Betsy Grubbs

Betsy Grubbs is a general practitioner in private practice in Houston and has been employed in the legal field since 1990 and was licensed in 2001. For more than 20 years she has tried many cases with Mr. Bradt in the civil and criminal arenas.

DNA Evidence—New Tactics to Use in Challenging

Who, in defending a case involving DNA evidence, has not heard testimony from the State’s expert to the effect that there is a one-in-3 billion chance of a match to someone other than the defendant? It does not matter that all 13 alleles do not match; the testimony is essentially the same. Invariably.

Powerful evidence. It instantly creates the impression in the mind of the jury that it would take over 3 billion people being tested before a match occurred. But, as you will see, it can be a false impression. A very false impression.

Or worse, the State’s expert offers testimony to the effect that: “The frequency of an unrelated African American (both appellant and Franklin are African American) having the same DNA pattern as that found on the cigarette butt consistent with the major contributor’s DNA was approximately one in 118 billion.”1

Worse yet, the State’s expert offers testimony to the effect that: “The complainant could not be excluded as a contributor to the bloodstain on the bill. The chances of another contributor are 1 in 30 quintillion Caucasians, 1 in 56 quintillion African-Americans, and 1 in 343 quadrillion Hispanics.” And, “The chances of another contributor are 1 in 191 quintillion Caucasians, 242 quintillion African-Americans, and 1 in 273 quintillion Hispanics.”2

Never mind that some of these chances are “derived” after testing alleles at only 6 of the 13 loci that are normally tested!3,4 Or that European agencies usually use two extra markers, D2 and D19, to make 15 loci (16 if you include AMEL) that are tested.5 Or that Taiwan now tests allelles at 23 markers because of matches at 13 alleles that turned out to be exclusions when 23 markers were tested.6 Or that there is no uniform methodology for determining those chances within the field—not even within the same lab!7 Or that the policies of some agencies requires their employees to testify—when only two alleles match—that the person cannot be excluded.8

So, how do you challenge this testimony?

Before listening to the presentation of Greg Hampikian, PhD, at the National Child Abuse Defense and Resource Center’s seminar last October, we were relegated to using the tried (tired?) tactics to challenge this one-in-however-many billion, trillion, quadrillion, or quintillion chance testimony. These tactics include: (1) challenging the methodology used in testing the sample(s), especially when a mixture of DNA was tested; (2) challenging chain of custody or errors in sampling; (3) challenging the technician on his or her methodology in light of known errors; (4) challenging the degradation of the DNA specimen; (5) challenging the methodology of calculating the chances; (6) challenging the underlying study that is used to calculate these chances; (7) challenging the possibility of contamination of the sample; (8) challenging the lab based on its history of past errors, etc.9 This is not an exhaustive list, but those of us who have challenged DNA know them all.

Wouldn’t it be nice to have some new “bullets” to put into your cross-examination “gun”?10 Or to have some additional aces (bullets) to lay down when playing poker with the State’s experts on DNA?11 Or to be able to force the State’s expert to have to bite the bullet and concede that their opinions are flawed, if not outright wrong?12

Dr. Hampikian gave everyone who attended the NCADRC seminar several new aces (bullets) to use when playing poker with the State’s expert and trying to trump the State’s expert’s testimony on DNA evidence.13

Dr. Hampikian’s First Bullet

The first bullet was to get us lawyers to understand the difference between chance and probabilities (statistics).14

For instance, take the question of what is the number of people you have to have in a room to have a better than 50% probability of two of them sharing the same birthday? Call this the birthday problem. People will guess at anywhere from 366 to 183 and they will be wrong. This is a simple example of how people (jurors) confuse chance with probabilities (statistics).

The birthday problem asks how many people you need to have at a party so that there is a better-than-even chance that two of them will share the same birthday. Most people think the answer is 183, the smallest whole number larger than 365/2. In fact, you need just 23. That’s right, 23.

The answer 183 is the correct answer to a very different question: How many people do you need to have at a party so that there is a better-than-even chance that one of them will share your birthday?

If there is no restriction on which two people will share a birthday, it makes an enormous difference. With 23 people in a room, there are 253 different ways of pairing two people together, and that gives a lot of possibilities of finding a pair with the same birthday.

Here is the precise calculation. To figure out the exact probability of finding two people with the same birthday in a given group, it turns out to be easier to ask the opposite question: what is the probability that no two will share a birthday—i.e., that they will all have different birthdays? With just two people, the probability that they have different birthdays is 364/365, or about .997. If a third person joins them, the probability that this new person has a different birthday from those two (i.e., the probability that all three will have different birthdays) is (364/365) x (363/365), about .992. With a fourth person, the probability that all four have different birthdays is (364/365) x (363/365) x (362/365), which comes out at around .983. And so on. The answers to these multiplications get steadily smaller. When a twenty-third person enters the room, the final fraction that you multiply by is 343/365, and the answer you get drops below .5 for the first time, being approximately .493. This is the probability that all 23 people have a different birthday. So, the probability that at least two people share a birthday is 1 – .493 = .507, just greater than ½.15

Carrying this out to 30 people and the answer you get drops to approximately .293. So the probability that at least two people share a birthday with 30 people in the room is 1 – .293 = .707, or greater than 70%. Carrying this out to 35 people and the answer you get drops to approximately 0.185. So the probability that at least two people share a birthday with 35 people in the room is 1 – .185 = .815, or greater than 80%. Carrying this out to 40 people and the answer you get drops to approximately 0.108. So the probability that at least two people share a birthday with 40 people in the room is 1 – .108 = .892, or almost 90%. Carrying this out to 44 people and the answer you get drops to approximately .007. So the probability that at least two people share a birthday with 44 people in the room is 1 – .007 = .993, or greater than 99%.

Changing the birthday problem slightly, ask how many people you need to have at a party so that there is a virtual certainty that two of them will share the same birthday. The answer to this question is 45, because with 45 people in the room, the probability that at least two people share a birthday is greater than 100%!16

A similar problem is presented by the “Children Puzzle.” I tell you that a couple has two children and that (at least) one of them is a boy. I ask you what is the probability that their other child is a boy. Most people think the answer is 1/2, arguing that it is equally likely that the other child is a boy or a girl.17 But that’s not the right answer for the question I have asked you. Here’s why. In terms of order of birth, there are four possibilities for the couple’s children: BB, BG, GB, GG. When I tell you that at least one child is a boy, I rule out the possibility GG. That leaves three possibilities: BB, BG, GB. With two of these, the other child is a girl; so the probability of the other child being a girl is 2/3. Leaving the probability of the other child being a boy at 1/3.18

A similar problem is presented by these questions: What is the probability of tossing a coin and having it come up heads 10 times in a row versus what is the chance (probability) that on the tenth flip of the coin, it will come up heads? The first probability is (½)10—one-half to the tenth power. The second probability is ½. But most people will answer both questions as ½.

