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

 Posted on July 21, 2008 in Uncategorized

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.