There is a certain stigma that permeates sexual assault allegations. It’s an undefinable icky-ness factor. This is amongst the few categories of criminal allegations that even some criminal defense lawyers won’t touch. We all know, though, that not every sexual assault allegation is true and not every accused person is found guilty. The question, then, is how can we overcome the inherent stigma in sexual assault cases? It starts early. It starts with framing the issue of the case correctly. It starts with jury selection.
II. First Things First: The Law
Before any strategic discussion of jury selection particular to a sexual assault case can occur, it is imperative that we be familiar with the law governing jury selection, in general. Chapter 35 of the Code of Criminal Procedure governs jury selection. While it is prudent to read the whole chapter, the following articles are the most noteworthy:
A. Excuses – CCP 35.03
Sec. 1. Except as provided by Sections 2 and 3 of this article, the court shall then hear and determine excuses offered for not serving as a juror, including any claim of an exemption or a lack of qualification, and if the court considers the excuse sufficient, the court shall discharge the prospective juror or postpone the prospective juror’s service to a date specified by the court, as appropriate.
Sec. 2. Under a plan approved by the commissioners court of the county in the same manner as a plan is approved for jury selection under Section 62.011, Government Code, in a case other than a capital felony case, the court’s designee may hear and determine an excuse offered for not serving as a juror, including any claim of an exemption or a lack of qualification. The court’s designee may discharge the prospective juror or postpone the prospective juror’s service to a date specified by the court’s designee, as appropriate, if:
(1) the court’s designee considers the excuse sufficient; and
(2) the juror submits to the court’s designee a statement of the ground of the exemption or lack of qualification or other excuse.
Sec. 3. A court or a court’s designee may discharge a juror or postpone the juror’s service on the basis of the juror’s observation of a religious holy day or religious beliefs only if the juror provides an affidavit as required by Article 29.012(c) of this code.
B. Excused by Consent – CCP 35.05
One summoned upon a special venire may by consent of both parties be excused from attendance by the court at any time before he is impaneled.
C. Number of Challenges – CCP 35.15
(a) In capital cases in which the State seeks the death penalty both the State and defendant shall be entitled to fifteen peremptory challenges. Where two or more defendants are tried together, the State shall be entitled to eight peremptory challenges for each defendant; and each defendant shall be entitled to eight peremptory challenges.
(b) In non-capital felony cases and in capital cases in which the State does not seek the death penalty, the State and defendant shall each be entitled to ten peremptory challenges. If two or more defendants are tried together each defendant shall be entitled to six peremptory challenges and the State to six for each defendant.
(c) The State and the defendant shall each be entitled to five peremptory challenges in a misdemeanor tried in the district court and to three in the county court, or county court at law. If two or more defendants are tried together, each defendant shall be entitled to three such challenges and the State to three for each defendant in either court.
(d) The State and the defendant shall each be entitled to one peremptory challenge in addition to those otherwise allowed by law if one or two alternate jurors are to be impaneled and two peremptory challenges if three or four alternate jurors are to be impaneled. The additional peremptory challenges provided by this subsection may be used against an alternate juror only, and the other peremptory challenges allowed by law may not be used against an alternate juror.
D. Reasons for Challenge for Cause – CCP 35.16
(a) A challenge for cause is an objection made to a particular juror, alleging some fact which renders the juror incapable or unfit to serve on the jury. A challenge for cause may be made by either the state or the defense for any one of the following reasons:
- That the juror is not a qualified voter in the state and county under the Constitution and laws of the state; provided, however, the failure to register to vote shall not be a disqualification;
- That the juror has been convicted of misdemeanor theft or a felony;
- That the juror is under indictment or other legal accusation for misdemeanor theft or a felony;
- That the juror is insane;
- That the juror has such defect in the organs of feeling or hearing, or such bodily or mental defect or disease as to render the juror unfit for jury service, or that the juror is legally blind and the court in its discretion is not satisfied that the juror is fit for jury service in that particular case;
- That the juror is a witness in the case;
- That the juror served on the grand jury which found the indictment;
- That the juror served on a petit jury in a former trial of the same case;
- That the juror has a bias or prejudice in favor of or against the defendant;
- That from hearsay, or otherwise, there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as would influence the juror in finding a verdict. To ascertain whether this cause of challenge exists, the juror shall first be asked whether, in the juror’s opinion, the conclusion so established will influence the juror’s verdict. If the juror answers in the affirmative, the juror shall be discharged without further interrogation by either party or the court. If the juror answers in the negative, the juror shall be further examined as to how the juror’s conclusion was formed, and the extent to which it will affect the juror’s action; and, if it appears to have been formed from reading newspaper accounts, communications, statements or reports or mere rumor or hearsay, and if the juror states that the juror feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that the juror is impartial and will render such verdict, may, in its discretion, admit the juror as competent to serve in such case. If the court, in its discretion, is not satisfied that the juror is impartial, the juror shall be discharged;
- That the juror cannot read or write.
