Today I have a question on tactics. I think I made the right choice the other day but, despite my best efforts, I keep questioning my decision.
We were set to try an assault case. There was an altercation in a bar and my client was accused of hitting a bouncer on the back of the head with a beer bottle.
My case was far from being the oldest case on the trial docket. There were two DWI cases with blood tests that were much older than our case. However, we had a visiting judge on the bench who wanted to try a case that could be wrapped up in one day. And we were the lucky ones.
There were 24 people on the jury panel that was led into the courtroom. The judge was in such a rush to get things underway that I didn't even have time to go through all the juror information cards before the judge launched into his remarks.
The prosecutor then set to work with the typical Harris County DA voir dire presentation with the same PowerPoint template we've all come to know and love. But things got pretty hairy pretty damn quick. When the prosecutor asked the panel whether they thought it was important to try misdemeanor assault cases one juror in the front row told him she thought the whole process was a waste of time and money. And when he responded to her comments it only set her off even more. Then he asked what I'm sure he thought was a simple question about the elements of a misdemeanor assault.
One of the elements of a misdemeanor assault is that the alleged contact caused pain or bodily injury to the complainant. The prosecutor asked if anyone would require him to prove more. Half the panel raised their hands. There was our ticket to a busted panel.
During the course of his presentation there were a couple of other jurors who indicated they had some issues with assault cases. Now I was faced with my first tactical question - should I aim to pick a jury from a panel that obviously had some issues with the case or should I bust the panel?
I chose the latter.
During my presentation I identified a couple more jurors who seemed a bit too biased to serve on the jury. One of the best questions to ask a panel to develop strikes for cause is whether they would require the defendant to testify in order to find him or her not guilty. That question eliminated two jurors.
After we finished questioning the panel the judge brought individual jurors up to the bench who were challenged for cause. I was now confronted with the question a second time. I was prepared to challenge at least 18 jurors for cause. Did I want to try the case or did I want to fight another day?
The judge called up about 15 or the first 20 panelists. Juror after juror told me that they would require the prosecutor to prove more than pain in order to convict. Juror after juror was dismissed. After a while the judge quit trying to rehabilitate them.
As soon as it became apparent that there wouldn't be enough people to form a jury the judge dismissed the entire panel. I felt the process served as an excellent screening procedure for the state's case. The fact that we couldn't seat a jury for a simple assault case should have sent a message to the prosecutor that his case had problems.
But I still wonder if we would have been better off seating a jury that would have, in all likelihood, been favorable to the defense. We certainly had a panel that was capable to finding my client not guilty because they didn't think someone should be convicted just because another person felt a little pain. Of course I have no idea what the hell might have happened back in that jury room after the evidence was presented. I have tried cases that I knew I had lost, yet won; and I've tried cases I knew I had won, but lost.
Is the wiser strategy to prolong the fight by busting a panel or to seat a jury that would appear to be favorable to the defense? Bust the panel and see if the state wants to make a better offer next time or take your chances with a jury who might just be willing to ignore the law to your benefit?
Showing posts with label voir dire. Show all posts
Showing posts with label voir dire. Show all posts
Thursday, May 15, 2014
Monday, April 1, 2013
Drawing a line
Adam Poole, a member of what we call the prosecution function, took issue the other day with my post regarding jury selection in my speeding case. Now, before I go any further, I want to say that I appreciate Mr. Poole's give-and-take in the comments section. I respect Mr. Poole for signing his name to his comments instead of doing it under the cloak of anonymity.
However, it doesn't mean that he's not wrong.
As a refresher, one of the questions I asked the panel was whether they would give the testimony of a police officer more credibility, not because of any specialized training or experience, but simply because he pins a badge to his uniform and carries a gun.
My view is that anyone who answers that question in the affirmative has indicated a bias toward the state and should be stricken for cause. Mr. Poole argues that the judge was correct in not striking the panelists.
Now, a juror is certainly permitted to give more weight to the testimony of an individual who has some type of specialized training or experience. It goes without saying that a juror can certainly give more credibility to the testimony of a doctor regarding a plaintiff's injuries than to a lay person with no medical training.
But that's not what we're talking about here.
In a criminal trial the defendant is presumed innocent unless the state is able to prove each and every element of the alleged offense beyond all reasonable doubt. Now let's take our speeding case as an example. We know that the officer who issued the ticket is going to testify. We can also presume that the defendant is going to testify as well. That being the case, if a juror is going to give the officer's testimony more credibility simply because he's a police officer, that presumption of innocence is out the window. And that's because if the juror says that he will give more weight to the officer's testimony before he's heard any evidence, he is not presuming that the defendant is innocent unless proven guilty. And that's the problem.
Now, in Mr. Poole's defense, in a great many cases the police officer didn't observe the actual commission of a criminal offense - the officer is investigating after the fact. If the officer isn't the main witness, then it matters less whether a juror is going to give his testimony more weight than someone else's because that juror will take into account the officer's role in the investigation.
But he's not getting off the hook that easy today. If he sees no problem in a prospective juror stating that he would give an officer's testimony more credibility simply because he wears a badge and carries a gun, where to we draw the line?
Feel free to stop me when I cross the line...
Would you be more inclined to believe a witness is lying because he's a police officer?
Would you give more credibility to the testimony of a man, simply because he's a man?
Would you give more credibility to the testimony of a nun, simply because she's a nun?
Would you give more credibility to the testimony of a left-handed person, simply because she's left-handed?
Would you give more credibility to the testimony of a protestant, simply because he's a protestant?
Would you give more credibility to the testimony of a person from up north, simply because she's from up north?
Would you give more credibility to the testimony of a UT graduate, simply because he graduated from UT?
Would you give more credibility to the testimony of a person over the age of 40, simply because she's over the age of 40?
Would you give more credibility to the testimony of a person with green eyes, simply because they're eyes are green?
Would you give more credibility to the testimony of a person without an Hispanic surname, simply because they don't have an Hispanic surname?
Would you give more credibility to the testimony of a white person, simply because they're white?
However, it doesn't mean that he's not wrong.
As a refresher, one of the questions I asked the panel was whether they would give the testimony of a police officer more credibility, not because of any specialized training or experience, but simply because he pins a badge to his uniform and carries a gun.
My view is that anyone who answers that question in the affirmative has indicated a bias toward the state and should be stricken for cause. Mr. Poole argues that the judge was correct in not striking the panelists.
Now, a juror is certainly permitted to give more weight to the testimony of an individual who has some type of specialized training or experience. It goes without saying that a juror can certainly give more credibility to the testimony of a doctor regarding a plaintiff's injuries than to a lay person with no medical training.
But that's not what we're talking about here.
In a criminal trial the defendant is presumed innocent unless the state is able to prove each and every element of the alleged offense beyond all reasonable doubt. Now let's take our speeding case as an example. We know that the officer who issued the ticket is going to testify. We can also presume that the defendant is going to testify as well. That being the case, if a juror is going to give the officer's testimony more credibility simply because he's a police officer, that presumption of innocence is out the window. And that's because if the juror says that he will give more weight to the officer's testimony before he's heard any evidence, he is not presuming that the defendant is innocent unless proven guilty. And that's the problem.
Now, in Mr. Poole's defense, in a great many cases the police officer didn't observe the actual commission of a criminal offense - the officer is investigating after the fact. If the officer isn't the main witness, then it matters less whether a juror is going to give his testimony more weight than someone else's because that juror will take into account the officer's role in the investigation.
But he's not getting off the hook that easy today. If he sees no problem in a prospective juror stating that he would give an officer's testimony more credibility simply because he wears a badge and carries a gun, where to we draw the line?
Feel free to stop me when I cross the line...
Would you be more inclined to believe a witness is lying because he's a police officer?
Would you give more credibility to the testimony of a man, simply because he's a man?
Would you give more credibility to the testimony of a nun, simply because she's a nun?
Would you give more credibility to the testimony of a left-handed person, simply because she's left-handed?
Would you give more credibility to the testimony of a protestant, simply because he's a protestant?
Would you give more credibility to the testimony of a person from up north, simply because she's from up north?
Would you give more credibility to the testimony of a UT graduate, simply because he graduated from UT?
Would you give more credibility to the testimony of a person over the age of 40, simply because she's over the age of 40?
Would you give more credibility to the testimony of a person with green eyes, simply because they're eyes are green?
Would you give more credibility to the testimony of a person without an Hispanic surname, simply because they don't have an Hispanic surname?
Would you give more credibility to the testimony of a white person, simply because they're white?
Friday, March 29, 2013
My house, my rules
The other day out in one of the small towns on the Petroleum Highway (SH 225), I had a client who drove trucks for a living who had gotten a speeding ticket while driving his pickup truck. For those of y'all who don't keep up with traffic laws, commercial truck drivers aren't eligible to get a ticket dismissed through what we like to call deferred disposition.
A deferred allows a motorist topay a fine post a bond and if he doesn't get another ticket within a certain number of days, the case is dismissed. For truck drivers the choices are plead it out or set it for trial.
And my client and I found ourselves in trial that day.
The courtroom is the municipal auditorium with a stage and an applause sign above the curtain. The judge sits behind a desk on a strange little peninsula that comes out from the stage.
