A Prosecutor’s Voir Dire: Lessons

As promised, the lessons I learned from the prosecutrix’s voir dire today:

1. If you’re prosecuting a child sex case, you can do a bad voir dire with impunity. The prosecutrix did three of the four bad things to do in voir dire (See Bad Voir Dire / Good Voir Dire): she lectured the panel extensively; when she asked questions they were almost all yes-or-no; and she asked for a show of hands, then said, “for the record, I see no hands raised.” She didn’t react badly to “bad” answers because she didn’t get any “bad” answers. She could have hurled abuse at the panel for an hour, taken the first 12 jurors, and still had a jury that wanted to kill the accused. A prosecutor can’t lose such a case in voir dire but she might, if she performs a competent voir dire, win it there. (Illustrative of two maxims: 1) being a prosecutor doesn’t necessarily prepare you to be a defender; and 2) a prosecutor can win all his cases and think he’s brilliant; a defender wins some and knows he is.)

2. If you’re defending an allegation of child sex abuse, you cannot do a bad voir dire. You have to be on top of your game. You have to change the tone of the voir dire immediately. The prosecutrix has just spent an hour preparing the jury to disembowel your client. You have to change the story of the case in the first 30 seconds. The jury has been thinking about how bad sex offenders are; you want them to think about something worse: being falsely convicted of a sex offense. A defender can’t win a child sex abuse case in voir dire but she might, if she performs a competent voir dire, have a chance of winning at trial.

3. Conferences at the bench (other jurisdictions call them “sidebar” for some reason — they’re not at the side of the bar, but at the side of the bench) kill voir dire. The prosecutrix objected on several occasions to the defender’s voir dire, and immediately asked to approach the bench. A seasoned judge would have refused and either overruled or sustained the objection. Our judge, new to cirminal trials, allowed the bench conferences to go on and on and on. We spent about 20 minutes of the defender’s voir dire in conferences at the bench.

4. It is no less important in voir dire than in other parts of the trial to know the law. Here, the prosecutrix’s voir dire was intensely objectionable, and the defender didn’t object. When the prosecutrix (who also didn’t know the law) made improper objections to the defender’s voir dire, the defender didn’t have the correct response on the tip of her tongue, so she got sucked in to bench conferences.

Here’s a precis of most of the lecture:

“Good afternoon . . . GOOD AFTERNOON.”

I can count on one hand the number of times I’ve seen a prosecutor NOT use this old chestnut to try to “warm up” the jury. They say “Good morning,” and when the jury doesn’t respond enthusiastically say something like “I know you can do better than that. Good morning!” or “I said, ‘Good morning!'” I wonder if this seems cute to the jurors, or just patronizing. Am I jaded from having seen it a hundred times?

“Fair does not mean lenient.”

Part of the lecture. Not really proper voir dire. Sometimes lenient is fair.

“You will sit on the punishment phase if elected.”

She’s conditioning jury to consider guilty verdict a foregone conclusion.

“During the guilt-innocence phase there will be no discussion of other criminal history or other victims — we’re not allowed to talk about that.”

Obviously, she’s hinting that there is such (even though in this case there was not.)

“Not guilty does not mean innocent.”

That, I couldn’t have said better myself.

“Presumption of innocence starts falling away as you hear the evidence.”

I don’t buy it — I think the presumption of innocence has to remain until all of the evidence has been heard.

“It is the defendant’s choice entirely whether to testify — I can’t, his lawyer can’t the judge can’t make him testify. Nobody can stop him from testifying if he wants to.”

This implies that the decision is purely the client’s. That is nonsense. If I think my client should testify, he’ll testify. If I think he shouldn’t, he won’t.

“Defendant might take the stand and minimize or lie.”

Sure, as might anyone.

“We can’t give you a definition of ‘beyond a reasonable doubt,’ but it’s not 100%, not beyond all doubt, not beyond a shadow of a doubt.”

Pardon me, madam prosecutrix, but didn’t you just partially define “beyond a reasonable doubt” by saying what it isn’t? My definition of reasonable doubt is this: If I am a reasonable person, and I am left with a doubt after considering all of the evidence, that is a reasonable doubt. If I’m on the jury, can the prosecutor really tell me that I’m wrong? Really?

“To have no doubt, you would have to have been there, and I would be calling you as a witness.”

I love this one. Look at the hidden message: if you had been there, you would be on our side. I like to get up and say, “if you had been there, this case would never have been filed because you would have told the truth about what you saw.”

“Conflicts in testimony are not necessarily reasonable doubt. For example, a child’s perspective on size and time is different than ours, so the child’s testimony will vary from the adults.”