No juror shall be impaneled when it appears that the juror is subject to the second, third or fourth grounds of challenge for cause set forth above, although both parties may consent. All other grounds for challenge may be waived by the party or parties in whose favor such grounds of challenge exist.
In this subsection “legally blind” shall mean having not more than 20/200 of visual acuity in the better eye with correcting lenses, or visual acuity greater than 20/200 but with a limitation in the field of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees.
(b) A challenge for cause may be made by the State for any of the following reasons:
- That the juror has conscientious scruples in regard to the infliction of the punishment of death for crime, in a capital case, where the State is seeking the death penalty;
- That he is related within the third degree of consanguinity or affinity, as determined under Chapter 573, Government Code, to the defendant; and
- That he has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment.
(c) A challenge for cause may be made by the defense for any of the following reasons:
- That he is related within the third degree of consanguinity or affinity, as determined under Chapter 573, Government Code, to the person injured by the commission of the offense, or to any prosecutor in the case; and
- That he has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof or of the punishment therefore.
Be careful about using a peremptory strike outside of the strike zone, as a defendant who does so may not then complain about the harm of a juror within the strike zone who could have been removed instead. Comeaux v. State, 445 S.W.3d 745, 752 (Tex. Crim. App. 2014).
“To preserve error for a trial court’s denial of a valid challenge for cause, it must be demonstrated on the record that [defendant] asserted a clear and specific challenge for cause, that he used a peremptory challenge on that juror, that all his peremptory challenges were exhausted, that his request for additional strikes was denied, and that an objectionable juror sat on the jury.” Green v. State, 934 S.W.2d 92, 105 (Tex. Crim. App. 1996); Sells v. State, 121 S.W.3d 748, 758 (Tex. Crim. App. 2003). The procedure for preserving error on challenges for cause during the selection of an alternate juror should be the same. See Cooks v. State, 844 S.W. 2d 697, 721 (Tex. Crim. App. 1992). The erroneous excusing of a venire-member will call for reversal only if the record shows that the error deprived the defendant of an unlawfully constituted jury. Jones v. State, 982 S.W.2d 386, 394 (Tex. Crim. App. 1998). To say this is exceedingly difficult to do is a huge understatement.
Before a potential juror may be excused on the basis of bias or prejudice, the law must be explained to them, and they must be asked whether they can follow that law regardless of their own personal views. See Thomas v. State, 470 S.W.3d 577, 594 (Tex. App. – Houston [1st Dist.] 2015, aff’d, 505 S.W.3d 916 (Tex. Crim. App. 2016).
E. Absolute Disqualification – CCP 35.19
No juror shall be impaneled when it appears that he is subject to the second, third or fourth cause of challenge in Article 35.16, though both parties may consent.
“The list of enumerated reasons in the statute are not exclusive…and a prospective juror may be successfully challenged if the facts show that the juror is incapable or unfit to serve on the jury. A juror’s failure to truthfully answer questions put to him by the court may support a challenge for cause.” Matthews v. State, 960 S.W.2d 750, 753 (Tex. App. – Tyler 1997, no pet.).
III. Starting Early: Getting the Story
You can’t properly pick a jury in a sexual assault case without knowing your client. While there are some aspects of the law and sexual assault cases that will exist in every case, jury selection in sexual assault cases should be tailored to the particular facts and issues of the case, and to your client. So, preparing for jury selection in a sexual assault case starts the minute we first meet the client. As we listen to the client’s story, we need to begin thinking about the questions a juror would have so that we can be fully prepared to answer these questions later in the arena of the courtroom.
The very first thing defense counsel should do is interview the client and get the story. Find out who the witnesses are. Begin a timeline. Find out what (explicit or implicit) admissions or denials the client may have made to law enforcement or anyone else. Regardless of what admissions your client may have already made to law enforcement or others, we still have a duty to get the full story from the client and should. Getting the story from your client will also help you develop a list of witnesses. It is important to get the full story from your client, not just what happened in the minutes preceding the allegation. Who had been with or seen the client or accuser that day? In the days before? In all probability, law enforcement will not have talked to all the important witnesses in the case. Likewise, law enforcement may not have seen all the communications between the client and the accuser. Often, there is useful information in reviewing all the messages and/or posts available. What is the relationship between the client and the accuser? Attention to these questions, at the very least, lets you know and prepare for any traps ahead. Additionally, it might bring possible defenses to light.
The key is this: think early on about topics for jury selection. While there are topics of discussion that apply in every jury selection, no jury selection should be “canned.” This is even more true for sexual assault cases.
