I've got an upcoming trial in a horribly aggravated adult Agg Sexual Assault (with serious bodily injury and a deadly weapon)case in which the defendant is eligible for probation.
You can see where this is going....I'm quite concerned about our panel busting on probation eligibility.
I've got all the great hypotheticals we use for child aggravated sexual assault, but it's been a long, long time since I've had to attempt to qualify a jury on a really bad adult case (and this one is as bad as it gets), since most of those guys end up pleading or aren't qualified for probation anyway.
Anyone got any good "low end of the punishment spectrum" hypos you have successfully used in an adult case?
To demonstrate a more mitigated case, I always like to throw in a couple of elements:
1) the statute of limitations - use a hypo where the offense occurred as long ago as the statute allows, e.g. the case was filed almost 10 years after the fact. I usually use the example of how the victim tells a friend--not the police as per 2) below--years after the fact about what happened.
2) the victim is unwilling to prosecute - in the hypo the victim and the defendant now have a good realationship, for example, they are married and have children together, and there has been no violence between them. You could also add in that the victim is now dependent on the defendant for support.
3) switch the typical genders, i.e. the defendant is the female - it is certainly possible for a female to cause the male sexual organ to contact her own. Many people will have a hard time imagining a woman committing the crime against a man, but the whole point is to get the jury considering factual scenarios that aren't the most common types of crime. Also, you want them to stop thinking about what they would do to the guy in the courtroom, and if your hypothetical does not lend itself to putting him in that role, I think that helps.
4) By this point in the hypo, you may have jurors wondering how the defendant would even get convicted in the first place, so add in that the defendant pleads guilty, to avoid the victim having to testify, etc. The over-zealous prosecutor is demanding prison time, and the defendant is only asking for probation, not an acquittal.
Posts: 622 | Location: San Marcos | Registered: November 13, 2003
3) switch the typical genders, i.e. the defendant is the female - it is certainly possible for a female to cause the male sexual organ to contact her own. Many people will have a hard time imagining a woman committing the crime against a man, but the whole point is to get the jury considering factual scenarios that aren't the most common types of crime. Also, you want them to stop thinking about what they would do to the guy in the courtroom, and if your hypothetical does not lend itself to putting him in that role, I think that helps.
4) By this point in the hypo, you may have jurors wondering how the defendant would even get convicted in the first place, so add in that the defendant pleads guilty, to avoid the victim having to testify, etc. The over-zealous prosecutor is demanding prison time, and the defendant is only asking for probation, not an acquittal.
Nice!
Posts: 2578 | Location: The Great State of Texas | Registered: December 26, 2001
In the recent Leg session, Jessica's Law removed probation eligibility before the jury for sex crimes against children less than 14 years old. Next session, that needs to be expanded to all sex offenses. Why shouldn't adults get the same protection? And that would eliminate the games we have to play when picking a jury.
I began using a new explanation last week during an agg sex of a child trial with a probation eligible D.
The president. Any native born american over a certain age is "eligible" to be president, but very few are qualified. I used that to segue into a discussion about factors that make appropriate consideration for probation.
The defendant's attorney took great issue with that hypo, but it really got the discussion going. He wasted alot of his time in his voir dire reflecting on his opinion of that statement. Yes, I know that hundreds of thousands, if not millions of americans are on probation, and we only have one president and a handful of contenders every four years. Nonetheless, it seemed to stimulate discussion.
And our D got two life sentences, although probation eligible. Probably had something to do with the bad facts.
Posts: 2578 | Location: The Great State of Texas | Registered: December 26, 2001
I like that one. I heard a good one about jumping out of an airplane.
Imagine all you folks are sitting in an airplane. How many of you would be willing to jump out of that airplane? Ok, now, how many of you would be willing to jump out of the plane if you had a parachute? Ok, now, how many if you had a parachute and the plane was on fire? Now, then, how many of you would be willing to jump out of the plane if you had a paracute, the plane was on fire, and it was parked on the ground . . . You see folks, you don't know all the facts until you hear them . . . Now, how many of you could consider probation for a defendant convicted of aggravated sexual assault?
