Trick Questions

It doesn't matter who asks them—defense lawyers, prosecutors, cops—or whom they are asked—witnesses, the jurors themselves, defendants—jurors don't like trick questions. Getting caught asking a trick question lessens the questioner's credibility.

Here's a trick question that cops sometimes ask people suspected of DWI: "On a scale of zero to ten, how intoxicated would you say you are?" They think they're being clever—anyone who says anything other than zero has admitted intoxication—but jurors don't like the question, and unless the answer is a big number they're unimpressed.

Defense lawyers sometimes, in desperation, ask witnesses trick questions. Because if—as occasionally happens—there is no way the facts support any truth that helps the accused, we have to do something to stir up doubt. (I don't think I'm giving away any trade secrets here.) Jurors don't like trick questions, and when they catch you asking one (which they usually do) they're unimpressed.

Prosecutors almost always ask potential jurors trick questions.One example is the "one-witness rule" trick question, which I've noted here and here. There are several common questions in the same vein: "If I prove my case to you beyond a reasonable doubt, will you have problems convicting if there is no X?" where X is direct evidence, or corroboration of a single witness, or scientific evidence.

This is a trick question in the same vein as "have you stopped beating your wife?" It contains a premise that is untrue for many people, and doesn't leave room for the answerer to challenge the premise.

The premise is that the potential juror could find guilt beyond a reasonable doubt without X. Just as there are many witnesses who have never beaten their wives, there are many jurors who could not find (or could not, in voir dire, imagine themselves finding) guilt beyond a reasonable doubt based on circumstantial evidence only.

The law does not require jurors to be able to find guilt beyond a reasonable doubt based on circumstantial evidence only. A juror who can't is not challengeable for cause. The question, "can you find guilt beyond a reasonable doubt based on circumstantial evidence alone" would be an improper commitment question.

The question as it is actually asked is probably not improper. But the question and the format ("I'm sorry, Mr. Blanco, we need a yes-or-no answer") don't leave room for the potential juror to explain that he can't answer the question "yes" because he rejects the premise. The quickest option is to reject the whole execrable question with a simple "no" and get the prosecutor to move on to his next victim.

The problem is heightened by the way a prosecutor often asks the question: state it once, then ask each juror to answer it. By the time the prosecutor gets to the third row, there's no telling whether the potential jurors are answering the actual question or some other question involving the words "beyond a reasonable doubt" and "circumstantial evidence only."

(I raised this issue in my current trial. The prosecutor wanted us to agree on challenges for cause to jurors who answered the circumstantial-evidence trick question negatively. I demurred, pointing out that I had no idea what question the jurors at the back of the room were, in their minds, answering. The prosecutor was upset—he saw no difference between his question and my question about considering probation for the offense—but I was proven correct when we requestioned the potential jurors at the bench, and one of them answered the clarified question differently.)

Do jurors recognize this as a trick question? I don't think they usually do. And I haven't yet figured out a good way to easily show them that it's a trick question just like "have you stopped beating your wife yet?"

But I will.

3 Comments

  1. A collegue of mine was considered for (but not selected for) service on a jury in California. He was asked on the written questionare given to potential jurors a question something like:

    Could you find the defendant guilty if there was no medical evidence and if you were otherwise convinced beyond a reasonable doubt that the defendant was guilty?

    This caused me to think about how I would have answered this question. My answer would have been:

    Sometimes. If the evidence was overwhelming I could find the defendant guilty. However,
    1. Absence of evidence that should be there will be a source of doubt for me, and
    2. I believe that reasonable doubt can arise from the combination of several doubts, none of which rise to the level of reasonable doubt by themselves.

    Even though the doubt caused by point 1 is not in an of itself reasonable, if there is something else doubt inducing about the prosecutor’s case or if it is just not very strong, that doubt combined with the other doubts might cause me to decide I had reasonable doubts.

    1. See, Tom? Even on calm reflection, far from a prosecutor pressuring you for a yes-or-no answer you’d have fallen for the trick question!

      Your short answer, it appears from your longer answers, should have been “yes”: if you believed the State’s case BRD, you would convict even without medical evidence.

      Whether you might have trouble believing the State’s case BRD without medical evidence wasn’t even part of the State’s inquiry.

  2. An objection that a question is a commitment question is one of the best objections to use during voir dire. In my experience most judges have no idea what it means but they know you shouldn’t ask one. If you don’t like a question and can’t think of a better objection, object as a commitment question. Have the definition of it with your voir dire notes. Amazing how many judges will sustain the objection. I ask commitment questions all the time and never get an objection. A trick question is only a trick question if the jury thinks it is. If it happens to you then kind of admit it was a lousy question to ask and ask it a different way as you smile at the disgruntled juror.

Post a Comment

Your email address will not be published. Required fields are marked *