will not convict once the burden of proof has been met, or cannot promise that they will, are subject to being struck for cause.

            Just as prosecutors must use voir dire to prepare jurors for problem victims, the same is true for problem witnesses. If a prosecutor intends to call witness whom jurors will not like, the prosecutor must address the matter in voir dire. This is particularly true if a witness is an informant or cooperating co-defendant who received a benefit in exchange for information. For example:

“Juror No. 1, you’re a firefighter. If I wanted to know about your daily behavior, who am I going to have to talk to?”
            “The people I work with.”
“Other firefighters who are around you all the time, right?”
            “Exactly.”
“Juror No. 2, you’re a teacher. If I wanted to know what how you act every day, who are the best people to tell me?”
            “The teachers and students I’m with every day.”
“Juror No. 3, if I want to know what’s going on inside a criminal conspiracy, who am I going to have to talk to?”
            “Someone in the conspiracy.”
“Right. Do you think they’re going to talk to me, their friendly neighborhood prosecutor, out of the goodness of their hearts?”
            “Probably not.”
“Juror No. 4, do you think that there are times where the only way we can get information to bring to juries is to make a deal with someone that we don’t like very much?”
            “Yes.”
“Should we do that?”
            “I think so.”
“Why?”
            “Because it’s important to get all the information that you can.”

            It’s important to note that this discussion must be extensively looped throughout the jury panel. Additionally, the prosecutor must acknowledge the elephant in the room of whether information from a witness who is testifying in exchange for a benefit might be tainted. Effective prosecutors make clear in voir dire that they will let the jury know precisely what benefit a witness has received so that jurors can consider it in deciding a witness’s credibility. Additionally, the prosecutor can weave this conversation back into a larger discussion about circumstantial evidence, corroboration, and weighing each piece of testimony against every other known fact in a case. Ultimately, the prosecutor must convey to jurors in voir dire that she would not prosecute a case based on such testimony alone. 

            During this discussion, the prosecutor has two objectives. First, she prepares jurors to look past a witness’s flaws. Second, the prosecutor identifies jurors who will struggle to believe such witnesses. Jurors expressing skepticism about the credibility of criminal witnesses, or those who openly reject the concept of prosecutors making deals for testimony, must be struck from the jury in cases that depend on such testimony.

            The reality prosecutors commonly face is that the only way to know what happened inside the snake den is to talk to some snakes. Often, the only witnesses to crimes will be criminals. By addressing the issue with jurors in voir dire, the prosecutor not only prepares the jury to receive evidence from difficult witnesses but also sets up the closing argument that the law’s protection blankets the entire community and everyone in it. After all, for the law to protect anyone, the law must protect everyone.

One-witness cases
To prepare jurors to evaluate child sexual assault cases, an effective tactic is to get jurors’ permission to present a case based upon one person’s testimony: that of the victim. Consider the following example:

“Juror No. 10, does child sexual abuse happen out in the open or behind closed doors?”
            “Behind closed doors.”
“Juror No. 11, do you think most children who have been sexually abused immediately report it?”
            “No.”
“Juror No. 12, if sexual abuse happens behind closed doors, do you expect to have eyewitnesses to it?”
            “No.”
“Juror No. 13, if sexual abuse is not reported for months or years, are we going to have any physical evidence like DNA?”
            “No.”
“Juror No. 14, if we don’t have eyewitnesses and we don’t have physical evidence, how do we prove sexual abuse?”
            “The word of the victim.”
“Juror No. 15, should we prosecute sexual abuse cases if all we have is the word of a victim?”
            “Yes.”
“Why?”
            “Because every victim has a right to be heard.”
“Juror No. 1, what do you think about that? Juror No. 2, how about you?”

Again, by looping jurors’ answers to numerous other members of the panel and asking for their thoughts on the subject, the prosecutor fosters a discussion that will reveal jurors who might struggle with that specific case, while simultaneously providing the prosecutor with material to incorporate into closing argument. When the defense lawyer later argues that the imperfect word of the victim is not enough to convict the defendant, the prosecutor can feed the jurors’ own words back to them about how the victim, who had so many reasons to remain silent about the abuse, finally found her voice, and that jurors promised in voir dire that they would hear it.

