Voir Dire &Cross Exam eBook

MARCH 2-3, 2023 The Whitehall, Houston, TX Available In-Person, Livestream, & On-Demand!

VOIR DIRE & CROSS EXAM COURSE DIRECTORS: Stan Schneider, John Hunter Smith, Clay Steadman, & Patty Tress

P: 512.478.2514 • F: 512.469.9107 • www.tcdla.com • 6808 Hill Meadow Dr, Austin TX 78736

VOIR DIRE & CROSS EXAM SEMINAR INFORMATION Date: Location: Course Directors: Total CLE Hours:

March 2-3, 2023 The Whitehall, 1700 Smith Street Houston, Texas John Hunter Smith, Clay Steadman, Stan Schneider, and Patty Tress 14.50 Ethics: 1.0

Thursday, March 2, 2023 Time CLE Topic

Daily CLE Hours: 7.25

Speaker

Ethics: 0

7:45 am

Registration & Continental Breakfast

8:10 am

Opening Remarks

John Hunter Smith and Patty Tress

8:15 am

1.0

Voir Dire 101

Jennifer Lapinski

9:15 am

.75

Theater of Voir Dire

Ron Estefan

10:00 am

Break

10:15 am

.75

Voir Dire Sex Cases

Jeff Kearney

11:00 am

.75

DWI Voir Dire

David Burrows

11:45 am 12:00 pm

Lunch Line 1.0

1:00 pm

Lunch Presentation: PowerPoints in Voir Dire Break Group A: Theater in the Courtroom | Bluebonnet A

1:15 pm

1.0

Group B: Voir Dire in Sex Cases | Bluebonnet B Group C: DWI Voir Dire| Cougar

2:15 pm

2:30 pm

1.0

Group C: Theater in the Courtroom| Bluebonnet A

Ron Estefan

Group A: Voir Dire in Sex Cases| Bluebonnet B

Jeff Kearney and Jennifer Lapinski

Group B: DWI Voir Dire| Cougar

David Burrows

Break Group B: Theater in the Courtroom | Bluebonnet A 1.0

Group C: Voir Dire in Sex Cases| Bluebonnet B Group A: DWI Voir Dire| Cougar

4:45 pm

Ron Estefan Jeff Kearney and Jennifer Lapinski David Burrows

Break

3:30 pm

3:45 pm

Jessica Canter

Ron Estefan Jeff Kearney and Jennifer Lapinski David Burrows

Adjourn

TCDLA :: 6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

VOIR DIRE & CROSS EXAM SEMINAR INFORMATION Date: Location: Course Directors: Total CLE Hours:

March 2-3, 2023 The Whitehall, 1700 Smith Street Houston, Texas John Hunter Smith, Clay Steadman, Stan Schneider, and Patty Tress 14.50 Ethics: 1.0

Friday, March 3, 2023 Time

7:45 am

CLE

8:10 am 8:15 am

9:15 am

1.0

Ethics

.75

10:00 am

Topic

Daily CLE Hours: 7.25

Registration & Continental Breakfast

Ethics: 1.0

Speaker

Opening Remarks

Clay Steadman and Stan Schneider

Cross of Snitches

Rob Fickman

Cross of Law Enforcement

Letitia Quinones

Break

10:15 am

.75

Cross of Complaining Witness

Lisa Greenberg

11:00 am

.75

Cross of Expert

Brent Mayr

11:45 am 12:00 pm

Lunch Line 1.0

Lunch Presentation: Cross Exam 101

1:00 pm

Break

1:15 pm

Group A: Cross of Law Enforcement| Bluebonnet A Group B: Cross of Complaining Witness| Bluebonnet B Group C: Cross of Expert| Cougar

1.0

2:15 pm

2:30 pm

4:45 pm

Letitia Quinones Lisa Greenberg Brent Mayr

Break

1.0

3:30 pm

3:45 pm

Michael Gross

Group C: Cross of Law Enforcement| Bluebonnet A Group A: Cross of Complaining Witness| Bluebonnet B Group B: Cross of Expert| Cougar

Letitia Quinones Lisa Greenberg Brent Mayr

Break

1.0

Group B: Cross of Law Enforcement| Bluebonnet A Group C: Cross of Complaining Witness| Bluebonnet B Group A: Cross of Expert| Cougar

Letitia Quinones Lisa Greenberg Brent Mayr

Adjourn

TCDLA :: 6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Voir Dire & Cross Exam Table of Contents speakers

topic Thursday, March 2, 2023

Jennifer Lapinski

Voir Dire 101

Ron Estefan

Theater of Voir Dire

Jeff Kearney

Jury Selection in Sexual Assault Cases

David Burrows

DWI Voir Dire

Friday, March 3, 2023 Rob Fickman

Cross Examining Rats and Snitches

Letitia Quinones

Going Through the Back Door with the Issue of Race in Voir Dire

Lisa Greenberg

Cross of Complaining Witness

Brent Mayr Michael Gross

Cross Examination of the Expert Witness Cross Exam 101

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Voir Dire & Cross Exam March 2-3, 2023 The Whitehall Houston, Texas

Topic: Voir Dire 101 Speaker:

Jennifer Lapinski Trial Consultant at Cathy E. Bennett & Associates, Inc. 217 S Stemmons Fwy Ste 203 Lewisville, TX 75067 972.434.5879 phone jl@cebjury.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Voir Dire 101

Jennifer Lapinski Cathy E. Bennett & Associates, Inc. 2300 Highland Village Dr., Suite 470 Highland Village, TX 75077 (972) 434-5879 jl@cebjury.com

Texas Criminal Defense Lawyers Association Voir Dire and Cross Exam March 2, 2023 Houston, Texas Page 1 of 36

INTRODUCTION No matter how many times you have conducted voir dire, truly great lawyers are always striving to learn new things and to better themselves and their craft. I have been fortunate enough to work alongside so many incredibly talented criminal defense lawyers and am constantly inspired by the work that they do so well.

This document is split into three sections: Before Voir Dire, Conducting Voir Dire, and Additional Voir Dire Tips. I have also included materials that you can print and use during voir dire. It is my sincere hope that whether you are about to try your first case or your 100th, that you find these tips, tricks, and tools helpful the next time you are picking a jury.

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BEFORE VOIR DIRE Great defense lawyers know that voir dire does not begin on the day you seat the jury. It begins from the moment you agree to take your client’s case. From thinking about the issues, to drafting a juror questionnaire, to knowing what to expect from your judge – all of that requires preparation well before the day of voir dire.

Start Preparations Early The time to start thinking about your voir dire is not as your trial date nears. The most successful criminal defense lawyers start thinking about voir dire as they learn the case, from their first client meeting up until the day of jury selection. Whether it’s a legal pad or your laptop, you should begin corralling ideas and drafting voir dire questions from the moment you accept your case. The method is not as important as consistency. If you start thinking about voir dire early and build it consistently over time, you will find as you near your trial date that you are fine-tuning your voir dire rather than preparing it from scratch. Remember, be consistent!

After you have set yourself up to start building your voir dire early, the next task should be to start what we refer to as your “fear list.” A fear list should identify any weaknesses in your case. In other words, if you lose the case, these are the reasons why.

This is not an academic exercise, but a critical part of preparing for trial. It is vital to address these early and add to your fear list as necessary. You cannot outrun the weaknesses in your case, you must deal with them, and it is how you deal with them that determines your success.

Once you have identified the weaknesses in your case, prioritize the items on your fear list. Which weakness is the biggest problem? Which are issues, but not as critical?

After prioritizing the weaknesses on your fear list, carefully go through them one by one.

If there is a way to fix that weakness, move on to the next. If there is no fix, is there another approach you can take? See if there’s another factual route to get to the same conclusion. If there’s a different road you can take to get to the same destination, then you will need to voir dire on that new road. After you have reviewed your prioritized fear list, start thinking about how to turn any remaining weaknesses into strengths.

If, come trial, you are still faced with one or more weakness on your fear list, always be up front with the jury about your weakness, and if possible, try to be the one who brings it up first. The jury will forgive just about anything as long as you are honest about it, and even more so if you are the one to tell them.

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Great criminal defense lawyers are honest not only with the jury, but also with themselves. Be realistic about the weaknesses in your case, address them head on, and do so early on so you can continue to gather information and ammunition to turn those weaknesses into strengths.

Decide the Goal of Your Voir Dire One of the first questions you must ask yourself is if you should conduct an elimination or education voir dire. In an elimination voir dire, your questions are focused on getting your unfavorable jurors off for cause. In an education voir dire, your focus is teaching your prospective jurors about the law or other concepts related to your case.

Although your voir dire will sometimes be exclusively focused on elimination or education, oftentimes it will need to be a combination of both. To determine where your focus should be, there are several factors to consider.

First and foremost is your case itself and the issues you must cover during voir dire. In a case with a straightforward fact pattern and few, if any, difficult legal concepts that require educating your prospective jurors, the focus will likely be on eliminating individuals who will require your client to testify, will convict on a lower burden of proof, or cannot consider the full punishment range. A more complicated case such as fraud or tax evasion, on the other hand, usually deals with complex legal concepts and technical terminology that are not common knowledge or easily understood and must be taught.

The makeup of your jury panel the day of jury selection can ultimately dictate the direction of your voir dire. If you draw a really great panel, it is not necessary to focus on elimination, and you can instead educate all those really great jurors about the issues in your case. On the other hand, if you happen to draw a really adverse panel, you have to lock and load on eliminating as many unfavorable jurors for cause as you possibly can.

Finally, the focus of your voir dire is also going to be somewhat dictated by whether or not you have a time limit. If you have unlimited time, you can structure your voir dire as a combination of both elimination and education questions as needed. However, if the court has given you only 30 minutes for attorney-conducted voir dire, you are almost always going to have to focus exclusively on elimination.

You also need to decide whether you are picking a not guilty jury or a punishment jury. A not guilty jury is one who believes, accepts, and would easily follow the judge’s instructions and the law with regards to the evidence and burden of proof. A punishment jury is one who believes, accepts, and would easily follow your suggestions on what an appropriate sentence is in your case. While each of these juries has its obvious benefits, we caution you not to try and select a jury that combines the two. Attempting to pick a

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jury with elements of both usually results in a blend of the worst of both worlds. This is why it is crucial to decide which type of jury is best suited for your case and develop your voir dire accordingly.

Juror Questionnaires More and more courts, both state and federal, are permitting the use of juror questionnaires. Regardless of whether the court has previously allowed questionnaires, please ask. Some judges have said that they have never used juror questionnaires and would be open to doing so, but no one has asked! You also cannot expect a judge who has never before used a juror questionnaire to allow it when the first time you ask is the day of jury selection. Remember, the worst thing your judge can say is no, but you will never know if you never ask.

You must start the process sooner rather than later, at least three to four weeks before trial. Keep in mind that you will need time to draft the questionnaire, send it to the prosecutor for their agreement, submit the questionnaire to the court for their approval, then coordinate the logistics of your jury panel completing the questionnaire prior to voir dire with the court. You simply cannot do all of that at the last minute.

When you draft the juror questionnaire, make sure that that questions are fair to both sides, proper, and are not argumentative or objectionable. Your questionnaire is unlikely to be approved by the court if you include questions that are argumentative or objectionable. The general rule is anything that is a proper voir dire question can be asked on the questionnaire.

Include a hardship question on your questionnaire. Your judge is much more likely to be convinced to take up hardships before voir dire if the jurors have already identified themselves and their hardships before voir dire has begun. Most judges also like a hardship question on the questionnaire because it reduces the likelihood of jurors educating each other on what to say to get excused. Your hardship question should also appear at the beginning of the questionnaire, with an instruction that the juror should complete the remainder of the questionnaire regardless of their answer.

Do not duplicate information that you will already have from a juror list or information from the jury summons. This information varies by jurisdiction. In some jurisdictions you only receive names, while in others you receive their name, age, education, employment, and more. Although it may be convenient for you to have all the jurors’ information in one place, you must look at it from the juror’s perspective. When

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you ask the jurors to answer the same questions again, they feel undervalued and unappreciated, which usually translates into less participation during voir dire.

Make sure you also include at least one scaled question on your juror questionnaire. Scaled questions ask your prospective jurors to select a number from a range in answer to a question, such as how strongly they agree or disagree with the law.

For example, asking prospective jurors to choose a number on a scale of 0 (Very Uncomfortable) to 10 (Very Comfortable) that best represents their level of comfort with giving full and fair consideration to the full range of punishment for someone convicted of murder.

There are three questions you should include on every single juror questionnaire, at or near the end of your questionnaire: (1) What three words or adjectives would you use to describe yourself?

Rather than asking the prospective jurors to select adjectives from a list, have them write down three words of their choice. By not giving the prospective jurors words to choose from, you gain valuable insight as to how each prospective juror sees themselves.

(2)

Please list the three people you admire most, and please list the three people you admire least.

The prospective jurors’ answers to these questions can tell you their political leanings, how much and what type of entertainment they enjoy or dislike by the actors or celebrities they name, if they are particularly religious, or if they are social activists. Their answers can also tell you if what is most important to them are their personal connections because they list family members as the three people they admire most and former coworkers, friends, or spouses as those they admire least. This can also be significant information to consider when you need the jury to bond with your client.

For example, if you have a client who is a devoted husband and father, but a prospective juror lists “Dad” as someone they admire least, you most likely do not want to take the risk of that person sitting on your jury. Someone who lists their father as someone they admire least usually has a good reason, and your client will start out behind with this juror simply because of the juror’s life experience with their own father.

(3)

A catch-all question Always include a catch-all question such as, “Is there anything else you feel the judge and the parties should know about you?”, “Is there any reason why you feel you could not or should not serve as a juror in this case?”, or Page 6 of 36

“Is there any reason you would be unable or unwilling to serve as a juror in this case?” Never use the words “fair and impartial”, as all that accomplishes is to increase the likelihood of getting a fair and impartial answer instead of an honest answer. The goal with this question is to give the prospective jurors an opportunity and option to tell you anything that is on their mind that might affect their service.

You should also make sure that there is an instruction of what to do if a juror wishes to discuss their answer privately. This can be as simple as instructing the panel that they have the option to write the word, “Private,” if they wish to discuss their answer privately with the judge and lawyers. Finally, you should always include a catch-all question at the end of your questionnaire in case there is something the prospective juror wants the lawyers, parties, and/or the judge to know.

Coordinate questionnaire logistics with the bailiff or court staff in advance.

Oftentimes the court will want to handle passing out and picking up the questionnaires without the parties’ participation for neutrality’s sake, but it never hurts to ask. Even if they decline, they will appreciate the offer.

Make sure you bring sufficient copies of the questionnaire, and always bring at least ten extra copies than you think you will need. You never know when the court may call extra jurors, one of the copies is missing a page, or someone spills a cup of coffee.

Make sure the jurors have a hard writing surface such as a clipboard or chipboard.

Jurors will write more if it is easier for them to do so.

Bring black ink pens that do not smudge, such as ballpoint. Felt tip and gel pens tend to smudge, even those marketed as “quick dry”, especially for left-handed jurors.

Make sure you have plenty of extra black ink pens—sometimes you get a dud when buying in bulk.

Bring someone to help you and have this person be in charge of the questionnaires. The only items in your hands during voir dire should be your notes and/or a seating chart. You can keep your notes on the questionnaire unless you have to return the questionnaires to the court at the conclusion of voir dire. The person helping you should have all of your copies of the completed questionnaires, and if you need it during voir dire, they should be able hand it to you quickly.

Your juror questionnaire needs to be consistent with the amount of time you have to review it. The general rule in your typical case is no more than a one-page juror questionnaire is necessary. That said, not all cases are created equal. Ask yourself these questions when deciding how many pages your juror questionnaire should be:

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•

How much time will I have to review completed questionnaires?

If you have a week or more to review completed juror questionnaires, then your questionnaire can be several pages in length. If you have an hour or less, your questionnaire should never be more than one page.

•

How many issues do I need to explore with the jury? If your case has a straightforward fact pattern, then a one-page juror questionnaire is probably all you need. If your case has multiple and/or complex issues, has received a great deal of publicity, or a long list of parties and witnesses to which the seated members of your jury should have no connection, then sometimes an extra page or two is simply necessary.

•

Are there any sensitive topics that should be on the questionnaire?

We know that jurors are already reluctant to speak up in a room full of strangers. Their reluctance increases exponentially if there are sensitive topics such as sexual misconduct, racial discrimination, or an issue that has recently affected many within the community. Jurors will often sit silently during voir dire on these topics simply because they do not want to describe their life experiences in front of others. They are much more likely to tell you about these same life experiences in writing.

•

Will the prosecutor and/or the court be more or less likely to agree to a questionnaire if it is multiple pages? While certainly not at the top of the list, you still should consider if submitting a long questionnaire to the prosecutor or the court will be an exercise in futility. We have seen long, thoughtful questionnaires rejected by the court simply because it was perceived as too lengthy. Right or wrong, the end result was that questionnaire was not used even though someone had clearly spent considerable time on it. In other words, know your audience, or ask someone who does.

•

Will the use of a longer questionnaire benefit the prosecution more than you? Longer questionnaires are not always better. There are instances when the use of a longer questionnaire provides you with more information, but also provides the prosecution with more ammunition to get your good jurors off for cause. Only you know your case and the prosecutor well enough to make this call, but oftentimes less is more. With few exceptions, you can do more with a shorter questionnaire than a longer one.

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Regardless of the length and format of your juror questionnaire, you should always include a cover page. The cover page should always include the following: •

•

•

•

•

•

Why we are asking prospective jurors to complete a questionnaire.

Always look at the process of jury selection from your prospective jurors’ point of view. They have waited to get through security, waited to check in with jury administrators, and waited to get to the courtroom. After all of that, they are now asked to complete a potentially lengthy juror questionnaire. You will virtually eliminate any pushback by telling the prospective jurors up front that the use of the questionnaire will shorten the process of jury selection.

