I looked but couldn't find a discussion of this topic, so...
I have a DWI third where the SFSTs are all done in Spanish, including some admissions by the defendant. My handy dandy TDCAA book tells me I need to get it translated. The thing is, I'm wondering if I need to, as a practical matter. The officer can testify to his admission anyway, the strength of the video lies in his rolling eyes and nodding off in the patrol car. What he says doesn't matter and I can't think of any other reasons to get the audio in.
I'm pretty sure the law allows me to play the video without audio, so why don't I save the county some money and do that? (Money is a big deal here right now....)
The only concern I have: will the jury think I'm hiding something? Is there a way around that?!
During Voir Dire tell the jury you don't have unlimited funds and did not have the video translated into English. Tell them the law does not require the State to have the video translated into English.
Then ask them, "Who here feels that the law should be that the State has to translate the video into English?
"If the state proves each element BRD, but the DA's Office did not translate the video into English, who here would feel like they would have to vote NG?"
Then reverse the question. "Put another way: Suppose the state proves each element of the case to you BRD, but the state did not translate the video into English, who here is CERTAIN that they would vote GUILTY?--raise your hand."
In short, make them commit to voting guilty if the state proves its case BRD regardless of whether the video was translated or not.
That's right, it is a commitment question. You should always get the panel to commit to finding the defendant guilty if they believe the evidence establishes his guilt beyond a reasonable doubt.
You've asked them to commit to the notion that your untranslated recording won't provide a basis for creating a reasonable doubt. You've done a fine job of being crafty but it has the same result.
If at the conclusion of the case a juror cannot say that the State has proven her case on all elements BRD, he must acquit. Afterwards he could legitimately tell the prosecutor: I did not think there was enough evidence on the element of "X" to convict. Perhaps, if I understood what he was saying in the video, there would have been enough evidence, in which case I would have voted to convict."
What the question is designed to prevent is the scenario where the jury determines that the state has proven all elements BRD, but acquits because the video was not translated, and they think it should have been, because they were curious what the D said. That, in fact, would be jury misconduct, and it happens all the time. That is why I always get my panel to commit to convicting if the state proves her case BRD, regardless how many other issues go unanswered.
I would re-dub the tape to another one that has no sound. When you offer the video, you're offering the whole thing, video, audio, and all, whether or not it's played. Who's going to prevent the jury from turning on the sound in the jury room and having their own Spanish translator tell the rest of them what is said? Doesn't sound like that will hurt your case, but that would be the objection that I would anticipate.
On the voir dire issue, I'd qualify them on the general issue of guilty b/c BRD on all issues, but with questions that they would like answered. In situations like these, I ask them to commit to finding the guilty if they find our elements satisfied BRD and agree to ask any questions they're curious but that don't effect their BRD findings after the trial is concluded. I also commit myself to answering those questions at the conclusion of the trial. Usually, this consists of "Why didn't the police do..." or "Why didn't you ask the witness...".
"Commitment questions are those that commit a prospective juror to resolve, or to refrain from resolving, an issue a certain way after learning a particular fact." Standefer v. State, 59 S.W.3d 177, 179 (Tex.Crim.App.2001).
"[T]he inquiry for improper commitment questions has two steps: (1) Is the question a commitment question, and (2) Does the question include facts - and only those facts - that lead to a valid challenge for cause? If the answer to (1) is "yes" and the answer to (2) is "no," then the question is an improper commitment question, and the trial court should not allow the question." Standefer v. State, 59 S.W.3d 177, 182 (Tex.Crim.App.2001).
Yes, Alex, we're aware of the law. The question is how the law applies to this particular circumstance. I think that the question would be all right if very carefully phrased. It's really no different than the "one witness" question or stuff about scientific evidence. "Even if the State proves all elements BRD, would you still require us to [have more than one witness, introduce DNA evidence, anything not an elemental fact]?"
The key is to make sure that it's clear the prospective juror has found all elements already beyond a reasonable doubt, and THEN knock out any extra facts they might want but aren't actually required.
Posts: 1116 | Location: Waxahachie | Registered: December 09, 2004
It seems to me that the second part of the rule quoted above prevents piggybacking useful and interesting questions onto boring proper questions. I freely acknowledge that I could be missing the point, misunderstanding a term of art, or otherwise be ignorant of other important factors.
