Voir Dire (2011 DWI College)
Content
“Another One Bites The Dust” Voir Dire In a DWI Case
Another One Bites The Dust: “Fall to the ground, dead or wounded.”
Biting the Dust
Preparing, Perhaps, to Bite The Dust
Bit The Dust
Also, Bit the Dust
GUILTY
The Right to A Jury Trial and to the Effective Assistance of Counsel
Sixth Amendment, U.S. Constitution
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury … and to have the assistance of counsel for his defense.
Art. I, Texas Constitution
Sec. 10. RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS. In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury… and shall have the right of being heard by himself or counsel, or both… .
414 SW2nd 668 (Tx.Cr.App. 1967)
De La Rosa v. State,
The right to be represented by counsel carries with it the right of counsel to interrogate the members of the jury panel to the end that he may form his own conclusion, after his personal contact with the juror, as to whether in counsel's judgment he would be acceptable to him or whether, on the other hand, he should exercise a peremptory challenge to keep him off the jury. He has such right also when his questions are framed with the view of challenging for cause. In each instance, it is within the province of the presiding judge to limit and control the examination; and, in so doing, his discretion is broad, but does not embrace the right to deny the privilege of having counsel examine the veniremen. When the effort is to lay a predicate for challenge for cause, the relevancy and materiality of the question propounded and the answer sought is important, in order that the trial court may intelligently rule, and the appellate court review. In ascertaining whether a peremptory challenge is to be used, the inquiry is intended to elicit information upon which the accused or his counsel may determine whether the privilege of arbitrarily excusing the juror shall be exercised.
Counsel’s Reasons for Voir Dire
To explore challenges for cause; To intelligently exercise preemptory challenges; and
To indoctrinate the jury.
Sanchez v. State, 165 SW3d 707 (Tex.Cr.App. 2005)
Jury Trials
A very enthusiastic juror that a lawyer might want to use a preemptory challenge on in a complicated DWI case…
The Role of the Judge
The trial court may impose reasonable voir dire time limits The amount of time allotted, alone, is not conclusive as to reasonableness Time limits are reviewed under an abuse of discretion standard
Wappler v. State, 183 SW3d 765 (Tx.App.-Houston, 2005
Why Do Some Trial Judges Impose Voir Dire Time Limits?
Viewing a DWI case as a whole, there are no time limits with respect to: The police officer’s investigation; Lab reports, if any; The D.A.’s review of the case; Time until the case is reached for trial; Jury deliberations; and Appeals
One Trial Judge’s Perspective on Voir Dire Time Limits
Collin County is the sixth most populous county in Texas Historically, Collin County’s six County Courts at Law tried more jury trials per court than any other Texas county; In County Court, I averaged approximately 70 jury trials per year I have never imposed voir dire time limits
If You Must, What is A Reasonable Voir Dire Time Limit In a DWI Case?
10 minutes is insufficient, Saucedo v. State, 2001 Tex. Lexis 1398 (op. unpublished) 15 minutes might be sufficient, Dhillon v. State, 138 S.W.3d 583 (Tx.App. Houston [14th Dist. 2004). 30 minutes is sufficient, Munoz v. State, 2009 Tex. Lexis 7475 (op. unpublished)
Voir Dire Time Limit May Be Reversible Error (Two Prong Test)
Did counsel attempt to prolong the voir dire? Was the question a proper question? That is, did the question seek to discover a juror’s views on an issue applicable to the case?
McCarter v. State, 837 S.W.2nd 117 (Tex.Cr.App. 1992).
Traps to Avoid
Defense counsel may not be precluded from asking voir dire questions solely because the trial judge or the prosecutor has already covered the issue. Mathis v. State, 576
S.W.2nd 835 (Tex.Cr.App. 1979)
If your time limit is reached and counsel requests to do so, let counsel state what questions she still needs to ask the panel. If the questions are proper, grant more time.
Wappler v. State, 183 S.W.3d 765 (Tx.App.-Houston [1st Dist.] 2005)
Techniques To Shorten Voir Dire and Not Be Reversed
Ask the atttorney on the record how much time she will need for voir dire. If an attorney says she needs 30 minutes, give her 45, but tell her that studies show that jurors stop listening after 20 minutes. Tell the jury panel that the defense usually does not take as long as the State because a lot of the material will have been covered by the State. (The defense attorney will subconsciously take less time.)
Expert Witnessing, Explaining and Understanding Science by Carl Meyer
Commitment Questions
Commitment questions are those questions that commit a prospective juror to resolve, or refrain from resolving, an issue a certain way after learning a particular fact. Standefer v. State, 59 S.W.3d 177 (Tx. Cr. App. 2001).
Commitment Questions
Question? Why are commitment questions so baaaad? Answer: Because studies show that jurors, usually being honest people who want to do the right thing, subconsciously believe that if they made a promise to a lawyer, they must uphold that promise.
New Techniques for Winning Jury Trials, by Dr. James
Rasicot
Proper and Improper Commitment Questions
A commitment question is proper if it tests a prospective juror’s ability to follow various legal requirements. A commitment question is improper if if the law does not require a commitment by the juror.
Examples of Proper Commitment Questions in a DWI Case
Judge Ray Wheless 366th Judicial District Court
2100 Bloomdale, Suite 30146 McKinney, Texas 75071 (972)548-4574 [email protected]
Another One Bites The Dust: “Fall to the ground, dead or wounded.”