An assurance to the prospective jurors that their information will be kept confidential. Especially in this day and age, people are protective of their personal information, and rightfully so. If it is the policy of your jurisdiction, tell the prospective jurors when and how the questionnaires will be destroyed.

General instructions. Always remember that this will be the first time many of your prospective jurors are reporting for jury duty. They need to know that their questionnaire must be completed by themselves with no outside help or influence, and their oath to answer honestly under penalty of perjury extends to the questionnaire.

What the prospective jurors should do if they do not understand or do not want to answer a question. Again, this is one of those things that prospective jurors will not know unless you tell them. Let them know they have a way to alert the court if they do not understand a question or would prefer to speak privately.

An instruction against conducting internet or other research, and the potential consequences if any prospective juror does so. It has become second nature to take out our phones and look up names and subject matters with which we are unfamiliar. Some will inevitably do it anyway, but if you want to greatly reduce the number of prospective jurors googling your case, instruct them that doing so will be subject to contempt of court charges and may be punishable under an Order from the Court.

There are no right or wrong answers, just honest answers. Do not instruct your prospective jurors that you are looking for “fair and impartial” jurors, otherwise you will get fair and impartial answers rather than honest ones. Instead, ask your prospective jurors to be honest.

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If you are lucky enough to have lots of time, you obviously want to thoroughly review every completed questionnaire. Unfortunately, most of the time you will only have 30 to 90 minutes, or over the lunch break, to review completed questionnaires. Since you asked the court before choosing the length and format of your juror questionnaire, you should already know how long the judge will give you to review completed questionnaires.

If your time is limited, look at all the questions and identify the question(s) that could identify a potential challenge for cause. Those can range anywhere from connections to the complaining witness, exposure to pretrial publicity, or an inability to consider the full range of punishment, to a reason why they cannot serve. Those are the questions which you need to look at on every questionnaire. Anything that goes to cause or hardship, review first, and review JUST those answers. Do not look at any other answers before doing this. Next, review the answers to your one or two most important questions. In every questionnaire, you have one or two questions that are “magic bullet” questions. Magic bullet questions are those that identify who you need to get excused for cause, who you should try to keep, and who you need to follow up with. At the very least, your “magic bullet” questions will tell you something important about that person. If you have time remaining, then look at the answers to questions such as the individuals they admire most and least, words to describe themselves, age, and education.

You also need to have a method with which to organize all this information. We are huge proponents of using the index card method because index cards are easy to manually manage. Whatever method you use, group similar answers together: potential cause and hardship answers, magic bullet questions, and, time permitting, other answers of note. Hardships and reasons for a potential challenge for cause should be notated without exception. With regards to magic bullet questions, these answers should only be notated if the answer matters. For example, you will want to know which prospective jurors have family members in law enforcement. There will be a consistent place on the index card, seating chart, spreadsheet, or whichever method you choose to indicate this.

For prospective jurors who do not have any family in law enforcement, leave that designated space blank. There is no need to use time and energy writing, “none.”

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Be Prepared Great defense lawyers are prepared trial lawyers. Know the law of your jurisdiction and case law, all local rules, and your judge and court personnel well in advance of voir dire. How many people will make up your jury panel? Will the judge impose a time limit on voir dire? How many peremptory strikes do you have? If applicable, how many strikes do you have for alternate jurors? Are strikes to the seated jury and alternate jurors done together or separately? When does your judge hear challenges for cause and hardships?

Does your judge hear challenges for cause and hardships in front of or outside the presence of the jury panel? What is your judge’s propensity for granting excusals for hardships and challenges for cause? Is it standard procedure for the court reporter to keep a record of voir dire, or is that something you must request in advance? You need to be armed with the answers to all of these questions before the day of jury selection.

Know Your Judge Knowing your judge is essential to a successful voir dire. Find out if your judge has any written rules or unwritten customs of their own. Watch a jury selection in their court.

Talk to someone who has tried a case recently in front of that judge for their insight.

Many rules, customs, and preferences are completely within the judge’s discretion. Some questions to keep in mind include: • Has your judge ever used a juror questionnaire? If not, do not let that automatically dissuade you from asking.

• Does the judge have any rules about visual aids, such as whether or not they can be used during voir dire or if you need to exchange with the prosecutor?

• Does the judge ask prospective jurors to stand or use a microphone when answering questions?

• Does your judge regularly impose time limits on voir dire?

• Does your judge typically handle hardship at the beginning or end of voir dire?

We strongly believe that the judge should do hardship first, before the lawyers’ voir dire. The judge has to qualify valid excuses and hardships from invalid ones and give the jury panel examples.

• Does the judge allow additional questioning for challenges for cause or do they rule based on the record?

• Does your judge handle hardships and challenges for cause in front of the panel or outside their presence?

• How much time will your judge give you to confer with your co-counsel and client on peremptory strikes?

• Does the judge have any particular preferences or pet peeves?

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Know the Courtroom Being prepared for voir dire also means being familiar with the courtroom. The best thing you can do is to be honest with yourself: even if you have appeared in this courtroom for pretrial hearings or other matters, have you really paid attention to its conduciveness to conducting voir dire? Probably not, because you were focused on the task at hand. Familiarize yourself with the layout and floor plan of the courtroom. Make note of where the jury box and counsel tables are in relation to the bench as well as the gallery. Is the furniture fixed or can it be moved? And if it is movable, be sure to get the court’s permission before you rearrange anything. Then, determine where and how the prospective jurors will be seated.

Courtroom technology is another critical item to familiarize yourself with prior to voir dire. What technology, if any, is already available for your use? Will the court allow, and is the courtroom able to handle, bringing your own? You do not want to bring equipment if the courtroom does not have adequate or available electrical outlets or space. You definitely want to test the technology before you stand to begin your voir dire.

Ask the court if you can do a trial run with the technology you plan to use during voir dire at a time where the courtroom is not being used. There are corresponding logistical issues to consider with the use of any courtroom technology. Wherever your prospective jurors will be seated, will they all be able to see the projection screen, or would more than one monitor on rolling carts be better for the space? Does your judge have their own monitor, or do they need a sightline to your projection screen? Even if the judge has a monitor, the projection screen should never block the view between the prospective jurors and your judge. You should also take note of what type(s) of audio equipment the court uses and/or has available. Does the court have devices to assist prospective jurors who are hearing impaired? Does the court use microphones for the lawyers at their counsel tables, at the podium, or ask the lawyers to use a wireless microphone during voir dire? Does the court ask prospective jurors to use a microphone when answering questions, and if so, how many will there be? Voir dire can go a lot slower if there is only one microphone.

It is nothing that you cannot handle, but it is all part of being prepared.

If there are microphones affixed to the counsel tables, keep in mind that they all may be on one master switch. Meaning, if the bench’s microphone is on, so is yours. Ask the court if your microphone can be disabled while you are not speaking. If not, be mindful of live mics!

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Know the Prosecutor Part of any good voir dire preparation is also knowing your prosecutor. Your goal should be to learn what to expect from the prosecutor, during both your voir dire and theirs. A great source for learning about prosecutors is to speak with other lawyers who have gone up against them in court. If possible, get voir dire transcripts from other trials.

When asking for feedback on a prosecutor’s voir dire, find out what they typically say.

Lots of lawyers have go-to openers and questions they always ask. Do they always open with a joke? If so, maybe work in, “. . . this is no laughing matter . . .” into your own introduction. Do they always reveal something personal about themselves? For example, many lawyers tell prospective jurors about their military service or their children. If you know the prosecutor does this, bring up your own personal anecdote. If the prosecutor has certain voir dire questions that they always ask, reframe a couple and incorporate them into your voir dire. Also ask about any habits or patterns. Do they always object midway through the defense lawyer’s voir dire to disrupt their flow? If you know this ahead of time, you’ll be ready if it happens and can arm yourself with a response, for example, “Your honor, we exchanged PowerPoints in advance per your request, and counsel had no objection at that time. I believe this is a proper question.”

The best way to learn how a prosecutor conducts their voir dire is to watch them pick a jury in another case. Do not send an associate or paralegal. You do not have to stay for the whole trial, but take the time to watch the prosecutor conduct voir dire. The information and insight you will receive is worth the time investment. Do not let the first time you personally see them conduct voir dire be right before you conduct yours.

Always assume that the prosecution has done the same homework on you. This is reason enough to not follow the same script every time you pick a jury, but this goes double in smaller jurisdictions. You never know when you might have a repeat juror! But with regards to the prosecutor, do not make it easy on them to anticipate your entire voir dire. If you are putting in the time and effort to get to know them, they very well may be doing the same.

Know What Information is Available About You and Your Client One aspect that should never be overlooked during your voir dire preparation is knowing what information is available to prospective jurors about your client, as well as about yourself. Always assume that prospective jurors are googling you and your client.

Prospective jurors are often left waiting for long periods of time with nothing to do. Even though they are instructed not to do any online research about the case or the parties, we know from experience that many do anyway. This goes double for any courthouse

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that offers free Wi-Fi. You must know what the search results contain to know what those jurors may see.

The biggest offender by far of unintentional oversharing, for both lawyers and clients, is social media. It is really difficult, if not impossible, for jurors to change their opinions of you and your client once they have seen your social media postings. If your social media accounts are not private, stop reading this and immediately set your social media accounts to the highest privacy settings available. Then, contact your clients. They should change their privacy settings, suspend their accounts, and under no circumstances should they post, text, email, or otherwise share anything about the trial. Advise your clients that, if they have concerned or curious family members or friends, the client needs to tell them thank you for their well wishes, but that their lawyer has advised them that they cannot share anything about the trial until it is over. Recognize that this will be harder for some clients than others. As an extra step, you must remind the client every night not to share anything about the trial until a verdict is reached.

Your law firm’s website is something else to consider. If prospective jurors are googling your name, it is likely one of the first search results listed. Like your social media presence, it is hard for prospective jurors to change their opinions of you once they have viewed your website. Keep in mind that prospective jurors will view your website with a completely different frame of reference than prospective clients.

Perhaps most importantly, be honest with yourself about your relationship with your client. Prospective jurors spend a lot of time waiting, and the ones not googling you and your client are watching while they wait. Prospective jurors watch other prospective jurors, the judge and court personnel, and the prosecutor, but they also watch you and your client. Always be mindful that every interaction with (or not with) your client will be noticed!

Practice Makes Perfect Practice your voir dire. The most successful trial lawyers always practice their voir dire in advance of jury selection. Practice by yourself as well as in front of others. If you know the court will impose a strict time limit, time yourself during your practice runs. No matter your experience, practice makes perfect.

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CONDUCTING VOIR DIRE

Bring Someone to Help You One of the most important and helpful things you can do for yourself is to have someone with you to be your eyes, ears, and scribe. Your job during voir dire is to get as many responses from as many prospective jurors as possible in order to effectively exercise your challenges for cause and intelligently use your peremptory strikes. Very few lawyers are able to accomplish this while simultaneously taking good notes, keeping track of those who qualify for a challenge for cause, and recording answers to scaled questions.

Having someone to assist you with jury selection is a game changer when you are able to focus solely on your voir dire.

Always Use Juror Numbers Use the prospective jurors’ names whenever possible, but always use their juror numbers. The only item consistently in your hands during voir dire should be a seating chart with the names and numbers of your prospective jurors. If you have the ability to memorize names, use it, but make sure you always use juror numbers as well. We recommend telling the jury panel at the beginning of your voir dire that while you may refer to each of them by their number, your intent is not to make them feel like a number, but saying their juror number really helps both the court reporter and the person assisting you, and you truly hope they understand.

Use laminated cards with juror numbers. Print juror numbers in bold font as large as the page will allow and have each page laminated. Bring these laminated cards with you and ask the court if they will permit their use during jury selection. The court can place them in each prospective juror’s seat and ask them to please raise their card rather than their hand when answering a question or asking to be heard. When jury selection is over, offer to leave them with the court. It is a small investment in future cases you try in that courtroom.

Speak Like a Person, Not a Lawyer Your prospective jurors know you went to law school and already assume you are a smart person. Some will not understand, and others will be unimpressed if you use complicated language when simpler words will do.

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Tell the Panel There Are No Right or Wrong Answers Before you ask your first question, let your prospective jurors know that there are no right or wrong answers. If you tell the jury panel you are looking for fair and impartial jurors, you are conditioning them to give you fair and impartial answers. Instead, tell them there are absolutely no right or wrong answers, only honest answers.

Use Visual Aids Using visual aids in your voir dire is an incredibly helpful tool. You must assume you have some visual learners on the jury, but in general we also know that people learn and recall information better if they are presented this information as images with text or verbal instruction. Even if your focus during voir dire is elimination rather than education, you still want your prospective jurors to understand your questions so they are able to intelligently answer whether or not they have a bias or prejudice. Not only do people better learn and understand concepts when visual aids are used, but the use of visual aids also helps the jury panel get and stay engaged.

If you are not at least using PowerPoint, Keynote, or similar during your voir dire, please start. Using programs such as these is an easy introduction to using visual aids during your voir dire. Using visual presentation software also helps with asking scaled questions much more smoothly, as you can display the question and the scale from which the prospective jurors should answer. Another benefit of using visual presentation software is it can double as your outline to help you stay on track.

The one caveat about using visual aids in your voir dire is this: if you are not accustomed to doing this, do not let your next trial be the first time. Meaning, practice your entire voir dire more than once with the visual aids before you use those visual aids in court.

The following are some basic do’s and don’ts with regards to using any type of visual presentation software during your next voir dire.

DO prepare your slides, but DON’T assume your judge will allow you to use them.

If your judge says you cannot use one or more of your slides, you have to be ready and able to adjust your slide or do without that question.

DO include proper questions, but DON’T try to sneak in objectionable questions.

It is not helpful to you if your judge disallows your PowerPoint because of one objectionable or improper question. That said, the general rule is if your question is a

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proper question, then it is equally proper to have it appear on a PowerPoint slide. In other words, if you can say it, you can show it.

DO use your slides as your outline to help you stay on track, but DON’T read your slides to the jury.

DO print and bring three copies of your PowerPoint deck (one for your judge, one for the prosecutor, and one for yourself), but DON’T email or share your PowerPoint with the prosecutor prior to the morning of voir dire (unless, of course, the court requires you to do so).

DO have a slide for each scaled question, but DON’T have a slide for every single question. Asking scaled questions to your entire panel go a lot smoother when the panel members can see the answer choices and the question on your slide.

DO use layman terms rather than legalese whenever you can, and DON’T assume spellcheck will catch all typos.

DO limit the number of slides in your presentation, but DON’T limit yourself unnecessarily. In general, limit the number of slides to twenty or less. That said, use your best judgement if you have a lot of issues to cover. Just do not design a presentation to have fifty or one hundred slides. The reality is you will lose the interest of the jury panel if you have that many slides.

DO get creative, but DON’T assume your presentation will translate from computer screen to projector screen. Test your presentation with a projector in the courtroom or in conditions as close to those in your courtroom as possible. View all your slides from all angles (far away, close up, etc.). Is the text size large enough? Do colors remain true on the slide once the slide is projected?

DO use color to emphasize certain words or phrases, but DON’T use yellow as a text color. Yellow text almost never works once projected. If your goal is to draw the panel’s attention to a particular item or text on your slide, black text that has been highlighted almost always looks better on a screen than yellow text.

Internet Searches of Jurors Unless your jurisdiction or judge expressly forbids it, an internet search of your jury panel is another useful resource. Internet searches and social media can tell you what is important to your prospective jurors, their political affiliation, involvement with their community, religious affiliation and/or church memberships (which can be particularly helpful in smaller jurisdictions, as several of your prospective jurors may

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attend the same place of worship), and whether they have children or pets, as well as their hobbies and leisure time activities. An internet search of your jury panel can be accomplished by a member of your trial team or law office, by your investigator, or there are companies that offer large-batch internet searches as one of their litigation services.

There are a few important things to remember when performing an internet search of your jury panel. While companies who regularly perform such searches likely ensure the following as a matter of standard procedure, it is still worth mentioning whether your internet search is performed by a litigation services company, trial consultant, your investigator, or if you perform the internet search in-house: • Do NOT, under any circumstances, communicate with the prospective jurors. This includes direct messages, posts on their social media pages, or even “liking” one of the prospective juror’s posts. This can be viewed by the court as improper communication with a juror.

• If a prospective juror’s social media accounts are private, do not send any type of friend request or otherwise request access to view their account.

Again, this is improper communication.

• Before the internet search begins, have the person conducting the internet search sign out from all their social media platforms or use a computer on which no one has or could sign into their social media accounts. Most social media platforms have the ability for the user to see who has been viewing their accounts. While technically not improper, you run the risk of the juror viewing it as a violation of privacy if they know you or anyone connected to your firm has been looking at their social media presence, so it is best avoided.

• Know the court’s position on internet searches of the jury panel. Some courts require that you disclose that you have performed such a search not only to the prosecutor and the court, but also to the jury panel. If the court requires that you disclose an internet search to the panel, our position is you are better off not performing one at all.

Regardless of who performs the internet search, make sure you think about what type of information will be most useful to you, and ask the person or company performing the search to limit their search to those topics. For instance, we know that people generally like people like themselves. What information can you find out about the prospective jurors that is similar to your client, key witness(es), and/or your expert(s)?

Biases towards or against certain groups or issues can also be discovered through an internet search. For example, if your client is a police officer, it would be very helpful to know which jurors “like” posts about Defund the Police and which “like” Back the Blue posts.

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Lastly, your search results will not be helpful if they are overly broad or contain so much information that you just do not have time to absorb it all. Ask the person or company performing your internet search to give you the results in the form of a onepage summary for each juror.

Types of Voir Dire Questions There are three main types of voir dire questions: Open-ended, Closed-ended, and Scaled. All three are valuable types of questions but serve different needs.

Open-ended questions are truly wonderful in that you learn so much about your prospective jurors. Unlike yes or no questions or multiple choice, open-ended questions give your prospective jurors the opportunity to tell you how they feel in their own words.

To use open-ended questions most effectively, limit them to your most important topics.

