By Ryan C. Calvert
Assistant District Attorney in Brazos County
“Punishment should fit the crime. Punishment should fit the criminal. Punishment should fit the community.”
In the prosecution of violent, sexual, or dangerous crimes, the difference between justice and injustice often depends on a defendant’s punishment. As prosecutors, all of us have seen or tried cases where defendants took lives, destroyed innocence, or permanently damaged victims but received lenient, even trivial, sentences. Why does this happen? How can jurors’ ideas of justice differ so wildly from our own?
The answer lies in what jurors are, and more importantly, what they are not, focused on in sentencing. In determining punishment, jurors must consider three (often conflicting) interests: The defendant, the victim, and the community all are impacted by a jury’s decision on punishment. How jurors prioritize those considerations largely determines the sentence they give. For example, jurors who are most concerned with the defendant’s best interests and rehabilitation will punish differently from those most concerned with protecting future potential victims.
Consequently, prosecutors must clearly know two things before a trial starts: 1) what punishment equals justice in the case, and 2) why that punishment is appropriate. Armed with that knowledge, prosecutors can make voir dire a key component of securing a just and appropriate sentence. Voir dire can be the foundation of the prosecutor’s punishment argument through the introduction of the themes and rationales for sentencing that jurors will hear in closing. Additionally, with a clear plan of what punishment we will seek and why, prosecutors can identify and eliminate jurors for whom our arguments will not resonate. Finally, through careful selection of hypothetical examples in voir dire, prosecutors can give jurors perspective on what justice looks like.
Failure is a great teacher
One of the first child molesters I ever tried had repeatedly sexually abused a young relative. The acts of abuse were unspeakable, and they occurred when the victim was between 10 and 13 years old. If ever a case screamed for a life sentence, this was it.
In closing argument, I begged jurors with everything I had to send the defendant to prison forever. A couple of hours later, jurors delivered their verdict: six years. Basically, the minimum possible sentence. That trial has always stuck with me. For years I believed the jurors failed the victim. Looking back now, though, it’s clear that the victim and the community were let down by the prosecutor. Me.
In that trial, the defense never disputed guilt. Instead, the defense called a psychologist to testify about how the defendant was not a “true pedophile.” The expert testified that, despite the abuse of his relative, the defendant was very unlikely to ever abuse a child again. At closing, the defense’s argument focused entirely on how the defendant was remorseful for his conduct, that prison offered virtually no chance at rehabilitation for the defendant, and that, because the defendant was not a true pedophile, there was nothing to fear from him in the future. The defense lawyer was a great voice for the defendant in the deliberation room.
I spent my time talking to jurors about how the defense lawyer was wrong. Wrong about whether the defendant was remorseful. Wrong about whether the defendant was a pedophile. Wrong about whether prison would teach this defendant not to abuse children again. In short, I was a voice against the defendant in the jury room. What I should have been was a voice for the victim and for the community, beginning in voir dire. During jury selection, I should have had jurors talking about the importance of giving justice to a victim and protecting the community. I should have identified and eliminated jurors unwilling to punish for the reasons I felt were important. I should have made those themes of justice for the victim and protection of future victims the core of my entire trial presentation. I didn’t. Instead, I took the defense’s bait and made voir dire and my closing all about the defendant. That was my failure. That failure led to injustice.
Everybody but the defendant
Fans of the TV show “The Walking Dead” might remember that before any stranger could be admitted into the show’s group of heroes, he had to answer three questions:
• “How many walkers (zombies) have you killed?”
• “How many people have you killed?” and
The rationale for a newcomer’s actions determined whether he was worthy of inclusion into the group. Apply that principle to voir dire. Jurors’ rationales for punishment largely determine their verdict. Defense lawyers typically seek to focus jurors entirely on the defendant himself. The defense will cite an unstable childhood, drug or alcohol addiction, mental health issues, or a defendant’s own family as reasons for leniency. Moreover, the defense lawyer will make arguments such as:
“Prison will only make him worse”;
“Don’t throw his life away”;
“He needs help, not incarceration”; and
“Give him a chance.”
