Has everyone mastered the means of asking for what you need to know without getting a Standefer or Barajasobjection sustained? Are you drawing up your questions ahead of time? Do cases like Lydia 81 S.W.3d at 492 shed more light, or just add to the confusion? Seems to me you can tie your question pretty closely to the facts of the case without asking a prospective juror to resolve the issue in a given way in light of the additional fact. Are the trial courts applying the new rules equally to defense questioning?

Matthew Paul, the State Prosecuting Attorney, at the TDCAA Annual Seminar in South Padre, provided the best explanation of those cases that I have heard. You should get a copy of his paper or call him. It actually made sense. I can't possibly repeat it again, but, at the time, it made sense.

If Lydia did not add any confusion, perhaps the fact that the CCA granted review in that case will. No one cares to answer any of the questions I originally posed? And no, I don't want to hear about any more nuns.

I think the problem is that Standefer and Barajas were not reversals of convictions. Thus, the defense has been slow to work with the precedents, and the trial courts have not paid much attention. The only time I'm hearing much about the cases is with regard to "one witness" questions.

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That seems to be the only question that I have had much trouble with during voir dire. It seems as if the defense can ask question after question that calls for a commitment, but the state better DAAARREE not ask anything even remotely broaching the "one-witness issue". Does anyone have any helpful solutions on a way around that...perhaps more artful ways of eliciting the one-witness bias from jurors than I do? Thanks

Judge Cochran explained at a cle that Standefer simply deals with the form of the question, not the topic you're questioning about. I'm an appellate lawyer and I've never conducted voir dire, but if I had to make an admittedly ignorant stab in the dark: "As we have discussed, the State has to prove the defendant guilty beyond a reasonable doubt. And we have to do it with whatever evidence we have, and that can vary dramatically from case to case. Sometimes, we might only have the testimony of a victim of a crime to prove our case. What do you think about that, Juror x?"

It isn't asking for a committment, and ties the one-witness theory to the burden of proof without stating it is a fact of the case. It might be objectionable as overbroad under Barajas, but Standefer is the bigger problem for us.

I invite all good trial laywers and voir dire experts to correct my ignorance and give us a good way to address the issue. One of the talented and gifted trial lawyers I work with would follow up the blank looks you get with my question with a rather elaborate hypothetical describing a one-witness crime, and continue to poke and prod after that. We're generally able to discuss the issue in this courthouse.

I often ask such a question as a hypothetical which assumes that the juror believes the State's sole witness's testimony has proven each element beyond a reasonable doubt, and then ask, who feels they would have to vote n/g? My question goes like this:

"Suppose the State calls only one witness to prove its case. And suppose you believe that witness knows what he is talking about and is testifying truthfully, and in your mind he has proven each element beyond a reasonable doubt. Who here feels that as a matter of law, the State should have to have more evidence than the testimony of a single witness, and would feel ethically bound to vote N/G, even tho you believed the State's single witness proved each element beyond a reasonable doubt?"

The only thing I'm asking the panel to commit to is finding the def. guilty if the State proves her case BRD. The State is entitled to jurors who will follow the law and find the D guilty if the State proves each element BRD, even if the juror would like more evidence, so I believe this is a proper committment question.

What do y'all think?

Terry, I think that type question should be permissible even if the high court decides differently. Have you successfully used the answer to the question to challenge anyone for cause? In theory you are testing the juror's qualification to serve, but Zinger, 932 S.W.2d 511 seems to have made many judges pretty reluctant to grant a challenge.

Terry, I also use your hypo at trial. Problem I have encountered is when the defense questions the prosective juror and gets the person to admit that he/she is having a problem with the assumption of believing the one witness BRD. Defense then argues that the issue goes to the prospective witness' concept/definition of reasonable doubt, and defense argues that since the jury will not get a definition of reasonable doubt, the prospective juror should not be struct for cause. Mixed results.

tschwab you are brilliant.

I use the hypo in every voir dire I do, and, at least in one of my counties, I usually get several weak Nellies struck for cause. I too, have had difficulty in conveying the idea of a hypothetical question to some veniremen, but so far they all eventually understand. If I had a venireman who simply could not comprehend the idea of a hypothetical question, I would move to strike him for cause under Art. 35.16 (5) CCP ("that he has such mental defect or disease as to render him unfit for jury service . . . .") A person that dull-witted simply has no business being on a jury.

However, I have never had a venireman claim he could not conceive of believing a single witness beyond a reasonable doubt. After all, jumbo jets loaded with hundreds of people take off or land on the say-so of a single air traffic contoller; trains move or stay put in their sidings on the say-so of a single controller; farmers plant or harvest their crops on the strength of a single weather-guy's weather report. Indeed, most everyday decisions are made on the say-so of a single observer.

Terry, are you saying you have actually challenged a juror as having such mental defect as to render him unfit? Obviously you made such challenge in the presence of the juror, but what about the rest of the panel? You have more guts than I could ever muster. That is not to say I haven't seen several jurors who I thought qualified . . . I just express my thoughts on the strike list.