The downside of open-ended questions is that unfortunately they take the most amount of time in practice. The reality is, if you have a very short time limit, asking a lot of open-ended questions may take more time than you have. Consider a panel of sixty prospective jurors and a 30-minute time limit: in this scenario, that only allows each prospective juror 30 seconds to answer one question. Obviously, that is not the best use of your time. However, asking an open-ended question such as the following examples to someone who has been silent is a great way to learn something about that person, even when navigating a short time limit: • What is your opinion about the criminal justice system?

• When you saw [Client’s name] and heard the charges against him, what was the first thought that came to your mind?

• In your opinion, is there a benefit to the community to sentencing a first-time offender to probation instead of prison? Why or why not?

Another way to effectively use open-ended questions is on a juror questionnaire.

Try to include at least one or two open-ended questions in your juror questionnaire. This is particularly important if your time to conduct voir dire will be limited, but it is an effective use of open-ended questions even if you have unlimited time. This way you get feedback from your entire panel on one or two of your most important topics before you ask your first voir dire question.

Regardless of how much time you have to conduct voir dire, be careful that one prospective juror doesn’t eat up all your time. This is, of course, good voir dire advice in general, but is especially important when asking open-ended questions.

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Closed-ended questions give you absolutes. They are helpful when you need information on education and experience, such as prior jury service, involvement in a criminal case as a complainant or witness, or employment experience in a specific industry, but they often require follow-up questions. When used on a juror questionnaire, a closed-ended question should always include a follow-up, such as, “If YES, please explain” or “Why do you feel this way?” During voir dire, closed-ended questions are most effectively used when trying to get someone off for cause: Q: So what you’re telling us is, even though the law says the State has the burden of proof, you personally would require me to prove my client is not guilty. Is this correct?

A: Yes, that’s correct.

Q: Is this a strongly held belief that you have?

A: Yes, it is.

Q: And this strongly held belief will affect the way you view this case, from listening to the evidence all the way to deliberations, is that fair to say?

A: Yes, that’s fair.

Q: And because you have this strongly held belief, no matter what anyone says, even the judge, you will require me to prove my case instead of requiring the State to prove theirs, fair to say?

A: Yes. I just think you should have to show proof that he didn’t do it.

Q: Thank you, I really and truly appreciate your honesty. Because you disagree with the law in this case, is it okay with you if I ask the judge to excuse you?

A: Sure.

In the example above, the lawyer has just gotten this prospective juror to confirm not once, but multiple times that they will require the defense to prove their client’s innocence rather than hold the State to their burden. Any judge would be hard-pressed not to grant a challenge for cause based on this exchange.

Closed-ended questions can be used as an opener to get someone on the panel talking who has not yet spoken, but just like using closed-ended questions on a juror questionnaire, requires some follow up questioning. A good question in this scenario is, “If you were the plaintiff, would you want a juror like yourself on your jury?” Regardless of their answer, ask them to tell you more.

Be mindful of someone who has only answered closed-ended questions and provided little to no follow up. Perhaps this person is just shy, but you do not have much information on someone who has only given you one-word answers. It might be time to ask this person a follow-up question or an open-ended question. You do not want to have someone on your jury that you know little to nothing about.

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Scaled questions are all about measuring belief systems, and in the most efficient manner, to determine if those belief systems will be beneficial or detrimental to your case. Scaled questions allow you to get the opinion of every single panel member on important issues. Depending on the size of your panel, you can get an answer from every single member of your jury panel within two or three minutes.

On their own, scaled questions are not intended to get someone off for cause, however, you can use them to identify your unfavorable jurors. Then, you can focus on those jurors and use closed-ended questions to get them off for cause. Scaled questions are also not commitment questions. You are asking the prospective jurors about their beliefs or opinions, not a commitment to a specific scenario or set of facts.

Scaled questions only work the way in which they were intended if you keep everything consistent. First, the scale you use should be the same for all your scaled questions. Which scale you use is less important than keeping your scale the same for all your scaled questions. Whichever scale you choose, make sure it has an uneven number of choices, so your median is a true neutral.

Do not label your median number with the word, “Neutral”; only label the lowest and highest ends of your scale. Eyes often naturally gravitate to the center of the screen, and if “Neutral” is the first word your prospective jurors see, it can condition them to give you a neutral answer instead of an honest answer.

Next, decide if your “good” answers are high or low and keep it the same for all your scaled questions. For example, if you use a scale of 0 to 10, all your “good” answers should be the choice represented by 10 and “bad” answers should be the choice represented by 0. By keeping your scale consistent, you create a scoring system that can be used when it comes time to exercise peremptory strikes. If you have two jurors for which you are considering using your last peremptory strike, you can look at their overall “score” to decide which of the two individuals you strike.

Do not use too many or too few scaled questions. In order to use scaled questions as an overall scoring system, you have to ask at least two scaled questions on two different topics. But do not use too many scaled questions, either. A good general rule is to ask no more than two scaled questions for every 15 minutes you have for voir dire.

Also, scaled questions work best when you are able to show both the question and the scale on a PowerPoint slide or similar visual aid. This way the panel does not need to remember the question or the scale, nor do you need to repeat the question or scale very often, if at all.

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Using the scaled question chart is essential to organization of your scaled question answers. At a glance you can see the answers to every single scaled question and the overall score for every member of your jury panel. In the example below, eight scaled questions were asked on a scale of 0 to 10. All of the worst answers for the defense were represented by a 0 answer, and all of the best answers for the defense were represented by an answer of 10, but the prospective jurors were instructed that they could choose any number within the 0 to 10 scale. With this scale, the most favorable overall score for the defense would be 80.

As you can see, out of the first five prospective jurors, Juror No. 2 would be the most favorable juror for the defense, and Juror No. 3 would be the most unfavorable juror. In this example, you should try your best to get Juror No. 3 off for cause. While Juror No. 3’s answers to the scaled questions are not enough by themselves to challenge them for cause, you have now identified Juror No. 3 as an individual who likely cannot follow the law of self-defense, and you can proceed accordingly.

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Next look at Juror Nos. 1, 4, and 5. If you only had one peremptory strike left, which one would you choose? Knowing nothing else about these jurors, Juror No. 5 is probably the most likely candidate for exercising your last peremptory strike. When the judge has only given you 10 minutes to exercise your peremptory strikes, having a scoring system created by your scaled questions becomes an unbelievably helpful tool.

When using scaled questions, do not forget to look at individual answers as well.

Consider Juror No. 4: This juror’s answers to the first three scaled questions were 10, but their answer to the final scaled question was 5. If you are picking a not guilty jury, Juror No. 4 is a good choice to leave on the jury. However, if you are picking a punishment jury, it would not be advisable to leave someone on the jury who told you they were Neutral or Not Sure (which is what a 5 answer would indicate in this example) when asked about whether or not they supported a person’s right to self-defense even if that meant using deadly force. In fact, you could try to get Juror No. 4 off for cause using the same line of questioning for Juror No. 3.

Scaled voir dire questions are truly wonderful tools that allow you to find out how every single prospective juror feels about a certain topic. However, every so often when asking scaled questions, a prospective juror might say, “My answer isn’t up there”, or gives an answer that is not an option, such as 7.5 instead of 7 or 8. There can be a few reasons why a prospective juror would do this. Sometimes the juror thinks they are a comedian. Sometimes the juror is a mathematician, an engineer, or otherwise just truly does not think in terms of whole numbers. Sometimes the prospective juror feels so strongly that they give you a negative number or a higher number than the highest value on your scale. In the event this occurs, thank the juror, tell them you understand how they feel, and then ask, “Out of the options on the scale, which number comes the closest to your opinion?” Most of the time the prospective juror will give you an answer. Thank the juror again, and then continue asking your scaled question to the rest of the panel.

If the juror still will not choose an answer from the options on the scale, do not push it, just move on. By trying once and moving on, the remainder of the panel will likely see that one prospective juror as the troublemaker and the rest of the panel will give you their answers without further interruption.

Treat the scaled question chart the same way as your notes, in that they are attorney work-product and therefore privileged. You are under no obligation to share them with the prosecutor or the court.

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Include Questions About Life Experiences Do not make the mistake of having your voir dire be just about opinions on, and ability to follow, the law. While those are of course important, you need to know more about your potential jury. One of the ways to learn more about your prospective jurors is to ask voir dire questions about their life experiences. Voir dire questions on life experience are usually asked through the use of closed-ended questions. For example: • Have you, any family members, or close friends ever worked in law enforcement, either currently or in the past?

• Do you know anyone who has experienced any type of unwanted or forced sexual contact?

• Do you know anyone who has ever been involved in a criminal case as a victim, witness, or the defendant?

While voir dire questions on life experience, by themselves, are not sufficient to get people off for cause, they can be used to identify possible challenges for cause. In order to use this information to establish a valid challenge for cause, you must then ask follow-up questions to determine that the juror has a bias due to their life experience.

For example, say you have a panel member who tells you that their father is a police officer. If you do not explore this further, the fact that their father works in law enforcement is not enough for most judges to grant a challenge for cause. However, if you follow up with questions about the juror’s experience with their father being in law enforcement and how it has affected them, and then they admit that they cannot be fair to someone accused of a crime because of that experience, now you have established that the juror cannot be fair to both sides, which is a valid challenge for cause that should be granted.

Catch-all questions are also voir dire questions on life experience, but do not make them so broad that you inadvertently identify a good juror for you (and a challenge for cause for the prosecution). If you ask, “Is there any other reason why you feel you cannot be a fair juror in this case?”, this may invite a prospective juror who is great for your case to disclose that they cannot be fair to the prosecution. Instead, consider asking, “Is there anything about an experience in your life that would cause you to start this case favoring the State?”, or “Is there anything in your life experience, background, or any reason at all you cannot be fair to [Client’s name]?” Phrasing your question in this way invites those unable to be fair to your client to talk themselves into a challenge for cause. The lesson in using catch-all questions in your voir dire is to make sure the wording of your question is tight.

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Looping One of the most powerful and effective voir dire techniques is called looping. First, the lawyer asks one prospective juror a question and the juror responds. Next, the lawyer uses that juror’s name, repeats the juror’s exact words, and then asks another juror for a reaction to what the first juror said. A third prospective juror is then asked to respond to the answers given by the first two jurors, repeating their answers exactly and always using their names. Through the looping technique, the members of the panel are educating each other. By repeating the juror’s exact words, any juror who disagrees is, essentially, disagreeing with another panel member rather than the lawyer. Using the jurors’ names makes them feel valued and appreciated and inspires them to keep talking.

In short, looping makes the jurors more likely to share honest feelings and opinions.

Pick your battles with looping and choose the ones you cannot lose. You do not want to lose an otherwise good panel. The only exception is inoculating jurors who are likely candidates to serve on the seated jury to a specific concept, such as burden of proof. As a general rule, do not loop your good answers. All that does is identify who the prosecutor will strike. Loop your BAD answers instead, especially when you are contending with a limit on your time. When looping bad answers, always thank the juror for being honest. This will make it much more likely for others who feel the same way to speak up. By thanking jurors who give you bad answers, it gives permission to others to tell you their opinion because now they are not alone in their belief or opinion. This is important because you are getting your worst juror to identify other bad jurors.

Remember to keep your poker face: voir dire is when you want the bad answers, not when the jury is reading the verdict.

Another way to handle a bad answer is to compare it with a good answer and then ask who agrees with whom. Say to the panel, “You see, that’s the beauty of the jury system, we are all entitled to our own opinions and beliefs. You heard Mrs. Smith say that she believes the burden of proof should be lower than beyond a reasonable doubt, but Mr. Jones said if beyond a reasonable doubt is the law, then that is the burden of proof he will hold the state to in this case. I want to see who agrees with Mrs. Smith and who agrees with Mr. Jones. Mr. Doe, let me start with you. Who do you agree with, Mrs. Smith or Mr. Jones?” You can then go juror by juror, row by row, and ask each person which juror they agree with instead of asking the panel whether or not they agree with you.

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Use Active Listening There are two types of listening: Inactive and Active. Inactive listening is when you hear what someone says. Active listening is when you understand what someone says. Most of us tend to be inactive listeners because it’s easy. Active listening is much harder. Try actively listening to a teenager and you will know exactly what we mean.

With active listening, focus on the answer and not on what your next question will be. The best way to demonstrate to someone that you are actively listening to them is by repeating some of the key words they just used. For example, a prospective juror might tell you that they have already formed an opinion about your client’s guilt by saying, “I know what I read, and I definitely have opinions about this case.” The trial lawyer using active listening would respond with, “What I hear you saying, Ms. Jones, is that because you know what you read, you have already formed an opinion about this case before any evidence has been presented, is that fair to say?” The prospective juror will feel heard and that her opinion is validated and will be more inclined to agree with you when you begin developing your challenge for cause on her. You can also use active listening as you use the looping technique: “Ms. Jones just told us that because of what she read, she has already formed an opinion about whether my client is not guilty or guilty. Does anyone else feel like Ms. Jones, that you too have already formed an opinion about my client based on what you heard, read, or seen before you came to court today?”

When you use this technique of active listening, people really feel like they are being heard and they tend to believe you, like you, and gravitate to you.

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Manage Jurors’ Expectations Part of what makes jury service so unpleasant for potential jurors is not knowing what to expect. You have the power and opportunity afforded you during voir dire to speak directly to the jurors, and you can use that opportunity to manage their expectations.

One way to manage the prospective jurors’ expectations during voir dire is to tell them how much time you have or how many topics you will cover. In other words, give the prospective jurors a road map to your voir dire. This gives the jurors a way to gauge how far along you are and, more likely, how close you are to being finished. Another way to accomplish this is, instead of using slides or a legal pad for your voir dire outline, use index cards and place them face down on your counsel table after covering the topic on the card. Your jurors will see when you are close to finishing by how many cards remain in your hand.

Another way to manage the jurors’ expectations is to tell them what to expect during the trial if they are seated on the jury. This can include lowering expectations of a witness who you know will not come across well: “I fully expect that no one on the jury will like my first witness. He is someone who mumbles and is very uncomfortable looking people in the eye when he speaks.” You can also set expectations for yourself. Some lawyers who plan on being aggressive with an adverse witness tell the panel that they will go straight for the jugular if the witness is lying. Then, they ask the jury panel if this will offend anyone. If anyone tells you they will be offended you can use that to develop a challenge for cause, but more importantly, now your jury knows what to expect from your witness, the evidence, or the way you try the case.

The last portion of managing juror expectations is that the jury will forgive anything as long as you are truthful. They will forgive the gruesome photos if you have warned them ahead of time and asked the jurors for their permission. They will forgive the lengthy video if you have already told them that it was cut down from eight hours of footage. Some lawyers disclose learning disabilities or speech impediments, because if they don’t, they run the risk of the jury thinking typos are laziness instead of dyslexia, or stumbling over words is nervousness or incompetence rather than a persistent stutter.

By disclosing such things about themselves, these lawyers have shared something very personal (which is humanizing), gives a reason for any perceived missteps, and asks for the jury’s permission and forgiveness, even though it’s for something they cannot help.

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Challenges for Cause Once prospective jurors have identified themselves and acknowledged that they cannot be fair or follow the law, now you need them to confirm that this is how they feel, no matter who is asking the question. This is what we refer to as the Cause Coffin. You must use the appropriate language to lock in your bad jurors: • •

•

•

You won’t change your mind, no matter what anyone asks, fair to say?

You feel very strongly about this, don’t you? Is it fair to say that it would be impossible to set aside those feelings, given how strong those feelings are?

No matter who asks you about this, whether it’s the prosecutor or even the judge, you’re not going to give them a different answer because this is really how you feel, fair to say?

That sounds to me like an answer you’re not going to change, am I correct?

You must know the magic words for your jurisdiction, and you have to incorporate those words into your cause questions. It is also very important that you end with, “If the prosecutor or the judge asks same kinds of questions, your answer will be the same, correct?” By doing this, you are letting the juror know they can anticipate the prosecutor’s attempt at rehabilitation and you are empowering the juror to stand their ground.

Always, always tell the juror who you will later be challenging for cause that it is okay that they have these opinions or feelings, and never forget to thank them for their honesty. This exponentially increases the likelihood of any other jurors who share these feelings to speak up, whether you invite them to do so or not.

The Challenge for Cause chart is a way to organize all your challenges for cause in one place, eliminating the need to quickly create a separate list. The chart on the following page displays what a completed Challenge for Cause Chart might look like after your voir dire.

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In the example above, you could make challenges for cause for nineteen jurors (Nos. 1, 2, 5, 6, 10, 12, 13, 22, 24, 25, 32, 33, 35, 43, 45, 46, 51, 54, and 59) for a variety of reasons. Let’s look at the first five jurors. By using the key at the top of the Challenge for Cause Chart, you can see that Prospective Juror No. 1 stated during voir dire that they had heard or seen publicity about the case and have already formed opinions (C), Prospective Juror No. 2 said that they cannot consider the full range of punishment (F), and Prospective Juror No. 5 said they believed that someone charged with a crime was presumed guilty (B), that they would require the defendant to testify

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(D), and they cannot consider the full range of punishment (F). The other sixteen challenge for cause candidates have additional and varying reasons to make those challenges, such as an inability to sit in judgment (A), and/or an inability to follow the law regarding self-defense (E). The Challenge for Cause Chart also easily shows you which prospective jurors have more than one basis for a challenge for cause.

You now have every single prospective juror on one page and the basis for your challenge. When making your challenges for cause, this allows you to go down your list in numerical order and clearly and quickly state the basis for each of your challenges.

When a challenge for cause is granted, you can strike through that juror on your chart.

Then, when making peremptory strikes, you can easily see if there are any prospective jurors for whom you made a challenge that was not granted.

Remember, treat your Challenge for Cause Chart just like your notes. It is work product, so you are not obligated to share this with the prosecutor or the judge.