During voir dire I decided I was going to concentrate on three main questions in an attempt to strike as many of thelynch mob jurors for cause as I could. After the prosecutor's rousing voir dire in which he didn't direct a single question to any member of the panel, I had little to go on. (In Texas you are entitled to a jury trial for any criminal offense - from speeding all the way up to murder).
My three questions were:
1. Based on all the evidence you've heard so far, if you had to give your verdict right now, what would it be?
2. Would you give the testimony of a police officer more credibility solely because he wears a badge?, and
3. Would you require [my client] to testify in order to find him not guilty?
I asked the first question to the first 21 members of the panel and had two jurors tell me they would find my client guilty because he received a speeding ticket. That's two for cause.
I asked the second and third questions to the entire panel of 26 jurors. A total of 21 jurors said that they would give the testimony of a police officer more credibility solely because he was a police officer and not because of any training he may have received. I figured we were done right there and then as that left us with only five jurors out of the six we needed (before any peremptory strikes).
On the third question eight jurors said they would have to hear from my client before they could find him not guilty. By my tally that left us with only one juror who hadn't expressed a bias. It looked like my day was just about done.
After I sat down I asked to approach and I moved to strike 25 of the 26 jurors based on their answers to those three questions. The judge asked me if I was challenging the entire panel and I told him that's what it looked like. He then told me that wasn't going to happen. He was going to deny my request but he was gracious enough to strike seven of the jurors for cause - leaving a panel that was already predisposed to eat up the officer's testimony with no reservations.
You should already know the verdict. There was nothing further I could do because the municipal court was not a court of record (no recording of the testimony) so any appeal would lead to a trial de novo in the county court. The judge was able to act with impunity because there was no record that could ever be held up to demonstrate his blatant disregard for the law.
And I almost forgot to mention the one juror who had a migraine during the trial and, instead of sitting in the jury room with her fellow jurors, she spent her time getting sick in the ladies' room. Then there was the juror who was concerned about the time because she had to make a doctor's appointment for her mother before the office closed at five o'clock (it was an afternoon trial). I'm not thinking either one of them gave a damn about deliberating.
Then, just to make matters worse, we were told that the court would not accept an attorney's surety bond for an appeal - my client would have to post a cash bond for double the amount of the fine.
For a good many folks, traffic court is the closest they get to a courtroom in their lives. What a damn shame they experience such a cavalier attitude toward the law.
A deferred allows a motorist to
And my client and I found ourselves in trial that day.
The courtroom is the municipal auditorium with a stage and an applause sign above the curtain. The judge sits behind a desk on a strange little peninsula that comes out from the stage.
During voir dire I decided I was going to concentrate on three main questions in an attempt to strike as many of the
My three questions were:
1. Based on all the evidence you've heard so far, if you had to give your verdict right now, what would it be?
2. Would you give the testimony of a police officer more credibility solely because he wears a badge?, and
3. Would you require [my client] to testify in order to find him not guilty?
I asked the first question to the first 21 members of the panel and had two jurors tell me they would find my client guilty because he received a speeding ticket. That's two for cause.
I asked the second and third questions to the entire panel of 26 jurors. A total of 21 jurors said that they would give the testimony of a police officer more credibility solely because he was a police officer and not because of any training he may have received. I figured we were done right there and then as that left us with only five jurors out of the six we needed (before any peremptory strikes).
On the third question eight jurors said they would have to hear from my client before they could find him not guilty. By my tally that left us with only one juror who hadn't expressed a bias. It looked like my day was just about done.
After I sat down I asked to approach and I moved to strike 25 of the 26 jurors based on their answers to those three questions. The judge asked me if I was challenging the entire panel and I told him that's what it looked like. He then told me that wasn't going to happen. He was going to deny my request but he was gracious enough to strike seven of the jurors for cause - leaving a panel that was already predisposed to eat up the officer's testimony with no reservations.
You should already know the verdict. There was nothing further I could do because the municipal court was not a court of record (no recording of the testimony) so any appeal would lead to a trial de novo in the county court. The judge was able to act with impunity because there was no record that could ever be held up to demonstrate his blatant disregard for the law.
And I almost forgot to mention the one juror who had a migraine during the trial and, instead of sitting in the jury room with her fellow jurors, she spent her time getting sick in the ladies' room. Then there was the juror who was concerned about the time because she had to make a doctor's appointment for her mother before the office closed at five o'clock (it was an afternoon trial). I'm not thinking either one of them gave a damn about deliberating.
Then, just to make matters worse, we were told that the court would not accept an attorney's surety bond for an appeal - my client would have to post a cash bond for double the amount of the fine.
For a good many folks, traffic court is the closest they get to a courtroom in their lives. What a damn shame they experience such a cavalier attitude toward the law.
Friday, September 7, 2012
It all adds up to what?
Back when I was in school we spent quite a bit of time drilling our multiplication tables. We learned long division. There were no calculators allowed in the classroom. You didn't come across any touchy-feely word problems. The teachers' goals weren't to massage our egos and pump up our self-esteem and feelings of self-worth. The name of the game was mathematics.
Today, of course, we couldn't possibly allow our children to have to figure out how to multiply or divide on paper. None of that moving the decimal point to the left. Forget about carrying over. Today's generation was raised on computers and that's what they'll be using the rest of their lives. Pencils and paper - that's so yesterday.
Really?
The other day I was in a rush when I went to Staples to pick up some file boxes. I thought I was grabbing what I needed - until I got back to the office and realized I got the wrong size. So, the next day I headed back with my boxes and my receipt so I could exchange them for the right sized boxes.
I headed back to the corner of the store and found what I needed. Then it was back to the register.
The boxes I bought the day before were $18.99. I had my Staples' reward coupon and I ended up paying about $10. The boxes I meant to buy cost $19.99. I would owe a shade over a dollar (with tax).
Imagine my surprise when the cashier (or whatever they call them over there) told me I owed almost $10. I told him the boxes I was bringing back only cost a dollar less than what I had in hand. I told him to look at my receipt. I told him I shouldn't owe but a little more than a dollar.
He tried to explain how I owed $10. So I asked him about the coupon I used the day before. I asked him if it had just vanished into thin air. He kept trying to explain to me that I owed a lot more money for the boxes.
He had absolutely no clue as to what he was doing. He was so used to scanning items at the register that he had lost the ability to do the most rudimentary math. He had lost the ability to think logically. He looked at me like I didn't know what I was talking about.
Then it struck me how when we rely on an electronic device to do our math for us that we divorce ourselves from the numbers themselves. The numbers no longer represent sets of objects and relationships. They're just blips on a screen. And when we become dependent on those blips we somehow lose the ability to know how to deal with a curveball when it's thrown our way.
Learning multiplication tables and long division can be awfully hard. It can be awfully boring. In our short attention span culture it's just not the way we do things. Kids sometimes have a hard time grasping the concepts. They might get red marks on their papers.
But they might just learn that math is more than numbers.
And these folks are going to be in your jury panel the next time you stand up to begin your voir dire. Scary, huh?
UPDATE: I went back to Staples today after leaving the courthouse and the cashier manning the booth today knew exactly what to do. I walked out with my new boxes after paying $1.08 extra.
Today, of course, we couldn't possibly allow our children to have to figure out how to multiply or divide on paper. None of that moving the decimal point to the left. Forget about carrying over. Today's generation was raised on computers and that's what they'll be using the rest of their lives. Pencils and paper - that's so yesterday.
Really?
The other day I was in a rush when I went to Staples to pick up some file boxes. I thought I was grabbing what I needed - until I got back to the office and realized I got the wrong size. So, the next day I headed back with my boxes and my receipt so I could exchange them for the right sized boxes.
I headed back to the corner of the store and found what I needed. Then it was back to the register.
The boxes I bought the day before were $18.99. I had my Staples' reward coupon and I ended up paying about $10. The boxes I meant to buy cost $19.99. I would owe a shade over a dollar (with tax).
Imagine my surprise when the cashier (or whatever they call them over there) told me I owed almost $10. I told him the boxes I was bringing back only cost a dollar less than what I had in hand. I told him to look at my receipt. I told him I shouldn't owe but a little more than a dollar.
He tried to explain how I owed $10. So I asked him about the coupon I used the day before. I asked him if it had just vanished into thin air. He kept trying to explain to me that I owed a lot more money for the boxes.
He had absolutely no clue as to what he was doing. He was so used to scanning items at the register that he had lost the ability to do the most rudimentary math. He had lost the ability to think logically. He looked at me like I didn't know what I was talking about.
Then it struck me how when we rely on an electronic device to do our math for us that we divorce ourselves from the numbers themselves. The numbers no longer represent sets of objects and relationships. They're just blips on a screen. And when we become dependent on those blips we somehow lose the ability to know how to deal with a curveball when it's thrown our way.
Learning multiplication tables and long division can be awfully hard. It can be awfully boring. In our short attention span culture it's just not the way we do things. Kids sometimes have a hard time grasping the concepts. They might get red marks on their papers.
But they might just learn that math is more than numbers.
And these folks are going to be in your jury panel the next time you stand up to begin your voir dire. Scary, huh?
UPDATE: I went back to Staples today after leaving the courthouse and the cashier manning the booth today knew exactly what to do. I walked out with my new boxes after paying $1.08 extra.
Thursday, October 27, 2011
Paying it forward
Yeah, that's right. I'm guilty. I admit it.