These are just three examples of how people (jurors) confuse chance with probabilities. Getting jurors to understand the difference between chance and probabilities (statistics) is very important. Getting the State’s expert to talk in terms of probabilities (statistics) instead of chances is even more important.

Dr. Hampikian’s Second Bullet

Which brings us back to DNA in the courtroom and the second bullet that Dr. Hampikian gave us. The State’s DNA expert is going to testify that there is a one-in-3 billion chance that there would be a match on the alleles that were tested and which matched.19 Or, as there are fewer than 13 alleles that match, that your client cannot be ruled out.20

What do you do?

First, if it’s a one-in-3 billion chance testimony, we would recommend that you file a Rule 702 challenge to any such testimony. Why? Because chance is not probability.

You need to reframe the question or the expert’s statement. The question or statement is, more properly, Is a coincidental match to the DNA database possible? And if so, what is the probability of that coincidental match?

If a profile has a random match probability of one-in-3 billion, how big does the database have to be before a “random match” is expected (over 50% chance)? The answer is about one and one-half billion. Using the “birthday problem” above, you see that this is the “How many people do you need to have at a party so that there is a better-than-even chance that one of them will share your birthday?” answer.

Second, you need to ask the State’s expert whether he has ever examined the FBI’s DNA database or even the Texas DNA database to see if there were any random matches and, if so, on how many alleles the profiles matched. Being the cynics that we are, we would expect the expert to announce that, in fact, he had done so. Which then leads to how did he get access to the database when no one else has been able to do so, were those results were published in a peer-reviewed scientific article, etc.

Of course, this leads to the fertile ground of cross-examination: How many DNA profiles are in the FBI database? Or the Texas database?

Which brings us back to, what is the chance (probability) that there is a random match somewhere in the DNA database?

If a DNA database has a number of profiles that each has about a one-in-3 billion random match probability, the question becomes: How big does that database have to be before you expect (more than 50% chance) a match between two profiles in the database?

Remember, the FBI has the world’s largest DNA database, but it has never made its database available to independent scientists to examine. The authors have searched online and have been unable to find any definitive answer to even the question of how many DNA profiles it has in its database.21

So, how big does that database have to be before you expect (more than 50% chance) a match between two profiles in the database?

According to Dr. Hampikian, the answer is 65,493. That’s right—65,493. Not one and one-half billion people. Not a billion people. Not five hundred million people. Not a million people. Slightly more that 65,000 people!

So, where did Dr. Hampikian come up with that number? Arizona. That’s right—Arizona.

Well, actually, it was the examination of the Arizona DNA database that was performed by Steven P. Meyers, MS, with the California DOJ Jan Bashinski DNA Lab. Dr. Hampikian showed those slides to the audience at the NCADRC Seminar in October 2014.22

You see, among all of the states that have DNA databases, only Arizona has made its DNA database available to scientists to examine. In that examination, the scientists were able to find the following matches:

  • 122 pairs match at 9 of 13 loci
  • 20 pairs match at 10 of 13 loci
  • 1 pair matches at 11 of 13 loci (full siblings)
  • 1 pair matches at 12 of 13 loci (full siblings)

And that’s in a database of only 65,493 profiles!

Which suggests to the authors that if you are defending someone on a crime where DNA is being used to “finger” your client, it might be time to ask for discovery of the State of Texas’ DNA database, so that your expert can examine it to determine whether Texas has similar matches that have not been disclosed.23 This alone could be critical in showing that the State’s expert’s pontifications as to chances of a match are nothing other than something that the expert has pulled out of an orifice somewhere.

And, in light of what was uncovered in the Arizona database, it could be argued that the prosecutors are withholding Brady material for at least two separate reasons. First, the Texas DNA database is supposedly larger than the Arizona database, so one could presume that there are matches in the database that are similar to those found in Arizona. Second, the Arizona matches will have been submitted to CODIS, which means that those matches are in CODIS. This is impeachment evidence that the prosecutor has access to and it should be turned over under Brady.

Dr. Hampikian’s Third Bullet

Which brings us to the third bullet that Dr. Hampikian gave those in attendance at the NCADRC Seminar last October. It is the case of Chen Long-Qi out of Taiwan.24

The facts of that case are as follows: On March 24, 2009, two escorts were raped between 4 to 6 a.m. in a warehouse that Chen and his friend rented for agricultural products distribution. The victims failed to identify the assailants due to alcohol intoxication.25

Chen always maintained his innocence during the investigation and trial. He claimed that he left before the crime to pick up his wife, Ko, at her workplace. Ko’s timesheet corroborated Chen’s words. An eyewitness also testified that Chen was not at the scene. Despite no testimony linking Chen to the crime, the district court and high court found him guilty of gang rape with the other two co-defendants. The decision was solely based on a DNA test concluding that Chen “cannot be excluded” from the semen stain found on one of the victims’ underwear. Chen was convicted of gang sexual assault and was sentenced to 4 years in March 2013.26

With help from the Taiwan Association for Innocence, Chen filed a motion for retrial in June 2013 seeking to retest the DNA evidence. The court authorized a 23 loci STR test on the original mixture DNA sample. The new test result showed that Chen “can be excluded” from the DNA sample. Based on this new piece of evidence, the court granted his motion in December 2013.27

According to Dr. Hampikian in his presentation at the NCADRC Seminar, Chen was acquitted on April 15, 2014. As Dr. Hampikian explained: “Last year the Taiwan Association for Innocence director showed me the case of a man convicted of gang rape through DNA evidence. While that first DNA test was accurate, it was a complex mixture, and newer testing is more discriminating. Through a court hearing the National Crime Lab agreed to do further testing with newer kits, and they were able to exclude Chen Long-Qi.28

Dr. Hampikian’s Fourth Bullet

Dr. Hampikian’s fourth bullet dealt with the problem with statistics. He used the case of Donny Denman to illustrate.

Who is Donny Denman? Donny Denman is the man who the FBI pronounced dead after they examined the DNA in some bones found in New Mexico. Since Donny Denman had been missing for years and since they did not have Donny’s DNA, they used Donny’s siblings to test the mitochondrial DNA. And the FBI concluded that the DNA matched and the bones were Donny’s.

Donny had a funeral. The Pastor gave the eulogy. A death certificate was issued in Donny’s name. There was only one problem: Donny was still alive.29

Granted that using mitochondrial DNA is not as effective in distinguishing individuals as the more common nuclear DNA process, there was a coincidental match, nonetheless. What’s really interesting to the authors is that the FBI said that Denman’s case was the first time the FBI lab has had a “coincidental match.”