Effectively Exercising Peremptory Strikes Many trial lawyers have been in a situation where they are asked to submit their peremptory strikes immediately or with very little time to confer. If you have used your index cards and Challenge for Cause Chart, you should already know on which jurors most, if not all, your peremptory strikes will be used. The following are tips and tricks for exercising your peremptory strikes quickly but effectively: •

Plan ahead and do not get caught off guard with regards to time. Ask before voir dire begins how much time the judge will give you to confer with your team before submitting your peremptory strikes.

•

Knowing your math as it applies to the strike zone and/or your local rules comes into play.

•

Use your index cards. Lay out the cards for the jurors who are within the strike zone on a table. Turn over the index cards for those you will definitely strike, turn the index cards sideways for those you might strike, and place a sticky note or flag on cards you are confident the prosecutor will strike.

•

Always volunteer to use the jury room to confer with your team so the prosecutor cannot see your index cards, Challenge for Cause Chart, or Scaled Question Chart. There is absolutely no reason to show them your system.

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•

Do not only pay attention to who you will be striking, pay attention to who remains. Be cognizant of what the jury will look like if you strike certain people.

•

In close calls, use your scaled questions as a scoring system. Meaning, if it comes down to two prospective jurors on whom you were considering using a peremptory strike, but you only have one peremptory strike available to use, look at how those two prospective jurors answered your scaled questions. The prospective juror with the lower overall score is usually the one on whom you should exercise your last peremptory strike.

Batson Challenges In 1986, the Supreme Court ruling in Batson v. Kentucky stated that peremptory challenges could not exclude a juror on the basis of race, as doing so would violate the equal protection clause of the 14th Amendment. The protections of Batson have been broadened by the courts over the years to include ethnicity (Hernandez v. New York, Allen v. Hardy) and gender (J.E.B. v. Alabama ex rel. T.B.). There have also been lower court rulings in recent years that indicate that this protection may eventually be extended to sexual orientation and gender identity as well.

When making a Batson challenge, not only must you know the law, but you also must know your judge and the remedy of putting people back on the jury. The main factor is timing. Your Batson challenge needs to be made before the jury is sworn in and the judge excuses the rest of the panel. For example, many judges will tell the parties who the members of the seated jury are before the official seating and swearing in of the jury. That is a perfect opportunity to raise Batson if appropriate. Before the jury is sworn in, but also before panel is reseated or worse, excused.

The other factor is the ability to look at the prosecutor’s notes to see if they wrote anything that shows a bias. If their notes only indicate the prospective juror’s race, ethnicity, or gender, and they cannot articulate a race, ethnicity, or gender-neutral reason for their peremptory strike, most judges will err on the side of caution and grant your Batson challenge. If your judge denies your Batson challenge, make sure you clearly articulate your reasons for making the challenge on the record. Having a gut feeling that the prosecutor is making their strikes based on a prospective juror’s race, ethnicity, or gender will not be enough for the judge to side with you. Use clear and specific language.

Remember, if the need arises, the person reviewing the record will not have been in the courtroom with you when you made the challenge.

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ADDITIONAL VOIR DIRE TIPS Choose Your Words Carefully It is very important to consider who your audience will be. Your jury panel will likely be made up of individuals from a cross-section of the community, which means the panel members will likely span different generations. The first rule of thumb is to leave any stereotypes at the door. Individuals born in 2000, who are members of Generation Z (a/k/a “Zoomers”), are now in their twenties. In 2023, the generation known as Millennials are already in their thirties, and many are parents. Generation X is middle aged. Baby Boomers are retiring and eligible for Medicare. The point is, your perception of “older” and “younger” generations is likely skewed depending on many factors, not the least of which is which generation you are a member of yourself.

Be mindful of the language and terminology you use. One example is the phrase, “. . . and now, the other side of the story.” This was something Paul Harvey, an American radio broadcaster, would often say during his broadcasts. The phrase was adopted by many trial lawyers for several years because Mr. Harvey was popular, most jurors had at least heard the phrase before, and it lent itself well to getting the point across that there are two sides to every story. Although Mr. Harvey consistently worked in the broadcasting industry until his death in 2009, that was well over a decade ago, and the majority of jurors no longer get that reference.

Millennials and Generation Z tend to abbreviate words, sometimes down to a single letter, such as the use of “v” instead of “very” or “p” for “pretty” (as in, “I’m p excited”).

Individuals within these generations also frequently use acronyms, such as JOMO (joy of missing out) and tbh (to be honest), but acronyms are often seen as lazy or frustrate older jurors. Some words (or new meanings for words) have been invented by these generations, such as stan, flex, salty, and lit. These words should never be uttered in a courtroom in an attempt to bond with jurors from these generations. Being completely honest with yourself, if you know that your child, niece or nephew, or other child you know well would cringe if they heard you use a certain word, you should not use it in the courtroom. When in doubt, don’t. Older jurors will not know what you mean, and younger jurors will not think you are cool.

Skewing your speech to only favor older jurors is just as problematic. Words and phrases such as loaded, snatched, low-key, keep it up, and knock yourself out are unfamiliar to younger jurors or have different meanings. If you want to be understood by your entire jury panel, it is far better to use language that will be understood by your entire jury panel.

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Body Language Speaks Volumes Open body language is critically important during voir dire. It communicates to the jury panel that you are receptive to listening to their honest feelings and opinions. Here is a list of tips to ensure you maintain open body language: 1.

Whether sitting or standing, uncross your arms. Crossing your arms communicates conflict and creates a physical barrier between you and the jury panel.

2.

Do not cross your legs while standing.

3.

Unless explicitly required by the court, get out from behind the podium. The podium is a physical barrier between you and the jury panel.

4.

Practice good posture. When standing, never slouch or lean on furniture.

Always stand up straight.

5.

Remember your posture when sitting as well. One way to help yourself sit up straight is to make sure your tailbone is against the back of the chair.

6.

Do not fidget: no toe tapping, leg bouncing, or rocking back and forth in your chair.

7.

When it comes to your hands, do what is comfortable, but keep your hands off of your face, hair, beard, and jewelry.

8.

Do not put your hands in your pockets.

9.

Do not point at anyone, as it is considered rude. Instead, extend your hand, palm up, to indicate to someone who is raising their hand that you are giving them the floor.

10.

During voir dire, one hand should be holding your notes, jury list, or seating chart. Your other hand should be used to gesture. When not gesturing, your hand should be down by your side.

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Be Mindful of Bad Habits Everyone has at least one bad habit. But not everyone is a trial lawyer. When conducting voir dire, and really throughout trial, there are some bad habits to avoid, or least avoid if there is even a chance of a prospective juror seeing you.

Vocal bad habits to avoid include space-fillers, such as umm, like, hmm, and mmkay? The impact of even the strongest argument or theme can be derailed by a spacefiller. Other vocal bad habits to avoid are saying acronyms aloud that should be reserved for texting (OMG, LOL, etc.), swearing, and using inappropriate slang terms. Also be aware of whispering loudly. You are probably whispering to avoid everyone hearing you in the first place, but a loud whisper is very noticeable and distracting to jurors, even if they cannot decipher what you are saying.

There are physical bad habits you should avoid in the courtroom as well. If you have a habit of biting your nails, pulling or twirling your hair, repetitive face touching, or similar, it is time to take steps to curtail that bad habit. Your jury absolutely notices that you do those things and depending on how often you engage in that behavior, are often distracted by it. Be aware of touching others as well. Between the #MeToo movement and COVID-19, any perceived unsolicited touch could be misconstrued by your jurors, who will likely punish you for it.

There are other bad habits best avoided. If you smoke, vape, or use any other type of tobacco product, do not partake unless you are completely out of view of the prospective jurors. That means, do not use these products unless you are inside your office or at your home. Consider anywhere else as having the potential of being seen by one or more members of your jury. When driving, always observe all traffic laws, and be a defensive rather than an offensive driver: you never know if the person you cut off on the highway is a juror.

Stay off your phone. What you are communicating to the jury when you are on your phone while court is in session is that you are bored and the case is not important to you. And if it is not important to you, it will never be important to them. It is also worth noting that the jury has likely been instructed that they may not use their phones in the courtroom, and some jurisdictions even take their phones from them until the end of the day. If the jury cannot use their phones during the proceedings, then neither should you.

Finally, be mindful of how you treat others. This applies to treatment of court personnel as well as your own staff, but also treat the prosecutor and their staff with the utmost respect. This also extends to servers during lunch breaks, parking attendants, and other people on the street. Always assume the jury can see you and let that be your guide.

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Appearance Matters First impressions are so significant. Even unintentionally, our perceptions of others are rooted in that critical first impression. A 2019 Princeton research study even found that people tend to judge competence based on clothing in under one second. D. Oh, E. Shafir, & A. Todorov, Economic Status Cues from Clothes Affect Perceived Competence from Faces, 4 NAT HUM BEHAV, 287–93 (2020). Before you have an opportunity to speak to your prospective jurors, they are looking at you, and that is when their initial impression of you is formed.

Clothing You must be comfortable with what you are wearing. Do not wear something that doesn’t quite fit, itches, or otherwise causes you to fidget. Be aware of how tight your clothes are, and make sure your underwear does not show through your clothes (it’s in the name—it goes under). Hemlines matter whether it is a skirt, dress, or pants: do not wear anything that is too short. Skirts and dresses should be knee-length or longer, and pants should be hemmed appropriately. Wear red if you want the jury to pay attention to you (tie for males, dress or suit for females), but never wear other bright or neon colors, as that just does not belong in a courtroom. Finally, do not dress as if you are attending a cocktail party. Prospective jurors fully expect lawyers to be wearing some type of suit, but if your clothes are too fancy most jurors will feel as if they have nothing in common with you, making your ability to bond with your jurors that much more difficult.

Accessories Never wear extremely long fingernails, exceptionally high heels, flashy jewelry, or anything that dangles or makes noise. You should not wear or display religious jewelry at all unless you know your jurisdiction is of similar beliefs. Do not wear brand-new shoes that are not yet broken in. Most importantly, if you are married, always wear a simple wedding band, whether you typically wear one or not. Jurors do not trust married people who do not wear wedding bands. In an attempt to humanize oneself, lawyers often talk about their spouses. If this describes you and you are not wearing a wedding band, just know that your jury is judging you for this.

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Other Items to Consider Do not wear anything that intentionally projects affluence, such as an expensive watch, large diamond ring, pricey suit, or designer shoes or handbag. This does not send a message of your success, but rather that you are the stereotypical slick, high-paid criminal defense attorney that pop culture insists on perpetuating. Do not wear anything on your body that could cause you to be criticized. Your nose ring may be tasteful, but you run the risk of alienating the more conservative members of your jury panel before you say a single word. If you have tattoos, cover them until you know who is on your jury, and they should remain covered if you are unsure if they will be received well by your entire jury. With regards to your hair, do not wear a style or color that is out of the norm. The same with makeup, it is better to err on the side of conservative. Finally, be thoughtful about the car you drive to the courthouse. It will be judged in the same manner as your clothes and accessories will be. A lawyer who drives a Mercedes or Porsche will be trusted far less than the lawyer who drives a more middle-of-the-road truck, SUV, or sedan.

Jurors Want to Do the Right Thing There is a noticeable change that happens when jurors are sworn in. Hardly anyone gets excited for jury duty, but once they are seated in the jury box, their perspective shifts and they take their role very seriously. They want to do what is right and just. During the trial is when you get to show your jury that the right and just verdict is Not Guilty.

SAMPLES: • • • • • •

1-Page Juror Questionnaire Questionnaire Cover Page Scaled Question Chart – Blank Scaled Question Chart – Completed Challenge for Cause Chart – Blank Challenge for Cause Chart – Completed

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Texas Criminal Defense Lawyers Association

Voir Dire & Cross Exam March 2-3, 2023 The Whitehall Houston, Texas

Topic: Theater of Voir Dire Speaker:

Ron Estefan The Estefan Firm, P.C. 2306 Mason St Houston, TX 77006 713.333.1100 phone 713.222.7086 fax ron@ronestefanlaw.com email http://www.ronestefanlaw.com/ website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

THEATER OF VOIR DIRE TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION VOIR DIRE & CROSS EXAM HOUSTON, TEXAS MARCH 2, 2023 Theater is the presentation of a story to an audience.

Theater inspires us to give power to truth, to take risks and to advocate for new and diverse voices. Theater reminds us we are not alone. Not only are we sharing space and an experience with the performers, we are sharing the experience with fellow audience members.

What makes stories in books, plays and movies memorable?

What elements do theater and voir dire have in common?

From whom did you learn to voir dire? From whom did whoever taught you learn to voir dire?

Is it possible you learned to voir dire with goals that miss the mark?

Conventional voir dire: Alienate, manipulate, advocate.

What “currency” do you bring to the trial?

What is your main goal in voir dire?

How are you going to achieve your goal?

Some Steps to a Winning Voir Dire as taught by Trial Lawyers College 1. SHED THE OLD SELF

2. DISCOVER THE DANGER POINTS What is it about your case you are most afraid of? e.g. race, confession, prior conviction, child molestation, client looks guilty, etc.

3. SHOW YOURS FIRST, ALWAYS TELL THE JURORS THE TRUTH ABOUT HOW YOU FEEL OR HAVE EVER FELT ABOUT THE DANGER POINTS IN THE CASE. Feel your fear. If you are honest, you will always have it.

And admit it, openly - show yours first.

Example: A civil case I tried in which my client was sexually assaulted but did not report the assault until several days afterward.

I shared with the jurors when I first heard that, I felt skeptical of a person who didn’t immediately report being sexually assaulted because people who are sexually assaulted report it right away.

NOTE: This outline is purposefully short and is intended as a memory refresher for those who want to review it after having participated in the program. Much of this method is experiential. It is better done than told.

Ron Estefan The Estefan Firm, P.C.

Texas Criminal Defense Lawyers Association

Voir Dire & Cross Exam March 2-3, 2023 The Whitehall Houston, Texas

Topic: Jury Selection in Sex Assault Cases

Speaker:

Jeff Kearney Kearney Law Firm 3100 W 7th St Ste 420 - One Museum Place Fort Worth, TX 76107 817.336.5600 phone 817.336.5610 fax jkearney@kearneylawfirm.com email www.kearneylawfirm.com website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

JURY SELECTION IN SEX ASSAULT CASES

Presented by Jeff Kearney Kearney Law Firm 3100 West 7th Street, Suite 420 (817) 336-5600 (817) 336-5610 (fax) jkearney@kearneylawfirm.com

TCDLA Voir Dire and Cross Examination Seminar March 2-3, 2023 Houston, Texas

Sincere Appreciate is Given to Robert B. Hirschhorn of Cathy E. Bennett & Associates, Inc. and Stacy M. Schreiber Who Wrote Portions of this Paper

I. A.

PRE-TRIAL STRATEGY

THINK ABOUT VOIR DIRE EARLY AND OFTEN

The initial interview is the one time during the case when the attorney will be in the same shoes as the potential jurors. An attorney’s perception of the case and the issues may be very similar to what the jurors may be thinking and feeling. As the client is telling you about the case for the first time, ask yourself these questions: 1.

What are the jury issues in this case?

2.

What questions do I have about the facts of this case?

3.

What are the facts, issues or problems in this case that cast the client in an unfavorable light?

When jurors first hear about the case in voir dire, they will conduct a similar analysis and evaluation.

As the case unfolds during discovery, subsequent meetings with the client or witnesses and hearings on pre-trial motions, jury issues are constantly being developed.

Start framing these issues in the form of voir dire questions. Concentrate on questions that help your case, as well as those questions that must be asked to defuse potential problems. For example in a case involving a drive-by shooting, assume the Defendant has a previous association with a gang. From the Prosecution’s perspective, this will be viewed as a helpful fact. From a Defense perspective, this is a potentially serious problem that must be discussed and diffused during voir dire.

By using this develop-voir-dire-as-the-case-unfolds approach, the attorney is frequently identifying issues, writing a few voir dire questions at a time, and putting them in the voir dire file or trial notebook. When all pre-trial motions are resolved and counsel is preparing for trial, the attorney is in a position to go through the voir dire questions he/she has accumulated and can begin the process of prioritizing the issues that need to be covered and the voir dire questions that will accomplish that goal.

B.

MOTION TO SUBMIT A JURY QUESTIONNAIRE

The number of judges who will allow a juror questionnaire is increasing. If the Judges in your jurisdiction do not use questionnaires, a Motion for a Juror Questionnaire (see Appendix A of this article) should be filed in an effort to persuade the court to try something new. There are three keys to persuading a judge to use a questionnaire:

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1.

Questionnaires are granted in the vast majority of cases where the parties jointly move and agree upon the questionnaire’s content;

2.

All logistical problems associated with a questionnaire must be removed from the over-worked and under-paid court staff. That is, the attorney must be prepared to take responsibility for the preparation, administration, copying, and dissemination of the completed questionnaires. This means bringing a sufficient number of questionnaires, black in pens 1 and clip boards; and,

3.

Keep the questionnaire as short as possible, to the point and fair to both sides. In a typical case, the questionnaire should not exceed three to five pages. In more complex cases, the goal should be no more than seven to ten pages. Rarely should a questionnaire exceed ten pages. However, in a case which there has been extensive pre-trial publicity, complex and multi-faceted issues or in a capital murder case, it may be necessary that a more thorough questionnaire be prepared and submitted to the court. A sample questionnaire is attached to this article as Appendix B.

If the Judge has used questionnaires in other cases, obtain copies of them to get a sense of the type and length of questionnaire the Judge has found acceptable.

Furthermore, just because a judge has never used a questionnaire in the past, do not assume that the Judge will not allow one to be used. For a more thorough discussion on questionnaires, we call the reader’s attention to Bennett’s Guide to Jury Selection and Trial Dynamics in Civil and Criminal Litigation, West Publishing Company 1993 (Updated 1995.)

C.

