We have a case going to trial next week that is alleged as a first degree sexual assault under 22.011(f) of the Penal Code.

Has anybody tried one of these and have any voir dire suggestions I'd be happy to hear them. I just have this fear that we're going to bust the panel when we start talking about incest, consanguinity, and whether or not the jurors can consider the full range of punishment from probation to life.

This may be a stupid question, but is there any reason you *have* to discuss the relationship of the parties in voir dire, as opposed to simply discussing the range of punishment for the enhanced charge? In completely different situations (e.g., DWI 2d), we have to discuss the range of punishment as though the DWI was a class A misdemeanor, without letting them know that they only get that range if they believe beyond a reasonable doubt the enhancement is true. I would think a similar theory would apply. I also think that the definitions and abstract portion of the jury instruction will clarify for them everything they need to know about consanguinity.

Now, that being said, I think you can certainly ask in the context of their personal experience "has anyone ever been sexually assaulted, including incest?" without disclosing the facts of this case.

I might be able to help. first off, what are your facts, and elements?

John E. Meskunas

Jim and Gretchen:

I sent both of you e-mails laying out a few more of the facts as I don't want to post too much info on here with trial on Monday.

My concern is that if I completely abrogate any mention of consanguinity, the defense attorney tells me that he is going to discuss with the jury the many reasons that two people in Texas can't get married.

I hate to entirely cede the issue to him without some mention to the jury.

come up with the least offensive hypo that hits all of your elements. you just need to get them to say that there is a set of facts which they could consider probation. because they do not know the facts of this case, this is sufficient. then, if defense tries the flip side, argue to the judge that this can not be used "for cause", but only for peremtory strikes. the argument being that the defense is getting people to say they could not consider probation for a specific set of facts. the test is whether they can consider probation for the charge, not specific cases. if they can consider it in one case, they are good to go.

John E. Meskunas

Emailed ya back. Let me know what you think and how it goes.

Maybe I'm wrong but it looks to me like section (f) doesn't have a metal state requirement and you don't necessarily have to know that your victim was somebody whom you are prohibited from marrying. You could use Edipus Rex as an example, or talk about long lost first cousins who fall in love by chance.

You could turn the case around and say that the victim knew about their blood relationship. Say that she (I tend to assume the victim is female in these types of cases) lied about her age and never disclosed their blood relationship. Should make your true facts look all the more egregious too.