When can we challenge for cause?
In my previous voir dire article (“Always Be Closing”; read it at www.tdcaa.com/journal/always-be-closing-using-voir-dire-to-argue-misdemeanor-cases), I discussed the difference between these two questions:

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

Remember that if a juror needs more than one witness to believe guilt beyond a reasonable doubt, that juror is not challengeable for cause. Texas courts have consistently held that a juror is not disqualified merely because he would need more than the minimum threshold of evidence required by law. If, however, a juror believes each element of the crime beyond a reasonable doubt from one witness’s testimony but still cannot convict, then prosecutors can strike that juror for cause.[3]

            During voir dire, prosecutors must openly call for jurors whose consciences will not allow them to convict based on the word of only one person, even if the case is proven to them beyond a reasonable doubt. Welcome those jurors. Validate them. In so doing, the prosecutor flushes out others who feel similarly. These members of the panel must not serve on that jury. If they cannot commit to convicting a defendant after believing each element of the crime beyond a reasonable doubt, they can be struck for cause. Even those jurors who hesitate on this issue, though, should likely be struck with peremptory challenges.

Protecting State’s jurors
In the “Always Be Closing,” article, I discussed identifying and eliminating defense jurors during voir dire. An equally important yet often overlooked role of the prosecutor in voir dire is protecting State’s jurors from being struck for cause by the defense.

            Speaking first during voir dire gives prosecutors a significant advantage. In addition to proactively establishing our own themes, addressing potential weaknesses in a case, and preempting likely defense arguments, prosecutors can use that first contact with jurors to protect those who may otherwise be vulnerable to defense challenges for cause.

            Defense lawyers’ voir dire objectives differ substantially from those of prosecutors. Because the defense has no burden of proof, defense lawyers typically spend the bulk of their time in voir dire covering “defense” issues, such as:
            •          presumption of innocence,
            •          burden of proof,
            •          the Fifth Amendment,
            •          police testimony, and
            •          jurisdictional prior convictions.

Within those topics, a good defense lawyer will attempt to identify strong State’s jurors and commit them to positions contrary to the law so they can be struck for cause. The defense lawyer’s job is made far easier when the prosecutor fails to address these issues first.

Fifth Amendment. If the State fails to discuss the Fifth Amendment, for example, then the defense is free to address the topic however it wants. Consider the following example of how a defense lawyer might seek to strike jurors on the topic of the Fifth Amendment:

“Juror No. 1, if I told everyone here that you stole money from Juror No. 2’s purse, what would you say?”
            “I would say you’re wrong.”
“Juror No. 2, if I accused Juror No. 1 of stealing and, instead of denying it, his response to being accused was just to quietly sit there, his silence would say something to you, wouldn’t it?
            “Yes.”
“On some level, you would think, ‘He must have done it,’ wouldn’t you?”
            “I think probably so, yes.”
“So, if you’re really being honest, if a person is accused of a crime, and they don’t speak up to defend themselves, that’s something you wouldn’t be able to just completely ignore, is it?”
            “No.”
“Who else agrees with that?”
            Jurors raise their hands.

Those jurors are now vulnerable to challenges for cause by the defense. But consider how that exchange would be different if, during the State’s voir dire—before the defense attorney had a chance to address potential jurors—the prosecutor had the following discussion with the panel:

“Let’s go back to high-school social studies class. Who can tell me what the Fifth Amendment is?”
            Jurors: “Right not to incriminate yourself.”
“Exactly. We see this on TV every time we watch police shows when we hear officers arrest people and say, ‘You have the …?”
            Jurors: “Right to remain silent.”
“That’s right. In every criminal case, the defendant has an absolute right not to testify. And if the defendant chooses not to testify, the judge will instruct you that you cannot, under any circum- stances, consider that choice as evidence of guilt. And if you think about that, it makes sense. Juror No. 1, who has the burden of proof in a criminal case, me or the defense?”
            “You do.”
“That’s exactly right. The burden of proof is always with us as the State. It never shifts to the defense. Does everyone agree that it should be that way?”
            Jurors agree.
“That’s what ‘innocent until proven guilty’ means, isn’t it, Juror No. 2? That the State has to prove you’re guilty before you can be convicted?”
            “Yes.”
“Juror No. 3, do you see how if you held it against a defendant if he chooses not to testify, you’re actually shifting that burden of proof over to the defense by requiring the defendant to provide evidence about why he should not be convicted?”
            “Yes.”
“Now, would you be curious about what a defendant might say?”
            “Yes.”
“Wouldn’t everyone?”
            Jurors agree.
“I want to make clear that it’s OK to be curious. It is human nature to wonder about it or even to wish a defendant had testified. What is not OK, though, is to consider a defendant’s choice to remain silent as some evidence that he must be guilty or hiding something. Juror No. 4, does that make sense?”
            “It does.”
“So, to the first row of jurors, can all of you promise the defendant that, if he chooses not to testify, you will follow the law and not consider that fact for any reason at all?”
            Jurors promise.
“Second row?”
            Jurors promise.
“Third row?”
            Jurors promise.