I have borrowed, alluded to and stolen from some of the best in the business. I liked Jeff Gamso's "Rule of Law" v. "Law of Rule" so much that I used it in a post about the aftermath of the fall of Muammar Gaddafi.
My basic outline for voir dire is a Frankenstein-esque document with bits and pieces that I appropriated from my Houston colleagues Todd Overstreet and Mark Bennett and the Jedi master himself, Robert Hirschhorn. My basic "playbook" I use in trial is full of ideas and concepts from Big D's David Burrows, Cowboy Lawyer (and TCDLA President) Gary Trichter and Mike McCollum.
That's the thing about criminal defense lawyers -- we're all on the same side. Each of us takes our duty to defend the Constitution very seriously and we know that working together and collaborating allows us to do it that much better. At our seminars we hear other lawyers talk to us about the strategies they used and which were successful and which weren't.
You don't see that same level of collaboration over in the civil courthouse. There everyone is chasing a fee and they protect their strategies and tactics like trade secrets. Giving up those secrets could cost you some clients, and some money, in the end.
Tort reform has made practice in the civil courts even more cut throat as the pool of potential clients dwindles due to the high barriers one must scale in order to collect a judgment.
Over in our corner of the world, reforming the penal code just means more clients as the legislature continues upon its quest to make everything illegal. There will never be a shortage of 4th Amendment issues. Confrontation problems will continue to rear their ugly heads. The police will still make pretextual stops and later try to rationalize why they pulled your client over in the first place.
So, if you see something here that might be useful, feel free to steal it and call it your own. Chances are it won't be the first time it was stolen.
I have borrowed, alluded to and stolen from some of the best in the business. I liked Jeff Gamso's "Rule of Law" v. "Law of Rule" so much that I used it in a post about the aftermath of the fall of Muammar Gaddafi.My basic outline for voir dire is a Frankenstein-esque document with bits and pieces that I appropriated from my Houston colleagues Todd Overstreet and Mark Bennett and the Jedi master himself, Robert Hirschhorn. My basic "playbook" I use in trial is full of ideas and concepts from Big D's David Burrows, Cowboy Lawyer (and TCDLA President) Gary Trichter and Mike McCollum.
That's the thing about criminal defense lawyers -- we're all on the same side. Each of us takes our duty to defend the Constitution very seriously and we know that working together and collaborating allows us to do it that much better. At our seminars we hear other lawyers talk to us about the strategies they used and which were successful and which weren't.
You don't see that same level of collaboration over in the civil courthouse. There everyone is chasing a fee and they protect their strategies and tactics like trade secrets. Giving up those secrets could cost you some clients, and some money, in the end.
Tort reform has made practice in the civil courts even more cut throat as the pool of potential clients dwindles due to the high barriers one must scale in order to collect a judgment.
Over in our corner of the world, reforming the penal code just means more clients as the legislature continues upon its quest to make everything illegal. There will never be a shortage of 4th Amendment issues. Confrontation problems will continue to rear their ugly heads. The police will still make pretextual stops and later try to rationalize why they pulled your client over in the first place.
So, if you see something here that might be useful, feel free to steal it and call it your own. Chances are it won't be the first time it was stolen.
Tuesday, October 11, 2011
The wisdom of a seven-year-old
Yesterday my oldest daughter was off from school because of Columbus Day. Now, I've never understood why Columbus Day was even a holiday in the first place. Maybe it's because I'm from the South. Or maybe it's because I'm Irish. I don't know. It never seemed holiday material in the first place.
I'll admit it was an impressive feat to sail across the ocean and get so lost you thought you were on the other side of the world (but that's something that happens routinely on college campuses, but that's another story for another day). But it's akin to my stubbing my toe on my neighbor's driveway and claiming I discovered a house.
But I digress...
Since no one outside the school district or the post office thought much of Columbus Day, my wife still had to teach at the local college and my youngest still had to go to her Pre-K class. Since I had to appear in municipal court Monday morning I thought it was time for a civics lesson for my oldest.
I mean, after all, that you can tell a lot about a people by the way they handle traffic court. You will find living proof that when you give authority to a person near the bottom of the food chain that strange things happen. You can also find out how unprepared young attorneys who went straight from law school to BigLaw are for the real world.
My client has a commercial driver's license so, through the collective genius of our state legislature (thank goodness they're only in session 140 days every other year -- I can't begin to imagine the harm they could do if they met regularly), our choices were to plead guilty, hope for a dismissal or take it to trial. And, since the complaint wasn't fatally flawed, we chose Option No. 3.
Since the officer didn't have to be in court until 1:00 pm (thank you, Mayor Parker, for yet another bit of absolute idiocy from City Hall), the judge was gracious enough to dismiss my client, my daughter and I for the morning.
We came back in the afternoon to find that the officer had signed in, but that the court would be hearing a case from 2008 (that's right, a jury trial for a speeding ticket issued over three years ago), that our case would be reset. My client wasn't altogether thrilled but she was aware of the consequences of pleading out the case.
As it turned out, a colleague of mine was trying the speeding case. I looked at my watch (knowing I had to get my daughter to her Brownies meeting at 3pm) and decided we would stay for voir dire because what could be more illustrative of democracy in action that a jury trial? I suppose you could say being stuck in a traffic jam would be metaphorically correct but let's not go there today.
As per custom, the prosecutor's voir dire was horrid. It was blah, blah, blah, blah, blah. Then a pause for a yes-no question - then more blah, blah, blah, blah. That was followed by his apologies for the panel having to show up to hear a mere traffic case - like someone our state right to a trial by jury in any criminal case wasn't all that important.
My colleague then got up and thanked the jurors for coming and then pointed out that even though this was just a traffic ticket case, his client had the same rights as a man on trial for murder. I thought it was a good counter to the prosecutor's attempt to downplay the need to actually pay attention to the trial. My colleague then spoke about how sometimes it might be reasonable and prudent to drive below the posted speed limit and sometimes it might be reasonable and prudent to drive above the posted speed limit (in Texas we have a "presumptive" speed limit which means it's not necessarily against the law to drive over the limit, so long as your speed was reasonable and prudent given the circumstances existing at the time you were driving).
Don't ask me how the trial turned out because I have no idea - we had to leave right after voir dire to get to the Brownies meeting. But, on the way back to the car my daughter and I talked about what we had just seen. I told her that I thought both attorneys talked way too much. I had no idea how any of the jurors (with the exception of one woman) felt about any issues or what their attitudes toward the presumption of innocence were. My daughter then made the point that needed making -- you learn more by listening than you do by speaking.
If you want to find out what someone's thinking, you don't ask them a yes-no question. You ask them an open-ended question that allows them to elaborate. Or you ask them a scaled question that can give you a gauge of how strongly they hold an opinion. If you don't then you're going to end up with a jury comprised of the folks that never spoke up and you will have no idea what to expect of them.
Instead of giving an example of when it might be appropriate to drive under the posted speed limit (icy roads), why not ask the panel to give some examples of their own. Instead of giving them an example of when you might need to drive over the speed limit, ask them when it might be reasonable and prudent to do so. Instead of asking the jurors to raise their hand if they'd believe the testimony of a police officer more than the testimony of your client, ask them to rate (pick your own scale) the credibility they'd give an officer's testimony solely because he wears a badge.
You might not get to cover all of your topics that way, but you'll have more information on your chart and, if you keep a list of questions you'd ask if time weren't limited, you can ask the judge for additional time so that you can ask those questions. You just might get what you ask for -- and, if you don't, you've got an issue for appeal.
Voir dire is the only time during a trial that you have the opportunity to speak directly to the jurors and find out what makes them tick. Don't waste that opportunity by lecturing them. Take advantage of it by listening to them.
I'll admit it was an impressive feat to sail across the ocean and get so lost you thought you were on the other side of the world (but that's something that happens routinely on college campuses, but that's another story for another day). But it's akin to my stubbing my toe on my neighbor's driveway and claiming I discovered a house.
But I digress...
Since no one outside the school district or the post office thought much of Columbus Day, my wife still had to teach at the local college and my youngest still had to go to her Pre-K class. Since I had to appear in municipal court Monday morning I thought it was time for a civics lesson for my oldest.
I mean, after all, that you can tell a lot about a people by the way they handle traffic court. You will find living proof that when you give authority to a person near the bottom of the food chain that strange things happen. You can also find out how unprepared young attorneys who went straight from law school to BigLaw are for the real world.
My client has a commercial driver's license so, through the collective genius of our state legislature (thank goodness they're only in session 140 days every other year -- I can't begin to imagine the harm they could do if they met regularly), our choices were to plead guilty, hope for a dismissal or take it to trial. And, since the complaint wasn't fatally flawed, we chose Option No. 3.
Since the officer didn't have to be in court until 1:00 pm (thank you, Mayor Parker, for yet another bit of absolute idiocy from City Hall), the judge was gracious enough to dismiss my client, my daughter and I for the morning.
We came back in the afternoon to find that the officer had signed in, but that the court would be hearing a case from 2008 (that's right, a jury trial for a speeding ticket issued over three years ago), that our case would be reset. My client wasn't altogether thrilled but she was aware of the consequences of pleading out the case.