In other words, it’s all about the defendant. Jurors with whom these arguments resonate seek to “fix” the defendant through their sentence. And in some cases, those are absolutely valid positions. On many drug, property, or even low-level violent crimes, rehabilitation and treatment should be everyone’s chief concern.
In many cases, though, justice requires that a punishment’s focus be on everyone but the defendant. This is particularly true with violent crimes or crimes where a defendant’s behavior or history show that he is a continuing threat to the community. To illustrate this point, consider the following scenario:
Imagine you looked out your window and saw a man walking down the street. You then watch as he does all of the things that this defendant has done. You then see the man continue walking down the street. In the distance, you see other people he will soon encounter. You do not know their names, but you clearly see them there. And the man is walking towards them. Those people in the distance have not seen the man do the things that you have seen him do. There is no way for them to realize the threat the man poses. If you were the only person in the world with the power to stop that man from reaching those strangers in the distance, do you not have a duty to do so? Are those people not worthy of protection, even if we do not yet know their names? Is it responsible to allow the man, whom you have seen do horrible things to others, reach those people? Is it fair to wait and see if he harms them as well before taking action?
I use this exercise sometimes during closing argument at punishment with dangerous defendants. I want to know ahead of time that jurors share my concern for those strangers in the distance. The only way for me to know that is to have a conversation with them during voir dire about why we punish criminals.
Why do we punish?
“Why do we punish?” That question is perhaps the most important one a prosecutor can ask jurors during voir dire on punishment. Ultimately, jurors’ philosophies about why we punish criminals determine what justice looks like in a particular case. With their punishment verdict, jurors communicate what they feel is most important: rehabilitating the defendant, retribution for the victim, protection of the community, etc. Most often, the punishment phase of a jury trial comes down to a philosophical battle. On one side is the defense, which is seeking to persuade jurors to focus on “fixing” the defendant. On the other side, prosecutors try to convince jurors that the value of a victim’s suffering and the safety of the community outweigh the defendant’s needs.
Frequently, defense lawyers—and even prosecutors—ask jurors this question: “What is most important to you in sentencing: punishment, rehabilitation, or deterrence?” While this question does give some insight into a juror’s priorities and can be a useful starting point, it does not reveal much about how a juror really thinks or feels. For that, a prosecutor must ask jurors, “Why?” Once some jurors explain their rationales for punishment, the prosecutor can then take those responses and challenge other jurors with them, asking for their reactions. This process of “looping” responses throughout the jury panel tends to foster a good discussion among panel members. Through this discussion, prosecutors can better gauge which jurors will be receptive to the arguments that the prosecutor already knows she wants to make in closing. Additionally, during the discussion, jurors themselves will say things that the prosecutor can directly incorporate into closing arguments. Nothing resonates with jurors like their own words!
Defense lawyers often argue to jurors in punishment that sentencing a defendant will not undo the damage done to a victim. So, the argument goes, jurors should focus on what possibly can be fixed: the defendant. To head off that argument, consider how asking the following questions in voir dire might foster a useful discussion for prosecutors:
• “Should punishment take a victim into consideration?”
• “Why?” (Or “Why not?”)
• “After all, the verdict can’t change what happened to a victim. So why should a victim even be a consideration?”
Spend a few minutes thinking about jurors’ likely responses to questions like these. Do those responses sound anything like a closing argument that you would like to give during punishment? If so, then you can ask these questions at voir dire—and at the same time begin your closing argument at punishment—through the words of the jurors themselves.
Can you imagine jurors responding to these questions in ways you don’t like? Wouldn’t you like to know whether people hold those kinds of beliefs before you allow them onto a jury? Jurors’ initial responses to philosophical questions about punishment are a great indicator of what arguments will (and will not) resonate with them throughout trial. As such, they can be valuable tools in exercising strikes during voir dire.
How do you think jurors will likely respond to questions like these?
• “In sentencing, is the safety of the community a factor? Why?”
• “Do you agree with the premise that the best predictor of future behavior is past behavior? Why?
In a case where a defendant has a great deal of criminal history or has displayed extreme violence or predatory behavior, prosecutors want jurors who will be more concerned about future victims than about the defendant. Before the trial starts, prosecutors know that they will eventually argue to jurors that the reason for punishing the defendant must be to protect future potential victims. Wouldn’t any prosecutor like to know how jurors feel about that rationale during voir dire?