REQUEST THAT CHALLENGE FOR CAUSE QUESTIONING BE TAKEN UP AT THE CONCLUSION OF VOIR DIRE

Challenges for cause can consume a great deal of time in any voir dire. If an attorney has one or two jurors who give answers that suggest further questioning is necessary to determine if a challenge for cause is appropriate, the questioning process can exhaust precious time. Therefore, we encourage lawyers to ask the Judge if further challenge for cause questioning can be taken up at the end of the entire voir dire. We are finding that many judges throughout the State of Texas employ this method.

1.

It allows for the maximum use of the attorney’s time during voir dire and does not interrupt his/her flow;

1

Black ink increases the quality and readability of the questionnaires.

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2.

If the attorney has a talkative juror who is the subject to a challenge for cause on one issue and the juror wants to assert his/her view on another issue, the attorney can be polite and not offend the juror by saying, “[Juror’s Name], I know I am cutting you off, but we will be talking with the Judge a little later.”; and

3.

By doing the challenges for cause at the end, the attorney knows, and more importantly, the Judge knows, exactly how many jurors are being challenged, how many unchallenged jurors are left, and which of the challenged jurors are most likely to be excused for cause.

There are many inherent problems with the challenge-for-cause-as-you-go approach. For example, fully developing the challenges for cause as they arise is not time efficient, other jurors may get bored, qualified jurors may learn how to disqualify themselves, and some cases get reversed because the Judge doesn’t grant an early challenge for cause for fear there will not be enough jurors left. Therefore, counsel would be well-served to ask the Court to allow the additional challenge for cause questioning to occur at the end of voir dire.

II. A.

TRIAL STRATEGY

LEARN, DON’T TEACH

It is human nature for an attorney who has spent months preparing a case to want to convince everyone in the courtroom that his or her position is the correct one, and that the client is deserving of a favorable verdict. Potential jurors come to the courtroom with a mind set that has developed over the span of many years, and seldom (if ever) will an attorney change a juror’s mind. In fact, it is rare to change a person’s mind and futile to try to change a person’s heart. We suggest that valuable time not be wasted trying to convince anyone to change. Attempting to convince jurors to change will only alienate them, shut down any possible dialogue, and encourage arguments, one-upmanship or lying. It is the wise and skillful attorney who listens to the jurors and learns from them.

The attorney who asks jurors questions with an I-want-to-learn-from-you attitude will find that jurors are more willing to share their feelings or opinions when there is no threat of a challenge or criticism. These jurors will provide the information with which counsel can make meaningful challenges for cause and intelligently exercise peremptory strikes, while encouraging the other panel members to share their opinions or feelings because it is safe to do so.

B.

NEVER BE JUDGMENTAL OF THE JURORS

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In any meaningful relationship, it is important to trust and not be judgmental of the other person. This is especially true when it comes to jury selection. Too many times lawyers will alienate potential jurors by saying things like, “Do you understand the law says...” or, “Are you telling me that you cannot follow the law?”. When an attorney makes statements like these, the potential juror instinctively feels defensive or put on the spot.

Even more damaging is the fact that the other potential jurors will feel empathy for the juror and animus towards the attorney. A better approach and one that will foster open communication is when the attorney has the courage to commend a juror who has given a painfully honest, yet negative answer. In our view, there is no such thing as a bad answer. The reason for this is because bad answers will open the door to challenges for cause or peremptory strikes. For example, imaging a situation where a juror has said that a person on trial should testify. Instead of responding with, “Do you understand that ever citizen has the right to not testify, and that the State bears the burden of proving a defendant guilty?”, say to the juror: “Miss Smith, I appreciate your honest and candid answer. The beauty of our system is that everyone is entitled to their own opinion. You have had the courage to express yours. Is it okay with you if a little bit later we visit (some attorneys would feel more comfortable saying talk) with the Judge about this?”

This non-judgmental approach will be appreciated by the questioned juror and will create a setting that will encourage the other jurors to be honest with the attorney as well.

C.

CONCENTRATE ON THE FIRST THIRTY-TWO JURORS

With voir dire time strictly limited, it is important not to use valuable time talking to jurors who will never sit on the panel. Limit questions to the first thirty-two jurors.2 If some of the first thirty-two jurors will be subject to a challenge for cause, talk to a sufficient number of jurors past juror number thirty-two. For example, if you feel that four jurors may be excused for hardship or subject to a challenge for cause as a result of the prosecutor’s voir dire or answers contained in the jury questionnaire, then talk to jurors through number thirty-six. The exception to this rule is if there is an expert who can educate the panel on a very important point and whose number is beyond thirty-two.

Otherwise, there is no benefit talking with jurors who will not serve, and valuable voir dire time that could be used getting to know potential jurors will be wasted.

2

The number of thirty-two was determined under Texas law as follows: a) twelve person jury; b) the Prosecution is entitled to ten peremptory strikes; and, c) the Defendant is entitled to ten peremptory strikes. If the numbers are adjusted (i.e., misdemeanor, capital murder, multiple defendants, additional peremptory strikes granted, alternates used or probable hardship or challenges for cause are developed during the Prosecutor’s voir dire), one should adjust the number of jurors whom the attorney questions.

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D.

ORDERING TOPICS

Carefully consider the order in which topics are to be presented during voir dire.

We encourage attorneys to plan the order of their voir dire to be consistent with the primacy/recency theory: jurors will remember the first and last thing they are told. By following this approach, the attorney is emphasizing the strongest aspects fo the case first and last, and diffusing issues and concerns in the middle.

We would recommend that the attorney divide the voir dire as follows: 1.

2.

3.

4.

5.

6.

Introduction Overview of the Case Strong Topic Areas of Concern Strongest Topic(s) Conclusion

Following this format and employing the techniques contained in this article (looping, closure question, etc.), an attorney can generate a reasonable amount of information on the jurors.

E.

STARTING YOUR VOIR DIRE

We call the very first part of the voir dire process the Introductory Phase. The purpose of the Introductory Phase of voir dire is to set the tone and mood for the trial.

Property setting the tone for a case is critical if an attorney wants to conduct an effective voir dire. Remember our fundamental rule of voir dire; LEARN, DON’T TEACH. By allowing the prospective jurors to verbalize their opinions, attitudes and feelings, the other jurors are more likely to give candid answers and the attorney will be able to intelligently exercise challenges for cause and peremptory strikes. The key is getting the jurors to open up, and that is accomplished by properly setting the tone.

Let’s examine the way many lawyers start their voir dire. something like this:

It often begins

“Good morning ladies and gentlemen. My name is Robert Smith, and I am the attorney who represents the Defendant in this case. This is the voir dire phase of the trial. The words, voir dire, are French and mean, to speak the truth. During this process, I will be asking you questions so we can find twelve fair and impartial jurors.”

This is a typical introduction. There words, or words very similar to them, can be heard every Monday morning in courtrooms throughout the state. The only effective portion of this typical introduction is the first sentence, “Good morning ladies and gentlemen.” The rest is wholly ineffective and counter-productive. Let’s analyze the problems: −6−

1.

“My name is Robert Smith, and I am the attorney who represents the Defendant in this case.” This entire sentence is flawed. The Judge just introduced Mr. Smith, the jurors know he is an attorney and the client has been dehumanized by being referred to as an object “... the Defendant.”

Right off the bat, many jurors feel the lawyer is wasting time or talking in a condescending manner. Why would a lawyer want the jurors to remember his name, yet not even say his client’s name? Instead, the first sentence out of a lawyer’s mouth should grip the jury with the importance of the case.

2.

“This is the voir dire phase of the trial.” The concept is correct, but the delivery is not effective. The jurors know, either by prior jury experience, television or talking with other jurors in the jury assembly room, that the first part of any trial is jury selection. Lawyers must resist the temptation to begin jury selection with words or phrases with which jurors are unfamiliar (i.e., cause of action, voir dire, etc.)

3.

“The words voir dire, are French and mean, to speak the truth.” Who cares? Have you ever been at a cocktail party and been asked, “I’ve been wondering what do the words voir dire mean?” No, instead people at cocktail parties want to know, “How can you represent someone who is guilty?” “Why do defendants have more rights than victims?” “How in the world could a jury acquit O.J. Simpson?” These are more substantive, probing and problematic areas that require our attention. Therefore, resist the teaching mode (“... voir dire means ...”), and focus on identifying the critical areas of inquiry and formulating open-ended questions that will probe the juror’s opinion, attitudes and feelings about the central issues.

4.

“During this process I will be asking you questions so we can find twelve fair and impartial jurors.” In our opinion, this is the single most damaging and destructive sentence of the entire introduction because it will condition jurors to give responses that are perceived as fair and impartial.

Lawyer Smith is sending the jury a mixed message. On one hand, he has told the jury to speak the truth and, on the other hand, he is saying the only good juror is the one who appears to be fair and impartial. Such a statement provokes the jurors to give responses that create the impression of fairness and impartiality, and are not necessary truthful. Therefore, in the typical voir dire the lawyer has conditioned the jurors to give appropriate, but not necessarily honest, responses to the questions asked. Our goal is to obtain honest, albeit at times painful, responses.

With these thoughts in mind, we encourage lawyers to set the tone in the following way: −7−

“Good morning ladies and gentlemen. I am proud to stand here with [Client’s Name] and have twelve of you decide this very important case. In this part of the trial, we 3 need to find out your feelings, impressions or opinions about the issues in this case. I want you to know that there are no right or wrong answers. We will be honest with you, and we ask that you be as honest as you can with us.”

This introduction is substantively the same, but it sets a much more honest and open tone. There is a lot more a lawyer can say at this point.4 F.

OVERVIEW OF THE CASE

An attorney has the right to give a brief overview of the case to the jurors. In Powers v. Ohio, 499 U.S. 400, 114 L.Ed.2d 660, 111 S.Ct. 1364 (1991), the United States Supreme Court held, “...the voir dire phase of the trial is the juror’s first introduction to the substantive factual and legal issues in a case.” Id at p. 1371.

In many instances, the brief overview has often turned into the entire voir dire, with a few ineffective closed-ended voir dire questions thrown in during the process. The danger of the brief overview consuming the entire voir dire. Unfortunately, the typical voir dire is essentially a Pre-Opening Statement, is not persuasive, elicits little or no information upon which to base challenges for cause or peremptory strikes, and, in our opinion, is the primary reason many judges now impose time limits. During voir dire, an attorney must vigilantly resist the temptation to take charge and do all the talking.

Remember our message: Listen, don’t teach; Learn, don’t lecture; Colloquy not soliloquy. Therefore, limit the overview to three to five minutes and then go directly into a questioning mode.

G.

THREE TO FIVE TOPICS

Pick the most important areas of the case and fully discussing these topics with as many jurors as possible. The more time the attorney spends asking questions, the jurors are more likely to open up and respond with his/her true opinions or feelings. By touching

3

In the introduction, there is a constant reference to we. The we includes the lawyer(s), as well as the client.

It is important to refer to we early and often. Hopefully, by the end of the case the we will encompass the lawyer, the client and the jury.

4

One point worth mentioning is that if there are any sensitive or potentially embarrassing issues which the jurors will be asked to discuss, the attorney may want to say, “Before I begin asking questions, I want to tell you that some of the questions are in areas we would consider to be private, sensitive or embarrassing. If you would feel more comfortable answering any question in private, please let us know and we’re sure Judge Goodperson will let us talk privately. If I were sitting where you are, I’d want to answer some of the questions privately.” This type of self-disclosure is an excellent way to get jurors to open up.

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on a few meaningful areas, the chances are increased that jurors will want to expound on their answers.

H.

TALK TO EIGHT JURORS PER TOPIC

Limiting the number of topics presented to potential jurors increases the number of jurors with whom the lawyer can talk about each subject. It is important to talk to as many jurors as possible in order to flush out unfavorable jurors and to have the favorable jurors educate the rest of the panel. By allowing as many as eight jurors to talk on a topic, the attorney will have established a rapport with at least the first thirty-two jurors, and have provided the panel with the views of many of their fellow jurors on a variety of subjects. Additionally, talking to as many as eight jurors per topic allows the jurors to do the talking which, in turn, may actually encourage the Court to extend the voir dire time.

I.

ASK A JUROR NO MORE THAN THREE QUESTIONS AT A TIME

It is important to remember that while encouraging the jurors to talk, a lawyer does not spend too much time with the same juror. We recommend asking the same juror no more than three questions at one time. Asking the same juror too many questions may make the other prospective jurors feel slighted or ignored. The attorney also faces the danger of asking one questions too many and making a juror feel like he or she is being cross-examined or put on trial, thus causing the juror to become defensive or embarrassed. Too many questions may encourage a juror to react negatively or show off and speak out just to get attention. Remember, ask a juror three questions and move on to other jurors. If needed, it is always possible to come back to the topic and ask the juror another question or two.

J.

LOOPING

One of the most powerful and effective voir dire techniques is called looping.

Looping is a technique whereby an attorney asks one potential juror a specific questions and the juror responds. The lawyer then uses the juror’s name, repeats the juror’s exact words, and then asks another juror for a reaction to what the first juror said. A third juror is then asked to respond to the answers given by the first two jurors 5, with the attorney repeating their answers exactly and always using the juror’s name.

This communication technique has many benefits. The jurors are educating each other rather than the panel hearing the propaganda of the lawyers. By repeating the juror’s exact words, any juror who disagrees is, essentially, disagreeing with another panel member and not the attorney. Using the jurors’ names compliments the jurors who have spent all day being treated as nameless and faceless entities, and the attorney 5

We have referred to this as the double loop.

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becomes the one person who has recognized the jurors as people. The jurors will feel that they are held in positive regard and that their answers are valued. This technique makes the jurors more likely to share honest feelings and opinions, and is the single greatest tool in encouraging a roomful of strangers to talk about their honest opinions or feelings.

Looping is also an effective way to deal with unfavorable answers. Following an unfavorable answer, a lawyer should thank and praise the juror for the answer. The attorney should explain to the juror and the entire panel that the purpose of voir dire is to learn what people’s opinions and feelings about certain subjects are, that the beauty of our system is that everyone is entitled to their opinions, and that there are no right or wrong answers, just honest ones. The attorney can then determine how many jurors agree or disagree with the view expressed by that particular juror. Jurors who share a similar opinion or feeling can be identified. Once the attorney has determined this group of potentially unfavorable jurors, he or she can then focus on jurors who are favorable on this issue, i.e., they disagree with the previous (and unfavorable) answer. Opposing viewpoints can then be expressed by the other jurors. By handling an unfavorable answer in this manner, the lawyer has identified potential problem jurors, maintained or increased credibility, encouraged further candor from the jurors, and has once again segued back to positive ground by having the good jurors educate the panel.

K.

THE THREE “E’s”

As explained earlier, far too many attorneys begin the jury selection process by explaining to the panel that voir dire is derived from a French term meaning, to speak the truth. We suggest that voir dire is more than this. Voir dire is an invaluable time during which lawyers should concentrate on what we refer to as the three “E’s”: 1) Eliciting information; 2) Establishing rapport; and, 3) Educating by having the jurors teach each other.

To elicit information from potential jurors, lawyers must first make it easy for the jurors to open up and share important and personal information. Therefore, we suggest to attorneys that they open lines of communication by briefly sharing important and personal information about themselves. We call this self-disclosure. If an attorney wants jurors to share personal information, then that attorney must be ready, willing and able to do the same and do it first.

Rapport means harmony, understanding and camaraderie.

Rapport is established between an attorney and a jury by asking meaningful questions and not being judgmental of the juror or their answers. Establishing rapport with the jurors is another powerful tool of an effective voir dire. After all is said and done, in a close case the jury usually listens to, remembers, and ultimately sides with the lawyer with whom they have formed a bond. As with any relationship, the foundation of the relationship built between an attorney and his/her jurors begins with the honesty and trust developed during voir −10−

dire. The jurors will feel that if the lawyer is honest and trusting enough to share the case with them (warts and all), the lawyer will be truthful throughout the presentation of the case. For the attorney, the first reward for this veracity comes when the jurors respond honestly and candidly.

Educating the panel is a critical aspect of an effective voir dire and should be done by other members of the panel rather than the lawyer. A lawyer should use open-ended questions so that a juror will reveal an experience or opinion in an area that is helpful to your case. The panel will more likely believe and remember information and knowledge shared with them by one of their peers, than they will if that same information comes from the attorney. Examples of questions that will allow the jurors to educate each other will include the following.

L.

1.

What are some reasons why an innocent person would not testify?

2.

Would you please share with us any negative experience that you or a family member has had with a police officer?

3.

What was your reaction when Detective Mark Furhman took the Fifth Amendment in the O.J. Simpson case?

4.

What was your reaction when the F.B.I. falsely accused Richard Jewell of the Olympic Park bombing?

5.

What was your reaction when you learned a woman falsely accused Michael Irvin of the Dallas Cowboys of sexual assault?

6.

Under what circumstances should a person be allowed to use deadly force to protect themselves or their family?

CLOSURE QUESTION

As a general rule, we do not advocate asking general questions to the entire venire.

Many times, when a probing and meaningful question is asked in a group setting, jurors are reluctant to answer. For example, in this day and age most potential jurors have opinions and feelings on laws, crimes and punishment. Too many times we have heard a lawyer say to the jury panel, “Will any member of the jury panel hold it against the Defendant if he/she does not testify?” We know that many jurors have strong feelings and negative opinions on this topic and will usually share this information when properly asked on an individual basis (i.e., “What would your reaction be if a person on trial did not testify on his own behalf?” or, “What are some reasons why an innocent person would not testify?”). What often happens in a group setting is that no one will raise their hand.

General questions to the panel will only encourage the most outspoken jurors to participate. These jurors are just looking for the opportunity to speak their minds. Our −11−

goal is to get the other jurors to talk. Therefore, we recommend that an attorney ask specific jurors specific questions until such time as the attorney is ready to bring the topic to a conclusion. That is the time to aks the entire venire the closure questions, “We have heard quite a few of your fellow jurors say they feel that there are valid reasons why an innocent person would not testify. Are there any members of the jury panel who feel differently or disagree? There is nothing wrong with disagreeing, but we need to know, so please raise your hand.” Conversely, if the prior jurors said that a person accused of a crime should testify, the attorney should ask a series of questions in the following manner: Before we leave this topic, I need to ask you as a group, how many of you agree and disagree with Mr. Gray and Ms. Dodson. First, how many jurors agree that a person should testify? Please raise your hands.