As it turned out, a colleague of mine was trying the speeding case. I looked at my watch (knowing I had to get my daughter to her Brownies meeting at 3pm) and decided we would stay for voir dire because what could be more illustrative of democracy in action that a jury trial? I suppose you could say being stuck in a traffic jam would be metaphorically correct but let's not go there today.
As per custom, the prosecutor's voir dire was horrid. It was blah, blah, blah, blah, blah. Then a pause for a yes-no question - then more blah, blah, blah, blah. That was followed by his apologies for the panel having to show up to hear a mere traffic case - like someone our state right to a trial by jury in any criminal case wasn't all that important.
My colleague then got up and thanked the jurors for coming and then pointed out that even though this was just a traffic ticket case, his client had the same rights as a man on trial for murder. I thought it was a good counter to the prosecutor's attempt to downplay the need to actually pay attention to the trial. My colleague then spoke about how sometimes it might be reasonable and prudent to drive below the posted speed limit and sometimes it might be reasonable and prudent to drive above the posted speed limit (in Texas we have a "presumptive" speed limit which means it's not necessarily against the law to drive over the limit, so long as your speed was reasonable and prudent given the circumstances existing at the time you were driving).
Don't ask me how the trial turned out because I have no idea - we had to leave right after voir dire to get to the Brownies meeting. But, on the way back to the car my daughter and I talked about what we had just seen. I told her that I thought both attorneys talked way too much. I had no idea how any of the jurors (with the exception of one woman) felt about any issues or what their attitudes toward the presumption of innocence were. My daughter then made the point that needed making -- you learn more by listening than you do by speaking.
If you want to find out what someone's thinking, you don't ask them a yes-no question. You ask them an open-ended question that allows them to elaborate. Or you ask them a scaled question that can give you a gauge of how strongly they hold an opinion. If you don't then you're going to end up with a jury comprised of the folks that never spoke up and you will have no idea what to expect of them.
Instead of giving an example of when it might be appropriate to drive under the posted speed limit (icy roads), why not ask the panel to give some examples of their own. Instead of giving them an example of when you might need to drive over the speed limit, ask them when it might be reasonable and prudent to do so. Instead of asking the jurors to raise their hand if they'd believe the testimony of a police officer more than the testimony of your client, ask them to rate (pick your own scale) the credibility they'd give an officer's testimony solely because he wears a badge.
You might not get to cover all of your topics that way, but you'll have more information on your chart and, if you keep a list of questions you'd ask if time weren't limited, you can ask the judge for additional time so that you can ask those questions. You just might get what you ask for -- and, if you don't, you've got an issue for appeal.
Voir dire is the only time during a trial that you have the opportunity to speak directly to the jurors and find out what makes them tick. Don't waste that opportunity by lecturing them. Take advantage of it by listening to them.
Monday, July 18, 2011
Today on candid camera...
I guess sometimes the ol' eyes in the sky work to the benefit of the folks getting arrested.
Angela Horton, who was relieved of her duties as a police officer for the City of Houston, said she regrets hitting a suspect in the face while he was handcuffed. Ms. Horton's attorney said she let her emotions get to her when she slugged the suspect in full view of the camera in a news helicopter. Of course, she also wants us to know that police officers must make split-second decisions out on the street.
I'm not sure that hitting a defenseless man in the face is one of those decisions.
Now for anyone who doesn't think police officers succumb to high levels of adrenaline following a chase, think again. For anyone who doesn't think that suspects are beaten by police, think again.
Judges, juries and prosecutors don't want to believe that the boys (and girls) in blue ever cross the line in doing their jobs. Judges, juries and prosecutors are wrong. It's just that most of the time it happens off camera. And if there's no video -- no one believes the defendant.
We are trained from a young age to trust the police. And, no matter what anyone on the panel says, jurors are going to give more credibility to the word of a police officer than to your client. We all know it. But we play the charade that something's that been burned into someone's brain can be erased by the judge saying a few words.
No one should be shocked by what Officer Horton did that night. We should only be shocked that someone got it on camera.
Angela Horton, who was relieved of her duties as a police officer for the City of Houston, said she regrets hitting a suspect in the face while he was handcuffed. Ms. Horton's attorney said she let her emotions get to her when she slugged the suspect in full view of the camera in a news helicopter. Of course, she also wants us to know that police officers must make split-second decisions out on the street.
I'm not sure that hitting a defenseless man in the face is one of those decisions.
Now for anyone who doesn't think police officers succumb to high levels of adrenaline following a chase, think again. For anyone who doesn't think that suspects are beaten by police, think again.
Judges, juries and prosecutors don't want to believe that the boys (and girls) in blue ever cross the line in doing their jobs. Judges, juries and prosecutors are wrong. It's just that most of the time it happens off camera. And if there's no video -- no one believes the defendant.
We are trained from a young age to trust the police. And, no matter what anyone on the panel says, jurors are going to give more credibility to the word of a police officer than to your client. We all know it. But we play the charade that something's that been burned into someone's brain can be erased by the judge saying a few words.
No one should be shocked by what Officer Horton did that night. We should only be shocked that someone got it on camera.
Wednesday, May 25, 2011
Court limits comparison of burdens of proof
In order to obtain a conviction, the state must prove a person committed each and every element of a criminal offense beyond a reasonable doubt. Nothing new or earth-shattering there. It's one of the first concepts in criminal law that we are taught.
But what is beyond a reasonable doubt? There is no legal definition of the term in Texas. In fact, it's a bit like pornography -- the jurors will know when they see it.
The prosecutor likes to tell the jurors that proof beyond a reasonable doubt does not mean proof beyond all doubt. Fair enough. But where does that put the line?
We have a multitude of levels of proof. A police officer must have probable cause to arrest someone. There must be probable cause to support a warrant. A grand jury must find there is probable cause to believe the defendant committed a crime in order to vote to indict him.
Over at the civil courthouse money is awarded if a plaintiff can prove his claim by a preponderance of the evidence. The judge will even tell the jurors that a preponderance of the evidence just means more than 50%. A "feather's worth" of evidence can be enough to send a plaintiff out of the courthouse with a smile on his face or a frown.
Want some expert witness testimony to support your theory of the case? You'll need to prove that your witness is an expert by clear and convincing evidence. If the state wants to remove a child from a custodial parent, the state will need to make its case by clear and convincing evidence. Clear and convincing evidence is "proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established."
But what if the state wants to infringe upon the liberty of one of its citizens? Back in 1991, the Texas Court of Criminal Appeals decided how the term beyond a reasonable doubt was to be defined in Geesa v. State, 820 SW2d 154, 162 (Tex.Crim.App. 1991):
Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs.
This definition was cobbled together from the Texas Penal Code and the instructions given in the federal system. The CCA held that this definition was to be included in every criminal jury charge regardless of whether the defense requested it.
Nine years later the CCA decided that what it giveth, it can taketh away, too, as the judges held that the Geesa definition was serving only to confuse jurors. In Paulson v. State, 28 SW3d 570, 573 (Tex.Crim.App. 2000).
So, what is a criminal defense attorney to do when there is no definition of the term of art by which a jury decides whether to brand someone as a criminal for life? You compare the various levels of proof. You "walk up" the levels of proof to demonstrate to the jurors how high the state's burden is. You compare preponderance of the evidence to clear and convincing evidence to beyond a reasonable doubt. You get the panel talking about what quantum of proof they would require in order to find someone guilty.
Unless the judge decides you don't get to. In Anderson v. State, No. 07-10-1039-CR (Tex.App.--Amarillo 2011), the Amarillo Court of Appeals decided that it is not a per se abuse of discretion if a trial judge does not permit a defense attorney to question the potential jurors about the differences in the burden of proof between a civil case and a criminal prosecution.
Now I have plenty of colleagues who would argue that it's not a good idea to use the stair-step model of the levels of proof during voir dire because it might convey to the jury that you can just "add up" the evidence to determine whether the state has met its burden. The stair-step model also doesn't do a good job of demonstrating the vast gulf between probable cause and proof beyond a reasonable doubt, and could serve to reduce the quantum of proof a juror would require to return a guilty verdict.
However, most of our clients start off (way) behind the eight-ball at trial and taking away the ability to compare the various levels of proof only serves to limit further the ability to provide an effective defense at trial. The Amarillo Court seems to have forgotten that those on trial are innocent unless proven guilty and that the courts should bend over backwards to ensure that they enjoy due process of law.
If you're not going to define the term by which we ask jurors to find folks guilty, then you sure as hell shouldn't limit the ability of defense counsel to demonstrate to potential jurors just how high the state's burden should be.
Now I have plenty of colleagues who would argue that it's not a good idea to use the stair-step model of the levels of proof during voir dire because it might convey to the jury that you can just "add up" the evidence to determine whether the state has met its burden. The stair-step model also doesn't do a good job of demonstrating the vast gulf between probable cause and proof beyond a reasonable doubt, and could serve to reduce the quantum of proof a juror would require to return a guilty verdict.
However, most of our clients start off (way) behind the eight-ball at trial and taking away the ability to compare the various levels of proof only serves to limit further the ability to provide an effective defense at trial. The Amarillo Court seems to have forgotten that those on trial are innocent unless proven guilty and that the courts should bend over backwards to ensure that they enjoy due process of law.
If you're not going to define the term by which we ask jurors to find folks guilty, then you sure as hell shouldn't limit the ability of defense counsel to demonstrate to potential jurors just how high the state's burden should be.