The reason that statement is so interesting is that the Arizona DNA database, supra, would have been submitted to CODIS. Are we to believe that the DNA samples that led to the matches that Steven P. Meyers, MS, found in the Arizona database, supra, somehow did not make it into CODIS?

Or are we to believe that FBI is telling the truth when they state that they have never had a “coincidental match.” Remember, these are the same people who tell us that fingerprints are unique and who incorrectly identified Brandon Mayfield, a lawyer from Portland, Oregon, as the Madrid train station bomber.30

Related to this is that experts say there is no way to tell what the odds are for a coincidental match. But courtesy of the coincidental matches that Steven P. Meyers found in the Arizona DNA database, we know that the odds of a coincidental match at 9 of 13 alleles is 122/65,493. We also know that the odds of a coincidental match at 10 of 13 alleles is 20/65,493. We also know that the odds of a coincidental match at 11 of 13 alleles is 1/65,493. And we know that the odds of a coincidental match at 12 of 13 alleles is 1/65,493.31

That’s nowhere near a one-in-3 billion chance! Not even in the same ballpark. Not even on the same planet.

Dr. Hampikian’s Fifth Bullet

Dr. Hampikian’s fifth bullet dealt with the problem of contamination of the samples in the laboratory.

Dr. Hampikian gave several examples of cases where people were identified as the perpetrator but the identification was flawed by contamination occurring in the laboratory.

One such case was the case of Carlton Gary, the so-called Columbus Stocking Strangler. He spent almost 30 years on death row in Georgia, and in 2009, hours before he was to be executed, the Georgia Supreme Court ordered DNA testing. Ultimately, the Georgia Bureau of Investigation laboratory conducting the tests reported it had tainted the DNA evidence.32

The interesting corollary is that when the DNA was re-tested, it did not match anyone in the CODIS database. Two years later, a gun crime was committed in Georgia and the DNA from the suspect in that gun crime was submitted to CODIS. A match was found, so that suspect was interviewed and he was excluded from the Columbus stocking murder cases due to his age—he couldn’t have committed those crimes back in the ’70s. It turns out that the samples in both cases were contaminated at the Georgia Bureau of Investigation Crime Lab with the same DNA evidence. And it turns out that the DNA that contaminated both samples was from a semen sample produced by someone who works in that lab—a sample produced as a quality control!33

Dr. Hampikian’s Sixth Bullet

Dr. Hampikian’s sixth bullet dealt with the problem of contamination of the samples that occurs outside the laboratory.

In his presentation at the NCADRC Seminar in October 2014, Dr. Hampikian talked about the need for crime scene technicians to change their gloves between each piece of evidence they handle so as to avoid transferring DNA from one piece of evidence to another. This, alone, presents a fertile ground for cross-examination.

Dr. Hampikian also talked about the “phantom of Heilbronn.”34 This is the debacle suffered by the German police when they spent 16 years chasing a woman who never existed. The unnamed woman was suspected of being a serial killer who over 16 years carried out a string of six murders, including strangling a pensioner. It turns out the misidentification was caused by swabs used to collect DNA samples having been contaminated by an innocent woman working in a factory in Bavaria.

Conclusion

The take-away from Dr. Hampikian’s two presentations is this: There are forensic DNA errors; there are statistical and interpretative errors; and there are contamination errors. Now you have six new aces to lay down on the table when you want to trump the State’s expert in your quest for justice for your clients who are being “fingered” by DNA.

Endnotes

1. Brown v. State, 163 S.W.3d 818 (Tex. App.—Dallas 2005, pet. ref’d).

2. Owolabi v. State, 448 S.W.3d 148 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

3. Brown v. State, 163 S.W.3d at 825—826.

4. CODIS identifies genetic markers at 13 STR loci, plus Amelogenin (AMEL) to determine sex. See http://www.dnaconsultants.com/Default.aspx?PageID=5813864&A=SearchResult&SearchID=8611581&ObjectID=5813864&ObjectType=1 (last accessed January 22, 2015).

5. Id.

6. http://wrongfulconvictionsblog.org/2014/02/07/taiwan-association-for-innocence-wins-first-case/ (last accessed January 22, 2015).

7. Presentation by Greg Hampikian, PhD, at TEDx Boise 2015. Dr. Hampikian’s presentation can be found at: http://tedxtalks.ted.com/video/Forensic-DNA-Mixups-|-Greg-Hamp . There’s lots of great information, and this presentation is recommended to all who read this article.

8. Dr. Hampikian notes that the experts from the Georgia Bureau of Investigation will testify, when only two alleles match, that the defendant cannot be ruled out. Using statistics (probabilities), this is an absolute exclusion. You should be aware of similar testimony from the State’s experts in Texas. Never forget that the State’s expert testified that the DNA in the rape kit was an exact match to Josiah Sutton. But only three alleles matched, and that was an absolute exclusion! See http://archive.voiceforthedefenseonline.com/story/taint-question-reliability-not-credibility-or-competence.

9. In his presentation at TEDx Boise 2015, Dr. Hampikian discusses the problems associated with contamination of the samples, including the possible sources of contamination.

10. Two the authors are attorneys, licensed in Texas, proud possessors of a CHL, who can often be found exercising the privileges that come with a CHL. It seemed appropriate to them to use the term “bullet,” in the sense of the metal cartridge that one inserts into a pistol. This term was not suggested by Dr. Hampikian, and to the authors’ knowledge, he has never referred to his points as bullets—not even when he was using a PowerPoint presentation containing what would otherwise be called bullet points.

11. In cards, an ace is referred to as a bullet. Random House Dictionary, Random House Inc., 2015. The NCADRC seminar is usually held in Las Vegas, and the authors have been known to participate in the games of chance offered in the casinos. There has been more than one occasion when they each would have been more than happy to have had one more of these bullets to play.

12. “Bite the bullet”: to force oneself to perform a painful, difficult task or to endure an unpleasant situation. Random House Dictionary, Random House Inc., 2015.

13. The authors are grateful to Dr. Hampikian for his assistance in the prep­a­ra­tion of this paper and his providing the slides referred to in this paper together with the link to his TEDx 2015 presentation. His assistance was limited to check­ing the paper for errors, and he did not have any input into the final draft or its terminology or the words used.

14. Again, the term “bullet” is used in the sense defined in note 11—an ace.

15. http://www.npr.org/templates/story/story.php?storyId=4542341 (last accessed January 3, 2015).

16. As you will see in this paper, this question can be rephrased: How many people’s DNA profiles do you have to have before you are virtually certain to have two people who match at 9, 10, 11, or even 12 loci.

