Michael Morton is probably the most well-known example, at least in Texas, of an innocent person spending decades in prison for a crime he did not commit. As we all know, in that case, there was a significant amount of prosecutorial misconduct—i.e., hiding favorable evidence—that led to the wrongful conviction. There have been many others, mostly due to prosecutors acting unlawfully, but also due to “junk science,” faulty eyewitness identification, or improperly admitted evidence. Those things are huge when they happen, but I believe there is an equal danger out there to the innocent accused—juror ignorance and apathy.
We all know this; we see it in every trial. I remember my evidence professor in law school saying that even though the burden of proof is on the prosecution, “If all you got is reasonable doubt to rely on, you’re screwed.” Jurors don’t understand the concept of beyond a reasonable doubt. And when they don’t understand it, they damn sure can’t apply it, and innocent people get convicted.
I used to spend very little time on burden of proof, presumption of innocence, beyond reasonable doubt, or right to not testify. Those topics were always kind of an afterthought to wrap up my voir dire. I pulled out that staircase poster and tried awkwardly to explain the clear and convincing level of proof needed to take away the kids vs. the higher standard to take away liberty. It was more important to talk about drinking habits, field sobriety tests, whether a child will lie about sexual assault, etc. Or so I thought. A few years ago some things happened that changed my thinking.
First, I tried a DWI case that I felt sure we would win. My client looked and sounded completely sober, and the breath test was only .10. I scored big with the technical supervisor, who admitted that his BAC could have been under .08 at the time of the stop. Everything was going as well as it could, and I was confident. The jurors went out to deliberate, and I walked across the street to a coffee shop with my client. We had just ordered when I got the call that there was a verdict. Well, of course, my confidence soared—they had only been out nine minutes! There was no way they could find him guilty in nine minutes, right? Right? You know where this is going—guilty—in nine minutes. I was floored, and by the way, so were the judge, court reporter, and bailiff. The only thing the jurors told us, as they rushed out the door: “The breath test was above .08. Once we heard that, it was kind of over.” I couldn’t figure it out, and chalked it up to having a stupid panel.
My very next trial, another DWI, was a little different. The jury found my client guilty, although they did spend a whopping hour in deliberations. Although I had felt pretty good about tearing up the lab guy, and bringing out some pretty significant errors that should have raised doubt about the blood test’s reliability, I knew it could go either way, and wasn’t too surprised at the verdict. After I spoke to the jurors, though, I wanted to throw up. The foreperson of the jury, a woman who had seemed to be with me all the way through voir dire, said, “We just thought that if you’re going to plead ‘not guilty,’ you should bring something to back that up.”
All I could say was: “Really? Like what?”
She didn’t know, but something. I thanked her for her feedback and quickly left. I was haunted for days, and the only thing I knew for sure was that 1) voir dire is indeed the most important part of the trial; and 2) I had to get better at it.
I began my next voir dire by telling the panel that story. I asked them why they thought it bothered me so much. I spent a little more time on presumption of innocence, burden of proof, what beyond reasonable doubt means, and the client’s right to not testify. This was a case I didn’t expect to win, and didn’t. It was a third-degree POCS, with the dope in my client’s wallet. We only tried it to “beat the deal,” which we did. However, several of the jurors told me they kept looking for a way to find him not guilty, but just couldn’t see it. I was satisfied that they were looking hard for it.
The next trial I did was a misdemeanor theft, plain-vanilla shoplifting. I spent even more time on these concepts. My client was in a store with two friends, and literally left holding the bag (with the stolen items). Not Guilty. Next, Assault/Family Violence & Unlawful Restraint—Not Guilty. Something seemed to be changing for the better. Of course, I had not used my new technique on a sexual assault case, yet. Here is where I believe we have to deal not only with ignorance, but apathy. Jurors sometimes have difficulty caring about the guy arrested for molesting kids. In fact, recently, the first question I have been asking when I stand up is, “If you were forced to choose, would you rather be him (the prosecutor) or me right now?” You know the answer.
Another lawyer asked me to help her with a Continuous Sexual Abuse of a Child (32) case, mainly to prepare briefs for the court on some good evidentiary issues she had identified. I sat with her also during trial, and while she did an excellent job on voir dire, she didn’t spend as much time on these issues. The jury hung, and the count was 11–1—for guilt. I was able to spend some time with the one juror who held out, and she confirmed what I suspected. When pressed about it, she said that most of the jurors admitted harboring doubts about his guilt, but felt there was enough “smoke” that they were okay with finding him guilty. This woman, who truly understood her duty, saved this man’s life. The case was retried, and the only significant change we made to our presentation was voir dire. We spent a lot of time explaining these concepts, but also then focused on whether it is more difficult to apply and follow these laws in a case involving sexual assault of children. Many people admitted they couldn’t do it. After about eight hours of deliberation, the jury returned verdicts of Not Guilty on all counts.
My voir dire has evolved to the point that I spend almost all of my allotted time on presumption of innocence, burden of proof, beyond reasonable doubt, and client testifying (or not). I will not go into the specific questions I ask, or how I explain things because it is different every time, but I begin by framing it just as I did in the beginning of this article—in terms of preventing wrongful convictions. Interestingly, I have had prosecutors ask in a motion in limine that defense not be allowed to discuss exonerations during voir dire. I inform the court that it is a regular part of my voir dire, and explain how I use it. I also ask that the prosecutor state the basis for the objection on the record, and so far they haven’t been able to articulate a basis except relevance, which is, of course, stupid. “Your Honor, how can the state say with a straight face that wrongful convictions are irrelevant to a criminal trial?”
We talk about whether it should be hard to find a person guilty, how the jurors imagine it might feel to return a guilty verdict—what might “beyond a reasonable doubt” feel like. How do they want to feel when they walk out of the courtroom at the end of the trial? Will they be able to walk out without any doubts or regrets? Who are they really here to judge—the state or my client?
I use just five slides:
I leave this last slide up for the remainder of voir dire, and I put it up during the entire closing.
This method is certainly not perfect, and does not always lead to the right result, but I believe it is at least helping. The last trial I did, this past August, was again, a continuous sexual abuse of a child. The jury hung 7–5—not guilty. Several of the “NG” jurors told me that they kept seeing the chart in their heads, and could not get past the “perhaps,” or “possibly guilty” level. That’s a win. Oh, and the state has decided not to retry the case.
I remain convinced that voir dire is the most important part of the jury trial, and I try to improve with each trial. I just wanted to share my experience in case it helps someone else, even a little.