IV. Practical Considerations
In any discussion about jury selection, it is important to take into account certain practical considerations. For example:
- How does the judge handle challenges for cause? Does the judge require challenges to be made during voir dire at the time the challenge arises (which is really awkward but can often end up being beneficial) or are all challenges taken up at the end of voir dire outside the presence of the jury?
- Is the courtroom equipped with technology necessary for your devices? Do you know how to use the technology available in the courtroom?
- Will the judge allow questionnaires and/or do you want to use a questionnaire?
- Does the judge intend on seating an alternate juror?
- Will the judge impose any sort of time limit on jury selection? A note here: Sometimes there is discussion about judges impermissibly restricting jury selection. While judges cannot impermissibly restrict jury selection, this type of error is reviewed for abuse of discretion. Unless you are trying the case for appeal and/or you are absolutely certain you can preserve error correctly and get the case reversed for impermissibly restrictive jury selection, prepare to operate at least generally within any time limits imposed by the trial court.
V. First Impressions
Before stepping into the courtroom to pick a jury in sexual assault case, or any case for that matter, understand and appreciate that everyone makes first impressions, whether calculated or unintentionally, and we at the defense table are being judged and sized up from the start. It’s hard to shake a first impression but it can be done.
Here’s where it’s worth it to have a female on the team of lawyers. Often, the accused in sexual assault cases are males and the complainants are females. From an amateur psychology point of view, this author has observed that if jurors see a female defense lawyer genuinely getting along with the accused and advocating for the accused it makes him more likeable and acceptable, and any defense more palatable. Regardless of whether there is female lawyer on the team, be acutely aware of your body language and interactions with the accused. They are being scrutinized throughout and are as important as most evidence in the case.
VI. No One is For It
No one is “for” sexual assault or any criminal offense. It seems such an obvious thing that it shouldn’t even have to be said, but I find it’s worth saying and it’s worth saying in almost every kind of case – especially sexual assault cases. We are living in the #MeToo Movement. First thing, let the jury panel know that no one at the defense table – not me, not co-counsel, not our client – no one is supportive of, or okay with, sexual assault. It’s an obvious thing but the jury must be reminded and explicitly told especially after the State’s voir dire. Tell the potential jurors that sexual assault allegations should always be taken seriously and investigated thoroughly. However, when the evidence just isn’t there, or when it’s clear a sexual assault did not occur, the case should stop, and the accused should be cleared. That’s why we are here. Because client didn’t sexually assault the complainant.
VII. Embrace the Bad Answers
Prepare to hear bad answers. And by bad answers, I mean really bad answers—hateful, spontaneous comments. It’s a sexual assault trial after all. As much as some of potential jurors’ comments may make us cringe, remember the comment is from a potential juror. Take the comment or question as a gift. First, thank the potential juror for being honest. Second, make sure you question the potential juror (presumably about a bias or prejudice) so that they are properly challengeable for cause pursuant to Article 35.16(a)(10) of the Code of Criminal Procedure. See supra. Then, and most importantly, find out if there are other potential jurors who agree with the (outrageous) comment and challenge those jurors for cause, too. The bad answers are gifts. Thankfully, in a group of +/-70 there is usually another potential juror who will come to your rescue. If not, once you have identified and challenged all those unfavorable jurors, be prepared to pivot to another issue.
And importantly, prepare your client before jury selection that there will be bad, hateful comments made during the course of jury selection. Explain to your client that it is vitally important that you hear these comments and get these potential jurors excluded. Better they speak up than be sleeping lions on the jury.
VIII. Theme Begins Here
It is imperative that the theme of the case be woven seamlessly throughout the trial beginning in jury selection. Whether it’s a false allegation, a revenge allegation, or a bad investigation, the theme of your case should be apparent in jury selection through your statements and questions. This is where we first frame the issue for the jury.
For instance, the first question to reframe the issue after an hour of the State’s presentation could be “how does an innocent man get accused of sexual assault?” There may be silence for a few seconds. Do not be afraid of the silence. In a room of 70, someone will speak. Someone will come up with a real answer to that question. Then, loop that answer until the steam runs out. After all, our client is the innocent man. Then, in discussing the Fifth Amendment, perhaps ask “why might an innocent person decide not to testify?” Consider also asking: “how would an innocent person respond to an allegation of sexual assault?” Make the theme clear and carry it throughout jury selection.