After recording the names and numbers of the jurors who agree, ask: How many jurors disagree with Mr. Gray and Ms. Dodson that there are valid reasons why a person would not want to testify?

Again, record the jurors’ names and numbers. This time go back and ask several of the jurors why they disagree. This will reinforce the third prong (self-education) of our Three E’s theory.

Finally, some jurors will not raise their hands at all. Pick two or three jurors and say: [Juror’s Name], I noticed that you didn’t raise your hand. What is your feeling or opinion about an innocent person on trial not testifying?

Flushing out that information brings closure to the topic. It is time to segue into the next area by saying to the panel, “Now I want to ask you some questions about [new topic].”

M.

THREE VOIR DIRE PROBLEMS - “MOST JURORS DON’T TALK; A FEW TALK TOO MUCH; SOME DON’T TELL THE TRUTH!” There are three fundamental problems with voir dire: 1.

2.

3.

MOST JURORS DON’T TALK; A FEW JURORS TALK TOO MUCH; and SOME JURORS DON’T TELL THE TRUTH!

The best trial lawyers have come to the conclusion that the most effective voir dire occurs when it is the jurors who do most of the talking. Most of the commentators and pundits assert that voir dire is an opportunity for the lawyers to persuade the jurors. In −12−

our view, an effective voir dire is an opportunity for the jurors to persuade each other on the issues associated with the case.

A key ingredient in solving the first problem (most jurors don’t talk) is to properly set the tone6, and then direct specific questions to specific jurors. The second problem (some jurors talk too much) is minimized when an attorney uses this interactive approach to voir dire. There are three options available for handling a juror who constantly raises his/her hand and volunteers information.

1.

If the information is helpful, let the juror talk and then use the information by looping;7

2.

If the information identifies the juror as a potential challenge for cause, say to the juror, “[Juror’s Name], I appreciate your answer. If it is okay with you, we would like to talk to you later in more detail with the Judge.” This way, when the juror subsequently raises his/her hand, the answer can be cut off by saying, “[Juror’s Name], we’ll talk to you about this as well,” then move on to another juror; and

3.

If the juror is a potential strike and is deep in the panel and may not be reached say, “[Juror’s Name], as you can tell, the Judge has brought in more jurors than we will need. What I am saying is that we will probably not get to you. However, I appreciate your raising your hand, and if we think we may reach you, I will come back to you.” The attorney is then free to go on to another juror, has eliminated the problem, and has not alienated the juror (or any other of the other jurors) in the process.

The third problem (jurors who don’t tell the truth) requires an understanding of why the juror is not being candid. Some of the reasons why this occurs are because: 1.

2.

3.

4.

The juror is afraid of being stigmatized; The juror’s feelings conflict with his/her self-perception; The juror has an agenda; or, The juror would rather avoid the issue than confront it.

Being a good listener and carefully observing the juror’s non-verbal communication will help the lawyer identify those jurors who are not being candid. The attorney (or the 6

The tone is set in the Introductory Phase of voir dire. (See the heading entitled, “Starting your Voir Dire.”) Our method is to tell the jurors that there are no right or wrong answers, only honest ones and that the lawyer will ask questions and not give speeches or lecture to the jury.

7

For more information on this concept, see the heading entitled, “Looping.”

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consultant) must try and identify why the juror is reluctant to be honest. An empathetic approach may flush out the answer. The lawyer should consider asking such questions as: 1.

2.

3.

4.

I sense some hesitation in your answer. It is absolutely okay to have some hesitations or reservations; I just need to know; How would you feel if you were chosen to be on this jury?; Have you ever held a different view on this issue and what changed your mind?; or, What is another view that some other jurors might have on this issue?

The reality is that every jury panel has at least one juror who is not being honest.

Since time is limited, make some attempt at determining why the juror is not being candid.

Ask questions in an empathetic (not confrontational) manner. Many times we have heard jurors say, “Well, to be honest with you...” Those very words can open the juror up to a challenge for cause and save a precious peremptory strike.

N.

TOP 10 QUESTIONS AND PHRASES ATTORNEYS SHOULD NEVER USE

Most of this article is devoted to the techniques or methodology an attorney should use during a thirty minute voir dire. After participating in many trial and reading dozens of voir dire transcripts, we have assembled a Top 10 Questions and Phrases Attorneys Should Never Use in Voir Dire: 10.

Do you understand that the law says ...?

9.

I take it from your silence that no one disagrees with the proposition that ...?

8.

Does anyone have a problem with ...?

7.

Will you keep an open mind and not decide this case until you have heard all the evidence?

6.

Can you set aside your bias and decide the case on the facts?

5.

Has anyone formed an opinion about ...?

4.

Can every one of you be a fair and impartial juror in a case like this?

3.

Will you promise me that ...?

2.

I trust you will agree ...?

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And the Number One Question attorneys should absolutely NEVER ask as a voir dire to the entire panel is: 1.

Do any members of the panel have any feelings about ...?

Just remember, regardless of a person’s gender, age, race, education, income, occupation, or national origin, everyone has feelings. Some jurors are more willing to express their feelings, while others have a harder time doing so. The question to ask is, “What feelings do you have [Juror’s Name] about ...?”

III. CASE SPECIFIC QUESTIONS FOR A SEXUAL ASSAULT OF A CHILD PROSECUTION A.

DEALING WITH THIS TYPE OF CASE

Attorneys should be hyper-sensitive to the fact that all jurors have very strong feelings about allegations involving molestation or abuse of children. This is certainly a fact that the jurors will be thinking about and talking about during deliberations. Attorneys should deal with this matter head on at the beginning of voir dire. The attorney should self-disclose his/her understanding that all of us have very strong feelings about these types of cases and should admit that the attorney also has strong feelings. By selfdisclosing your feelings, you are more likely to have jurors tell you about their feelings.

Some sample questions that can be used to get the jurors talking are as follows:

B.

1.

When I hear of an allegation that a child has been sexually molested or abused, I can’t help but think about my daughter and what feelings I would have if something like that ever happened to her. Many people have strong feelings about these types of allegations. What are yours, Mrs. Brown? (Attorneys should then loop to several other jurors.)

2.

Given your strong feelings, wouldn’t [Client’s Name] start out with one strike against him?

3.

Many people will say that they can set strong feelings aside and judge a case strictly on the evidence. Please help us by sharing with us what process you would go through to keep your strong feelings regarding these issues from influencing your verdict.

MAKE A FEAR LIST

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Attorneys should identify everything that scares them about their case and make an exhaustive list of questions that deal with the issues that will come out during the trial.

This list should include questions relating to the following: 1.

2.

3.

What facts are you most afraid of the jury hearing about?

What are you most afraid of the jurors thinking when they hear the evidence?

What are you most afraid that the jurors will talk about when they begin their deliberations.

Attorneys should get the jurors to talk about the issues on their fear list during voir dire because you can be assured that they will be thinking about them and talking about them during their deliberations. You should get into the fear list questions as early as possible during the voir dire. The attorney should admit to the jurors that he/she is afraid of these issues and give the reasons why you are fearful. Be sure and ask open-ended questions to allow the jurors to express their true feelings regarding these sensitive issues.

C. COMMUNICATE THE THEORY OF THE CASE WITH OPEN-ENDED QUESTIONS During this phase of the voir dire, the attorney is allowing the jurors to educate themselves as to their life experiences that are consistent with the theory of the case.

For example, if your theory is that a child mis-interpreted the actions of an adult and overreacted to it, you might want to ask these type of questions: 1.

2.

Mr. Williams, have you ever done something that was mis-interpreted by someone else? Tell us about it.

Ms. Adams, have you ever misinterpreted something that was done or said to you? Tell us about that.

3.

Mr. Smith, have you ever had anyone misinterpreted something you have said or done and had that person overreact to it? Please tell us about it.

4.

Ms. Jackson, if a child overreacts and causes the police to be called, and an adult is arrested, do you think it would be easy or difficult for the child to later say “I overreacted”? Why or why not? (Loop to several other jurors.)

5.

Has anyone ever known someone who overreacted to a situation and got in too far to back out? I need your help on this. Can anyone think of an example where this has happened? −16−

6.

D.

Mr. Wynn, how might a twelve or thirteen year old girl confuse attention or affection as a sexual advance? Please give us your thoughts.

MAKE THE JURORS AWARE OF FALSE ALLEGATIONS

One of the most important things an attorney can do during voir dire is to make the jurors aware of false allegations. Some questions that can be used to get the jurors thinking and talking about false allegations are as follows: 1.

Has anyone ever been accused of something that the did not do? Do you remember how you felt?

2.

Has anyone ever been punished for something they did not do? Do you remember how that made you feel?

3.

Has anyone ever accused someone of doing something, and you later found out that they did not do it? How did that make you feel?

4.

Did anyone accuse someone of doing something and then punish them, only to find out later that they did not do it? Do you remember how that made you feel?

5.

Would it be easy or difficult for a child to convince a parent that she was touched improperly? Why?

6.

Would it be easy or difficult for a child to convince a police officer that she was touched improperly? Why?

7.

Would it be easy or difficult for a child to convince a doctor that she was touched improperly? Why?

8.

Some people believe that there has been an increase of false reports by children regarding sexual molestation. How do you feel about that, Ms. Reagan?

9.

Mr. Bush, do you feel that every allegation of sexual molestation should be considered true? Why or why not? What would happen if every claim was automatically considered true?

10.

What would you do if a child falsely accused you of sexual molestation? How would you go about proving that you did not do it? Do you think it would be easy or difficult to prove that something did not happen? −17−

11.

Has anyone ever promised their child that if they claimed a person did something bad to them, you would believe them no matter what?

Should this be extended to other children, even children that you do not know?

12.

Has anyone ever known a child to fib or lie about something important? Tell us about that. Why would a child do that?

13.

Mr. Clinton, what are some reasons you could think of that a child would not tell the truth?

14.

Mr. Gore, do you think a child could make up a story about being sexually molested and fool everyone? Why?

15.

If a child tells a false story over and over to a number of different people, what effect would it have on the child? Why? If an adult praises the child for reporting the incident and reinforces what the child says, what effect would that have on the child? Why?

16.

Have you ever volunteered to work with children in the past? Given the number of false allegations, how do you feel about working with children now? Why?

17.

Have you ever truly believed something that your child told you, and it later turned out to be false? Please tell us about that. Were you absolutely convinced that your child was telling the truth? How did it make you feel when you found out that your child had lied to you?

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Texas Criminal Defense Lawyers Association

Voir Dire & Cross Exam March 2-3, 2023 The Whitehall Houston, Texas

Topic: DWI Voir Dire

Speaker:

David Burrows Law Office of David Burrows 4420 Staten Island Dr. Plano, TX 75024 214.755.0738 phone 214.377.4169 fax David@DWIdb.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

2/17/2023

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“CHARGE”

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INFLUENCE

INFLUENCE 8

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FACTS

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IS A PERSON GUILTY BECAUSE THEY WERE ARRESTED?

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DOES “ADMITTED” MEAN PROVEN?

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“WHILE OPERATING”

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•HOW MANY OF YOU HAVE RECEIVED A TICKET WHERE YOU DISAGREED WITH THE OFFICER?

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•WHAT LEVEL OF PROOF MUST AN OFFICER HAVE TO WRITE A TICKET?

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2/17/2023

•TO YOU ….

• •WHAT IS THE MOST IMPORTANT WORD IN THE LAW • •“BEYOND A REASONABLE DOUBT”?

31

• REGARDING THE ELEMENTS • HOW MANY REASONABLE DOUBTS • MUST EXIST TO VOTE NOT GUILTY?

32

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•WHICH IS A HIGHER LEVEL OF PROOF, •

•BEYOND A REASONABLE DOUBT •

•OR •

•CLEAR AND CONVINCING?

34

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• WHAT IS THE OFFICER'S “DECISION POINT” TO ARREST? • WHAT IS A JUROR'S “DECISION POINT” TO VOTE GUILTY?

35

36

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•WHAT DOES •“BEYOND A REASONABLE DOUBT” •MEAN TO YOU?

37

•REASONABLE DOUBT CAN BE RAISED •THREE WAYS.

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•1. THE EVIDENCE

2. LACK OF EVIDENCE 3. CONFLICT IN EVIDENCE IF THE CONFLICT RAISES A REASONABLE DOUBT IN YOUR MIND.

39

•THE VERDICT IN THIS CASE WILL BE GUILTY •OR ___________?

40

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2/17/2023

•WHAT ARE YOU SAYING IF YOU VOTE •“NOT GUILTY”?

41

•IS THERE A VERDICT OF …

•“UNDECIDED”?

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Texas Criminal Defense Lawyers Association

Voir Dire & Cross Exam March 2-3, 2023 The Whitehall Houston, Texas

Topic: Cross Examining Rats and Snitches

Speaker:

Robert Fickman Law Office of Robert Fickman 440 Louisiana St Ste 200 Houston, TX 77002 713.655.7400 phone 713.224.2815 fax rfickman@gmail.com email www.fickmanlaw.com website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

CROSS EXAMINING RATS & SNITCHES BY: ROBERT J. FICKMAN 440 Louisiana, Ste. 200 Houston, Texas 77002 (713) 655-7400 www.fickmanlaw.com

WHY DO WE INVESTIGATE RATS? • BECAUSE PREPARATION IS THE KEY TO VICTORY

• ALL RATS ARE DIRTY • WE HAVE TO FIND THE DIRT

1

PREPARATION IS THE KEY TO VICTORY:

TONY SERRA SAYS STUDY THE ART OF WAR THE ART OF WAR SAYS:

“THE VICTORIOUS WARRIORS WIN FIRST AND THEN GO TO WAR, WHILE DEFEATED WARRIORS GO TO WAR FIRST AND THEN SEEK TO WIN”

INVESTIGATING THE RAT

2

I. GET WHAT THE GOVERNMENT WILL GIVE YOU • STATEMENTS • CRIMINAL RECORD • PLEA AGREEMENTS, DEALS • REMEMBER: IF IT’S REALLY GOOD YOU WON’T FIND IT IN THE GOVERNMENT’S FILE • PRACTICE TIP: YOU GOT TO WORK FOR REAL GOLD

II.

CHECK CRIMINAL COURTHOUSE RECORDS (DER…)

• CONDITIONS OF BOND • CONDITIONS OF PROBATION • ANYTHING SWORN TO (YEAH BABY)!!!

• SOMETIMES YOU GET SURPRISES (PSYCH REPORTS) (RAT LETTERS)

3

III. CHECK CIVIL COURTHOUSE RECORDS • DIVORCE RECORDS (EX-WIVES OR EX- WIVES’ LAWYERS)

• PROPERTY RECORDS (WARRANTY DEEDS) • DBA’s (OPEN THAT CAN OF WORMS) • “KNOCKED THE HALO RIGHT OFF HER HEAD”

IV.

ONLINE • GOOGLE SEARCH • E-MAILS – WHAT DOES “E” STAND FOR?

• SOCIAL MEDIA (PHOTOS, VIDEOS, LINKS) – FACEBOOK, TWITTER, INSTAGRAM – SEARCH FACEBOOK FRIENDS

4

V.

PUT THE WORD OUT (TO THE DEFENSE BAR) • FIND OTHER CASES WHERE RAT SNITCHED • GET RAT’S OTHER TESTIMONY • MAKE A “RAT BOOK” • TURN THE RAT INTO PAVLOV’S DOG

VI.

HIT THE STREETS WITH PI

• ALWAYS BRING WITNESS TO PROTECT YOU • ASK NICE & THEY MAY JUST GIVE IT TO YOU ( “WE ARE HERE”!!!)

• TALK TO (POTENTIAL WITNESSES) • FORMER EMPLOYERS, CO-WORKERS • FORMER SPOUSES • FORMER GIRLFRIENDS • FORMER FLAMES (BEST) • NEIGHBORS • LANDLORDS • BUSINESS ASSOCIATES

5

VII.

IF THEY WON’T GIVE IT TO YOU

• SUBPOENA, SUBPOENA, SUBPOENA – USE PRIVATE SERVICE – GIVE RECIPIENT METHOD TO COMPLY WITH BSNS RECORD AFFIDAVIT BEFORE TRIAL – PUT RETURN DATE ON A PTC DATE

RULE 17 (c)(1) F.R.Cr.P. • A SUBPOENA MAY ORDER THE WITNESS TO PRODUCE ANY: – BOOKS – PAPERS – DOCUMENTS – DATA – OR OTHER OBJECTS

• PRIVILEGE? I DON’T SEE NO STINKIN’ PRIVILEGE!

6

VIII. WHAT TO SUBPOENA: • • • • • • • • • • • •

SCHOOL RECORDS LOAN APPLICATIONS (SWORN) (AUTO, STUDENT, BANK) JOB APPLICATIONS LEASE APPLICATIONS BOND RECORDS PROBATION RECORDS CELL PHONE DUMPS CELL PHONE TRACKING RECORDS CPS RECORDS (TAPES) PSYCH RECORDS (4,400 PAGES!) (GET GOVERNMENT TO SUBPOENA FOR YOU) RAT PAYMENT RECORDS COURT MAY HOLD UNLESS OR UNTIL RELEVANT (DON’T FORGET)

CROSSING “THE RAT”

7

I.

WHAT IS OUR GOAL?

• TO DISCREDIT THE RAT. • TO MAKE THE JURY HATE THE RAT.

II.

WHY? BECAUSE WE WIN WHEN THE JURY FINDS SOMEONE IN THE COURTROOM TO HATE MORE THAN OUR CLIENT

• WHO IS THAT SOMEONE? •

THE STINKING RAT!

8

III.

START DOMINATING THE RAT BEFORE YOU START CROSS • GET THE RAT IN YOUR LINE OF FIRE OR GET CLOSE • OBJECT DURING DIRECT • LET THE RAT KNOW YOU ARE COMING! “I AM COMING FOR YOU”

IV.