17. That answer is the answer to the question of what is the chance that the other child is a boy.

18. Id.

19. Or in a trillion, a quadrillion, a quintillion, or in a whatever chance. For simplicity, the authors will keep it to a one-in-3 billion chance.

20. As noted by Dr. Hampikian, the experts from the Georgia Bureau of Investigation will testify that when only two alleles match, the defendant cannot be ruled out. Using statistics (probabilities), this is an absolute exclusion. You should be aware of similar testimony from the State’s experts in Texas. Never forget that the State’s expert testified that the DNA in the rape kit was an exact match to Josiah Sutton. But only three alleles matched, and that was an absolute exclusion! See https://www.voiceforthedefenseonline.com/taint-question-reliability-not-credibility-or-competence/.

21. The authors are not, by this statement, claiming to be the absolute best online researchers.

22. The authors have tried to attach Dr. Hampikian’s PowerPoint presentation on this study but have been unable to do so. If you will email L. T. Bradt at , he will be happy to share the PowerPoint presentation that Dr. Hampikian shared with him.

23. This raises an interesting Brady issue. But that is for another time and another article.

24. http://wrongfulconvictionsblog.org/2014/02/07/taiwan-association-for-innocence-wins-first-case/ (last accessed January 22, 2015).

25. Id.

26. Id.

27. Id.

28. See also http://news.boisestate.edu/update/2014/04/21/greg-hampikian-58/ (last accessed January 27, 2015).

29. http://www.abqjournal.com/news/metro/302718metro04-25-08.htm (last accessed January 24, 2015).

30. http://seattletimes.com/html/localnews/2001937794_mayfield25m.html (last accessed January 24, 2015).

31. As to both the 11 of 13 alleles matching and the 12 of 13 alleles matching in the Arizona database, these profiles involved full siblings. Remember, the RMP assumes that people are unrelated, so if you use these examples, the State’s expert may throw it back in your face.

32. http://www.ledger-enquirer.com/2014/02/23/2970172/stocking-strangler-comes-back.html (last accessed January 24, 2015).

33. Greg Hampikian’s presentation at TEDx Boise 2015. Dr. Hampikian’s presentation can be found at http://tedxtalks.ted.com/video/Forensic-DNA-Mixups-|-Greg-Hamp . There’s lots of great information, and this presentation is recommended to all who read this article.

34. See Dr. Hampikian’s presentation at TEDx Boise 2015, found at http://tedxtalks.ted.com/video/Forensic-DNA-Mixups-|-Greg-Hamp . See also http://news.bbc.co.uk/2/hi/europe/7966641.stm (last accessed January 25, 2015).

Check That Parachute! Suggestions for Voir Dire on Reasonable Doubt

From experience, it appears that many lawyers’ approach to voir dire is almost as an afterthought. Far too many take the approach that the upcoming trial is just like the last, however many trials dealing with the same crime the lawyer has tried. While that may not be a recipe for disaster, it definitely diminishes the “return on investment” your client should be entitled to expect.

So this article will attempt to give you some pointers on how to be prepared for voir dire, how to deal with an ob­struc­tion­ist judge, and how to address in voir dire, trial, and closing the most important issue in a criminal trial: proof beyond a reasonable doubt.

In Texas, the right to voir dire is part of the right to counsel in order that peremptory challenges may be exercised intelligently.2 And the scope of permissible voir dire examination is necessarily broad to enable litigants to discover bias or prejudice so that they may make challenges for cause or peremptory challenges.3 But the trial court also has broad discretion over the process of selecting a jury. The Court of Criminal Appeals has held:

Without the trial court’s ability to impose reasonable limits, voir dire could go on indefinitely. Thus, we leave to the trial court’s discretion the propriety of a particular question and will not disturb the trial court’s decision absent an abuse of discretion. A trial court abuses its discretion when it prohibits a proper question about a proper area of inquiry. A question is proper if it seeks to discover a juror’s views on an issue applicable to the case. However, an otherwise proper question is impermissible if the question attempts to commit the juror to a particular verdict based on particular facts. In addition, a trial judge may prohibit as improper a voir dire question that is so vague or broad in nature as to constitute a global fishing expedition.4

So, remember that if the judge wants to shut your voir dire down, the threshold that you must overcome (and establish in the record) is an abuse of discretion.

So how do you do that in connection with voir dire? Remember that denial of a proper question cannot be harmless er­ror.5 So, you need to know what your questions are, up front, and they need to be in writing so you can make a bill of exceptions if you are denied the right to ask the questions you intend to ask. You also need to have a trial notebook with copies of all of the cases you will be relying upon (e.g., Fuller, and all cases cited in the Levels of Proof, infra).6

Remember also that the trial court, in its discretion, may place reasonable time limits on the length of voir dire examination, and within such limits the defendant may examine each prospective juror individually and pose questions about any proper area of inquiry.7

What a reasonable amount of time is depends on the situation and how you, as counsel, preserve the error in being limited in your voir dire.

A trial court’s limitation of voir dire examination to approximately 30 minutes in a murder trial was held to not constitute reversible error where defense counsel did not present a list of questions he desired to ask until a hearing on a motion for new trial, and where the reviewing court was presented with no bill of exceptions showing how the defendant was injured or deprived of any valuable right by jury selection.8 As hard as it may be to wrap your head around, our appellate courts have no problem upholding these arbitrary time limitations—if you do not preserve the error.

What Centamore teaches us is that you need to have a list of questions prepared so that you can put them into the record, right then and there, and be prepared to put on a bill of exception as to how your voir dire is being hampered or denied.

The authors suggest that you go through your list of questions to pare out questions that are not absolutely necessary to your voir dire. From our experience, questions about whether anyone knows you, or what the venire’s opinion of defense counsel is, are not the sort of questions that will rise to the level of an abuse of discretion if you are prevented from asking them. Correspondingly, having asked those questions leads you into the judge saying that you wasted the time allotted you by asking those “filler” questions. Work on your list of questions.

In that context, the authors feel there are two areas that must always be addressed in voir dire. The first is a question committing a juror to consider the minimum punishment, and the second is the levels of proof.

