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I am in jury selection in a capital case in which 5 separate robbery/murder cases have been consolidated.

The defense wants to ask the prospective jurors on voir dire, "assuming that several different murders were committed, and you convict on several different murders, what are your personal feelings about the death penalty in that situation?"

We have objected on Standifer/commitment questions, all of that. They are arguing that they want to ask it not to bind them to a particular result but to explore their personal feelings so to intelligently exercise their peremptory challenges.
We have, of course, argued that it is just a roundabout way of asking a commitment question. Judge is going to let them ask the above question, but then go no further.
We're on a 10 minute break before we get back, anyone got a handy case other than just Standifer? Thanks!
 
Posts: 280 | Registered: October 24, 2002Reply With QuoteReport This Post
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Since no one responded I'll take a shot. Here are a couple of cases that seems similar to your question:

"counsel stated that he wished to inform the jurors that the victim was a two-week-old child and to ask them 'whether that fact would have any effect on their verdict, whether it be on guilt-innocence or on punishment.'"

Freeman v. State, 74 S.W.3d 913, 915-16 (Tex.App. -- Amarillo 2002, pet. ref'd) (question properly disallowed).

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Questions were
1. Would the minimum length of time a defendant could serve in prison before he could be paroled be something you would want to know in answering the special issues?

2. On which special issue would this be important? How would this 40 year minimum sentence be important to you in answering the special issues?

3. Would you be more likely, or less likely, generally, to view a defendant as a continuing threat to society if you knew he could not be paroled for a minimum of 40 years?

4. What kind of evidence would you expect, as a juror, to help you in considering the 40-year parole ineligibility factor when answering the special issue?

* * *
These types of questions implicate the strictures imposed by Standefer against commitment questions and by Barajas against ambiguous questions.FN22 Appellant's questions all appear to be attempts, either directly or through ambiguously worded questions, to commit the veniremembers to giving mitigating or aggravating effect to the minimum parole eligibility requirement. Appellant's first proposed question-about whether a veniremember would want to know the minimum time a defendant could serve in prison before he could be paroled-is not strictly relevant to a juror's duties or any issue in the case. What the jurors wants to know is immaterial; the trial court will give jurors the proper information about the application of the law. The perceived relevance of the question stems from why a juror wants to know about parole law. This implied “why” question is ambiguous.*757 Does the prospective juror want to know minimum parole eligibility because that knowledge will foreclose honest consideration of the special issues or because that knowledge will have an impact on how evidence is evaluated with regard to the special issues? FN23 If the latter, the question is really designed to determine whether the veniremember would give, or to commit the veniremember to giving, mitigating or aggravating impact to the minimum parole eligibility requirement. Appellant's second and fourth questions invite the prospective jurors to set the parameters for their decision-making by determining to which special issues the parole eligibility instruction would be considered relevant, the mitigating or aggravating impact the instruction would have on the juror's consideration of the special issues, and what evidence would tend to accentuate or minimize the parole instruction's mitigating or aggravating effect. FN24 Appellant's third question directly seeks to determine whether a prospective juror will give the parole instruction mitigating or aggravating effect in the context of the future dangerousness special issue.

Sells v. State, 121 S.W.3d 748 (Tex. Crim. App. 2003).

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If the appellant's aim was to determine whether venire members would consider the victim's age in assessing punishment, it was an improper pursuit. The appellant may not seek to commit venire members to assess or refrain from assessing punishment on this basis.

Barajas v. State, 93 S.W.3d 36 (Tex. Crim. App. 2002) ("attorney tried to ask venire members if they could be fair and impartial in a case in which the victim was nine years old")

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Boyd v. State, 811 S.W.2d 105, 119 (Tex. Crim. App. 1991) (questions about factors that would influence verdict on death penalty was improper fishing expedition)

Other authorities include
43 Tex. Prac. § 35.43
and Matthew Paul did a CLE paper on Standefer
 
Posts: 527 | Location: Fort Worth, Texas, | Registered: May 23, 2001Reply With QuoteReport This Post
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The question is obviously designed to get the juror to agree to answer or refrain from answering the death penalty issue in a particular way based on a hypothetical set of facts. How is this not a commitment question?

Standefer itself said that asking jurors how they would feel about the death penalty in a case where the victim's family was greatly impacted was improper.

The question that he is asking is the equivalent of asking "Assuming at the punishment phase of a capital murder trial it was proved to you that the defendant had committed multiple murders, how would this affect your decision on the death penalty?" This is clearly a commitment question.

And the defense response does not answer the issue. Barajas v State, 93 S.W.3d 36 (TCA 2002)noted that a question is not proper simply because it helps a party "to intelligently exercise their peremptory challenges." If that were true, then commitment questions would be proper. So a commitment question objection cannot be met by simply stating that the purpose is for intelligent exercise of peremptories.
 
Posts: 622 | Location: San Marcos | Registered: November 13, 2003Reply With QuoteReport This Post
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