The One-Witness Rule

One question that prosecutors in Harris County are overly fond of asking jurors is this:

If we only present one witness, but based on that witness's testimony you believe beyond a reasonable doubt that the defendant is guilty, can you convict him?

The prosecutors then gleefully challenge, for cause, all of the jurors who say "no."

It is (the courts have held) a legitimate commitment question — because in order to serve on the jury, the jurors must be able to commit to convicting if they find the accused guilty beyond a reasonable doubt — but it's only a legitimate commitment question on paper.

The problem with the question in the courtroom is that it's hard for most people to assume something that they don't think is possible.

The question requires a juror to assume that the State can prove its case to her beyond a reasonable doubt with a single witness. Many jurors can't see themselves believing a single witness beyond a reasonable doubt (there's Biblical precedent). Asking those jurors the "one-witness rule" question (there is no "one-witness rule) is unfair because it's asking them to believe something that they consider impossible.

Most people aren't trained to question authority by rejecting the premises of a prosecutor's question. If you ask a person a question that contains an invalid premise, then insist on a yes-or-no answer, you'll get a "no." It's a sneaky question, it's unfair to the jurors, and it's inelegant.

Such gamesmanship is beneath those who are obligated to see that justice is done.

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.
This entry was posted in Harris County DA, jury selection, Lawyering By The Numbers. Bookmark the permalink.

12 Responses to The One-Witness Rule

  1. Anon says:

    Mark,

    What about the delayed outcry ASAC case where the only person you put on the stand is the complainant?

    Detective can’t give you anything, maybe she never went to see a therapist, and there is no rape kit.

    Anon

  2. Mark Bennett says:

    First, what’s the question? Are you asking if the prosecutor should engage in gamesmanship because he believes the single witness but the community (speaking through the jury) might not? We all have to follow our own ethical compasses and hope that we’re right.

    Second, this reminds me: the single-witness question should not be allowed in multiple-witness cases because it’s not “the law applicable to the case.”

  3. Tarian says:

    Mark,

    Sneaky, maybe, unfair? debatable, but “inelegant”? That one stings.

    A prosecutor might respond to this post by pointing out that, once upon a time, we were allowed to ask the question that you (very astutely) identify as forming the underlying premise. Will the State ever be able to carry its burden BRD to your satisfaction through the testimony of only one witness? Put another way, could you ever find someone guilty BRD based on only one witness?

    Some would contend that is a proper question, but our courts, having left the definition of BRD to each individuals’ Personal Moral Judgment, have ruled otherwise, rendering it a moot point.

    However, I would say that it is neither gamesmanship nor the fault of prosecutors that many jurors HEAR the improper question and don’t understand the inherent assumptions even when we ask the proper question. I might add that this concept is closely tied to other, proper questions to find people who, for whatever CSI-related reason, want more than just testimony. I.e., Who would require me to present DNA evidence before they could convict, or who could never convict, even if I proved my case BRD through other means, without scientific evidence?

    To me, there’s little difference between this question and those designed by defense attorneys to disqualify people by drawing them out on the 5th Amendment or the Full Range of Punishment. (“You’re saying that you could actually consider PROBATION appropriate for a defendant who has been CONVICTED of AGGRAVATED SEXUAL ASSAULT…OF A CHILD???”)

    –Hey, just because it works and you don’t like it doesn’t make it unfair.

  4. Ron in Houston says:

    I actually never thought about it, but you’re right there is Biblical precedent for having more than one witness.

  5. Mark Bennett says:

    I think it can sometimes be ethical for defense lawyers to trick jurors. The same cannot be said for prosecutors, who have a different mandate.

    You don’t think that taking advantage of your bosses’ (the jurors) lack of rhetorical savvy is unfair to them? Bad servant. Bad.

    There’s a huge difference between implicitly committing a juror to convict on the testimony of less than one witness (contrary to Deut. 19:15, by the way, which might implicate Article 1 Section 4 of the Texas constitution), and committing a juror to follow the full range of punishment.

    The courts got the one-witness question rule wrong. It should be an improper commitment question because it injects facts (one witness) beyond those necessary to determine whether the juror can follow the law. One witness or one hundred, the law is that the juror must convict if he finds proof BRD.

  6. shg says:

    unless “he just needed killing?”

    It’s hard to follow all these special Texas rules.

  7. Jamie says:

    Point taken, but wouldn’t you rather they waste their time in Voir Dire with this question, as opposed to say the other 50 to 100 things they could be asking that would better identify “bad prosecution jurors”?

    Especially considering in the more serious cases that 99% of the time the jury ends up scratching their heads and wondering, “Hey, why are they calling another witness? I thought he said…”

    OK, even as I type this, I’m thinking “Yes, sometimes they get to strike someone for an unstated and/or illegitmate reason because the guy was honest”.

    From an intellectual standpoint I think I agree with you, but in the long run I don’t know it makes much difference.

    (I almost considered not submitting this since I’m waffling back and forth, but hey – I don’t want to waste the 30 seconds I spent thinking about/typing this…)

  8. The Bible, Old Testament and New, says no one should be convicted for any crime except on the testimony of “two or three” witnesses. Even for those unaware of the biblical precedent, though, jurors know that anybody can make an error and that the decision before them is a serious one, while the ADA is engaging in gamesmanship at the expense of a fair jury.

    Bottom line: The jurors struck are concerned about the possibility of convicting an innocent person. The prosecutors who ask the question are not.

  9. BTW, Moses, Jesus, and the Apostle Paul were the ones who laid down the “two or three” witnesses rule, so none of them could serve on a jury if they were alive today and honestly answered that question!

  10. Soronel Haetir says:

    I think this is a perfectly valid question. It measures the ability of a prospective juror to answer the asked question, rather than the question the juoror thinks is being asked. Even if a juror would never be able to find guilt BRD with just one witness, this question should still be easy to answer affirmatively.

  11. joseph W. blin says:

    If you can convict on the testimony of one witness, then UFO’s exist beyond reasonable doubt, as do UFO abductions, Bigfoot, Loch Ness Monster….

    You see where I’m going with this?

    By the very logical definition, one man’s word against another alone is NOT “proof beyond reasonable doubt” without corroborating evidence.

    Talk about kangaroo courts.

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