This discussion, which takes no more than a couple of minutes, normally neutralizes any attempts by the defense to eliminate jurors on this issue.

Police testimony. Prosecutors can similarly inoculate jurors from being struck for cause on the issue of police testimony. Many potential jurors have great respect for law enforcement and might tend to believe police are likely to tell the truth. Defense attorneys frequently use that fact to attempt to strike pro-law enforcement jurors for cause. In a case that is heavily dependent on police credibility, prosecutors should address this issue during voir dire.

Consider the following discussion:

“The law says jurors cannot pre-judge witness credibility, regardless of whether the witness is a police officer, a pastor, or a prisoner. Only after you hear from a witness can you decide his credibility. Juror No. 3, is that fair?”
            “Yes, it is.”
“Juror No. 4, if you take the uniform off a police officer, what do you have?”
            “A person.”
“Well, you have a naked person, but a person nonetheless. So, can you promise the court that you will follow the law and not pre-judge the credibility of any witness, including police officers?”
            “Yes.”

By committing jurors to following the law, the prosecutor shields them from defense challenges for cause. The prosecutor might further shield them by making clear that the law allows jurors to assign greater credibility to witnesses like police or medical professionals, if that assessment is based upon what jurors learn about the witness’s knowledge, training, or experience. Believing a witness’s testimony about a topic in which he has training and experience is completely appropriate, provided that jurors don’t automatically assume the witness is telling the truth merely because of his profession. Additionally, the prosecutor should point out that the only way jurors will know the extent of a witness’s training or experience is if the witness testifies about it.

            The Texas Court of Criminal Appeals addressed this very issue in Ladd v. State,[4] stating:

A venireman is challengeable for cause under [Code of Criminal Procedure] Art. 35.16(a)(9) if he cannot impartially judge the credibility of witnesses. … However, this means only that jurors must be open-minded and persuadable, with no extreme or absolute positions regarding the credibility of any witness. … Veniremen are not challengeable for cause simply because they would give certain classes of witnesses a slight edge in terms of credibility, because complete impartiality cannot be realized as long as human beings are called upon to be jurors. Thus, [a juror] is not challengeable for cause because he would tend to believe policemen and doctors slightly more than others.

By addressing this topic head-on during voir dire, the prosecutor controls both the conversation and the extent to which jurors are vulnerable to being struck for cause by the defense. Oh, and always have a few copies of Ladd v. State with you during voir dire.

Jurisdictional prior convictions. During the guilt phase of certain felony offenses, prosecutors must show that a defendant has prior convictions. Such cases present defense lawyers with a great opportunity to strike pro-State jurors for cause. Consider the following exchange between a defense lawyer and a jury panel:

“Juror No. 1, we are here in this district court on a felony DWI case. That means that we could not even be in this courtroom unless my client had already been convicted of DWI at least two times before. Many people believe that if a defendant has already been convicted of DWI twice before, he is probably guilty the third time, just based on that history. Is that how you feel?”
            “Yes.”
“Sure. I know a lot of people here agree with you. How many of you here will tend to believe a defendant is guilty once you learn he’s been convicted of the same crime multiple times before?”
            Numerous jurors raise their hands.

With just two questions, the defense lawyer has gone a long way toward striking for cause a huge swath of the jury panel—and very likely busting the panel altogether. Was it great advocacy or skill on the part of the defense lawyer that resulted in the destruction of the jury panel? No. The person most responsible for this particular disaster is the prosecutor.

            DWI, assault family violence, theft, burglary of a motor vehicle, unlawful possession of a firearm by a felon, and failure to register as a sex offender are among the offenses that require prosecutors to present evidence of a defendant’s criminal history during the guilt phase of trial. In those trials, the judge will instruct jurors that they cannot consider prior convictions as evidence of guilt in the new charge. Rather, the jury gets to learn about those priors only to establish that the new crime is a felony.