Note that Texas courts give attorneys wide latitude to question jurors about their philosophies on punishment. In Davis v. State, the Court of Criminal Appeals noted that questions about “jurors’ general philosophical outlook,” including what factors they feel should be considered in punishment, are appropriate in voir dire and are not improper commitment questions.
Some defendants have a long history of crimes against victims but also have mitigating factors such as a difficult childhood or substance abuse. In such cases, prosecutors need not wait until the punishment phase to address those issues. Consider the following questions to jurors in voir dire:
“Has anyone here ever had their home or car broken into?”
Jurors raise hands.
“Juror No. 1, how did that experience make you feel?”
“Did that experience affect your family?”
“Yes, my kids were scared.”
“Would you or your family have been less affected if the person who broke into your house had experienced a rough childhood?”
“Would your sense of security be any less violated if the person who broke into your house had a problem with drugs?”
“Now can we agree that things like counseling or rehab are important and often useful?”
“But ultimately, whose responsibility is it to address personal issues and change behavior?”
“The person making the choices.”
“So, do you think there is a point at which the needs of the community must outweigh the best interests of a defendant?”
“How do you determine when that point has been reached?”
The prosecutor can then loop jurors’ responses around the panel, getting a broad cross-section of opinions. Thus, she uses voir dire to plant the seeds of her argument in jurors’ minds and establish her themes that:
1) the defendant is accountable for his own actions,
2) the defendant’s life circumstances do not diminish the impact on his victims, and
3) the defendant has reached a point where punishment must be about the community rather than him.
In the process, she identifies jurors who disagree and can better use her strikes.
Get outside the box
The most fun thing about voir dire is that there are no rules of evidence, no “relevance” objections. Prosecutors are bound only by the limits of their own creativity in coming up with methods to explore jurors’ philosophies and establish a case’s themes and arguments.
Several years ago, my good friend and our first assistant, Brian Baker, was trying an intoxication assault case where the victim was a police officer. The defendant was driving at an outrageous speed when she slammed into a police car as the officer responded to citizen complaints about the defendant’s driving. The officer, while eventually making close to a full recovery, had to medically retire from police work. However, the defendant was a very young woman with no criminal history. Brian felt strongly that the facts justified a prison sentence, but he knew that many jurors would struggle with incarcerating a young woman with no previous run-ins with the law.
During voir dire, the first question Brian asked jurors was whether they believed in spanking children as punishment. For those jurors who were in favor of spanking, Brian asked them to explain why. Further, Brian had jurors describe how spanking a child was harder on the parent than on the child, but it nevertheless had to be done to address bad behavior. Some jurors were against spanking, favoring “time out” or taking away a child’s possessions as punishment. Brian struck those jurors. The remaining jurors were well-positioned to receive Brian’s argument that, while sending the defendant to prison might be difficult, the severity of her behavior required a severe response. The brilliance of Brian’s approach was that the questions he asked during voir dire and the answers they elicited paralleled beautifully with the arguments he made during punishment. That parallel was deliberate and well-planned. In the end, the jury sentenced the defendant to six years in prison with a finding of a deadly weapon.
With a clear understanding of the punishment we’re seeking, the reasons that punishment is appropriate, and what potential struggles jurors may face in imposing it, prosecutors can create voir dire discussions tailored to overcoming case-specific issues and achieving case-specific goals. Get creative. While preparing for voir dire, put yourself inside the minds of jurors. Spend time thinking about how they will react to certain questions and topics. Craft examples for voir dire that will fit seamlessly into closing argument at punishment, as well as at guilt-innocence. Voir dire is an extension of your argument for justice. Justice cannot happen unless the punishment fits the crime, the criminal, and the community.
Order and priorities
How familiar does this scenario sound to you?
Judge: “Counsel, you have five minutes remaining in voir dire.”
Prosecutor: “Thank you, Judge. Now, ladies and gentlemen, in these last few minutes, I want to talk with you about punishment.”
Frequently, prosecutors place punishment last in the order of topics they need to cover during voir dire. After all, punishment comes at the end of the trial, right? But if we’re being honest with ourselves, how many felony cases are we trying where guilt is the real issue in dispute? In the majority of felony cases, both the State and the defense know before trial that the defendant will likely be convicted. The reason most felony cases go to trial is because the parties cannot agree on punishment.