Tuesday, April 26, 2011
A tale of two sermons
On Friday night the church my wife and girls attend put on a play about the crucifixion. My oldest daughter was in the play and she recruited my wife and youngest daughter to participate. The little drama was good and left everyone feeling a bit better I think.
Then the preacher sat down on the steps to the stage with the lights dimmed and started talking in a matter-of-fact voice. He was telling everyone what a downer Good Friday was. He never stood up while he spoke. He just kept hammering at what a bummer it was that it was Good Friday. Everyone left the building in a down mood.
Sunday, though, was a different story. He was walking around all jumpy (like he'd had five or six cups of coffee). His gestures were exaggerated. He sounded almost out of breath from excitement while talking. It was a wonderful day. Everything is born anew. Be happy. Today is the first day of the rest of your life. The room was happy and the people walked out into the sunlight in a much more festive mood.
Two different messages on two different days effecting two different moods - all by the same person.
He accomplished it through his voice, his gestures, his mannerisms and his clothes. On Friday night he spoke slowly and thoughtfully -- on Sunday it felt like he was winging it. On Friday every gesture spoke of weariness and depression -- on Sunday he gestured like a kid running toward the Christmas tree. On Friday he sat down while he spoke -- on Sunday he was all over the place. On Friday he wore a dark suit -- on Sunday he wore a white robe.
Both days, however, he held the attention of the audience in the palm of his hand.
Friday night's message was like the typical state's voir dire -- absolutely uninspiring. A prosecutor sets the tone when she says to the panel, "I know y'all are bummed out at having to be here today..." What kind of message does that send out to the jury? How enthused do you think the folks who sit on the jury are going to be?
I much prefer to thank the jurors for coming in and taking part in the most democratic of our democratic traditions. I want a jury made up of folks who want to be there and who are eager to hear the evidence.
I'd much rather be delivering the Easter Sunday sermon than the Good Friday one. Wouldn't you?
Then the preacher sat down on the steps to the stage with the lights dimmed and started talking in a matter-of-fact voice. He was telling everyone what a downer Good Friday was. He never stood up while he spoke. He just kept hammering at what a bummer it was that it was Good Friday. Everyone left the building in a down mood.
Sunday, though, was a different story. He was walking around all jumpy (like he'd had five or six cups of coffee). His gestures were exaggerated. He sounded almost out of breath from excitement while talking. It was a wonderful day. Everything is born anew. Be happy. Today is the first day of the rest of your life. The room was happy and the people walked out into the sunlight in a much more festive mood.
Two different messages on two different days effecting two different moods - all by the same person.
He accomplished it through his voice, his gestures, his mannerisms and his clothes. On Friday night he spoke slowly and thoughtfully -- on Sunday it felt like he was winging it. On Friday every gesture spoke of weariness and depression -- on Sunday he gestured like a kid running toward the Christmas tree. On Friday he sat down while he spoke -- on Sunday he was all over the place. On Friday he wore a dark suit -- on Sunday he wore a white robe.
Both days, however, he held the attention of the audience in the palm of his hand.
Friday night's message was like the typical state's voir dire -- absolutely uninspiring. A prosecutor sets the tone when she says to the panel, "I know y'all are bummed out at having to be here today..." What kind of message does that send out to the jury? How enthused do you think the folks who sit on the jury are going to be?
I much prefer to thank the jurors for coming in and taking part in the most democratic of our democratic traditions. I want a jury made up of folks who want to be there and who are eager to hear the evidence.
I'd much rather be delivering the Easter Sunday sermon than the Good Friday one. Wouldn't you?
Wednesday, October 13, 2010
Thin slicing and jury selection
Chocolate covered bacon.
Grilled cow's brains.
Cockroaches.
Be honest. What was your first reaction when you read the words? Chances are that's how you feel about them. Now, upon further reflection you might change your mind. You might modify your opinion so as not to offend someone.
But nothing can change that initial reaction - your gut reaction. In his book Blink, Malcolm Gladwell talks of "thin-slicing." That's the process of jumping to a conclusion based on a small sample size - but, remarkably, that gut reaction is oftentimes correct. It works because we are able to take the pattern of what we saw or heard and compare it with other patterns we've experienced during our lives.
Ask a young child a question and you will get an honest answer - because the child hasn't learned to filter his or her opinions. I have a three year-old daughter and there are situations that my wife and I dread because we have no idea what's going to come out of her mouth.
I believe that jurors are the same. I always ask jurors a series of scaled questions designed to identify their attitudes (and to ensure I speak to everyone). When I ask a juror to rank on a scale of 0-10 whether they think my client is guilty, I get answers all over the board. The same thing happens when I ask the panel to rate their feelings on whether my client testifies or not. I use those answers to strike jurors for cause.
When the juror is brought before the bench I stand and listen while the prosecutor, and even the judge, attempt to rehabilitate him. At that point the juror has had time to think over his or her answer and is now standing face to face with an authority figure sitting on high with a black robe. Of course that juror is going to say "yes" when the judge asks him if he can follow the law - despite the honest answer he gave during voir dire.
That answer doesn't mean that the bias or prejudice is gone - it just means that the juror felt pressured by the situation to rethink his or her initial reaction in order to please an authority figure.
See also:
"'Thin slices' of life" Monitor, March 2005, vol. 36, no. 3
"Very first impressions" Emotions, 2006, vol. 6, no. 2
"First impressions surprisingly accurate" WebMD, Nov. 6, 2009
Grilled cow's brains.
Cockroaches.
Be honest. What was your first reaction when you read the words? Chances are that's how you feel about them. Now, upon further reflection you might change your mind. You might modify your opinion so as not to offend someone.
But nothing can change that initial reaction - your gut reaction. In his book Blink, Malcolm Gladwell talks of "thin-slicing." That's the process of jumping to a conclusion based on a small sample size - but, remarkably, that gut reaction is oftentimes correct. It works because we are able to take the pattern of what we saw or heard and compare it with other patterns we've experienced during our lives.
Ask a young child a question and you will get an honest answer - because the child hasn't learned to filter his or her opinions. I have a three year-old daughter and there are situations that my wife and I dread because we have no idea what's going to come out of her mouth.
I believe that jurors are the same. I always ask jurors a series of scaled questions designed to identify their attitudes (and to ensure I speak to everyone). When I ask a juror to rank on a scale of 0-10 whether they think my client is guilty, I get answers all over the board. The same thing happens when I ask the panel to rate their feelings on whether my client testifies or not. I use those answers to strike jurors for cause.
When the juror is brought before the bench I stand and listen while the prosecutor, and even the judge, attempt to rehabilitate him. At that point the juror has had time to think over his or her answer and is now standing face to face with an authority figure sitting on high with a black robe. Of course that juror is going to say "yes" when the judge asks him if he can follow the law - despite the honest answer he gave during voir dire.
That answer doesn't mean that the bias or prejudice is gone - it just means that the juror felt pressured by the situation to rethink his or her initial reaction in order to please an authority figure.
See also:
"'Thin slices' of life" Monitor, March 2005, vol. 36, no. 3
"Very first impressions" Emotions, 2006, vol. 6, no. 2
"First impressions surprisingly accurate" WebMD, Nov. 6, 2009
Thursday, October 7, 2010
More jury analysis
Back in August I posted this article evaluating the attitudes of a jury pool in a case regarding the alleged violation of a municipal ordinance. I said the scaled questions we used were meant to determine where the jurors fell on the continuum between egalitarianism and totalitarianism. After thinking about it for a while, I don't think that's the right matrix for this analysis. I think the correct way to look at these results are on a continuum between defense-oriented and state-oriented.
This past Monday we finished trying a case that had been continued for almost three weeks because witnesses had not complied with subpoenas requesting documents related to the case.
During voir dire I asked the following five scaled questions in order to determine whether a juror was more defense-oriented or state-oriented:
Each of these questions were to be answered on a scale of 0-10, with 0 being very defense-oriented and 10 being very state-oriented.
As a whole, the panel averaged a 1.6 on Question No. 1; a 1.9 on Question No. 2; a 2.9 on Question No. 3; a 4.8 on Question No. 4 and a 5.5 on Question No. 5. The overall average was 3.3.
The prosecutor struck four jurors for cause. Those jurors averaged a 5 on Question No. 1; a 1.5 on Question No. 2; a 4.8 on Question No. 3; a 5 on Question No. 4 and a 6.3 on Question No. 5. The overall average was 4.5.
The prosecutor used two peremptory strikes. Those jurors averaged a 0 on Question No. 1; a 1.5 on Question No. 2; a 2 on Question No. 3; and 6.5 on Question No. 4 and a 3 on Question No. 5. The overall average was 2.6.
We struck nine jurors for cause. Those jurors averaged a 1.7 on Question No. 1; a 3.1 on Question No. 2; a 3.9 on Question No. 3; a 5.2 on Question No. 4 and a 6 on Question No. 5. Most of the jurors we struck were struck because of their answers to Question Nos. 1 and 2. The overall average was 3.9.
We used three peremptory strikes. Those jurors averaged a 0 on Question No. 1; a .3 on Question No. 2; a .3 on Question No. 3; a 5 on Question No. 4 and a 7.7 on Question No. 5. The overall average 2 was 2.7.
