More on the “One-Witness Rule” Trick Question in Jury Selection

Prosecutors respond to my post on the single-witness-rule voir dire question.

Seeking Justice says that it “sounds like an effective question to discern which jurors have opinions about the burden of proof that are contrary to law”:

There is nothing about that burden, considered either theoretically or historically and legally, that contains even an implicit caveat, “only upon testimony of more than one witness.

To the contrary, there are six thousand years of precedent for a single witness not being enough evidence to prove a criminal case. (See, for example, Deuteronomy 19:15-20.)

There is, however, nothing about the government’s burden of proof, considered either theoretically or historically and legally, that requires a jury to accept any sort of proof as sufficient to prove the government’s case. People who would require more than one witness to prove a case beyond a reasonable doubt (for reasons Biblical or pragmatic) are qualified to serve as jurors.

Prosecutor AHCL (do you think that bunch of pro-government cheerleading yahoos will keep commenting there if she changes sides?) justifies the question:

Prosecutors do have to identify those jurors who won’t convict without the scientific evidence or a corroborating witness, because that’s often times all we’ve got. That makes the question important, and there’s nothing unfair about asking it.

Non sequitur! It’s important for prosecutors to identify jurors who will not find proof beyond a reasonable doubt based on the testimony of a single witness, but that identification does not lead to proof beyond a reasonable doubt.

People who would require scientific evidence before being convinced beyond a reasonable doubt are not disqualified to serve as jurors. People who would require a confession, or DNA, or videotape are qualified to serve as jurors. The insistence that the government provide a certain type or amount of proof does not lead to a valid challenge for cause.

AHCL acts as though the “one-witness-rule” question is the only way to explore jurors’ feelings about uncorroborated testimony. She only thinks that because she’s never tried to do it any other way.

“How do you feel about criminal cases in which a single witness testifies?” is probably a perfectly acceptable question, though it violates that secret part of the prosecutor’s oath that forbids asking an open-ended question of a potential juror when a closed-ended question is available. Such a question would provide prosecutors plenty of fodder for focusing their peremptory challenges (and attempting to develop challenges for cause on other grounds), but it wouldn’t support a challenge for cause.

The prosecutors don’t like that I’ve called the question unfair.

AHCL’s post illustrates why the question is a sneaky one. It is a deliberate intent to develop a challenge for cause against someone who would not be challengeable if they were able to accept the premise of the question.

It’s unfair to the potential juror who doesn’t have the rhetorical skills even of a number-three misdemeanor court prosecutor. The honest man, Joe Citizen, the public that prosecutors are supposed to serve, does not have the savvy to parry the question. Even though he believes (because the Bible is the inerrant word of God, or because a witness can too often be both absolutely credible and absolutely wrong) that a single witness is insufficient to provide proof beyond a reasonable doubt, he is qualified to serve as a juror. Yet the prosecutor is able to challenge him for cause, because of a trick question. That’s unfair in my book.

While it’s almost invariably a bad idea both strategically and tactically, there’s nothing inherently wrong with a defense lawyer misleading jurors. Our job is to defend the client zealously within the bounds of the law. But the prosecutor’s mission is different, and jurors represent the prosecutor’s boss; for the prosecutor to seek to disqualify them with trick questions is wrong.

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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4 Responses to More on the “One-Witness Rule” Trick Question in Jury Selection

  1. sctexas says:

    “People who would require more than one witness to prove a case beyond a reasonable doubt (for reasons Biblical or pragmatic) are qualified to serve as jurors.”

    Why? Why isn’t this scenario the same as having a juror who would require DNA evidence to convict someone? Is that person qualified to be a juror as well?

  2. sctexas says:

    “It’s unfair to the potential juror who doesn’t have the rhetorical skills even of a number-three misdemeanor court prosecutor. The honest man, Joe Citizen, the public that prosecutors are supposed to serve, does not have the savvy to parry the question.”

    I don’t like this notion that the average citizen is too stupid not to fall for simple question. That’s a tad too elitist of a notion for a defense attorney, no?

  3. Tarian says:

    Mark, you’re wrong about the law on this.

    The law does not require medical or scientific evidence to support a conviction. Rodriguez v. State, 819 S.W.2d 871 (Tex.Crim.App. 1991)

    Prospective jurors are challengeable for cause if they require a particular type of evidence the law does not require to convict. Garza v. State, 18 S.W.3d 813 (Tex.App. – Fort Worth 2000, pet. ref’d.); Robinson v. State, 985 S.W.2d 584 (Tex.App. – Texarkana 1998 pet. ref’d.)

    The one-witness questions go hand in hand with this. Castillo v. State,913 S.W.2d 529 (Tex.Crim.App. 1995); Lee v. State 206 S.W.3d 620 (Tex.Crim.App. 2006).

    The question has been clarified, limited, and accepted in its current, most common form by our courts of appeals. There is nothing tricky or unfair about it.

  4. PJ says:

    That the law does not require evidence of a certain kind to prove guilt beyond a reasonable doubt as a legal sufficiency matter does not mean that a juror is (or should be) required to accept evidence of a certain kind as proof beyond a reasonable doubt. So just because you, as a prosecutor, can get junk science admitted does not mean that I, as a juror, have to buy it, even during voir dire.

    For example, a one-witness eye-witness ID case. If I’m a juror, and from exoneration studies I know eyewitness identification testimony to be the single least reliable form of evidence, there is nothing about my requiring some corroboration in some other evidentiary form before I find guilt beyond a reasonable doubt that should make me challengeable for cause.

    My skepticism about certain forms of evidence does not mean I cannot follow the law, which does not insist that I believe anything at all. It just means that proof beyond a reasonable doubt means something slightly different to me than to others. If Garza and Robinson say otherwise, they are wrongly decided, period. (Wrongly decided cases aren’t exactly aberrational in Texas.)

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