In Cardenas, the Court of Criminal Appeals held that a question committing a juror to consider the minimum punishment is both proper and permissible.9 But it is an impermissible commitment question when you attempt to commit a veniremember to consider the minimum sentence based on specific evidentiary facts.10 What the Court of Criminal Appeals held, in that regard, was this:

For example, a party may ask the potential juror if he could consider the minimum of five years’ imprisonment in a murder case, but he may not ask if the juror could consider five years in prison in a case in which the State alleged that the defendant “tortured, garroted, poisoned, and pickled” the victim. The nonstatutory manner in which the defendant was alleged to have committed the offense adds evidentiary facts peculiar to the case on trial. That question, because it goes beyond the statutory elements and statutory manner or means, is improper . . .11

What the defense counsel asked, and that was held proper, was this:

During his voir dire, defense counsel again explained the range of punishment for the crimes charged and the re­quirement that all jurors must be able to consider that full range. His final question asked whether the panel members could “honestly ever fairly consider on an aggravated sexual assault of a child as little as five years in prison and give probation as an appropriate punishment[?]”12

Defense counsel preserved the error in the following manner:

After using all of his peremptory strikes, defense counsel asked for additional peremptories and explained that nine of his strikes had been used on jurors who should have been removed for cause. He stated that he would have stricken three of the empaneled jurors had additional peremptory challenges been granted.13

You should be prepared to do the same.

In Fuller, the defense counsel sought to explain the different burdens of proof and to elicit whether the jury understood that proof beyond a reasonable doubt is the highest burden.14 Specifically what he did:

Immediately before the voir dire commenced at his trial, the appellant requested that he be permitted to ask the members of the venire panel whether they understood that the standard of proof beyond a reasonable doubt constituted a level of confidence under the law that was higher than both the preponderance of the evidence and the clear and convincing evidence standards. When the trial court denied his request, the appellant objected that he was thereby denied the right to ask a “proper” question during voir dire, depriving him of the ability to intelligently exercise challenges for cause and peremptory challenges. . . .

        On the morning that voir dire was to commence, but before the venire panel was brought into the courtroom, the following colloquy transpired.

        THE COURT: Did you want to go on the record about the reasonable doubt?

        [DEFENSE COUNSEL]: Judge, I would request that I be allowed to ask each and every member of the venire panel if they understand that proof beyond a reasonable doubt is the highest burden that we have under the law, that it’s higher than clear and convincing evidence. I would like to explain to them that clear and convincing evidence is the type of burden that might be used when someone is committed to an involuntary health institution or when someone is trying to terminate someone’s parental rights.

        I would like to explain to them that it’s higher than—I probably would have started at the other end—but higher than the preponderance of the evidence, which is just over 50 percent, and that’s the kind of burden that might be used in a civil lawsuit when someone is suing over money.

        I would like to ask them if they understand that proof beyond a reasonable doubt is the highest burden we have anywhere in our legal system.”15

After the court denied his request, defense counsel preserved the error by objecting, as follows:

And we would object to that ruling in that it violates the defendant’s right to ask the proper question for purpose of making an intelligent challenge for cause and pe­remp­tory strike. Under Article 1, Section 10, of the Texas Constitution, Article 35.17(2), of the Texas Code of Criminal Procedure, the Sixth Amendment and due process clause.”16

Now, in addition to teaching us how to preserve the error, what Fuller teaches us is that instructing jurors on the levels of proof in order to find out whether a juror can hold the State to its burden of proof, beyond a reasonable doubt, is proper voir dire.17 Why? Because a prospective juror who cannot or will not hold the State to the standard of proof beyond a reasonable doubt to convict in a criminal case is subject to the defendant’s challenge for cause for harboring “a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely.”18

So how do you instruct the jurors on the levels of proof?

Many successful defense lawyers start educating the jurors about the State’s burden of proof in voir dire. Unfortunately, if they do anything at all, too many lawyers use isolated, hackneyed examples to tell potential jurors what “proof beyond a reasonable doubt” is. And then they do it without explaining the other levels of proof.

In light of the proliferation of NINJA19 loans and the recent bailouts of Fannie Mae and Freddie Mac—the certainty that one wants before buying a house is hardly that certain. To begin with, there are drastic distinctions between judge-conducted voir dire and attorney-conducted voir dire. What follows here is a discussion of what we have successfully used for a number of years in conducting our own voir dire and closing arguments.

It has been our experience that if the presiding judge tells the veniremen anything at all, it will be along the lines of “proof beyond a reasonable doubt is not defined,” and “it is a level of proof that we do not use in everyday life.” Hunh? Helpful? Not at all.

To overcome that lack of guidance from the bench, start by detailing the levels of proof on a blank flip chart. Use of a flip chart forces the veniremen to use at least two senses at the same time. In our experience, this tends to increase their retention of what you are about to tell them—and what they tell you (it allows them to “own it”). Alternatively, purchase and use the Levels of Proof chart from the National College for DUI Defense.20 Whatever PowerPoint® presentations you may use during the trial, the authors suggest that you address the levels of proof with either the flip chart or the Levels of Proof chart and not the PowerPoint presentation.

It is also important to empower the jury to find your client not guilty. One of the ways to do this is to explain to the venire that in Scotland, they have three verdicts in a criminal case: guilty, not guilty, and not proven. In Scotland, not guilty means the defendant had absolutely nothing to do with the crime, that there was no evidence the defendant had anything to do with the crime. A verdict of not guilty in Scotland is a bar to a civil suit on the same facts. Not proven only means that the prosecution did not prove its case beyond a reasonable doubt. Not proven does not mean that the defendant had nothing to do with the crime alleged. In the United States we roll “not guilty” and “not proven” into “not guilty,” and a verdict of not guilty is not a bar to someone being sued in civil court later. This is what happened to O. J. Simpson after the murder of his ex-wife when he was sued in civil court. If he had been found not guilty in Scotland, it would have been a bar to the civil suit.

It is the authors’ opinion that explaining about verdicts in Scotland is a proper subject for voir dire because many jurors operate under the conception that if your client was there, he must have done something. A verdict of not guilty is not saying that your client had nothing to do with what happened; it is only saying that the state did not prove its case beyond a reasonable doubt—Scotland’s “not proven” verdict.

Empowering your jury also means asking the venire who disagrees with the Los Angeles jury’s verdict to find O.J. not guilty of his ex-wife’s murder. Invariably, there will be a number of hands that go up. Then ask whether any of them saw the entire trial, especially the testimony about the preservative that was put in the blood that was found in the Bronco and in O.J.’s room, how the police were unable to explain how that preservative got into the blood that they claimed to have found in those two places, or the many, many other problems with the State’s case. Since the jury in that case heard all of the evidence that was presented, only that jury had the right to decide whether the State did or did not prove its case beyond a reasonable doubt. Ask them, “Do they understand that no one has the right to question the jury’s verdict that the State has not proven its case beyond a reasonable doubt?”

Remember proof beyond a reasonable doubt is the ultimate measure by which a jury will decide your client’s case. For the jurors to better understand what proof beyond a reasonable doubt is, however, it is helpful for them to understand that it is the highest measure of proof required in our law, and how it is distinguished from other measures of proof—“reasonable suspicion,” “probable cause,” “substantial evidence,” “preponderance,” and “clear and convincing.” These measures are defined for the jurors as follows:

No evidence. No trace of evidence whatsoever.