The six jurors remaining averaged a .7 on Question No. 1; a 1.2 on Question No. 2; a 1.8 on Question No. 3; a 3.3 on Question No. 4 and a 4.2 on Question No. 5. The overall average for the panel was 2.2.
The panel was made up of three white males, one black male, one black female and one Hispanic female.
Although we had what appeared to be a very defense-oriented panel, we did not receive a favorable verdict. Whether we were hurt by a faulty methodology, bad analysis, the facts of the case or the nearly three weeks off during the middle of the trial, I don't know.
I do know that our use of the scaled questions allowed us to strike nine jurors for cause and gave us a tool to use when trying to decide on whom to use our peremptories. This method also gives us the opportunity to get feedback from the entire panel so that we aren't stuck with someone who kept their mouth shut during voir dire.
This past Monday we finished trying a case that had been continued for almost three weeks because witnesses had not complied with subpoenas requesting documents related to the case.
During voir dire I asked the following five scaled questions in order to determine whether a juror was more defense-oriented or state-oriented:
1. How would you rate your feelings about whether the defendant, as he sits up here today, is guilty?
2. How would you rate the weight you'd give the testimony of a person wearing a badge, without regard to training, but solely out of respect for the badge?
3. This Court will instruct you that the State has the entire burden of proof in this case. How would you feel in the defendant didn't testify?
4. Do you agree that it is better that ten guilty men go free than that one innocent man suffer?
5. Do you agree that in the long run, order is more important that liberty?As an aside, I never used the term "defendant" at trial. I always referred to my client by his given name.
Each of these questions were to be answered on a scale of 0-10, with 0 being very defense-oriented and 10 being very state-oriented.
As a whole, the panel averaged a 1.6 on Question No. 1; a 1.9 on Question No. 2; a 2.9 on Question No. 3; a 4.8 on Question No. 4 and a 5.5 on Question No. 5. The overall average was 3.3.
The prosecutor struck four jurors for cause. Those jurors averaged a 5 on Question No. 1; a 1.5 on Question No. 2; a 4.8 on Question No. 3; a 5 on Question No. 4 and a 6.3 on Question No. 5. The overall average was 4.5.
The prosecutor used two peremptory strikes. Those jurors averaged a 0 on Question No. 1; a 1.5 on Question No. 2; a 2 on Question No. 3; and 6.5 on Question No. 4 and a 3 on Question No. 5. The overall average was 2.6.
We struck nine jurors for cause. Those jurors averaged a 1.7 on Question No. 1; a 3.1 on Question No. 2; a 3.9 on Question No. 3; a 5.2 on Question No. 4 and a 6 on Question No. 5. Most of the jurors we struck were struck because of their answers to Question Nos. 1 and 2. The overall average was 3.9.
We used three peremptory strikes. Those jurors averaged a 0 on Question No. 1; a .3 on Question No. 2; a .3 on Question No. 3; a 5 on Question No. 4 and a 7.7 on Question No. 5. The overall average 2 was 2.7.
The six jurors remaining averaged a .7 on Question No. 1; a 1.2 on Question No. 2; a 1.8 on Question No. 3; a 3.3 on Question No. 4 and a 4.2 on Question No. 5. The overall average for the panel was 2.2.
The panel was made up of three white males, one black male, one black female and one Hispanic female.
Although we had what appeared to be a very defense-oriented panel, we did not receive a favorable verdict. Whether we were hurt by a faulty methodology, bad analysis, the facts of the case or the nearly three weeks off during the middle of the trial, I don't know.
I do know that our use of the scaled questions allowed us to strike nine jurors for cause and gave us a tool to use when trying to decide on whom to use our peremptories. This method also gives us the opportunity to get feedback from the entire panel so that we aren't stuck with someone who kept their mouth shut during voir dire.
Monday, August 30, 2010
Facebook post lands juror in hot water
Think a juror's fondness for social media won't affect your client? Think again. A Macomb County (Michigan) judge removed a juror from a case after the defendant's attorney's son found that the juror, Ms. Hadley Jons, had posted a message on her Facebook page that she thought the defendant was guilty -- before the trial was over.
Judge Diane Druzinski has ordered Ms. Jons to return to court on Thursday to determine if she will be held in contempt.
While the judge was upset and the defendant's attorney was outraged, the fact that a juror had already made up her mind is not that disturbing. We are told in seminar after seminar that anywhere from 75% to 100% of jurors make their minds up before hearing any evidence. Based on the handy 80/20 rule, I will assume that up to 80% of jurors have their minds made before the trial even starts. Why else would we sit through as many seminars as we do dealing with voir dire and using your opening statement to tell a story?
Back in the pre-Facebook days no one would ever have known Ms. Jons had already decided the case before it was over. She might have told a friend and that friend may have told someone else, but there would have been no way to discover those conversations outside Ms. Jons' own admission. The kicker here was that she broadcast here opinion on Facebook without giving a second thought whether someone might be checking up on her during the trial.
This incident points out two very important points. First, you need to know who among your panel uses social media on a regular basis, who posts on Facebook, who spends time on Twitter and who reads or writes blogs that might have something to do with the issues in your case. Second, with our expanded use of social media, we are rapidly shrinking our reasonable expectation of privacy -- just ask Ms. Jons about that.
Judge Diane Druzinski has ordered Ms. Jons to return to court on Thursday to determine if she will be held in contempt.
While the judge was upset and the defendant's attorney was outraged, the fact that a juror had already made up her mind is not that disturbing. We are told in seminar after seminar that anywhere from 75% to 100% of jurors make their minds up before hearing any evidence. Based on the handy 80/20 rule, I will assume that up to 80% of jurors have their minds made before the trial even starts. Why else would we sit through as many seminars as we do dealing with voir dire and using your opening statement to tell a story?
Back in the pre-Facebook days no one would ever have known Ms. Jons had already decided the case before it was over. She might have told a friend and that friend may have told someone else, but there would have been no way to discover those conversations outside Ms. Jons' own admission. The kicker here was that she broadcast here opinion on Facebook without giving a second thought whether someone might be checking up on her during the trial.
This incident points out two very important points. First, you need to know who among your panel uses social media on a regular basis, who posts on Facebook, who spends time on Twitter and who reads or writes blogs that might have something to do with the issues in your case. Second, with our expanded use of social media, we are rapidly shrinking our reasonable expectation of privacy -- just ask Ms. Jons about that.
Friday, August 27, 2010
Tinkering with jury selection
A while back, my colleague, Houston criminal defense attorney Mark Bennett, blogged about an experiment he conducted at trial. Using a set of questions designed to identify whether jurors had a more egalitarian or authoritarian outlook, he scored the panel as a whole, the jurors selected to hear the case and the jurors on whom both sides used their peremptory strikes.
This past week I tried a case down in Missouri City, a bedroom community located in suburban Fort Bend County just southwest of our fair city. My client had been cited for municipal code violations and chose to fight rather than pay the tickets due to the circumstances under which he was cited.
I asked the panel of 25 Missouri City residents three scaled questions to find out who was more state-oriented based on authoritarian beliefs. The scale for each question ranged from 0 to 10 with a 10 indicating a strong authoritarian belief; the hypothesis being that the higher the scores, the more state-oriented the juror would be. The questions were as follows:
For Question No. 1, the average answer for the panel of 25 jurors as a whole was 4.6; the average answer for the six people selected to hear the case was 3.8. The average answer for the jurors struck by the state was 5.0 while the average answer for the jurors I struck was 4.7. There were no jurors struck for cause and each side was allowed three peremptory strikes.
For Question No. 2, the average answer for the panel as a whole was 5.8; the average answer for the six jurors who heard the case was 5.5. The average answer for the jurors struck by the state was 6.0 while the average answer for the jurors I struck was 6.3.
For Question No. 3, the average answer for the panel as a whole was 2.3; the average answer for the six jurors who heard the case was .5. The average answer for the jurors struck by the state was 2.0 while the average answer for the jurors I struck was 6.3.
I also calculated the average answer given by each juror during voir dire by adding up the three answers each juror gave and dividing by three. The average answer given by the panel as whole was 4.2 while the average answer given by the six panelists who sat on the jury that heard the case was 3.3. The average score for the jurors struck by the state was 4.3 while the average score of the jurors I struck was 5.6.
For Question No. 1, 8% of the panel as a whole answered between 0-3 while the remaining 92% answered between 4-6. For Question No. 2, 8% of the overall panel answered between 0-3, 60% answered between 4-6 and 32% answered between 7-10. For Question No. 3, 76% of the panel as a whole answered between 0-3, 20% answered between 4-6 and 4% answered between 7-10.
For Question No. 1, two people answered between 0-3 and the remaining four answered between 4-6. For Question No. 2, one person answered between 0-3, three people answered between 4-6 and the remaining two answered between 7-10. For Question No. 3, the entire panel answered between 0-3.
The jury delivered not guilty verdicts on both counts before them. Of course this doesn't prove anything since we have no way to determine how the panel as a whole would have decided, but the numbers were rather interesting.
This past week I tried a case down in Missouri City, a bedroom community located in suburban Fort Bend County just southwest of our fair city. My client had been cited for municipal code violations and chose to fight rather than pay the tickets due to the circumstances under which he was cited.