Suppose a prosecutor is trying a sexual assault case where the defendant’s DNA was recovered from the victim and the defendant confessed to police. The defendant, however, wants probation while the prosecutor has offered eight years in prison. Now imagine that, during voir dire, the prosecutor spends nearly all of his allotted time discussing the elements of sexual assault, legal definitions, and consent.
Did that voir dire address the true issue in the case? No! The battle is really over punishment. Yet, after voir dire, jurors are no better equipped to impose the sentence the prosecutor seeks than they were when they first arrived at the courthouse, nor does the prosecutor have any clearer picture of who the right jurors are for that particular case.
Now imagine how the outcome of the case would change if the prosecutor began voir dire talking about punishment and spent the bulk of his time on that topic.
There is no prescribed order in which prosecutors must cover topics during voir dire. To be sure, there is a way to lose nearly every case on guilt, and prosecutors must craft voir dire presentations that address issues that might result in an acquittal. Convictions should never be taken for granted. That being said, every prosecutor knows when punishment will be the primary battleground in an instance. When we are faced with such a case, an effective strategy is often to lead off with punishment during voir dire. Doing so ensures that the prosecutor will have adequate time to cover this critical issue. Additionally, talking about punishment immediately during voir dire reinforces to jurors that they do not know anything about the case. As a result, jurors have an easier time keeping their minds open to full punishment ranges.
Just as the content of your voir dire is an opportunity for creativity, so is the order in which you discuss topics. Spend time tailoring both the content and order of discussion to address those issues that can lead to an unjust result.
Protect State’s jurors
When prosecutors try violent or sexual felonies, an absolutely critical component of voir dire is qualifying the panel on the full range of punishment. Consider the offense of aggravated robbery. The punishment range extends from five years’ probation on one end, all the way to life in prison on the other. Understandably, jurors frequently struggle to accept a punishment range so broad. Some, typically “State’s” jurors, feel that probation is a slap on the wrist and may not be appropriate for a violent offense. Others, frequently “defense” jurors, think that penalties such as life in prison should be reserved for homicide cases rather than “mere” robberies.
Any jurors who cannot consider part of an available punishment range are challengeable for cause. Thus, if a defense lawyer can commit jurors that they will not consider probation under any circumstances, those jurors are disqualified. If a prosecutor fails to qualify a jury panel on the full range of punishment, an effective defense lawyer can easily eliminate most of the strongest jurors for the State on punishment, thereby essentially winning the case for the defense in voir dire.
So how can a prosecutor shield strong jurors from defense challenges for cause on punishment?
Consider a plumber who comes to your house because your faucet leaks. Would it make sense if the plumber walked into the house to fix the faucet and the only tool he brought was a hammer? Instead, the plumber brings an entire truck full of tools. On any given job, the plumber uses very few of his tools; nevertheless, he has all of his tools available so he can address any issues that an individual job requires.
A jury’s decision on punishment is no different. The huge punishment ranges are merely the tools that jurors have at their disposal. Every tool is not appropriate on every case, but the availability of so many tools allows jurors to tailor the punishment to the unique circumstances of each case. On aggravated robbery, for example, suppose a 17-year-old cheerleader and honor student who has never been in trouble decides to shoplift a candy bar from Wal-Mart. As the youth tries to leave with the candy, she is confronted by a store clerk. The shoplifter panics and grabs a baseball bat off of a nearby sporting-goods rack and brandishes it, telling the clerk to stay away. Then the shoplifter drops the bat, drops the candy bar, and runs from the store in tears. What crime did the young woman commit? Aggravated robbery.
Or, suppose that same 17-year-old shoplifter had a friend with her. Upon seeing her companion shoplift and then threaten the clerk with the baseball bat, suppose the friend yelled, “Let’s go!”, picked up the candy bar, and then drove the shoplifter away from the scene. What crime did the friend commit? Aggravated robbery.
Contrast that with a 35-year-old man with multiple prior convictions who decides to commit a robbery. He arms himself with a gun, enters a convenience store, puts his gun to the clerk’s head, and steals the money. Like the shoplifter and her friend in the examples above, this man committed aggravated robbery. The circumstances of the scenarios, however, are radically different.
