We were trying to pick a jury. The client was charged with continuous sexual abuse of a young child. The judge was good enough to give each side an hour and a half for voir dire. The prosecutor started her voir dire by telling the jurors how smart she was and that her favorite police show was NCIS. When discussing the State’s burden of proof, she told the jury that the State did not have to prove its case 100%. I objected that the prosecutor was trying to dilute the State’s burden of proof. My objection was overruled. She continued this line of discussion by asking the jurors if they would require the State to prove its case 100%. I continued to object and continued to be overruled. I asked the judge for a running objection to the explanation and discussion of 100% proof. That request was denied, so I continued to object until the subject was exhausted and several jurors had committed to the State that they would not require the State to prove its case 100%.
The State continued with a normal voir dire for the State in these kinds of cases, including a discussion of the one witness rule. The prosecutor correctly asked the jurors whether they could convict a defendant upon the testimony of one witness, if the juror believed that witness beyond a reasonable doubt. The prosecutor’s explanation sounded right, but did not feel right. I made an objection that was overruled. The State found several jurors who stated they could not convict on the testimony of one witness even if they believed the witness beyond a reasonable doubt. By the time the State concluded its voir dire, it appeared that so many of the prospective jurors had disqualified themselves that it was unlikely we could seat a jury. I started my voir dire, and after ten minutes it became clear to the court and the lawyers that we would not be able to pick a jury from this group. The judge declared a mistrial and we all went home.
I found this experience frustrating and perplexing. I thought there were problems with the 100% analogy and the one witness rule explanation—that they effectively diluted the burden of proof of beyond a reasonable doubt. So, I did some legal research on proper voir dire questions and the “definition” of beyond a reasonable doubt. What I found was illuminating and encouraging.
1. “Beyond a reasonable doubt” cannot be defined.
For many decades, courts in Texas would not define “beyond a reasonable doubt.” In Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991), the Court of Criminal Appeals decided that “beyond a reasonable doubt” should be defined and approved the definition that had been employed in federal courts for many years. Thereafter, Texas courts explained “beyond a reasonable doubt” to juries during voir dire, and then gave jury instructions, employing the federal definition. This did not last long. A change in personnel on the Court of Criminal Appeals led to overruling that portion of Geesa v. State that required trial courts to instruct juries on the definition of beyond a reasonable doubt. Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000). The court held, “We find that the better practice is to give no definition of reasonable doubt at all to the jury.” Paulson v. State, supra at 573. Courts have continued to follow Paulson and hold that the better practice is to not define “beyond a reasonable doubt” at all. Woods v. State, 152 S.W.3d 105, 115 (Tex. Crim. App. 2004); Mays v. State, 318 S.W.3d 368, 389 (Tex. Crim. App. 2010); Fuller v. State, 363 S.W.3d 583, 586 (Tex. Crim. App. 2012); Johnson v. State, 263 S.W.3d 405, 418 (Tex. App.—Waco 2008, pet. ref’d); Steadman v. State, 262 S.W.3d 401, 408 (Tex. App.—Waco 2008), reversed on other grounds, 280 S.W.3d 242 (Tex. Crim. App. 2009); Ledet v. State, 2013 Tex. App. Lexis 5426, *7 (Tex. App.—Fort Worth, May 2, 2013, pet. ref’d).
A court does not abuse its discretion by charging the jury that, “It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution’s proof excludes all ‘reasonable doubt’ concerning the defendant’s guilt.” Woods v. State, supra, 152 S.W.3d at 114–115: see Wilder v. State, 111 S.W.3d 249, 253 (Tex. App.—Texarkana 2003, pet. ref’d); Steadman v. State, supra, 262 S.W.3d at 408; Bolen v. State, 321 S.W.3d 819, 827–828 (Tex. App.—Amarillo 2010, pet. ref’d). The foregoing language is not considered to be a definition of beyond a reasonable doubt. O’Canas v. State, 140 S.W.3d 695, 701–702 (Tex. App.—Dallas 2003, pet. ref’d); Bates v. State, 164 S.W.3d 928, 931 (Tex. App.—Dallas 2005, no pet.).