GET THE EASY STUFF FIRST • FIRST, GET WHAT THE RAT GIVES THAT SUPPORTS DEFENSE THEORY. • SHOW AN INNOCENT EXPLANATION FOR HOW THE RAT KNOWS YOUR CLIENT.

9

V. TO ESTABLISH THE PATH TO A NOT GUILTY YOU MUST SHOW

• THAT THE RAT HAS A HUGE MOTIVE TO LIE!!!

• THAT THE RAT IS A LIAR!!!

HOW DO YOU SHOW THE RAT IS A LIAR ???

USE THE “NEW & IMPROVED”

ROBB FICKMAN’s PATENTED

“LIST OF LIES”

10

VI. THE LIST OF LIES • MAKE USE OF THE DIRT ON THE RAT. • SHOW THE RAT’S LIFE AS A LIAR. • SHOW THE RATS HAVE BEEN IN CAHOOTS BEFORE. • SHOW THE RATS ARE NOW IN CAHOOTS AGAIN. • PRACTICE TIP: USE ON ANY RAT ON ANY CASE: DRUGS, CONSPIRACY, MORTGAGE FRAUD, MURDER

LIMIT ON USE OF LIST OF LIES • THE LIST OF LIES IS MUCH EASIER TO DO IN FEDERAL COURT THAN IN STATE COURT. • COMPARE FEDERAL RULES OF EVIDENCE 608(b) TO THE STATE EQUIVALENT.

11

FEDERAL RULES OF EVIDENCE 608(b) (b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-

examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of: (1) the witness

TEXAS RULES OF EVIDENCE 608(b) b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, a party may NOT inquire into or offer extrinsic evidence to prove specific instances of the witness’s conduct in order to attack or support the witness’s character for truthfulness.

IN TEXAS YOU MUST BE “MORE CREATIVE” TO FIND A WAY TO GET AROUND 608(b).

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“THE ORIGINAL LIST OF LIES” • DARRYL CAMPBELL CASE – 10 CO-DEFENDANTS, – 4 PRIMARY RATS, – 9 WEEKS OF TRIAL, – DOJ PROSECUTIONS,

• USED “LIST OF LIES” TO ATTACK RATS • RESULTS: CLIENT ACQUITED ON ALL 5 FEDERAL CHARGES- LAWYER NOT PAID. • IF YOU SEE STEVE TELL HIM I AM LOOKING FOR HIM.

PRACTICE TIPS FOR LIST OF LIES • • • • • • •

USE FLIP CHART WRITE RAT’S NAME AT TOP CREATE TIME LINE TO SHOW LIFE OF LIES USE BLACK FOR IMPORTANT POINTS USE BLUE FOR GOOD GUYS USE RED FOR BAD GUYS JURY SEES YOU MAKING IT- MAKE SURE ITS ACCURATE, USE RAT’S WORDS • USE AGAIN FOR FINAL • JURY WILL REMEMBER

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UNITED STATES V JOHNNY “JOHNNIE” JOHNSON GOVERNMENT WITNESS LIST 1) DWAYNE LEE (RAT 1) 2) MELVIN LEE (RAT 2)

EXAMPLE: LIST OF LIES ON DWAYNE LEE (RAT 1)

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Dwayne Lee’s Word (RAT 1) “I SWEAR, I NEVER LIE...”

WEDNESDAY, SEPTEMBER 14, 2022 (2:28 PM)

• 2019-2021

DEALT Meth For 3 YEARS with Melvin (RAT 2) HID Facts 3 YEARS From:

- Mother, Family, Friends, Acquaintances

LIED To Momma 150 Times LIED To Momma About Melvin (RAT 2)

• 2019

HID The Truth From:

- Apartment Manager, Neighbors At The “El Diablo”

• 2019

HID The Truth From:

- Coworkers at “The Sizzler”

•

Dwayne Lee’s Word • 2019

LIED On Truck Loan Applications To: - Dealership

• 2020

Continued DEALING METH WITH MELVIN (RAT 2)

• MAY 2020

ARRESTED On State Delivery of Meth Case“Did not tell truth” To:

- Police - Pretrial Services

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Dwayne Lee’s Word • JUN 2020

PLEAD GUILTY LIED Under Oath TO: STARTED PROBATION

- Judge, - Probation Officer, - Your Lawyer, - Your Momma, - Your Preacher

CONTINUED DEALING WITH MELVIN (RAT 2) LIED MONTHLY TO: (24 MONTHS)

• OCT 2020

- Probation Officer

Bought House & LIED TO: - Your Realtor - The Seller - Mortgage Co. - Bank, Title Co.

Dwayne Lee’s Word • 2021

HID The Truth From:

• APR 2021 LIED TO FEDS • MAY 2021 LIED on Job App To:

- Nice People in Sugarland

- False Tax Returns

- New Employer, “Dickie Livingston Used Cars & Breakfast Tacos”

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Dwayne Lee’s Word • JUN 2021

You and Melvin (RAT 2) Sold Meth Repeatedly In GREAT UNCLE’S Yard Used & HID Truth From:

• AUG 2021

- Great Uncle (Veteran)

YOU & MELVIN (RAT 2) SOLD METH WITH BABY IN THE CAR

“DAD OF THE YEAR” (RAT 1) “UNCLE OF THE YEAR” (RAT 2)

Dwayne Lee’s Word • SEP 1, 2021 YOU AND MELVIN (RAT 2) ARE ARRESTED ON FEDERAL METH CASE

• SEP 3, 2021

• 2022

YOU COOPERATE AND GET BOND Initial Interview 10 HOURS NEVER MENTIONED JOHNNY JOHNSON TO: - Agents - AUSA AGENTS TOLD YOU & MELVIN (RAT 2) THEY WERE AFTER JOHNNY JOHNSON

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Dwayne Lee’s Word • 2022

You & Melvin (RAT 2) Talk About JOHNNY

• MAR 2022 • MAR-JUN 2022 • JUN 2022

YOU TELL AGENTS STORIES ABOUT JOHNNY FOR THE FIRST TIME SINCE YOUR ARREST YOU TELL MELVIN (RAT 2) WHAT YOU’RE TELLING AGENTS ABOUT JOHNNY MELVIN (RAT 2) STARTS TELLING STORIES ON JOHNNY FOR THE FIRST TIME (SAME AS YOURS)

Dwayne Lee’s Word • JUN 2022 - YOU (RAT 1) AND MELVIN (RAT 2) ARE TELLING THE AGENTS THE SAME STORY ABOUT JOHNNY. - Met With Agents & AUSAs - Met with Defense

- 80 Hours - 0 Hours 0 Minutes

Q: Did you get high before meeting with Agents & AUSA’s for debriefs?

A: Um… yes

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Dwayne Lee’s Word SEP 14, 2022 IN THIS COURT YOU TESTIFIED AGAINST JOHNNY JOHNSON Q: WERE YOU HIGH WHEN YOU TESTIFIED? A: UMM… Q: DO YOU KNOW WHEN YOU’RE GOING TO GET HIGH NEXT? AUSA: OBJECTION! JUDGE: HE CAN ANSWER IF HE KNOWS.

VII.

THE DEFENSE THEORY MUST TAKE THE MORAL HIGH GROUND THE ART OF WAR SAYS: DU MU

“FIGHT GOING DOWN, NOT CLIMBING UP”

I SALUTE ALL OF YOU!

19

It’s 6:04. I argue at 9. I used to be afraid. I am not. I am full of fire. It is, as Tony Serra said, two minutes and I have to get the ball across the goal line.

Thinking of old friends We fought side by side: David Cunningham. I want that ball. I am full of fire. I only have 30 minutes. I have a 22 page final. By page 2, I will be off script and lost in it. I will be a mad man but I will not be irrational. I will be a rational mad man. Part Henry V shouting once more into the breach. Part King Lear’s fool revealing the unwanted truth. I will cram it down the Government’s throat all the way to their toes. My teeth are gritted. We are not warriors. No one is shooting at us. We are lawyers fighting for liberty with our wits and our words; that is honor enough. I will stand on the chair and bellow the truth. The truth is they are bullies and we always stand against the bullies for the little guy. For the little guy we fight. I am ready for this fight. I want this fight. This is why I became a lawyer. Not for all the tiresome crap; but for the fight. I want my 30 minutes.

I am coming. I am on fire and they can do nothing to stop me.

At least when I am dead, I will have lived at 6:04.

20

GOOD LUCK! ROBERT J. FICKMAN 440 Louisiana, Ste. 200 Houston, Texas 77002 (713) 655-7400 ofc (713) 962-8821 cell RFICKMAN@GMAIL.COM www.fickmanlaw.com

21

Texas Criminal Defense Lawyers Association

Voir Dire & Cross Exam March 2-3, 2023 The Whitehall Houston, Texas

Topic: Going Through the Back Door with the Issue of Race in Voir Dire Speaker:

Letitia Quinones Quinones & Associates, PLLC 2202 Ruth St. Houston, TX 77004 713.481.7420 phone 713.714.8670 fax letitia@quinonesandassociates.com email https://www.quinonesandassociates.com/ website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Going Through the Back Door with the Issue of Race in Voir Dire

Letitia Quinones, Houston Quinones & Associates, PLLC

NACDL’s 2019 Annual Meeting & Seminar Ringing Liberty’s Bell: Effective Storytelling & Persuasion Techniques August 1, 2019 Philadelphia, Pennsylvania

Table of Contents Curriculum Vitae if Attorney ....................................................................................................................... 3 I.

INTRODUCTION................................................................................................................................ 5

II.

VOIR DIRE TOOLBOX REVEALED .............................................................................................. 5

A.

Strike Zone ...................................................................................................................................................6

B.

Jury Shuffle ..................................................................................................................................................6

C.

Batson Challenge ..........................................................................................................................................7

III.

THE BACK DOOR .......................................................................................................................... 7

A.

Cultural Biases and Ignorance ......................................................................................................................8

B.

Racial Stereotypes ........................................................................................................................................8

C. Going through the Back Door..............................................................................................................................9

IV.

CONCLUSION .............................................................................................................................. 10

Curriculum Vitae if Attorney Letitia D. Quiñones 2202 Ruth St., Houston, Texas 77004 713-481-7420 (phone), 713-714-8670 (fax) letitia@quinonesandassociates.com EDUCATION 1995

Clark Atlanta University B.A. in Political Science (cum laude) Texas Southern University Juris Doctorate

1998

SCHOLASTIC ACHIEVEMENTS President, American Trial Lawyers Association (1997-1998) Recipient, Antonio Criado Memorial Scholarship (1999- 2000) Winner, Mock Trial Scholarship Competition (1996-1997) Runner-up, Thurgood Marshall Moot Court Competition (1996) EXPERIENCE 1997 Law Clerk at Southwestern Bell Corporation 1997 – 1998 Legal Internship at Chevron Corporation 1998 - 2001 Founding Senior Partner of The Law Firm of Quiñones & White, P.C. 2003 - 2007 Legal Apprenticeship for The Law Office of Robert A. Jones 2001 – Pres. Founding Attorney of The Law Firm of Quiñones & Associates, PLLC 1997 – Pres. Certified Mediator in the State of Texas PROFESSIONAL ACTIVITIES 1998 – Pres.

2004 – Pres.

2006 – Pres.

2008 – Pres.

2008 – Pres.

Member, Houston Bar Association Member, Texas Criminal Defense Lawyers Association Member, National Criminal Defense Lawyers Association Member, Texas State Bar College Member, Professional Women’s Association BAR ADMISSIONS

1998 2011 2004 2005 2007 2009 2009 2018

The State of Texas Trial Counsel in Death Penalty Cases U.S. District Court Southern District of Texas U.S. District Court Eastern District of Texas U.S. District Court Western District of Texas U.S. District Court Northern District of Mississippi U.S. Court of Appeals 5th Circuit U.S. District Court Western District of Louisiana (Pro Hac Vice)

2018

U.S. District Court Western District of Michigan (Pro Hac Vice) PROFESSIONAL ACHEIVEMENTS

2007 2009 2019

Scholarship, National Criminal Defense Lawyers Association Conference Inductee, Biltmore Who’s Who Texas Board of Legal Specialization Certification in Criminal Law RECENT SPEAKING ENGAGEMENTS

2007 2008 2009 2014 2015

Texas Southern University Trial Advocacy Lecture Greater St. John’s Missionary Baptist Church In the Word International Church NACDL – Women in Law Harris County Public Defender’s Office ELECTED MEMBERSHIPS

1997-1998

The American Trial Lawyers Association

Going Through the Back Door with the Issue of Race in Voir Dire I. INTRODUCTION As attorneys we are to be of sound mind and strong intellect, we must not be blissfully ignorant to current racial climate of our country. We live in a time where the color of your skin not only matters; but is paramount in the outcome of your case in the justice system. Race absolutely matters. When an attorney decides to take a case to trial at the direction of their client, everything turns on the ability of the attorney to be brutally honest with themselves and the potential members of their jury. Meaning, the attorney must be able to connect with the potential jurors in a way that allows them to let their guard down. Attorneys should be able to artistically empower their jurors to be upfront about their biases.

As detailed throughout, there are three areas that will be addressed to go through the back door during the voir dire process to address the issues of race in voir dire. We will begin by discussing the importance of determining cultural biases of not only the defendant, but also the cultural make-up of the citizens of a particular region. Second, the identification of racial stereotypes. Lastly, what going through the back door entails for a white attorney, a black attorney, or an attorney of color. As we move through the topic areas, we will address the ways to beat and address biases to have a diverse jury pool for your client.

II. VOIR DIRE TOOLBOX REVEALED Voir Dire is a highly popular topic to search, in fact if you google it over five million results will populate. But what is Voir Dire? Is it the essence of talking to people? Or maybe it is the process attorneys use to determine if a juror is biased1? Law.com says that voir dire has an unspoken purpose which is that the attorneys get a feel of the personalities and likely views of the potential jurors2. Wikipedia says voir dire is the process for attorneys to select or reject jurors to hear a case3. And finally, Merriam-Webster defines voir dire as” a preliminary examination to determine competency of a witness or juror4.” However, the law says: “[V]oir dire places a critical function to assure a criminal defendant that their Sixth Amendment right to an impartial jury will be honored. Without an adequate voir dire the trial judge's responsibility to remove prospective jurors who will not be able to follow the court's instructions impartially and evaluate the evidence cannot be fulfilled. Similarly, lack of adequate voir dire impairs the defendant's right to exercise peremptory challenges where provided by statute or rule, as it is in the federal courts5.”

It is possible that all the definitions from the world wide web may have in some part been true of the definition of voir dire. Because voir dire examination serves as a process of allowing the court and the attorneys to question potential jurors to determine their racial biases, but this questioning must be covered throughout the process of voir dire, but the court leaves no particulars by which it must be done6. In fact, it is up to the creative techniques of attorneys to ascertain a style that is effective and captivating for their audience.

1 Search Legal Terms and Definitions, https://dictionary.law.com/Default.aspx?selected=2229 (last visited July1st,2019).

2 Id. 3 Voir dire, https://en.wikipedia.org/wiki/Voir_dire (last edited July 4, 2019).

4 Voir dire, https://www.merriam-webster.com/dictionary/voir%20dire (last visited July 1, 2019).

5 Rosales-Lopez v. United States, 451 U.S.182 (1981).

6 Mu'Min v. Virginia, 500 U.S. 415 (1991).

A. Strike Zone The gravity of the offense dictates the make-up of the jury. For instance, a misdemeanor assault is entitled to six jurors; whereas, a capital murder is entitled to twelve. The juror pool for a misdemeanor may be forty-two people and a capital murder pool could be over 100 people. The number of jurors on a petite panel effects the strike zone of attorneys.

In Texas for instance, a non-capital felony trial has a panel full of typically sixty-five people and the attorneys wind it down to twelve people in the jury box to take the oath7. This is why the “strike zone” is important. The “strike zone” is the zone of jurors who have the potential to make it onto the petite jury. The zone is dictated by the first thirty-two people who have not been struck for cause. People can be struck for cause if they show they are biased either for or against the charged offense. Preemptory strikes do not need a reason as long as it is not for racial reasons or on the basis of sex. A case of racial discrimination in the exercise of a party's peremptory challenges, that party "must articulate a racially neutral explanation for the peremptory challenge8."

In the case of gender discrimination, counsel must offer a gender-neutral, non-pretextual explanation for the peremptory challenge9. Each side is entitled to a certain number of preemptory strikes like: 1.

2.

3.

4.

Felonies are allowed ten strikes, Misdemeanors are allowed three strikes, Family court is allowed six strikes, and Civil court is allowed six strikes.

Strikes for cause is the striking of a juror because of their biases. In order to get them to be struck for cause the attorney must get them to commit to their biases, to not use up preemptory strikes. However, understand you may not allow someone to violate their own conscience in the commission of your voir dire. The beauty of striking for cause is that they are an unlimited number of strikes; however, it behooves attorneys to be wise and tactful when getting a juror to commit to their own biases because it possible to bust a panel. A loose and messy voir dire could lead to busting the entire panel and having start over again possibly the next day wasting the court and the client’s valuable resources and time.

After examining the number of preemptory strikes and strikes for cause, the number of the strike zone is set. For a felony or even capital murder, essentially any case with twelve jurors your strike zone is thirty-two.

Thirty-two is the number because you have twelve jurors in the petite jury. For felonies you are allowed ten strikes. Ten strikes each side equals twenty strikes total from the attorneys. Twenty plus the twelve to make it to the petite jury equals thirty-two people. The alternate juror has its own strike zone which begins at the last juror in the strike zone and one strike for each side. Meaning there is a three-juror cushion for the alternate juror strike zone.

B. Jury Shuffle Your strike zone should be determined before the jury pool is brought in the courtroom; thus, determining if there is a need for jury shuffle. At this point the attorneys have the ability to take a look at their potential jurors.