I hope I recounted that right.
Posts: 2138 | Location: McKinney, Texas, USA | Registered: February 15, 2001
I think I've come up with a great hypo, but I'm not posting it till Tuesday, for fear my defense attorney might be a lurker. Hate to spoil the surprise for him!
And I have used the jumping out of a plane hypo before, it is wonderful! Thanks for all the input.
Incidentally, as to Jessica's Law, another thing that sticks in my craw about the differences between adult and child cases is the fact that we can stack child cases from one trial but not adult. In my case set on Monday, had the victim been 6 months younger, we could have stacked hefty sentences up to the sky. But since she was a wee bit too old, we're going to have to do at least 2 trials to get to what we consider to be the appropriate punishment. I tried to point that out to the legislative types before this session but to no avail.
One of my trial partners years ago began covering the range of punishment in these kinds of cases before talking about much of anything else. If you are like me, you tend to talk about the elements and the burden of proof and such before you talk about punishment issues. She, however, decided that she would talk about hypothetical situations framing the range of punishment before talking about the elements from the indictment so that the jury would not have a preconceived idea of what the case was about after having heard the elements. It worked really well and we lost very few if any jurors. I've since used it in murder cases as well as child sex assault cases and any other case where I think my best jurors are going to have a problem saying they can consider the full range once they hear the nature of the case. Also, it tends to throw the defense lawyers off because they are not used to hearing the voir dire start off with a discussion about the range of punishment.
Posts: 36 | Location: Kaufman, Texas, USA | Registered: March 08, 2007
In my opinion, an adult victim's ability to explain the events of the crime will be much better than the child's. So the jury will be able to do a better job of determining the appropriate severity of punishment.
quote:Originally posted by AlexLayman: In my opinion, an adult victim's ability to explain the events of the crime will be much better than the child's. So the jury will be able to do a better job of determining the appropriate severity of punishment.
...and therefore the perpetrator who commits multiple rapes of a single person gets to put the victim through multiple trials or he gets automatic concurrent sentences? I'm missing your point, I think. The problem is not that the jury doesn't assess the right sentences, the problem is that in child cases, the defendant has to serve all of the sentences, in adult cases (unless you try them separately) he gets to serve just the longest sentence only (because he will be serving all the sentences concurrently).
I guess you could say that an adult should be better able to handle being forced to testify multiple times, but I'm sure there are plenty of folks who would take issue with whether it's any easier for an adult. They may understand it better, but it would sure be nice if we could try the perp once and be done without having to give him a free pass.
Posts: 622 | Location: San Marcos | Registered: November 13, 2003
Actually my point was not about concurrent sentences in general...
I was offering an opinion on the special rules for child victims.
quote:Jessica's Law removed probation eligibility before the jury for sex crimes against children less than 14 years old. Next session, that needs to be expanded to all sex offenses. Why shouldn't adults get the same protection? And that would eliminate the games we have to play when picking a jury.
There are several laws that provide what some would call "unequal protection" depending on some particular attribute of the victim. Hate crimes and capital murder are a couple of examples.
Sorry guys. Case pled on Friday so I'm afraid I won't be able to share my hypo. Might need in in my next aggravated sexual assault/kidnapping/attempted capital case. Although I sincerely hope not. Who knew the guy would take 5 life sentences with a 10k fine on each.....
And I was right, they do lurk. The defense attorney mentioned after the plea, "so I hear you had a new probation eligibility hypo to use on us."
Hint: The hypo was based on a "Desperate Housewives" episode from earlier this season. Any guesses?
I use that in most every jury selection involving a probation eligible defendant. I've gotten mixed results in a pretty difficult county. I'd love to hear another approach to the same idea, Lisa.
Might need in in my next aggravated sexual assault/kidnapping/attempted capital case. Although I sincerely hope not.