2. Counsel must be allowed to compare burdens of proof.
In State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979), the Texas Supreme Court held that the clear and convincing evidence standard of proof is to be “employed in those civil proceedings brought under state law to commit an individual for an indefinite period to a state mental hospital. Clear and convincing evidence is defined as that measure or degree of proof which 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.” The same definition of “clear and convincing evidence” is set forth in Sec. 101.007, Family Code. Clear and convincing evidence is also required to involuntarily terminate parental rights. Sec. 161.001, Family Code; Santosky v. Kramer, 455 U.S. 745, 102 S.Ct 1388, 71 L.Ed.2d 599 (1982).
I have never had a judge prohibit me from comparing the civil burdens of proof with the burden of beyond a reasonable doubt. It has seemed to be common practice for lawyers to employ that comparison. Some have incorporated the definitions of “reasonable suspicions” and “probable cause” into their explanation about burdens of proof. This seemed to be the norm—until a district judge in Dallas decided that when the courts said there was no definition of beyond a reasonable doubt, that meant there was no definition, even by saying what it is not.
According to this judge’s view, the State could not say that the burden was not beyond a shadow of a doubt, and the defense could not compare beyond a reasonable doubt to the lessor civil burdens of proof. That case, Fuller v. State, went to the Court of Criminal Appeals, which held it was error for a trial court to not allow defense counsel to explain and compare the various standards of proof in civil cases to the burden of proof of beyond a reasonable doubt and to tell the jurors that beyond a reasonable doubt is the highest burden of proof. The court stated this explanation is a necessary lead-in to asking jurors if they understand that proof beyond a reasonable doubt is the highest burden that we have in our legal system. Fuller v. State, supra, 363 S.W.3d at 588–589; Anderson v. State, 414 S.W.3d 251, 256 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d).
3. The requirement of “beyond a reasonable doubt” may not be diluted.
Explanations by judges and prosecutors to prospective jurors that equate proof beyond all doubt to 100% proof have been found not to be fundamental error. Muhammed v. State, 331 S.W.3d 187, 194 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d.); Alvarado v. State, 821 S.W.2d 369, 374 (Tex. App.—Corpus Christi 1991, no pet.). In Alvarado and Muhammed, there was not an objection by defense counsel to the use of the 100% analogy, so the courts were left to determine if that explanation was fundamental error. In Wilder v. State, supra, 111 S.W.3d at 253, defense counsel did object to the use of the 100% analogy, which was overruled by the trial court. The jury charge in Wilder included language that stated the prosecution was not required to prove guilt beyond all possible doubt, but was required to exclude all reasonable doubt concerning the defendant’s guilt. While stating that it did “not encourage the use of a percentage equation in describing the concept of beyond a reasonable doubt,” the court found that the statement by the prosecutor was not contrary to the jury charge and thus was not error. Id.
If the court or the prosecution says 100% means all possible doubt, that is not error. However, if the court or the prosecution says 100% means beyond all reasonable doubt and the State does not have to prove its case 100%, that is incorrect, and is error, because it dilutes the constitutionally required burden of proof. The Hon. Richard Mays, a retired district judge from Dallas, used to tell prospective jurors that the State must prove its case 100%, meaning that the State must prove each element of the charge beyond a reasonable doubt. If the State uses the 100% analogy, defense counsel should object that it is an incorrect statement of the law because it dilutes or reduces the State’s burden of proof. If the objection is overruled, ask the State to clarify what constitutes 100%. The 100% analogy risks confusing the jury and diluting the State’s burden of proof, and so should not be used.
4. A venireman whose personal threshold of beyond a reasonable doubt
requires more than one witness is not disqualified.