In our jurisdiction after both sides have done Voir Dire to the panel, we get to talk individually to veniremen with whom we think may be strikeable for cause, while the rest of the panel is on break. If I want to strike a dim wit, I tell the judge at the bench, outside the hearing of the panel. Often I discover that a venireman brought before the court for individual voir dire for other reasons may not have the IQ to be a juror. But its also apparent to the court and the def. atty. & so I'm allowed to veer off into questions that test their mental abilities. We don't announce our motion to strike until the venireman has left the courtroom. I would never want to humiliate a venireman by discussing his lack of brain power in front of him or the panel. But we do discuss it in private at the bench, and we routinely get people struck because they are too slow to properly serve, or because their thought processes appear too disorganized to serve.

Jurors may be low paid, but the work they do, if they are going to do it right, requires a fairly high level of intellectual ability. The jury statute recognizes that, and I think prosecutors should try to weed out dim wits and mentally disturbed people from jury service.

The statute also requires of jurors that they be of good moral character. I've only gotten one venireman struck for a lack of good moral character. She was the mother of a crook who'd been on several felony probations and had done TDC time. I asked the panel to let us know if they or a family member, or someone they were close to had ever been arrested. (Again, I try to avoid embarrassment by telling the panel at the beginning of VD that they do not have to raise their hand when I ask the question; they can raise their hand later in VD, and indicate there is something they wish to tell us in private after general VD, but they do have to tell us if a question applies to them.) At the end of VD, as the panel was leaving to go on break, I noticed the woman and realized she was the mother of this crook. She never let on that she knew anyone who had been arrested, which I knew was a lie. I brought her up for invididual VD, and she admitted she was the crook's mother, but she didn't think she should have to answer my question. The court granted my motion to strike because she had lied under oath, and therefore lacked the good moral character necessary to be a juror.

We always ask the same questions regarding arrest conviction recordsfor the venire, their family or close friends. We regularly have people who do not respond and we ask for them to approach at the end of voir dire. We ask if they did not hear the question, or did not understand it, then if the case warrants challenge for cause. See Willis v. State - 936 SW2d 302 PDR ref'd. Never had a judge turn down a challenge for cause on this basis.

Terry: Nothing in the code seems to prohibit it, but it is a somewhat interesting idea to me that a juror may be challenged for cause outside his presence. It seems he is being deprived of any right to defend his ability to serve when the challenge is not known to him, but then a "proper examination" of his qualifications has presumably already taken place.

We recently had a case where the defense attorney wanted to make all of his challenges for cause outside the presence of the panel (after completion of the voir dire). He said this was proper because he intended to challenge so many persons that all the others would be influenced against his client just by the number of the challenges. This approach caused a problem for us because the panel had been excused, and in order to present any rebutting evidence we would have to go track down the challenged jurors. The defense attorney also did not make his intentions or plan clear ahead of time.

I am certainly going to think more carefully about raising challenges for cause in the future if it can be done without the risk of alienating the juror as you suggest.

Well, the ultimate outcome in Lydia is now old news, but the problem will continue to be with us. It appears how things are phrased will become an art within itself. Vrba

Standefer is more honored in the breach than the observance here in Tarrant County. Though unspoken, it seems the prosecution and defense bar (the older, experienced types at least) have come to agree that Standifer objections are saved for either the most egregious types of commitment questions or to knock your oponent off kilter if he or she is relatively inexperienced. The fact is that both sides want to know the answers to these questions. I do not think so-called contracting with the venire(man) can really occur. We are lucky if they remember 30% of what we say; the hope is that among twelve people, some combination will recall 80% or more. Poeple's life experiences and the world views those experiences produce won't be changed in an hour. The goal of voir dire is to
persuade, educate and test the juror's ability to follow the law on the one hand and to expose and rid yourself of nuts on the other.

On the subject of venireman mental prowess, I did successfully challenge a panelist for a lack of mental ability but it was during individual voir dire. When I informed the court that I had a challenge to make outside the presence of the prospective juror, the judge's glance told me she knew where I was headed and was at least sympathetic to the cause. The defense had some relatively complicated evidence to present as well and made no objection. I had to wonder how this poor lady found the courthouse.

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The way we do challenges here is by conducting the general voir dire first. Then both sides approach and identify jurors which they believe are challengeable for cause. If one side disagrees, then the judge will ask the person to stay in the room during the break. If we agree or the judge feels that the person is challengeable and cannot be rehabilitated, then the person is stuck from the list. Then the persons called come up one at a time and more questions are asked, after which they are told to join the others on break and the judge rules on the challenges. Bottom line is, none of the jurors know whether a challenge was for cause or not, or who made the challenge (although a juror with snap will no doubt figure it out).

I had a defense attorney ask each individual if they would look at the defendant and promise to him that they would give him a fair trial. I couldn't think of a good objection???? It was very effective -hung jury.It was an Agg Sexual assault of child and the Father never testified. How should I have objected? Could I have set a photo of my victim up and asked them all to promise they would give her a fair trial?Do you file a motion in limine to prevent any direct correspondence between the Defendant and the potential jurors??

Unfortunately, we haven't gotten to the point where the victim is entitled to a fair trial, so I doubt you'd get away with asking the jury to give her one.

I do think that it is inappropriate to ask the jurors to speak directly to the defendant, at least if he is seriously asking them to literally do it, as opposed to simply asking the panel as a group to promise the defendant they will be fair. I suppose it is the "look at him and promise him" business that bothers me. The prospective jurors should address their answers to the court or the lawyers, not the defendant.