IX. Answering the “Why” Question
In any sexual assault case—particularly child sexual assault cases—answering the “why” question is always an issue even though it’s a question that will never appear in the court’s charge to the jury. Why would a complainant make up an allegation of sexual assault against the client? It must be answered satisfactorily to win in a sexual assault case. Sometimes that’s an easy question to answer based on the evidence; sometimes it’s not quite so easy. However, it is always a good idea to ask the jury panel why a complainant—child or adult—would make an allegation of sexual assault that wasn’t true. Sometimes, the panel will give you something you hadn’t thought of before. Most often, though, the panel will hit on your theme. When it’s an idea from another juror rather than the defense lawyer, it’s more readily accepted. And, if the juror uses wording that’s a little different than what you have prepared in opening or questioning, rephrase to parrot the juror’s words back. Even if the potential juror doesn’t end up serving on the jury, the other jurors will recall that another of their own had come up with that reason therefore it must be reasonable. Make sure you ask the panel the “why” question.
X. Talking about Particulars
It’s easy to get caught up in the legalese of these kinds of cases. However, it’s important to remember what happens in real life. It’s important to reflect on your own experiences and those of your friends and family to have any barometer on what happens in real life. Understand, whether they speak about them or not, as they evaluate evidence, jurors will recall their own personal experiences.
For instance, if you know that the now-seventeen-year-old complainant will testify that she has been sexually abused since she was 12 years old and she has never before told anyone, it is important to ask the panel about teenage girls. Draw on your own observations and personal experience to think of questions. Do they [young teenage girls] talk to each other? What do they talk to each other about? Do they talk about personal things? Are they exposed to sex at school, on the internet, in song lyrics, and on TV? Do they talk with other teenagers about sexual experiences?
Or, in a delayed outcry of sexual assault in young adults, what’s it like to be in love so young? Is it an all-consuming, jealous kind of relationship? Has anyone ever had a bad break up or know of anyone who has? The last part of the question is important because a juror may not want to self-disclose but might want to talk about the experience. Has anyone ever been ashamed of something they have done or how they have acted when they were a teenager?
Prepare the jury for the insanity of circular reasoning that will inevitably occur when the SANE testifies. Sexual assault by history means that sexual assault occurred regardless of any physical findings. Both the presence and absence of medical findings indicate sexual abuse when there is sexual abuse by history. Ask the jurors why type of physical evidence they would expect to see in a sexual assault case. The panel will give you answers. They will expect to see something. Perhaps someone will say that there may be no physical findings.
XII. Impact of the Blasey-Ford and Kavanaugh Hearings
Many who watched the questioning of now Supreme Court Justice Brett Kavanaugh were disgusted by what they saw and heard. Regardless, something very good happened for defense lawyers in sexual assault cases as a result of those very public hearings. Anytime someone is acquitted of sexual assault—in a courtroom or in the media—it reminds the public that false allegations of sexual assault do occur. It reminds the public—especially in the he-said-she-said cases—why the presumption of innocence is so important. The accused is not required to prove that he or she did not engage in wrongdoing; in most cases it’s impossible to do. And, more is required to condemn than just a bare allegation, albeit one that is emotional. That’s certainly helpful to defense lawyers, and the Kavanaugh confirmation hearings brought that conversation to the forefront in a very public way.
XIII. Understand We Have the Edge, Then Listen and Be Prepared to Respond
We always lament that the State gets to go first and last in closing arguments. However, we have the distinct advantage in both jury selection and opening statement. We get to go last; we have the last word. And we should capitalize on this opportunity. These are early opportunities that shape the course of the trial. Confirmation bias is a real phenomenon (?) in psychology and cognitive science. Confirmation bias is the tendency to search for or interpret information in a way that conforms to, and confirms, one’s preconceptions. In trials, we often accuse law enforcement of engaging in confirmation bias or tunnel vision. Let’s not forget that, despite our best efforts, we all engage in confirmation bias. That means jurors do, too. The more compelling presentation or story, the more likely jurors are to accept it and thereafter subconsciously interpret evidence that confirms the story, while ignoring or rejecting evidence that casts doubt on it. That’s why it is vital to make the better jury selection presentation and better opening statement.
Also, while it is imperative that we be focused on our theme and presentation and even remembering the names of the potential jurors, it is even more important to listen when the State gives its presentation. It’s obvious (but not so easy) that we should listen – really listen – to the answers from potential jurors. It’s often more difficult to listen to what the State says. It can be easy to tune them out and focus on and refine our own presentations during that 45 minutes or so. However, to do so misses a prime opportunity. We should listen to the State and object when required, of course (i.e., commitment questions, etc.). But we should also be listening for things the State says that we can use later. Then, we must respond whether in jury selection, opening, questioning, or closing to what the State has said during voir dire. For instance, when the State uses the CSI example (trials aren’t like CSI; we don’t have the capabilities they have on CSI) to water down jury expectations, we can directly respond to that in jury selection and throughout trial about a real discussion about what evidence is available or would be available if the accusation were true.
Sexual assault cases are some of the most challenging and time-consuming cases. They are also some of the most daunting. But when you start early and frame the issue correctly, jury selection can set the stage for a successful result.