This is pure argument and improper voir dire. Clever, but objectionable.

“You should expect inconsistencies, but inconsistencies don’t mean reasonable doubt.”

Improper voir dire. Any judge would sustain the objection and tell her to save it for closing argument — if the objection were made.

“On or about is sufficient if the date of the offense is within the statute of limitations.”

This is a correct statement of legal sufficiency, but an improper instruction on the law. The jury gets to decide whether the date of the offense was on or about the date charged; it is improper to force a definition on them (just as, in Texas, it is improper to impose a definition for BRD on them).

At this point I have the notation: “Nobody is talking.” Prosecutrix is fifteen minutes into her voir dire, and we’ve heard nothing but a lecture.

“‘Delayed outcry’ is a term used among professionals in child abuse.”

She’s testifying. Improper voir dire.

She gets the panel talking a little about reasons children wouldn’t report sex abuse immediately — telling her exactly what she wants to hear. For a little while she stops violating the rules, but it is purely for indoctrination rather than to learn anything about the potential jurors.

“Defendant is presumed innocent, not honest.”

That’s catchy. And true. But no other witness is presumed honest either.

Here’s a beautiful one:

Raise your hand if you told a lie as a child. Now raise your hand if you lied about being sexually abused.

This is the “kids don’t lie about things like that” argument.

She gets the panel to tell her more things she wants to hear. More indoctrination. Sex abuse is private, and there aren’t likely to be uninvolved witnesses; some kids are more likely to be victims because they’re more vulnerable; vulnerable kids may be kids with behavior problems. So now, instead of behavioral problems make it more likely that the child is lashing out at an adult, the jurors are thinking that abusers choose kids with behavioral problems to victimize.

“The complainant may not be like your child.”

Wow. No kidding? You mean he might be a child who would lie about “things like that?”

“If you were asked about your last sexual encounter, how would you react. In fact, let me ask for volunteers. Who wants to tell us about their last sexual encounter? Tell us when, with who, where, what did you do, what noises were made, how did it end?”

I have grudging admiration for that question. It’s awesome, for what it is.

“Do you expect medical evidence in a ‘touching’ case? DNA?”

See, she does know how to argue her case in voir dire without impropriety.

She describes the so-called “one witness rule,” which says that a jury may convict on the testimony of a single witness if that testimony is believed beyond a reasonable doubt.

“Is the one witness rule fair?”

Ask the Duke lacrosse team.

At this point it becomes clear that she is reading from a script:

“Does anyone have a preconceived notion of who looks like a sex abuser?”

“Does anyone think an adult can’t be aroused or gratified by a child?”

“Does anyone feel that sex abuse within a family shouldn’t be prosecuted, or is less serious than with a stranger?”

At this point nobody is going to answer any of those questions affirmatively. Maybe before she had prepared the panel to lynch the defendant someone might have had some feelings other than the ones she wanted. Now, no way. This, actually, is as close as she got to violating the rule against taking bad answers badly. She avoided the bad answers entirely by rewarding the good answers (“that’s exactly right”) and saving the questions that might elicit opinions hostile to her position till the end of voir dire.

“The child was interviewed and videotaped. You may or may not be able to see the videotape.”

This implies, “I want you to see the video, but the rules may not allow it.”

“Does anyone know someone wrongly accused?”

“Has anyone had a bad experience with law enforcement?”

“‘Consider’ probation does not mean ‘give’ probation. It means keep an open mind and consider it.”

No, in the prosecutor’s mind, “consider” means “don’t cover your ears and say “blah-blah-blah” when the defense lawyer talks about probation, but close your mind to the idea as soon as you can. In fact, she said “you can close your mind as soon as you hear all of the evidence.”

What consider actually means is “meaningfully consider.” Some jurors will consider probation in the same way they would consider leaping out the window if it were suggested. In order to give effect to the statute, instead of writing their own statutes, jurors must be able to give meaningful consideration to the full range of punishment.

“Is there anyone who, for moral or religious reasons, can’t sit in judgment?”

This question is objectionable for reasons I’ve discussed here, here and here.

This has turned into more of a production than I planned. I think it’s clear: you don’t have to be a very good lawyer to put people in prison for child molestation. The irony is that some of the best lawyers in the DA’s office are attracted to that particular division; I think it’s because, when they’re prosecuting people who they believe have harmed children, they can feel as though they are help the children (they are, of course, not necessarily). Inside us all there is a part that wants to help people; it is easier to imagine that you are doing that when you are prosecuting accused child molesters than when you are prosecuting accused drug users.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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10 Responses to A Prosecutor’s Voir Dire: Lessons

  1. Gideon says:

    Fascinating. Thanks for sharing.

