I'm about to try my first case with a habitual enhancement. I would appreciate some input on how to effectively cover the range of punishment during voir dire.
You have more than a right to voir dire on the punishment ranges--I think you have an obligation to those veniremen who may have moral or other problems assessing heavy punishment. It is terribly unfair to a juror who is told the max. the def. can get is 10 years, and who has no problem with such a sentence, to find out that in fact his min. is 25 years, and the max is life, and he cannot bring himself to give any where near the min.
1st I V.D. on the punishment range of the crime the def. is charged with. I ask: who here is not certain, that they could, in the proper case, sentence a man to the TDC for 10 years for POM over 5 lbs. but not more than 50 lbs.?
Then I ask the question in reverse: Raise your hand if you ARE CERTAIN you could, in the proper case, sentence a man to TDC for 10 years?
Anyone who can't give the max can be struck for cause.
Next, I state, "The law in Texas is--& I want to stress I'm not talking about this particular case, I'm just telling you what the law is on sentencing in Texas in ALL 3rd deg. felony cases. The law in Texas is, that a man convicted of a 3rd deg. felony--any 3rd deg. felony--his penalty range is increased to that of a 2nd deg. felony, i.e. 2--20 years TDC, if the State alleges, and proves at trial, that prior to the commission of the crime he's on trial for, he was finally convicted of a felony, and served time in the TDC.
"Again, I'm speaking hypothetically here, and not about this case. But who here is NOT CERTAIN they could, in the proper case, assess 20 years in the TDC for 3rd deg. POM, if it is shown the def. had previously had a final felony conviction? Raise your hand if you ARE CERTAIN you could give 20 years."
Anyone who can't, gets struck for cause.
Then I tell them, yet again, "I'm only speaking hypothetically here, and not about this particular case. But the law in Tex. is, if a man was finally convicted of a felony and went to the pen, and when he got out he committed a 2nd fel., which was also final, and he went to the pen, after which he committed a 3rd felony, for which he is on trial, and the state alleges and proves all the priors in that sequence, then if he is convicted of the 3rd felony, he is declared an habitual criminal, and the penalty range is 25--99 or life.
"Who here is NOT CERTAIN, that in the proper case, they could give 99 years or life in TDC for a 3rd deg. POM, if the State alleged and proved that the def. had been to the pen 2 times before he committed the crime he's on trial for?
"Who here IS CERTAIN that, in the proper case, they COULD give life or 99 years?"
The key is to make clear that you are not talking about the def. who sits before them, but you are just giving them a little lecture on Texas jury sentencing. And of course, you have to preface every question with "in the proper case" so that you are not committing them to the max in the case at bar.
You'll probably get a number of people struck who can not conceivably give the max, and that will help you have a more hard core jury. Also, when I've talked to jurors after such a trial, they always say once I started voir diring on enhancements, that they figured I wasn't just giving them an interesting law lecture, but that the def. must have prior convictions. That can't hurt you either.
If you want, email me and I'll email back a voir dire I've used that discusses hab. crim. penalty ranges.
thanks very much, and if you wouldn't mind emailing me that voir dire, that would be great
Does anyone still have this voir dire? I could use it.
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