I asked the panel of 25 Missouri City residents three scaled questions to find out who was more state-oriented based on authoritarian beliefs. The scale for each question ranged from 0 to 10 with a 10 indicating a strong authoritarian belief; the hypothesis being that the higher the scores, the more state-oriented the juror would be. The questions were as follows:
1. Do you agree that, in the long run, order is more important than liberty?
2. The freedom of society is endangered at least as much by overzealous law enforcement as by the acts of individual criminals.
3. The Court will instruct you that the State has the entire burden of proof in this case. How would you feel if [the defendant] didn't testify?For the first question, a 0 would indicated the juror strongly disagreed with the statement and a 10 would indicate the juror strongly agreed with it. For the second question, a 0 would indicated a jury strongly agreed with the statement while a 10 would indicate the juror strongly disagreed with it. For the final question, a 0 would indicate a juror would not hold it against my client if he did not testify while a 10 would indicate a juror would hold it against my client.
For Question No. 1, the average answer for the panel of 25 jurors as a whole was 4.6; the average answer for the six people selected to hear the case was 3.8. The average answer for the jurors struck by the state was 5.0 while the average answer for the jurors I struck was 4.7. There were no jurors struck for cause and each side was allowed three peremptory strikes.
For Question No. 2, the average answer for the panel as a whole was 5.8; the average answer for the six jurors who heard the case was 5.5. The average answer for the jurors struck by the state was 6.0 while the average answer for the jurors I struck was 6.3.
For Question No. 3, the average answer for the panel as a whole was 2.3; the average answer for the six jurors who heard the case was .5. The average answer for the jurors struck by the state was 2.0 while the average answer for the jurors I struck was 6.3.
I also calculated the average answer given by each juror during voir dire by adding up the three answers each juror gave and dividing by three. The average answer given by the panel as whole was 4.2 while the average answer given by the six panelists who sat on the jury that heard the case was 3.3. The average score for the jurors struck by the state was 4.3 while the average score of the jurors I struck was 5.6.
For Question No. 1, 8% of the panel as a whole answered between 0-3 while the remaining 92% answered between 4-6. For Question No. 2, 8% of the overall panel answered between 0-3, 60% answered between 4-6 and 32% answered between 7-10. For Question No. 3, 76% of the panel as a whole answered between 0-3, 20% answered between 4-6 and 4% answered between 7-10.
For Question No. 1, two people answered between 0-3 and the remaining four answered between 4-6. For Question No. 2, one person answered between 0-3, three people answered between 4-6 and the remaining two answered between 7-10. For Question No. 3, the entire panel answered between 0-3.
The jury delivered not guilty verdicts on both counts before them. Of course this doesn't prove anything since we have no way to determine how the panel as a whole would have decided, but the numbers were rather interesting.
Monday, August 23, 2010
Hunting for the hold-out
Most folks will hold to an opinion until a tipping point has been reached and their opinion is no longer a popular belief. Rare is the person who holds on to that opinion even when it seems that everyone else has moved to another position. Finding that person in a jury panel is one of the most challenging tasks for lawyers and jury consultants.
Roy Futterman of DOAR Litigation Consulting is paid by people to find the six or twelve most favorable people in a jury panel. He looks at a potential juror's education, employment data, marriage status and answers to voir dire questions to come to his conclusions.
Now making decisions based strictly on the information provided on the court's juror information card leaves you exercising old stereotypes when making your strikes. The information is useful but certainly not enough to come to any conclusions about how that juror would react. Adding in the juror's answers to questions helps you make a better judgment -- but only if you ask the right types of questions.
While Mr. Futterman says he can make educated guesses at the types of jurors who might be good or bad for a client, he can't pick out the potential hold-out jurors. He did say that a hold-out juror tends to be very confident in his opinion as well as someone who might have concerns about sitting in judgment of another person.
Being able to spot that person may be the difference in a conviction and a mistrial.
Roy Futterman of DOAR Litigation Consulting is paid by people to find the six or twelve most favorable people in a jury panel. He looks at a potential juror's education, employment data, marriage status and answers to voir dire questions to come to his conclusions.
Now making decisions based strictly on the information provided on the court's juror information card leaves you exercising old stereotypes when making your strikes. The information is useful but certainly not enough to come to any conclusions about how that juror would react. Adding in the juror's answers to questions helps you make a better judgment -- but only if you ask the right types of questions.
While Mr. Futterman says he can make educated guesses at the types of jurors who might be good or bad for a client, he can't pick out the potential hold-out jurors. He did say that a hold-out juror tends to be very confident in his opinion as well as someone who might have concerns about sitting in judgment of another person.
Being able to spot that person may be the difference in a conviction and a mistrial.
Tuesday, August 17, 2010
Going for the gut
We've all heard through anecdotal research that most jurors make up their mind on a case after opening statements. Is it because one attorney or the other was that much more eloquent or persuasive in his opening remarks? Is it because jurors pick the side they like more? Is it because jurors are making moral judgments about what's right and wrong and shaping the stories and facts to fit their mindset?
Or is it because the jurors are disgusted about something?
Dr. Jonathan Haidt, a psychologist at the University of Virginia, proposes that what we pass off as moral judgments are really the result of "moral emotions" such as disgust, anger and compassion.
Philosophers and theologians have spoken about the evolution of our moral code and how the development of a sense of right and wrong is what separates us from the "baser" species. What if the development of that moral code had more to do with the evolution of our digestive tract? Does our "universal" sense of right and wrong end up different had early man been less social or had a different diet?
Dr. Haidt also points out that we are unique in the animal kingdom for our feelings of "disgust" toward certain foods, items or events. While other animals dislike the taste of certain things, we find ourselves disgusted at the notion of eating things such as brains, testicles and other innards.
Think of the words a prosecutor uses during their opening statement to describe what your client is accused of doing. What emotion is the prosecutor trying to elicit? Is the prosecutor trying to create a sense of disgust in the jury box?
Dr. Haidt has even conducted research in which people were subjected to disgusting odors and asked their opinions on a variety of moral issues. The results are astounding.
What emotions would you imagine that juror is feeling as the prosecutor begins his opening statement? And how might those emotions affect any moral judgments that juror might make during the trial?
Or is it because the jurors are disgusted about something?
Dr. Jonathan Haidt, a psychologist at the University of Virginia, proposes that what we pass off as moral judgments are really the result of "moral emotions" such as disgust, anger and compassion.
Psychologists like Haidt are leading a wave of research into the so-called moral emotions — not just disgust, but others like anger and compassion — and the role those feelings play in how we form moral codes and apply them in our daily lives. A few, like Haidt, go so far as to claim that all the world’s moral systems can best be characterized not by what their adherents believe, but what emotions they rely on.In other words, our reactions are based on our gut instincts. How many times have we been told to "follow your gut?" How many times have we told clients to "go with their gut?" Of course the research is controversial and some have questioned the basic premise.
Philosophers and theologians have spoken about the evolution of our moral code and how the development of a sense of right and wrong is what separates us from the "baser" species. What if the development of that moral code had more to do with the evolution of our digestive tract? Does our "universal" sense of right and wrong end up different had early man been less social or had a different diet?
Dr. Haidt also points out that we are unique in the animal kingdom for our feelings of "disgust" toward certain foods, items or events. While other animals dislike the taste of certain things, we find ourselves disgusted at the notion of eating things such as brains, testicles and other innards.
The origins of disgust remain somewhat mysterious, but it may have first arisen when the diet of our hunter-gatherer forebears began to contain more meat — rotten meat is much more dangerous than rotten vegetables, and even today we’re far more disgusted by things that come from animals than things that come from plants. But because disgust worked so well at getting people to steer clear of certain dangerous food — as well as the outward signs of contagious disease in other people (sores, pus, and the like) — Haidt and others hypothesize that as human society grew more complex, disgust also began to serve a social function.
Partly through biological selection, partly as a taught behavior, disgust became a disciplinary mechanism to steer us away from dangerous behaviors. Understanding that betrayal or child rape is wrong is one thing, but actually being sickened by it is a more powerful form of social control.
Dr. Haidt has even conducted research in which people were subjected to disgusting odors and asked their opinions on a variety of moral issues. The results are astounding.
Haidt has done studies in which he primed people to feel disgusted and then asked them to judge the morality of certain actions. In one study, he had some of his unfortunate test subjects respond to four vignettes related to moral judgment while sitting in a room that had been infused with an ammonium sulfide “fart spray.” The stink, he found, made them harsher judges, not only of body-related questions like whether first cousins should be able to have sex and marry, but whether people should drive to work when they could walk or whether a movie studio should release a morally controversial film.Just think about the process by which a juror finds himself in that jury box. First he's told to report to a central location at 8am and made to wait. Then a bailiff comes and takes a group of jurors to another room where they stand inside a square taped off on the floor. The juror is no longer known by his name but is merely a number on a piece of paper. After standing in that square the jurors are taken to the courthouse (passing through yet another metal detector) where they stand about in the hallway until someone decides to bring them into the courtroom. After being seated they are then questioned by two people they've never met who ask them some very personal questions -- and who generally address them by number, not by name. Only after enduring this process is the juror seated in the box.
What emotions would you imagine that juror is feeling as the prosecutor begins his opening statement? And how might those emotions affect any moral judgments that juror might make during the trial?