    Two points:
    1) Any notes on defense counsel’s voire dire?

    2) I’m just afraid of jurors not answering questions like: “Do you have any preconceived notions of what a sex offender looks like” truthfully in front of others.

  2. Mark Bennett says:

    Gideon,

    1) No. There was lots of room for improvement, but I was too focused on the jurors’ responses (she elicited more responses from the jurors than the prosecutrix) to take notes.

    2) Let me give this some thought.

  3. gavelrapper says:

    Great points, especially about the annoying “THAT’S NOT GOOD ENOUGH. LET’S TRY THAT AGAIN. GOOD AFTERNOON!!!” That has always made me want to vomit, and I pointedly refused to do it during trial advocacy in law school, depsite my instructor’s advice to the contrary.

    Another thing I would add to what you have articulately written is that there is widespread confusion by ADA’s about improper commitment questions. First, they don’t know (or don’t care) when they are doing it. Second, I have found they generally do not realize when it is being done back to them. I say commit jurors as much as you can, and go crazy objecting when the State tries to do the same.

  4. Andreia says:

    Gideon said it correctly. Fascinating!

  5. Mark Bennett says:

    Gavelrapper –

    I know that prosecutors think the “Good afternoon . . . GOOD AFTERNOON” bit is cute, but I wonder if the jurors think so, or if it comes across as condescending and insipid.

  6. John Gioffredi says:

    Love your blog, Mark.

    I wonder what would happen if, after hearing the state’s nauseating double “GOOD MORNING,” the defense started it’s voir dire by asking:

    “Before I get started, I’d like to ask you a very simple question. I’ve wondered about this for years, and it’s never dawned on me to ask it until today.

    “Remember the very first thing out of the government lawyer’s mouth this morning? When the government lawyer asked you to repeat “good morning” with more enthusiam than your initial response?

    “Did anyone find that to be cute, or original? Did it make any of you feel like you were being patronized, or being treated like a child in school? Why do you think they do that?

    “Did any of you find that opening to be somewhat offensive, or condescending, or even inappropriate, considering the serious nature of our business at hand? Wouldn’t that be more appropriate at a seminar, or a pep rally?

    “Was the prosecution’s introduction original and inspiring to you, or just cheesy? I’ve honestly wondered about this for years, since it seems that every government lawyer does it on every single case. Does anyone besides me think an opening like that is inappropriate and cheesy in this type of serious situation?

    “It’s OK to answer honestly. That’s what jury selection is all about – being honest. The prosecution makes that opening in every trial, so I think we’d all really like to know.

    “Does anyone think that the government should probably just skip that technique and get straight to the point?

    “Well, instead of trying to manipulate you into shouting “good morning” for me louder than you did for them, let’s talk about some really important issues in this case…”

    You’d have to be very cautious in choosing the right case to try this, and it could easily backfire on the defense, but you could sure irritate the spit out of the prosecution…

  7. OhioPa says:

    As a prosecutor – I have to say, the voir dire was poor. I’ve never used the “Good Morning” – ever. I think it’s corny. The prosecutor learned nothing about the jurors… Anyhow, how about this line of questioning (from a member of the defense bar). Q: Isn’t this a beautiful courtroom? (Jurors look around, some nod, it is.) Q. What if this were a mud hut? (Huh? Jurors look puzzled) Q. What if this were a hut of mud and sticks on an island; how would you feel about having a trial there? (Jurors now look at atty as if he is an idiot)

    The best I can figure is that he was trying to get the jurors to look past the majesty of the courtroom. It didn’t work.

  8. Mark Bennett says:

    OhioPa,

    Maybe the lawyer was probably trying to get to this. . .

    Q: And if you could be stuck on this island with either her honor the judge, or a pack of rabid hyenas, which would you choose?

  9. The question I’ve always wanted to ask is:

    What are your opinions about politicians?
    What are your opinions about lawyers?

    Considering the judge in this courtroom is both a politician and a lawyer, will these opinions make it difficult or impossible for you to follow her instructions on the law?

    (now, if the judge happens to have a used car for sale…)

  10. OhioPa says:

    Considering the judge – the rabid hyenas would be my choice!

    Voir dire seems to be a missed opportunity on both sides of the courtroom. I’ve seen defense attorneys almost “waive” voir dire (“The prosecutor and judge have asked all the ‘good questions’ so I just have a few…”)

    Or the defense counsel will repeat the questions – maybe adding a twist. This is worse – the jurors get annoyed (Weren’t you listening?) as does the judge.

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