I'm heading into jury trial tomorrow with a victim who does not want to prosecute, but will testify. I intend to voir dire on the issues surrounding this problem. My understanding is that if I can get a juror to committ that he/she would not be willing to find the defendant guilty, even after I've proven every element of the offense beyond a reasonable doubt, solely because the victim does not wish to prosecute; that juror could be challenged for cause. Does anyone have a case that supports that idea? (our judge would find the defendant not guilty for this very reason, so I need to support this challenge).

Why would her desire to prosecute be relevant in any way? Is this an assault charge?If the State can press the charges, without the victim, what is relevant about the victim's desires on the issue of guilt or innocence? Try a motion in limine ordering defense counsel not to bring out that fact until the counsel approaches the bench and irons out the relevancy.

Be sure to warn your witness of the motion in limine so she doesn't "volunteer" her opinion.

I'm planning to try the motion in limine, but I know from past experience with this judge that it won't work. This particular judge believes that the state should not press charges when the victim does not wish to prosecute. He would find the defendant not guilty (and has) for this very reason. So, I need to get a jury that won't decide the case based upon the victim's wishes. I would like to get the jurors who would agree with the judge off my panel for cause. Can you think of any support?

If the judge believes the defendant is not guilty because the victim does not wish to hold him/her accountable, why would the judge sustain a challenge for cause? The ground would have to be that the juror has a bias or prejudice against the law upon which the State is entitled to rely for conviction- namely that the desire of the victim as to the outcome of the case is legally irrelevant to deciding what happened and who did it. Relevance is related to the elemental facts of the case. Rankin, 974 S.W.2d 707. That a juror would state that they would be influenced by irrelevant evidence should be a valid ground for challenge. The converse was held to be a ground for dismissal in Decker, 894 S.W.2d 475 (bias against use of legitimate evidence). But keep in mind the "substantial impairment" test.