Hi, I'm a misdemeanor family violence prosecutor in Bexar County, and I just got my second not guilty in as many weeks. It's frustrating, because I believe that the reason the jury is not willing to convict is because the injuries are minimal (this one had slight bruising on the right shoulder from a flower vase). The problem is that I'm guilting them in voir dire and close by telling them that they must find guilty if they find any bodily injury, so I don't think they're willing to tell me that the reason they are acquitting is that they don't feel the injury is enough. Is there a more effective way that some of you out there know to MAKE THEM CARE about minimal injury? I'm not willing to not go forward on these cases, and these are the ones most likely to go to trial, so I feel like I have a long future of bad beats ahead of me unless I can figure out something better. Thanks

J Goss

Welcome to the club (no pun intended). These are tough cases. Sometimes you just get streaks of juries who don't follow the law even if they believe there was pain BRD. Sometimes they hang up on some other issue and decide NG for that reason. Many simply have a hard time dealing with he said-she said situations and sorting out who to believe.

What you can do is talk in voir dire, without guilting them, about the range of assaults, and ask them if we want the law to wait to step in to punish an assault only until after the victim has broken bones, massive contusions, has died, etc. Ask them why minimal injury (pain) is sufficient under the statute. Compare it also to class C assaults - even so much as an offensive touching is sufficient for a criminal conviction, and ask them why that might be. Find out during voir dire if they agree with those principles. Ask each juror within range individually if they believe BRD that there was some pain, if there were no marks, could they find the defendant guilty? Tell them it's ok if they feel that way, they just need to let you know NOW. Challenge those jurors who admit to it for cause because they have told you that they cannot follow the law and instructions the judge will be giving them.

Ask them if they've ever had a headache or stomachache (or had their hair pulled) and how visible it is to other people. Perhaps manifestations (e.g., scrunched faces, holding head/stomach, etc.) of those things might be evident, but the pain in the head or stomach itself is not. What manifestations of pain might a victim show when the injury itself is not externally visible? Sometimes crying, sometimes limping, sometimes holding that part of the body that hurts, etc. Does the fact that the injury/symptom itself is not visible mean that the pain is not there? Common sense goes a long way here.

I hope you don't get discouraged - the victims at least know you stood up for them and gave them their day in court. If you have some candid jurors, you can get more information after these trials about their thought processes. Just keep in mind every jury is different.

In today's CSI-based world, juries are very reluctant to convict in cases that are swearing matches. By that, I mean juries are very likely to acquit if the evidence is based on mere conflicting verbal testimony. This can be true even if the conflict in testimony is only developed through cross-examination and final argument of defense counsel.

We work in a time in which the words of a witness have little weight absent the corroboration of physical evidence and forensic science. So, if you want your jury to trust your witness and convict, you need to teach your police to collect evidence that gives you the tools to provide such corroboration.

Another good line of questioning that has been previously discussed in a family violence talk on here is make a chart showing how much violence is necessary before a citizen would call the police. Two different scenarios--one is between strangers and the other is the neighbors next door. Use a chart showing the build up of violence (shouting, cussing, threats, throwing things, slapping, punching...on up). Most people would call the police when a stranger threatens them or cusses and they are afraid.

You aren't going to get everyone to buy into your way of thinking, so don't try. You won't make them change their mind. You need to find the ones who would not call the police if they heard their neighbor getting strangled because it's a "family issue" and get them struck for cause. If you get people to admit to this, don't make them feel like you are judging them, get more people to admit to it and strike them, too!!! That's the hardest part, I think, is finding the bad ones politely while still promoting what you want your "wafflers" to keep in mind.

Good luck!

I have forwarded an email that I hope is going to help me with some upcoming family violence cases.

Also, you might take a look at this discussion.Domestic Violence