Because there are infinite potential factual scenarios that fall under the definition of aggravated robbery, the Legislature has created a punishment range extending from five years’ probation to life in prison. Thus, jurors can impose a sentence appropriate to each unique case. For a juror to qualify to serve, the law merely requires jurors keep their minds open to the possibility that the minimum or maximum punishments may be appropriate, depending entirely on the facts and evidence. Sometimes defense lawyers ask jurors if they can “envision a set of circumstances” in which they could consider probation. However, the law does not require jurors to think of a specific scenario in which they would give probation. Rather, the law simply requires jurors to be open-minded to the possibility that such a scenario might exist.
When qualifying a panel on the punishment range, give jurors hypothetical factual scenarios which, like the aggravated robbery examples above, illustrate why the range of punishment is so broad. Note that, in voir dire, a prosecutor cannot commit jurors to a particular outcome based on a specific set of facts. For example, a prosecutor cannot ask jurors whether they feel certain factual scenarios would justify a probation or prison sentence. Nor can prosecutors use specific hypotheticals as examples of when certain sentences would be appropriate—at least not in voir dire. Such comments would amount to improper commitment questions under Standefer.
What a prosecutor can do, however, is use hypotheticals to illustrate the law. Here, the law is a very broad punishment range. Thus, a prosecutor can provide hypotheticals like the ones above to show to jurors why the punishment range is so broad, without actually telling jurors that one example is a probation case, whereas the other example is a prison case.
After outlining those hypotheticals, I always have the following exchange with jurors:
“Juror No. 1, as we sit here right now, what do you know about the facts of this case?”
“Exactly. And that’s on purpose. All the law requires of you is that, prior to knowing the facts of the case, you keep your mind open to the possibility that you might hear facts that justify the minimum punishment, and you might hear facts that justify the maximum punishment. Is that fair?”
“So can you promise the Court that you will follow the law and keep your mind open to both ends of the punishment range until you hear the facts of this particular case?”
“Juror No. 2, can you make that promise to keep your mind open to both ends of the punishment range until you start hearing the facts?”
“Juror No. 3?” And so on.
It often helps to point out to jurors that, for purposes of this discussion, you are not talking about this particular defendant. After all, some jurors may be looking at your defendant and thinking, “That doesn’t look like a 17-year-old cheerleader to me.” But to qualify under the law, jurors need only keep their minds open to the full range for the offense involved in general, not as it pertains to a specific defendant or factual scenario.
To illustrate this point, consider a home-invasion aggravated robbery case I recently tried. During voir dire, the defense lawyer asked jurors whether they could consider probation on an aggravated robbery case, even if the crime occurred in a victim’s home. The Court properly sustained our objection that the question was an attempt to improperly commit jurors under Standefer. After all, jurors are completely free to decide that probation is not appropriate if a robbery occurred inside the victim’s home. That decision would be based upon the facts of the case. As long as jurors are open-minded to the notion that probation can be appropriate in some aggravated robberies, then they are qualified.
Some defendants’ punishment ranges are enhanced with prior convictions. I have seen prosecutors tell jurors in voir dire that the punishment range can be enhanced, but not tell jurors why, for fear of saying something improper. But this approach confuses jurors and also allows the defense lawyer to take ownership of the issue during voir dire. Texas courts have long held that prosecutors can explain the enhancement process to jurors as part of qualifying the jury panel on the punishment range.
When trying enhanced defendants, remember to qualify jurors on the unenhanced punishment range, as well as the enhanced range. Potentially, jurors could find one or more enhancement paragraphs “not true,” so they must be qualified on every potential punishment range that could apply in the case.
Also discuss whether jurors feel that enhancing punishment ranges based on prior convictions are fair. Some people believe punishing a defendant more harshly due to prior convictions for which he has already served his sentence is unfair. Such jurors potentially could be struck for cause if they cannot consider any part of an enhanced punishment range. Even if such jurors insist they could consider enhanced punishment ranges, they would likely not be good jurors on a case where prosecutors are seeking an enhanced punishment.
