The Trick Question: Prosecutors' Questions Answered, and Answers Questioned

 Posted on July 22, 2008 in Uncategorized

The discussion of prosecutors' pet jury selection question, the "One-Witness-Rule" question, continues. Prosecutor SC asks:

"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?

Yes and yes. The juror who would require DNA evidence to convict someone, like the juror who would require more than one witness's testimony, is qualified to serve as a juror. It's up to you to strike these upstanding representatives of the community from the jury. Suck it up.

Then SC, moved by the spirit, asks:

"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?

No. I don't think defense lawyers have to pretend that everyone is equally equipped to deal with the world, but I'm not calling anyone stupid. Our jurors, you may have noticed, haven't been to law school; they're not involved in trades like ours that require the exercise of rhetorical skills. In an arena in which they've already been told that only yes-or-no answers are called for, they're asked a question that requires the acceptance of a false premise.

Tarian jumps in:

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.

Ah, the law. While I'm glad to see my esteemed colleague, the author Tarian, making an effort at reading the law, I would humbly suggest that his understanding of the subject might benefit from reading the cases he has cited, rather than just their headnotes.

The law doesn't require any particular sort of evidence to support a conviction, but a juror may. This is the difference between legal sufficiency and factual sufficiency.

Garza says what Tarian says it says - "a potential juror who could not believe a witness simply for the fact of being a child would properly be excused for cause" - but only in dicta (the only use of the word "cause" in the body, rather than the headnotes, of the case), and that based on two cases that don't even say what Garza says they say.

Robinson, on the other hand, is a Texarkana case. Legal scholars still argue over whether Texarkana is Texas or Arkansas.

Both Robinson and Garza came before Standefer and the Texas "commitment question" jurisprudence.

A juror can be committed to convicting if he believes the evidence beyond a reasonable doubt. He can't be committed to believing any sort of evidence beyond a reasonable doubt.

Anywhere but in Texarkana, a Texas juror is free to define reasonable doubt to require more than one witness, or to require medical testimony or DNA. That is, in fact, why the "one-witness-rule" question is phrased as it is. Read Lee, which Tarian cited:

If these jurors were challenged for cause simply because they needed more than one witness to convict, then they were invalidly challenged for cause. If they were challenged for cause because they could not convict based upon one witness whom they believed beyond a reasonable doubt, and whose testimony proved every element of the indictment beyond a reasonable doubt, then they were validly challenged for cause.

Also take a look at Castillo, which Tarian cited (apparently without reading, or at least without understanding):

Unless reasonable doubt is a fixed point-unless, in other words, the law requires a jury to convict whenever presented with legally sufficient evidence-a venireman who will not be convinced beyond a reasonable doubt on the testimony of a single eyewitness is nevertheless a venireman who can follow the law. If the State does not want that venireman on the jury, it is obliged to use one of its statutorily allotted peremptory challenges to remove him.

That's the heart of the matter: the ability of each juror to decide what "beyond a reasonable doubt" means to her.

The "one-witness-rule" jury selection question looks good, as I wrote at first, on paper; Texas's courts have approved it in a very specific form. That the question in this form is used by prosecutors to trick potential jurors into disqualifying themselves should be beyond question in light of Harris County prosecutors' misunderstanding of the requirements to serve as a juror and their avowed desire to remove from the jury anyone who doesn't share their wide-eyed credulity.

Person Lee v. State

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