Tuesday, June 8, 2010
A different perspective on voir dire
Could our reliance on reasonable doubt, the burden of proof and the presumption of innocence serve to de-humanize our clients before the jury?
In other words, by focusing the attention of potential jurors on reasonable doubt, the burden of proof and the presumption of innocence during voir dire, are we telling them that it's not a question of whether or not our client did what he is accused of doing but, instead, a question of whether or not the state can prove it. In that scenario, our client isn't a person accused of a crime, he's just the person sitting in the chair next to us at the defense table.
Mr. Mesereau pointed out that by now most of the folks sitting on your jury panel have seen enough on television to know that they won't be getting the whole story in the courtroom. They know that there is certain evidence that they won't get to see because it was suppressed or deemed inadmissible. They expect us to try to keep evidence out.
Might the better approach be to look for jurors who have connections with your client? Are there certain qualities we can detect in a juror that gives us reason to believe that he or she can empathize with our client? Given the time constraints we face in the misdemeanor courts, I tend to be a bit doubtful.
While I think Mr. Mesereau made some very good points, I also think his attitude comes from his own experiences and from the types of cases he tries and clients he represents. When you're dealing with a celebrity accused of child molestation, finding jurors who connect with your client is important.
A typical DWI trial, however, really comes down to a question of opinion and when we're talking about the opinions of a police officer, the concepts of reasonable doubt, burden of proof and presumption of innocence are vital for a jury to understand.
Monday, May 24, 2010
Brother, can you spare a question or two?
I see and get last minute requests for voir dire questions and questions for cross examination of technical supervisors and other experts on a fairly regular basis. The problem is, I can't provide any. I don't know the details of your case. I don't know the issues involved. I don't know what defenses are going to be raised. I don't know the theme of your case. I haven't seen the documents produced by the State in response to your discovery requests.
I'm shocked that some folks out there think there's a magic bullet just waiting to be fired and that you can obtain it at the last minute. Every case is different. The fact patterns are different. The witnesses are different. Test results are different. The issues are different.
Now there are some universal themes you can use during a voir dire. You can, and should, question the panel regarding their attitudes toward the presumption of innocence and the burden of proof. If a police officer is going to testify as a fact witness I think you should question the panel about whether they would lend more credence to the testimony of an officer simply because he is a police officer. Beyond that, the questions asked during voir dire should be determined by the facts of the case and the story you want to tell.
Yes, that requires work. It requires you to sit down and review your case and construct an overall theme and figure out how each piece of the puzzle fits and what pieces aren't necessary. If you've worked your case up properly then you've lived and breathed it for weeks, if not months, leading up to trial. It's your baby. Get in there and change that diaper and feed it and cuddle with it and rock it to sleep.
The same approach should be taken to cross examining the state's expert. While there are certain questions I would ask the technical supervisor in any case, other questions arise based on the particular facts of my case, the documents I have in my notebook and the theme of the case. My cross examination in a low breath test case will be quite different from my cross in a high breath test case. Some questions will be generated by my review of the maintenance records and test records from the state's breath test machine. Others will be generated by my familiarity and prior interactions with the witness.
There are no shortcuts to trial prep. There is no magical book of questions from which to draw. So, while I am more than happy to make suggestions and let someone bounce ideas off me, please don't expect me to do your job for you.
I'm shocked that some folks out there think there's a magic bullet just waiting to be fired and that you can obtain it at the last minute. Every case is different. The fact patterns are different. The witnesses are different. Test results are different. The issues are different.
Now there are some universal themes you can use during a voir dire. You can, and should, question the panel regarding their attitudes toward the presumption of innocence and the burden of proof. If a police officer is going to testify as a fact witness I think you should question the panel about whether they would lend more credence to the testimony of an officer simply because he is a police officer. Beyond that, the questions asked during voir dire should be determined by the facts of the case and the story you want to tell.
Yes, that requires work. It requires you to sit down and review your case and construct an overall theme and figure out how each piece of the puzzle fits and what pieces aren't necessary. If you've worked your case up properly then you've lived and breathed it for weeks, if not months, leading up to trial. It's your baby. Get in there and change that diaper and feed it and cuddle with it and rock it to sleep.
The same approach should be taken to cross examining the state's expert. While there are certain questions I would ask the technical supervisor in any case, other questions arise based on the particular facts of my case, the documents I have in my notebook and the theme of the case. My cross examination in a low breath test case will be quite different from my cross in a high breath test case. Some questions will be generated by my review of the maintenance records and test records from the state's breath test machine. Others will be generated by my familiarity and prior interactions with the witness.
There are no shortcuts to trial prep. There is no magical book of questions from which to draw. So, while I am more than happy to make suggestions and let someone bounce ideas off me, please don't expect me to do your job for you.
Friday, April 16, 2010
Presumption of what?
All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. -- Texas Penal Code Sec. 2.01Except they aren't.
That is the lesson I learned yesterday after speaking to the jurors who convicted my client of driving while intoxicated. I explained to the jurors during my closing argument that the presumption of innocence requires them to look for any innocent explanation for any fact in evidence. I told them that the presumption of innocence meant they could not presume any fact to be true unless it were proven by the state.
Yet, despite my presentation during voir dire, and despite my admonitions during both opening and closing argument and despite the instructions read from the bench, members of the panel assumed that my client either had more drinks than he admitted or that the drinks he had contained more than the "standard" amount of alcohol in them. This in spite of the arresting officer's testimony that he believed my client's account of how much he drank. At least three jurors said that they thought my client had more to drink than he did - with no evidence to the contrary.
I even had one juror ask why I didn't call more witnesses - to which I told her I didn't have the burden to prove anything.
The jurors' revelations were very disturbing considering the amount of time we spent discussing the presumption of innocence and burden of proof during voir dire. Next time I will hammer those issues home harder
Friday, March 5, 2010
What smart meters say about breath test machines
In the face of rising complaints, and electric bills, the Texas Public Utilities Commission is bringing in an outside agency to determine whether the so-called smart meters are accurate. Homeowners and businesses in Houston and in North Texas have flooded power providers and line companies with complaints over (absurdly) high electric bills since the meters were installed.In many instances homeowners and businesses saw electric bills for December and January that were higher than summertime bills. Centerpoint Energy (who manages the power lines in Houston) claims that the meters are accurate and that electric consumption rose due to the historically cold winter in the Houston area.
Maybe, but maybe not. My office is in a building behind a Victorian house in the Historic Houston Heights. The main house is about 2800 square feet, my office suite about 500. For the last two months, the electric bill for my office has been more than the electric bill for the main house. All of that juice for an office with one computer, two printers, one telephone and a thermostat set at 68 degrees. Something isn't adding up.
Company spokesman Floyd LeBlanc said CenterPoint is “extremely confident” in the accuracy of the meters but will take part in the third-party testing.
And that brings me to my point. Just because someone tells you an electronic device is accurate doesn't make it so. In a drunk driving case, the state's expert will tell the jury that the state's breath test machine was operating properly at the time of the defendant's breath test and that the machine is both reliable and accurate. Really? How so? What proof beyond the numbers of a slip of paper is there that the machine does what it's advertised to do?
There is no preserved sample that can be retested. The machine purges the breath sample after it tests it and all we are left with is a number. The same thing with the new smart meters. As long as Centerpoint says the meters are accurate you'd be hard pressed to prove otherwise. There is no way to go back and calculate how many kilowatt hours were used during the month. There is no way to replicate the usage and remeasure it with another device. There's nothing but a slip of paper with a bunch of numbers.
I guarantee that there will be at least two or three people on a jury panel that don't think the smart meter installed on their home is accurate. I guarantee you that they aren't happy about their electric bills. I guarantee you that they are angry because they can't prove the bills are wrong.
Mr. Juror, if the government tells you a device is accurate and reliable, would you take that assurance at face value? What if it was a utility company that said your electric meter was accurate and reliable, would you take them at their word?
See also:
"Public Utility Commission orders tests of smart meters" Dallas Morning News (Mar. 5, 2010)
"State regulators to test smart meters" SmartMeters.com (Mar. 5, 2010)
Wednesday, January 20, 2010
How 'bout a little rehab?
If a juror cannot set aside his biases and decide a case based upon the merits of that case, an attorney has grounds to strike him for cause. Once a juror admits he can't set those biases aside, that juror cannot be rehabilitated.
In this blog post, Steph from Brooklyn recounts her experience on jury duty and being accosted by a judge when she was noncommittal about her ability to set her biases aside.
He let fly once the door was closed. "Are you going to tell me that you are a Northwestern-educated young woman and that you cannot put your biases aside to be impartial in a court of law?!?" He took out on me all the rage that had been building up inside him for years as busy, educated people figured ways to get out of their civic duty.
I felt bad, but...I had a job that did not look kindly on my taking off work, I was strapped even without the distraction of jury duty. I did not want to serve. I shrugged sheepishly. "I was just answering the lawyers' questions honestly..." I had said. He had stumped away, back into the court room. I was not picked.
Damn that judge. His words rung in my ears today as the lawyers asked virtually the same questions. I was forced to say when asked if I could be impartial despite various and sundry things that I have seen or done, people I knew, that indeed, "Yes, I would try..."
Is that anyway to commend citizens for doing their civic duty?
A special shout out to Dr. Dennis C. Elias, Ph.D., for this find.
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