Hypotheticals for perspective
Earlier, I pointed out that Standefer prohibits prosecutors from overtly using hypothetical scenarios as examples of a “probation case” or a “prison case” during voir dire. During closing arguments, however, we absolutely can. Thus, when preparing to qualify a jury panel on the punishment range in voir dire, prosecutors should give serious thought to which hypothetical scenarios they will to use to illustrate the need for a wide punishment range. These hypotheticals can be used as measuring sticks for jurors during closing argument.
Remember, as prosecutors, we see crimes every day. We know the difference between a probation case, a 15-year case, and a life case. We know those things because our jobs give us perspective that jurors do not have. Jurors do not evaluate crimes every day, and this is probably the only time in their lives where they will be asked to decide another person’s fate. That is a scary and intimidating prospect for most people. To help them, they need a guide. As noted above, the law allows prosecutors to use hypothetical scenarios in voir dire to illustrate why the punishment range is so wide. Closing argument, though, is an opportunity to complete the discussion begun in voir dire.
Consider an agg robbery trial where a defendant with prior convictions for assault and burglary of a motor vehicle robbed a convenience store at gunpoint. During argument, the defense lawyer points out that the defendant has never been convicted of a felony, is a young man, is sorry for what he did, and deserves a chance on probation. The prosecutor might respond with something like this:
“In voir dire we talked about why probation is even a possibility in an aggravated robbery case. A 17-year-old who has never been in trouble, who did not plan to commit a robbery, who did not arm himself with a weapon ahead of time, and who really didn’t hurt anyone—that is what a probation case looks like on an aggravated robbery. Contrast that with this defendant, who …”
During voir dire, the prosecutor technically did not use that hypothetical as an example of a probation case. But jurors nevertheless will remember it that way. Coming back to that scenario during closing argument allows the prosecutor to paint a stark contrast between that example of a probation case and what the defendant did. By giving jurors perspective with scenarios that fall below the defendant’s case on the punishment range, a prosecutor better equips them to render justice for what the defendant did. That process, though, is far more effective if the foundation was laid in voir dire. As I stated in the first article in this series (“Always be closing”), voir dire is the leading edge of your closing argument.
A prosecutor’s legal and ethical duty is to see that justice is done. As my good friend, W. Clay Abbott from TDCAA, likes to say, “Texas prosecutors don’t roam around the fields with a butterfly net seeking justice. We do justice. We go out, hunt it down, and tack it to the wall.” Past generations of prosecutors equated “justice” with the harshest possible sentence on every case. The current generation of prosecutors understands better that justice might mean a dismissal, a diversion, probation, or short terms of incarceration. It might mean using every resource available to help a defendant.
Sometimes, though, justice requires prosecutors to do everything in our power to separate violent or dangerous offenders from the community, from future victims. We rightly hear the word “injustice” applied when a defendant is wrongly or excessively incarcerated. Injustice also occurs, though, when offenders are not held accountable, when predators are permitted to prey on innocents, and when victims suffer because the law let them down.
Voir dire is, without a doubt, the most important phase of a jury trial. It truly is the lens through which jurors will see everything that happens for the rest of the trial. By planning and executing an effective voir dire tailored to the facts and issues of a particular case, prosecutors go a long way toward making sure that offenders are held accountable, that punishments fit the crime, the criminal, and the community, and that justice is done.
 I recently helped conduct a Criminal Law training for students at the Baylor Law School where I heard my friend, Beth Toben, of the Limestone County DA’s Office say this. I thought it was brilliant.
 Davis v. State 349 S.W.3d 517 (Tex. Crim. App. 2011).
 Using the Law of Parties is a useful tool in making any factual scenario less egregious.
 Ladd v. State 3 S.W.3d 547 (Tex. Crim. App. 1999).
 Standefer v. State 59 S.W.3d 177, 181 (Tex. Crim. App.2001).
 However, in closing argument, the prosecutor may absolutely come back to these hypotheticals and use them as examples of what a probation case looks like, etc.
 For a more in-depth look at Standefer, see Rusk County ADA Zack Wavrusa’s excellent article on the topic in the May-June 2019 edition of The Texas Prosecutor.
 Frausto v. State 642 S.W.2d 506 (Tex. Crim. App. 1982).