            As human beings, however, most jurors will naturally tend to believe that evidence of past criminal behavior suggests that someone is likely guilty of present crimes, particularly when the prior crimes are the same as the one currently charged. In seeking to challenge jurors for cause, a good defense lawyer will simply ask jurors to acknowledge and accept that common-sense principle without any explanation of what the law requires jurors to do with evidence of prior convictions.

            By addressing the issue first, however, an effective prosecutor can immunize jurors from being struck for cause. To do so, the prosecutor must educate jurors on how the law requires them to consider the evidence. For as much as jurors believe past behavior predicts future behavior, they equally understand and accept that fairness requires each case to be proven on its own merits and that defendants should never be convicted of crimes merely because of past conduct.

            Consider the following example where a prosecutor protects jurors on this issue:

“Juror No. 1, suppose on Monday I get a speeding ticket that I completely deserved. The same thing happens on Tuesday, Wednesday, and Thursday. On Friday, however, I get a ticket that I did not deserve. I was not speeding, but the officer got my car confused with a nearby car that looked like mine. Now, imagine I plead ‘not guilty’ to Friday’s ticket and take the case to trial. During the trial, the prosecutor tells the jury, ‘Folks, you know he’s guilty because he did the same thing four previous times.’ Is that fair?”
            “No.”
“Why not?”
            “Just because you have done something before doesn’t mean you did it again.”
“Juror No. 2, do you agree with your neighbor that that the State should have to prove each case on its own merits?”
            “Yes.”
“Why?”
            “Because people shouldn’t be convicted just because of their past.”
“The law agrees with you. To show that this case should be a felony, I have to prove that this defendant has been convicted twice before. But the judge will instruct you that you cannot consider those prior convictions as any evidence that the defendant is guilty of this current charge. Juror No. 4, can you promise the court that you will follow that law?”
            “Yes.”

By committing all of the jurors to this basic principle of fairness, the prosecutor accomplishes two things. First, jurors are protected from challenges for cause because they now understand what the law requires with respect to evidence of prior convictions. Second, the prosecutor establishes her own credibility and fairness by soliciting a promise from jurors that they will convict only if the evidence from the current case proves the defendant’s guilt.

            Note that some jurors may interpret this principle to mean that prior convictions don’t matter at all. Such jurors often feel that completely disregarding a defendant’s past crimes is unreasonable in a criminal trial. However, if the prosecutor makes clear that prior convictions can be considered for all purposes during the punishment phase of trial, those jurors who feel that prior conduct should count for something will frequently be satisfied. As a result, those jurors are less likely to fall prey to defense challenges for cause.

            Protecting jurors you want from defense challenges for cause is as important to success in voir dire as eliminating jurors you don’t want. In nearly every trial, defense lawyers use the same issues to attempt to eliminate strong State’s jurors. “State’s” jurors, however, tend to have a common trait: They respect the law. Thus, by informing jurors of the law and then committing them to follow it, prosecutors significantly diminish a defense lawyer’s ability to eliminate State’s jurors without using peremptory strikes.

Why it matters
Following trial losses, prosecutors frequently lament that juries “just didn’t understand the law,” “didn’t care,” or “hated the victim.” Other times prosecutors simply complain that a “bad jury” was to blame for the defeat. These are mere excuses. Defeat is a far better teacher than victory will ever be. Each loss is an opportunity to learn. Rather than making excuses and shifting blame for poor results, good prosecutors consider what they might have done differently to change the result. Rather than complaining that jurors didn’t understand the law, good prosecutors ask, “How could I have explained it better?” Instead of focusing on a jury’s dislike for a victim or witness, good prosecutors evaluate how they could have better prepared the jury for the witnesses in that case. Where some might blame a “bad jury,” good prosecutors look for how they could have seated a better jury.

            The answers to these questions begin in voir dire because jurors view everything that happens in a trial through the lens of voir dire. By crafting jury selection to address the specific issues of the case being tried, prosecutors create the best chance to win. Justice in our communities depends on our ability to identify issues before trial and overcome them during trial. A tailored and effective voir dire is often the difference between justice and another excuse.  

Endnotes

[1] Tex. Pen. Code §7.02.

[2] Such questions are permissible under Standefer v. State, provided they go to a legitimate challenge for cause and contain no unnecessary facts.

[3] See Castillo v. State, 913 S.W.2d 529 (Tex. Crim. App. 1995).

[4] 3 S.W.3d 547 (Texas Crim. App. 1999).