Monday, November 24, 2008

Improper voir dire

A very special thanks to Galveston County criminal defense attorney Gerald Burks and Houston criminal defense attorney Mark Bennett for their research into the so-called "One Witness Rule."

In every case I've taken to trial I've had to sit and listen to the prosecutor get up and recite the so-called "One Witness Rule" to the panel of prospective jurors.  The prosecutor asks the panel if they would require she bring more than one witness to testify at trial and then she tells the panel that if they believe her one witness, that's all she has to do to carry her burden at trial.

Everytime I sit and hear it I cringe because that is NOT the law.  The so-called "One Witness Rule" is a bastardization of Article 38.07 of the Texas Code of Criminal Procedure that deals with uncorroborated testimony of a victim of sexual abuse. That particular provision deals with the sufficiency of the evidence in a sexual assault case.  There is no mention in the code of any other type of case in which this so-called rule applies.  This is a procedural rule that allows the court to determine whether such uncorroborated testimony is sufficient to uphold a conviction.  Such an inquiry is made by the court, not the jury.

Furthermore, this so-called rule is an attempt by the prosecutor to shift the burden of proof in a criminal trial.  By telling the panelists that they must convict if they believe the word of the state's one witness, the prosecutor misstates her burden of proof.  In a criminal case it's not a question of whether the jury believes one witness or not, it's a question of whether or not the state has met its burden to prove its case beyond a reasonable doubt.  A jury may very well believe the testimony of one witness, but whether that testimony proves beyond a reasonable doubt that the citizen accused did the deed may another story altogether.

Questioning the panel about the state's so-called "One Witness Rule" is improper voir dire and should raise an immediate objection. (Better yet, address it in a motion in limine as well.) Should the court grant any challenge for cause by the state over a panelist's refusal to follow the so-called rule, make an immediate objection.  Should the court overrule the objection, object to the panel as seated.

  • Read what Mark Bennett has to say about the so-called "One Witness Rule" in his blog Defending People.

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