Scintilla of evidence. Any evidence at all. Even the small­est amount of evidence. Whoever did this was alive. Your cli­ent is alive. That is a scintilla.

Reasonable suspicion. A reasonable suspicion is what a police officer must have in order to momentarily detain a per­son to question them about a crime or to do a pat down of their clothing should he believe the person is armed with a weapon. This measure of proof is more than a hunch or a guess. It requires “articulate facts,” i.e., the officer must state the facts that gave rise to his suspicion in order to make it a rea­son­able one.

“Reasonable suspicion” means the officer must be able to articulate something more than an inchoate and un-particularized suspicion or hunch.21 It requires some minimal level of objective justification for making the stop. U.S. v. Sokolow, 490 U.S. 1 (1989). This is the level of proof that a police officer needs to stop someone on the sidewalk and ask for identification.

Probable cause. Probable cause is what a police officer must have in order to make an arrest or search a person’s home or business. It is also the minimum measure of proof in order to allow a judge to issue a search or arrest warrant. Prob­a­ble cause concerns probabilities and is decided on an ob­jec­tive standard based upon the training and experience of the par­tic­u­lar officer making the arrest or search. Said another way, probable cause requires a reasonable person’s standard of proof to justify the officer’s actions in either arresting or searching—i.e., was it objectively reasonable for the officer to do what he did based upon what he actually knew and based upon his experience? The probable cause standard is necessary for a police officer to do a strip search of a person.

“Probable cause” concerns whether the facts available to the officers at the moment of the arrest would warrant a man of reasonable caution (alertness and prudence) in the belief that an offense has been committed. Probable cause also turns on whether, at the moment the arrest was made, the officers had probable cause to make it, and that is defined as whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent (wise in practical affairs) man in believing that the person had committed or was committing an offense. Beck v. State of Ohio, 379 U.S. 89 (1964).

“Probable cause” is also the level of proof required for 9 of 12 grand jurors to return an indictment. This is a good place to remind the veniremen that the indictment process is not unanimous and is on a much lower level of proof than required of them to convict your client. Not to mention the fact that defense counsel is not allowed into the grand jury, so no one is cross-examined.

Substantial Evidence. Substantial evidence does not mean a large or considerable amount of evidence, but rather it is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion of fact.” Lauderdale v. Texas Dept. of Agriculture, 923 S.W.2d 834, 836 (Tex.App.—Austin 1996, no writ) (quoting Pierce v. Underwood, 487 U.S. 552, 564–65 (1988)).

Substantial evidence is also more than a scintilla but less than a preponderance. Marker v. Finch, 322 F.Supp. 905 (D.C. Del. 1971) (more than a scintilla but less than a preponderance). Under the substantial evidence standard of review, an administrative decision may be sustained even if the evidence preponderates against it. Mireles v. Texas Dept. of Public Safety, 9 S.W.3d 128 (Tex. 1999). Since this level of proof is less than a preponderance, you might want to leave a blank step and fill it in after you explain preponderance.

The Levels of Proof chart that you can purchase from the National College for DUI Defense does not refer to substantial evidence. Until that is changed, we prefer to use the flip chart so that all levels are addressed. If you use the Levels of Proof chart, make sure you address the missing step with the venire. Make sure you also address proof beyond a reasonable doubt, since the Levels of Proof chart stops at reasonable doubt.

Preponderance. Preponderance is the measure of proof required in most civil court cases. It is sometimes referred to as the “51 percent of the evidence rule,” or the “more likely than not” rule. Here, the party to a lawsuit that convinces the jury by 51 percent of the evidence is the winner. This is the measure that is used to take money from one party of a lawsuit and give it to another.

“Preponderance of the evidence” as a standard of proof in civil cases means the greater weight and degree of credible evidence admitted in the case. The degree of proof that when taken as a whole shows that a fact sought to be proved is more probable than not. Lackey v. State, 819 S.W.2d 111 (Tex. Crim. App. 1991); see also Texas Pattern Jury Charge § 1.03.

For the preponderance of evidence demonstrative, we like to use two new reams of paper—unopened. Unwrap both reams and show them to the venire. Both have 500 sheets of paper and, if placed on the scales of justice, would be evenly balanced—not even proof by a preponderance. Remove one sheet from one ream. Ask the venire to look at both and how close they are. But they know that one stack only has 499 sheets, the other 500. If both stacks of paper were placed on the scales of justice, the 500-sheet stack would be heavier. That is a preponderance.

Clear and convincing. Clear and convincing is the measure of proof required in heirship determinations, termination of parental rights cases, involuntary commitment cases, and guardianship cases—a determination of a fundamental or property right. Also, it is the standard by which a jury’s right to impose punitive damages is measured. Our courts have defined this measure as the tier between the “reasonable doubt” standard and the “preponderance” standard. Here, the law requires that a fact finder be “clearly convinced” before it terminates a parent’s rights in their child, involuntarily commits a person to a mental health institution, determines that a person is an heir, or that a person no longer has the ability to take care of either their estate (business affairs) or their person.

“Clear and convincing” means that measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. This is an intermediate standard, falling between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. State v. Addington, 388 S.W.2d 569 (Tex. 1979); see also Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388 (“clear and convincing” proof standard is constitutionally required in parental termination proceedings); Texas Family Code § 161.001.

Reasonable doubt. Reasonable doubt is the standard/measure of proof in criminal cases. It is such a doubt as would cause a prudent person to hesitate before acting in matters of importance to themselves. This is the threshold above which the proof must rise in order to convict your client.

Proof beyond a reasonable doubt. Do we use this standard of proof in our everyday lives? Well, here’s two exam­ples that say we do.

First, it is the certainty that you would want before you unplugged a loved one from life support. As you raise your hand, ask the potential jurors who among them has ever had to be the person to make that decision. Ask one of the ones who raised their hand how certain they wanted to be when they made that choice. Remind them of the man who was in a coma for 19 years and came out of it.22 Remind them that in that case, the person would have been killed if life support had been discontinued at 18 years and 9 months, or even 18 years and 11 months. You want to be certain beyond a reasonable doubt because you know that if you guess wrong, you will have killed your loved one. That’s proof beyond a reasonable doubt.