Biting the Dust
Preparing, Perhaps, to Bite The Dust
Bit The Dust
Also, Bit the Dust
GUILTY
The Right to A Jury Trial and to the Effective Assistance of Counsel
Sixth Amendment, U.S. Constitution
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury … and to have the assistance of counsel for his defense.
Art. I, Texas Constitution
Sec. 10. RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS. In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury… and shall have the right of being heard by himself or counsel, or both… .
414 SW2nd 668 (Tx.Cr.App. 1967)
De La Rosa v. State,
The right to be represented by counsel carries with it the right of counsel to interrogate the members of the jury panel to the end that he may form his own conclusion, after his personal contact with the juror, as to whether in counsel's judgment he would be acceptable to him or whether, on the other hand, he should exercise a peremptory challenge to keep him off the jury. He has such right also when his questions are framed with the view of challenging for cause. In each instance, it is within the province of the presiding judge to limit and control the examination; and, in so doing, his discretion is broad, but does not embrace the right to deny the privilege of having counsel examine the veniremen. When the effort is to lay a predicate for challenge for cause, the relevancy and materiality of the question propounded and the answer sought is important, in order that the trial court may intelligently rule, and the appellate court review. In ascertaining whether a peremptory challenge is to be used, the inquiry is intended to elicit information upon which the accused or his counsel may determine whether the privilege of arbitrarily excusing the juror shall be exercised.
Counsel’s Reasons for Voir Dire
To explore challenges for cause; To intelligently exercise preemptory challenges; and
To indoctrinate the jury.
Sanchez v. State, 165 SW3d 707 (Tex.Cr.App. 2005)
Jury Trials
A very enthusiastic juror that a lawyer might want to use a preemptory challenge on in a complicated DWI case…
The Role of the Judge
The trial court may impose reasonable voir dire time limits The amount of time allotted, alone, is not conclusive as to reasonableness Time limits are reviewed under an abuse of discretion standard
Wappler v. State, 183 SW3d 765 (Tx.App.-Houston, 2005
Why Do Some Trial Judges Impose Voir Dire Time Limits?
Viewing a DWI case as a whole, there are no time limits with respect to: The police officer’s investigation; Lab reports, if any; The D.A.’s review of the case; Time until the case is reached for trial; Jury deliberations; and Appeals
One Trial Judge’s Perspective on Voir Dire Time Limits
Collin County is the sixth most populous county in Texas Historically, Collin County’s six County Courts at Law tried more jury trials per court than any other Texas county; In County Court, I averaged approximately 70 jury trials per year I have never imposed voir dire time limits
If You Must, What is A Reasonable Voir Dire Time Limit In a DWI Case?
10 minutes is insufficient, Saucedo v. State, 2001 Tex. Lexis 1398 (op. unpublished) 15 minutes might be sufficient, Dhillon v. State, 138 S.W.3d 583 (Tx.App. Houston [14th Dist. 2004). 30 minutes is sufficient, Munoz v. State, 2009 Tex. Lexis 7475 (op. unpublished)
Voir Dire Time Limit May Be Reversible Error (Two Prong Test)
Did counsel attempt to prolong the voir dire? Was the question a proper question? That is, did the question seek to discover a juror’s views on an issue applicable to the case?
McCarter v. State, 837 S.W.2nd 117 (Tex.Cr.App. 1992).
Traps to Avoid
Defense counsel may not be precluded from asking voir dire questions solely because the trial judge or the prosecutor has already covered the issue. Mathis v. State, 576
S.W.2nd 835 (Tex.Cr.App. 1979)
If your time limit is reached and counsel requests to do so, let counsel state what questions she still needs to ask the panel. If the questions are proper, grant more time.
Wappler v. State, 183 S.W.3d 765 (Tx.App.-Houston [1st Dist.] 2005)
Techniques To Shorten Voir Dire and Not Be Reversed
Ask the atttorney on the record how much time she will need for voir dire. If an attorney says she needs 30 minutes, give her 45, but tell her that studies show that jurors stop listening after 20 minutes. Tell the jury panel that the defense usually does not take as long as the State because a lot of the material will have been covered by the State. (The defense attorney will subconsciously take less time.)
Expert Witnessing, Explaining and Understanding Science by Carl Meyer
Commitment Questions
Commitment questions are those questions that commit a prospective juror to resolve, or refrain from resolving, an issue a certain way after learning a particular fact. Standefer v. State, 59 S.W.3d 177 (Tx. Cr. App. 2001).
Commitment Questions
Question? Why are commitment questions so baaaad? Answer: Because studies show that jurors, usually being honest people who want to do the right thing, subconsciously believe that if they made a promise to a lawyer, they must uphold that promise.
New Techniques for Winning Jury Trials, by Dr. James
Rasicot
Proper and Improper Commitment Questions
A commitment question is proper if it tests a prospective juror’s ability to follow various legal requirements. A commitment question is improper if if the law does not require a commitment by the juror.
Examples of Proper Commitment Questions in a DWI Case
Judge Ray Wheless 366th Judicial District Court
2100 Bloomdale, Suite 30146 McKinney, Texas 75071 (972)548-4574 [email protected]