“Beyond a reasonable doubt” is what it means to the juror. A voir dire examination may not “suggest to” a venire member that he could require a different quantum of proof other than beyond a reasonable doubt. Goff v. State, 931 S.W.2d 537, 550 (Tex. Crim. App. 1996); Johnson v. State, 263 S.W. 3d 405, 418 (Tex. App.—Waco 2008, pet. ref’d 2009). “But each juror may properly form his personal threshold of reasonable doubt”—that is, “the type and amount of evidence a juror would ‘require to reach th[e] level of confidence’ of beyond a reasonable doubt.” Johnson v. State, supra, 263 S.W.3d at 418, citing Murphy v. State, 112 S.W.3d 592, 598 (Tex. Crim. App. 2003).
“[A] venireman who categorically refuses to render a guilty verdict on the basis of only one witness is not challengeable for cause on that account so long as his refusal is predicated on his reasonable understanding of what constitutes proof beyond a reasonable doubt.” Zinger v. State, 932 S.W.2d 511, 514 (Tex. Crim. App. 1996); Castillo v. State, 913 S.W.2d 529, 533 (Tex. Crim. App. 1995); Lee v. State, 206 S.W.3d 620, 623 (Tex. Crim. App. 2006). “[A] venireman who categorically refuses to render a guilty verdict on the basis of a single eyewitness may only be indicating that his threshold for proof beyond a reasonable doubt is somewhat higher than the minimum that the law recognizes as sufficient. Unless we are prepared to hold that jurors must always convict on the basis of legally sufficient evidence, we cannot say that such a venireman has a bias against the law . . . As long as the law permits a range of ‘reasonable doubt,’ the individual venireman who says he will hold the State to the high end of the range is not requiring anything that the law does not tolerate. 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 obligated to use one of its statutorily allotted peremptory challenges to remove him.” Castillo v. State, supra at 533.
It is the burden of the challenging party to demonstrate that the venireman he seeks to challenge is in fact incapable of, or at least substantially impaired from, following the law. Hernandez v. State, 757 S.W.2d 744, 753 (Tex. Crim. App. 1988). “[B]efore the trial court may sustain a State’s challenge for cause on the ground that the venireman will not convict on the testimony of a single eyewitness, it must be demonstrated to the trial court that the venireman’s categorical refusal is predicated upon something other than his understanding of proof beyond a reasonable doubt. Otherwise there is no indication the venireman cannot follow the law, and the State has failed to carry its burden to show the venireman should be excused.” Castillo v. State, supra, 913 S.W. at 534. Thus, for a State’s challenge for cause to be sustained on the basis of the one witness rule, the State must show the inability to convict on the testimony of one witness is not due to the juror’s personal threshold of beyond a reasonable doubt.
The prosecution has the right to determine if a juror can convict on the testimony of one witness in order to intelligently exercise its peremptory strikes or to determine if the juror is subject to a challenge for cause because the juror cannot follow the law. If the prosecutor or the court states or implies that a juror must be able to convict on the testimony of one witness, an objection should be made that this dilutes the burden of proof and because a juror’s individual view of proof beyond a reasonable doubt may require the testimony of more than one witness. Whether the objection is sustained or not, defense counsel should come back to the issue on his or her voir dire and explain that the need for more than one witness may be part of an individual juror’s personal belief about the meaning of beyond a reasonable doubt, and individuals who had previously said they could not convict on the testimony of one witness should be asked to clarify whether or not that is because more than one witness is necessary to satisfy that juror’s personal definition or understanding of beyond a reasonable doubt.
Now, in Texas, beyond a reasonable doubt is a range of proof that is greater than “clear and convincing evidence” and less than proof beyond all possible doubt, as determined by each individual juror. Whether this explanation is considered to be a definition, or not, is unimportant. What is important is that the prosecution and the courts not be allowed to dilute that burden by erroneous analogies or explanations. Hopefully, you will be able to use the foregoing to help provide an effective voir dire for your client.