Proof beyond a reasonable doubt is also the certainty that someone who is going to parachute needs before jumping out of a perfectly good working airplane.23 That person checks every square inch of the parachute and every inch of all of the lines, beyond a reasonable doubt. Watches the packing of the chute, every fold, every tuck, ever fastener, beyond reasonable doubt. Goes over the packed parachute, beyond a reasonable doubt. Up in the plane, he goes over it again beyond a reasonable doubt, and if there is a single thread out of place, he doesn’t jump. Only when he is confident, beyond a reasonable doubt, does he put the parachute on and jump out of that plane.24 Why? Because he knows, beyond a reasonable doubt, that if the parachute doesn’t work—beyond a reasonable doubt—he is dead.

Ask the jurors if they have any different meanings for what reasonable doubt means to them.25

Make an ascending staircase on a flip chart with these levels. The last stair is the one above reasonable doubt, the one labeled “Beyond a Reasonable Doubt.” Go back with a red highlighter, ask different veniremen what the verdict would be and write “not guilty” by each of the ones up to beyond a reasonable doubt. Do not have them answer what their verdict will be if they find proof beyond a reasonable doubt.

The Levels of Proof chart that you can purchase from the National College for DUI Defense used to have the last step labeled “guilty.” The new chart does not have a step labeled Beyond a Reasonable Doubt. There are lawyers who are still using the old Levels of Proof chart. We disagree with using the old chart or a strategy that writes the word “guilty” anywhere during your voir dire, or in omitting the step of Beyond a Reasonable Doubt. We don’t feel you should do anything in the voir dire to acknowledge guilt, but you should put that highest step before the jury. And if any venireperson asks you what goes on the last step, you know that person is too dumb to be sitting on your jury.

As to this portion of your defense, the levels of proof, whether in voir dire or during trial or in closing, we disagree with using a PowerPoint presentation. Why? Because it takes time to power up the monitor or projector and then you are not near what the jury is looking at. Conversely, if you use the flip chart or the NCDD chart, you are standing right next to it as you point to the level in question. You become the instructor, to whom the jury will come to look for guidance.

Accordingly, using the Levels of Proof, you can graphically and educationally walk the jury panel through the respective ascending levels (steps) of proof. Demonstrating these levels to the jury, we, as defense counsel, can make the jury visually understand that proof beyond a reasonable doubt is indeed the highest burden in our law.

Using these examples of “proof beyond a reasonable doubt” in an aggravated sexual assault case, we once got an assist from the judge during voir dire. To answer a potential juror’s question about the difference between clear and convincing and proof beyond a reasonable doubt, the judge explained the difference between beyond a reasonable doubt, clear and convincing, and scintilla by using our analogies. He said: “Beyond a reasonable doubt is how well you check you parachute before you step out of the plane. Clear and convincing is how well you check your wife’s parachute before you help her out of the plane. Scintilla is how well you check your ex-wife’s backpack before you shove her out of the plane.”

Gary Trichter, in his paper given to the National College for DUI Defense, advised that the Levels of Proof step-ladder chart can also be used during the cross-examination of the arresting officer in DWI cases. His recommendation was for the defense lawyer to use the graphic burdens of reasonable suspicion, probable cause, and reasonable doubt in the cross-examination of the arresting officer—i.e., the officer is asked if he understands those required levels of proof and whether he applied the reasonable suspicion and probable cause burdens in his decision process in your client’s case.

Unfortunately, far too many Texas judges have begun limiting defense counsel’s ability to present these levels of proof to the venire during voir dire, whether through the NCDD’s chart or counsel’s flip chart, Fuller, supra, notwithstanding. The authors’ experience is that these “judicial geniuses” will either ignore Fuller, or try to parse words as to your questions, or try to limit you on time.26 If you have the (mis)fortune of trying a case in front of one of these judicial misers and are unable to go through the levels of proof in voir dire, then use the flip chart during your cross-examination of the police officer and anyone else whom the State has offered as an expert. Of course, make sure you preserve the error in voir dire by asking for more time, presenting the questions you would have asked, asking for additional peremptory strikes, and making the objection as was done in Fuller, supra.

In his paper, Mr. Trichter observed that experience teaches us that in DWI cases, most police officers will testify that they did not form their opinion of probable cause until after they observed the very last intoxication fact, and that it was then they arrested your client. When this happens, leave it alone and don’t ask any more burden of proof questions. By doing so, you can argue in your closing that even accepting all that the officer said was true, by his own words he only had probable cause—a reason to believe, and that is far short of the required proof beyond a reasonable doubt required to convict. Of course, that also dovetails perfectly into arguing that if the police officer was a doctor telling you you need to unplug your loved one from life support, you’d definitely want a second opinion, wouldn’t you?

If the judge has prohibited you from using your flip chart in voir dire, use the flip chart during cross-examination and write down the levels of proof. Again, if you get the police officer to testify he did not form his opinion of probable cause until after he observed the very last intoxication fact and that it was then that he arrested your client, leave it alone and don’t ask any more burden of proof questions.27

If the State objects and the judge sustains the objection to this cross-examination, offer it by way of a bill of exception. If the judge denies you a bill of exception on this, you should have built-in reversible error.28 And if you are allowed to present it by way of bill, you should have preserved the error, assuming the judge does not change his ruling and allow you to cross-examine in this manner.

What if the State’s case rests upon the testimony of a witness who has problems “keeping the facts straight,” or if there are conflicts between the accounts offered by the various State witnesses? In such a situation, in closing, place you hand on your client’s shoulder and ask the jury to imagine that your client is their loved one who is on life support.29 And the witnesses are doctors who are telling them that it is hopeless; life support must be discontinued from their loved one. Remind them that their loved one might be like that man in Poland who was on life support for 19 years and came out of it.

Refer to the witnesses as the doctors who are telling you that you need to unplug your loved one from life support. Point out all of the inconsistencies and contradictions. Write them down on a flip chart for the jury to see. Then ask the rhetorical question, “In light of all of these inconsistencies and if you were the one being asked to pull the plug on your loved one’s life, you’d want to get a second opinion before pulling the plug, wouldn’t you?” Since reasonable doubt is such a doubt as would cause a prudent person to hesitate before acting in matters of importance to themselves, wanting a second medical opinion before deciding to pull the plug is reasonable and prudent. Then tell them: “That is reasonable doubt. The State hasn’t proven its case beyond a reasonable doubt and you must acquit.”

Lastly, using the Levels of Proof stepladder graphic allows you to deal with some of the State’s arguments in closing—even if you are not allowed to voir dire on the levels of proof, you can still use those levels of proof to argue for your client. It doesn’t matter that the evidence was “overwhelming”—that is not a level of proof. It doesn’t matter if there was “substantial evidence”—that is less than a preponderance. And it doesn’t matter if the evidence was “clear” or if it was “convincing” or if it was “clear and convincing.” All are less than reasonable doubt. Obviously, if the DA argues that there is overwhelming evidence of guilt, you should object and request the court to instruct the jury that there is no such level of proof recognized in law: Ask that the jury be instructed and move for a mistrial. If the DA argues that there is substantial evidence of guilt, you should object and request the court to instruct the jury that substantial evidence is a level of proof below a preponderance. Ask that the jury be instructed and move for a mistrial. And if the DA argues that the evidence is clear, or that it is convincing, or even if he argues that the evidence is clear and convincing, you should object and request the court to instruct the jury that clear and convincing is a level of proof below reasonable doubt, and move for a mistrial.

Are these techniques effective? Mr. Trichter’s well-deserved reputation in defending DWIs says that they are. But there’s even better proof available. One of the authors has a co-counsel who practices in Baltimore, Maryland—where the judge does all of the voir dire. After the author gave him the example of unplugging a loved one from life support, he adopted it and incorporated it in all of his closing arguments. Using this example, he was able to put together a run of over one year without any convictions.

You can be a more effective trial attorney. What is laid out in this article should help you reach that goal.

Notes

1. Much of this paper is based on the paper that J. Gary Trichter presented at the 2000 Summer Session of the National College for DUI Defense (NCDD) and on the Levels of Proof chart related to that presentation. Both the paper and the chart are copyrighted by NCDD and are available from it at its website, www.ncdd.com. To the extent that portions of that paper or the chart appear here, they are used with the permission of NCDD, for which grateful acknowledgment is made. Much of what is in this paper was also published in the June 2009 issue of The Defender, the quarterly publication of the Harris County Criminal Lawyers Association.

2. Vernon’s Ann.St.Const. art. 1, § 10; Florio v. State, 568 S.W.2d 132 (Tex. Crim. App. 1978).

3. Zavala v. State, No. 14-10-00286-CR, 2011 WL 5156843 (Tex. App.—Houston [14th Dist.] November 1, 2011), citing Sanchez v. State, 165 S.W.3d 707 (Tex. Crim. App. 2005); Sanchez v. State, 165 S.W.3d 707, 711–12 (Tex. Crim. App. 2005).

4. Fuller v. State, 363 S.W.3d 583, 585 (Tex. Crim. App. 2012).

5. Florio v. State, 568 S.W.2d 132, 133 (Tex. Crim. App. 1978).

6. You need to have copies of the cases, especially the ones set forth in the Levels of Proof, available so you can ask the court to take judicial notice of their holdings in the event the prosecutor objects to you instructing the jury on the law. Seldom is there anything better during a trial than to have the judge have to instruct the jury on a definition of law, especially when the DA has objected to the very definition that you have given them.

7. Florio v. State, 568 S.W.2d 132, 133 (Tex. Crim. App. 1978).

8. Centamore v. State, 632 S.W.2d 778 (Tex.App.—Houston [14th Dist.] 1982).

9. Cardenas v. State, 325 S.W.3d 179 (Tex. Crim. App. 2010).

10. Cardenas v. State, 325 S.W.3d at 184.

11. Id.

12. Cardenas v. State, 325 S.W.3d at 182.

13. Cardenas v. State, 325 S.W.3d at 183.

14. Fuller v. State, 363 S.W.3d 583 (Tex. Crim. App. 2012).

15. Fuller v. State, 363 S.W.3d at 583–584.

16. Fuller v. State, 363 S.W.3d at 584.

17. If you are denied the right to voir dire on the levels of proof, the authors would suggest that counsel also ask for additional peremptory strikes, enough to cover the entire venire, because you don’t know if any of the venire can hold the State to the proper standard.

18. Fuller v. State, 363 S.W.3d 583, 586 (Tex. Crim. App. 2012), citing Tex.Code Crim. Proc. art. 35.16(c)2.

19. A Ninja Loan was a type of subprime loan for housing issued to borrowers with No Income, No Job, and no Assets. No Income No Asset, http://en.wikipedia.org/wiki/Ninja_loan#No_Income_No_Job_no_Assets (last visited December 14, 2012).

20. The chart can be ordered from the NCDD at its website, www.ncdd.com. The artwork for this article is based on that chart, with the modifications suggested here.

21. “Inchoate” is a lawyer word, and it is a word of art. Unfortunately, most people’s eyes will glaze over when they hear it. We suggest that you substitute “not yet completed or fully developed, rudimentary or undeveloped” in its place.

22. The man was Jan Grzebska, in Poland. His case received international attention. http://www.foxnews.com/story/0,2933,277475,00.html (Last accessed December 14, 2012).

23. You may want to ask if any of the venire have ever parachuted, but we do not suggest you raise your hand as someone who has—even if you did it in the military. If one of the venire answers that they parachuted in the military, after thanking them for their service, have them go over all of the steps taken to ensure that the parachutes work perfectly—every time.

24. Yes, the authors know that the parachute is put on while on the ground. But someone else will have done it on board the plane. It is that last check to make sure everything is right.

25. Fuller v. State, 363 S.W.3d 583, 586 (Tex. Crim. App. 2012).

26. One of the motions that you should always go to trial with is a motion for more time for voir dire.

27. One of the hardest things to learn is when to shut up and sit down. Once learned, it is an invaluable resource.

28. Kipp v. State, 876 S.W.2d 330 (Tex. Crim. App. 1994).

29. This is not an improper appeal to sympathy. It is merely a metaphor.

Postscript:

After the article was submitted to TCDLA for consideration, Gary Trichter posted the following on the listserve. It seemed appropriate to include it with the article, so here is what Gary posted (with thanks, again, for his shared brilliance):

Thought I’d share a thought that might be of help in voir dire when discussing one of the Three Rules of Jury Decision making, “The Government’s Burden of Proof.” That said, I suggest you consider framing the issue with the following:

Thomas Sowell, syndicated columnist who writes on economics, philosophy, and politics, wrote, “It’s hard to imagine a more stupid or more dangerous way of making decisions than by putting those decisions in the hands of people who pay no price for being wrong.”

With that in mind, consider the following:

“Some say our law needs to be fair and equal. Our law mandates jurors to follow and apply the law in their decision process. Supposing we had a follow-up law that said where jurors failed to follow the law and wrongfully convicted a person who received the maximum punishment, that the jurors themselves would suffer the same punishment. How would you feel about a fairness law like that?”

Framed this way, the B of P can be defined as that level of mental surety the government must convey to fulfill its proof responsibility so as to convince jurors that they are safe from being harmed by their own decision.

My personal definition of B of P is this:

Burden of Proof—the government’s responsibility to make you feel absolutely certain you have not made a mistake in deciding whether a person should be subject to the worst or most severe consequence of being convicted of a crime and labeled a criminal.