This is the first chance attorneys get to view the racial, gender, and age of the potential jurors. A defense attorney or prosecution may call for a jury shuffle if they determine their best candidates are outside of their strike zone.

Jury shuffle is a procedure by which either side may reshuffle the cards bearing the jury panelists, thus rearranging

7 Mark Bennett, Jury Selection Behind the Scenes, Defending People Criminal Defense and Free Speech (February 8, 2013),

https://blog.bennettandbennett.com/2013/02/jury-selection-behind-the-scenes/.

8 Georgia v. McCollum, 112 S.Ct. at 2359; see infra Batson v. Kentucky, 476 U.S. at 98.

9 J.E.B. v. Ala. Ex.rel. T.B., 511 U.S. 127 (1994).

the order in which panelists were seated for questioning10. However, the jury shuffle cannot be used for racial discrimination purposes.

In Miller-El v. Dretke, the Dallas County District Attorney’s office was found to have used the jury shuffle as a process of discriminating against black jury members11. The District Attorney’s office was found to have on numerous occasions requested a jury shuffle when the African-American panelist are in the front of the panel12.

Not only was there a request for a jury shuffle but the prosecution lodged a formal objection after the AfricanAmericans made it onto their jury post jury shuffle13. The United States Supreme Court held that the prosecutions tactics were clearly discriminatory, and these tactics were used to create a “for cause” strike. The tactic of jury shuffling is not to be used to purposefully discriminate against the racial differences of the jury. In fact, the shuffling of a jury should have a racially neutral reason as the reasoning for shuffling the jury14.

C. Batson Challenge Batson Challenge is used when one side believes the other is using racial discrimination and disguising it as a preemptory strike. The challenge comes from Batson v. Kentucky, which held that parties cannot use their preemptory challenges based on a person’s race or gender biases. In Batson v. Kentucky, the prosecutor used their preemptory challenges to strike all four minority persons on the jury pool; therefore, only selecting the white jurors15. On an objection by the petitioner, the trial court found parties are able to use preemptory strikes for any reason16. The state supreme court found the prosecution did indeed engage in systematic discrimination, thus violating the equal protection clause17. This case overruled the Swain v. Alabama case thus eliminating the requirement that the petitioner is to establish a systematic pattern of discrimination18.

Batson v. Kentucky was used to protect jurors under the Equal Protection Clause of the Fourteenth Amendment. Edmonson v. Leesville Concrete Company offers protection for jurors in civil cases and J.E.B. v.

Alabama ex rel. T.B. is a case that protects jurors from being discriminated against based on the basis of sex. All of these cases are used to protect the rights of citizens especially the racial minority to be able to participate on a jury panel, possibly your jury panel.

III. THE BACK DOOR Above we addressed the toolbox every attorney should have in their arsenal to be used in voir dire to protect the integrity of their jury panel. But the heart of the issue is how do we protect the integrity of our client whose race may affect the outcome of the trial. The simple answer is have an effective and empowering voir dire. Easier said than done. Next, we will be touching on three topics to have a persuasive and effective voir dire. It is our duty to our clients that we fight fervently and effectively to ensure the veracity of the petite jury. First, we must be honest in order to determine the cultural biases and ignorance that the race of our defendant holds. Second, we must address racial stereotypes of our defendant. Finally, we must go through the backdoor and address the elephant in the room of discrimination and the effect race has on our jury.

The foremost thing before we address the three topics is the need to empower the jurors to be upfront about their biases. It is not enough to just introduce ourselves, there has to be a good-faith effort to disclose just enough information about ourselves that begins to let the guard down of the jurors. For instance, I am from Indiana and

10 Miller-El v. Dretke, 545 U.S. 231 (2005).

11 Id. at 237.

12 Id. at 238.

13 Id. at 239.

14 Miller-El, 545 U.S. 231 (2005).

15 Batson v. Kentucky, 476 U.S. 79 (1986).

16 Id. at 85.

17 Id. at 86.

18 Id.

I am a huge Michael Jackson, Janet Jackson, and the Jackson 5 fan, in fact I am a “stan” or in other words a strong fan that takes absolutely no slander of the Jackson family. If I was asked if I could find Janet Jackson guilty of any crime even something as minor as a traffic violation, I would find her not guilty. By empowering the jurors, we subconsciously allow them the freedom and strength to be upfront and honest about their biases. So much so, we might ask is there anything about this person, my client, that you dislike? i.e. his beard, his hair color, the ear piercings, or even the color of his skin. By opening this door, we are able to address the cultural barriers and biases that may run rampant through a jury.

A. Cultural Biases and Ignorance Understanding your client’s cultural biases and being aware of the ignorance to cultural customs is an important factor in determining the potential jurors. There is nothing like presenting evidence that has a direct effect on the cultural customs of your client, and you have a juror who is ignorant and unwilling to be informed on the cultural differences. But as the attorney it is your job to be able to spot the juror who is unwilling and ignorant.

Some people are not even aware of their biases as it is an unconscious bias, or implicit bias. This type of unconscious bias is prejudice or unsupported judgment made against a thing, person, or group of people that is deemed unfair. It is suggested that this type of bias is usually a result of a quick judgment based on your experiences and background19. In contrast, a conscious bias or explicit bias is a deliberate prejudice against persons, things, or groups of persons20. Prejudice is defined as a prejudgment or attitude about a group or its members, it is typically accompanied by ignorance21.

One of the many ways to combat the biases is as the attorney to be aware of the biases in which we have.

Harvard IAT tests a variety of biases; however, the Race IAT is the test in which indicates whether Americans have a preference of white or black people. This test analyzes the reaction and ability of the tester to associate the bad with the white people and the good with black people. The test then flips the questions to understand the reverse as well, the goal is to analyze the ability of the test-taker to associate positive and good things with one race over the other. As attorneys we are the human Harvard IAT Race test, with the ability to be aware of the biases and preferences of people.

The goal is to open the door of conversation about black, white, Hispanic, etc. people in a way to be able to determine how they associate the different races in their head. The ability to bring out the unconscious biases in a way that shows whether the white juror dislikes the black defendant simply because of the color of their skin.

In the midst of this social climate, it is important to acknowledge that some people are die hard whitesupremacists, or unwavering black panthers, or even members of the cartel. These titles and racial affiliations matter. And it is up to the attorney to pull these biases whether conscious or unconscious out of the jury panel.

But the art is to not necessarily get them struck for cause if they are favorable to your case, but rather rehabilitate their biases to work for you.

B. Racial Stereotypes Racial stereotypes matter and are ever more present in America today. A stereotype is an exaggerated belief, image, or distorted truth about a person or group of people based on reputations, media, or other members of

19 Office for Equity, Diversity, and Inclusion, Unconscious Bias, (July 1, 2019, 11:45pm),

https://www.vanderbilt.edu/diversity/unconscious-bias/ 20 Id. 21Teaching Tolerance, Test Yourself for Hidden Bias (June 30, 2019, 10:00pm), https://www.tolerance.org/professionaldevelopment/test-yourself-for-hidden-bias.

society22. No one wants to be looked at as intolerant or even one holding onto racial stereotypes but to act as though they do not exist is an insult to anyone’s intelligence.

A racial stereotype can be minor or grand depending on the gravity of one’s biases and ignorance because those are the building blocks that produce racial stereotypes. Something as small as an associate following a black customer around the store constantly asking them if they need help finding something while simultaneously walking past several white customers and never once asking them if they need help is a stereotype of that black customer. Stereotypes can be disguised as keeping one safe, but the reality is that the stereotype still exists. Often times the stereotypes exist for the minorities as opposed to white people. For instance, you see a Hispanic kid with their hood up and their hands in their pockets walking quickly from a store, what is your first instinct? Is it that maybe they are cold that is why their hands are in their pockets? Or maybe they are late to catch their bus and are walking with pace to make up time? Is it possible they are walking quickly because they just stole something from that store? The possibilities of your thoughts are endless and depending on your exposure to the media, your experiences, or beliefs your answer to the posed question may differ. But the point is as an attorney during voir dire it is crucial that you dive beyond surface racial questions to analyze the thoughts of your jurors in order to be aware of the racial stereotypes that accompany your client.

C. Going through the Back Door Lets be honest, as a black attorney we cannot outright address the issue of race; however, our white counter parts may. A white attorney may ask does anyone have a problem with my black client’s appearance. As the jurors will not think that if they have a problem with the client it will directly offend the attorney. Whereas, a black attorney asking about the appearance of their black client, a juror may never answer for fear of offending or “coming off racist” to the attorney and the court. So, let’s break down how an attorney addresses the issue of race during the vior dire proceedings.

First, the attorney must neutralize the stereotypes that present themselves throughout the questioning during voir dire. The goal is to anticipate the upcoming assumptions made on the basis of race and the indirect facts of your case. By anticipating the assumptions, you are able to better navigate an inflammatory remark of a juror in the panel on the basis of race. Not only may you navigate the conversation and maintain control, but also begin to set your case on path to differentiate the stereotypes from your client. While race is a critical factor, be sure to not become overwhelming or harping on your client’s race and getting away from the seriousness of the offense.

Next, address and emphasize the idea of fairness in the judicial system. By addressing the importance of fairness, you subconsciously reduce the impact of their prejudices and biases23. By addressing the idea of fairness in the system especially on the basis of race, a potential juror is able to open up their mind and capacity to be unbiased towards your client. The ultimate goal is to ensure the jurors understand that fairness and justice work hand and hand. When you make your judgments based on the color of someone’s skin or their cultural difference justice will never prevail, nor will fairness ever have a chance to be used.

Lastly, the ability to make conditional conversations directed on the basis of race will help elevate the elephant in the room and see your client far past the color of their skin. Because the ultimate goal by the end of voir dire is to have a diverse petite jury panel that is willing to unbiasedly and freely evaluate the merits of your case based on the evidence presented and not the color or racial stereotypes or biases of your client. As a white attorney the ability to use your conversation and questions to candidly ask the jurors their racial biases against your minority client should be used to your advantage. The more direct and specific your hypotheticals are on the basis of race, the more likely you are to get honest conversations revealing the biases of the jurors.

22

23

Id. Id. at 8-4.

IV. CONCLUSION As a vigilant trial attorney, you cannot afford to run from the uncomfortable situation that talking about race may present. As you progress through your voir dire do not forget to address the cultural biases and ignorance, racial stereotypes, and the ability to go through the back door during voir dire. But do not be afraid to use your voir dire toolbox to protect the integrity of your jury panel. The types of strikes should be committed to memory and the strike zone should be sorted before the panel is brought into the courtroom. But do not be afraid to reshuffle the jury panel when the diversity of the jury pool is not within the strike zone. A diverse jury is the most beneficial way of defending your client, thus the fear of addressing race should be minimized. Fighting for your client means addressing race in the voir dire by going through the back door to effectuate a diverse panel of your client’s peers.

Texas Criminal Defense Lawyers Association

Voir Dire & Cross Exam March 2-3, 2023 The Whitehall Houston, Texas

Topic: Cross Examination of the Complaining Witness

Speaker:

Lisa Greenberg Law Office of Lisa Greenberg 622 S Tancahua St Corpus Christi, TX 78401 361.446.2476 phone 361.288.3476 fax lisagreenberglaw@gmail.com email https://lisagreenberglaw.com/ website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Cross Examination of the Complaining Witness By: Lisa Greenberg Law Office of Lisa Greenberg (361) 446-2476 622 S. Tancahua St. Corpus Christi, TX 78401 lisagreenberglaw@gmail.com “Cross-examination is the greatest legal engine ever invented for the discovery of truth. You can do anything with a bayonet except sit on it. A lawyer can do anything with cross-examination if he is skillful enough not to impale his own cause upon it.” John Henry Wigmore “Cross examination is the principle means by which the believability of a witness and the truth of his or her testimony are tested.” Davis v. Alaska, 415 U.S. 308, 316, (1974).

Cross Examination is one of the hardest trial skills a trial lawyer needs to master. However, it can be the most fun- because it is as close to hand-to-hand combat as you can get as a nerdy trial lawyer in the courtroom. Regardless of the difficulty, we owe a duty to our practice, our clients and ourselves to grow and learn how to cross-examine effectively. We need to tailor our cross examination to each and every trial and be prepared for witness’s testimony on both direct and cross. Each witness is being used by the Prosecutor as a piece of the puzzle to convict your client, it is your duty, to dissect those pieces individually. In doing so, you prove yourself to be prepared, competent and skilled while telling your client’s story.

Let me start out by admitting that writing a paper on Cross Examination is difficult for me. First off, I must state to you all that I consider myself to be a trial lawyer. I can talk to people all day long but writing and researching are not my strong suits. That being said, when I sat down to write this, I am attempting to walk you through my process of trial preparation for Crossing the Complaining Witness.

Remember, this may be your most important witness in any kind of family violence or sexual assault case. Most of the time, two people were there- your client and the complaining witness. If the jury believes this witness, you may be sunk. However, with preparation, knowledge of the case and knowing where you are headed, this is also where you can win your case.

This complaining witness has been preparing to testify. The State has screened her, the victims advocate coordinator has helped, any therapists have helped. And remember, these people are not trained to question his/her story. But you are. This is what cross-examination is all about.

And remember, this is usually what the jury has been waiting for. The drama they were promised.

“There is very little we do that is as psychologically rewarding as exposing liars, fool and others who are polluting the waters of justice with false testimony.” Charles W. Daniels, “Using the Rules to Expose the Liar, the Fool and the Trained Pig”.

1

Note: This paper will be divided into 2 parts. Part I is specific to cross examining the complaining witness, but if you are unfamiliar with trial and cross in general, I suggest you start with Part II, trial preparation and cross examination in general.

Part I. Cross of the Complaining Witness: Typically, the star witness in most of the Prosecution’s assault cases will be the Complaining Witness. Here are some tips to learn to win that fight. * win = discredit, show motive, take away the bias against your client that was there from the start and to expose what really happened.

I.

Importance of Cross of the Complaining Witness: a. Most likely- State’s Star Witness b. Starts ahead, no matter what the jury saysc. Has the title of “victim”, there is automatic sympathy in that word itself. Has been treated as a victim since the incident by everyone- medical facility, police, DA’s office, probably the judge too. (note: something to tackle on VD) d. Motivated to look good, sympathetic and believable. Has a stake in the outcome.

Has a team designed to help him/her to be believable. We are the enemy in his/her mind. If we win, the jury has not believed their story e. Usually has not been questioned thoroughly. Has been believed, supported, made to state the story several times and has had time to perfect it. Most likely, no one has asked the hard questioned or challenged his/her credibility. f. Might be attacking the cw’s very identity- many people relish in being “victims”

II.

Preparation: (I would argue this is the most important part of the cross) a. This is key- how do we prepare? b. First: what is your goal and theory of the case. Write those on the top of your page. Do not lose focus on those. i. Some more familiar themes: 1. Jealousy 2. Revenge 3. Hell hath no fury like a woman scorned.

4. Shame- someone did something they are not proud of and needs to say they were forced.

5. Got caught doing something and now needs to be the victim to not look bad, immoral, etc.

6. If it’s mutual and your client is not in trouble, they look violent or could be seen as the aggressor, in trouble 7. Did they get caught cheating? Is there something they need to change the focus from themselves as the negative person to the victim for?

8. If possible, do not rely on BRD alone- weak.

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c. Once you have your theory and theme- you get to investigating for yourself: i. Who is the person you are going to cross?

1. Who is the complaining witness? How does she know your client?

Usually a girlfriend/boyfriend, former spouse, etc. possibly a onenight stand?

2. Have they been in this position before? Professional victim?- get all police reports, check their social media, are they a member of any groups for victims. Get your client to help you with background on this person. Are they a student studying psychology, trauma, etc?

3. Ask around! Why would you just take the word of a police officer or the DA’s office who has met this person in one role at one time?

Is this person a student? Same friend group as your client?

4. Google search; look at what they do, where they are from, what organizations they belong to. Career?

5. Deep dive and look through social media, etc. What is happening around the time the incident occurs? Shows they watch, friends saying similar things, are they posting about the incident?

6. Are there other lawsuits regarding this case? So important!

Divorce, protective order, custody, etc.

7. Did this case cause a break-up, shame to parents, etc? If the lose this case is it going to ruin their reputation? What is riding on this case for the complaining witness. d. What were the facts/circumstances around the day/night the incident happened?

1. Break up 2. Fight w/ custody, child support 3. Caught with another man/woman 4. Did they catch your client with another man/woman 5. Alcohol involved? Drugs?

6. What is happening in their life at this time.

III.

Their statement: (impeachment time) a. Timing- look at the day in complete context. i. What time is it in comparison to the incident, is it that day? Do they walk in, call it in? Is it days later? What has happened between the incident and the statement. ii. Who called the police? iii. Have they been drinking, smoking? Did they just wake up, long day at work?

1. How long between incident and when they made their statement?

Sometimes it is days before someone reports a sexual assault. It may be that they’ve been talking to friends, on social media etc and someone makes them come forward. b. Is their statement video recorded at the scene? i. If so, how do they look? Are they scared of the police or do they welcome them?

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IV.

ii. How do they answer questions.

1. What details are given. iii. What are their injuries?

1. Special note on strangulation cases: look for junk science clues iv. Remember, most people behave differently to law enforcement than regular folks they know. Fear, timidity v. Are they the ones who called the police? What is the timing between call and their statement. vi. When did they begin being treated like the victim. Initially? Check difference between how cops treat both sides, did the case start neutrally or did the cops walk in with roles already assigned. vii. Who did the cops speak to?

1. This is important especially in family violence cases. they listen to one side and get a warrant? Did they interview your client first and investigate what they said? How much work was done before a warrant or determination was made as to who to arrest? Look at the timing. If the cops assumed the complaining witness was telling the truth, did they look any further?

2. Did the police check out their sources? Ask anyone they say they were with to corroborate the story? Check for video cameras? c. Who did the complaining witness speak to before their statement?

1. Again, this is a timing situation. If the incident was hours before, days before- track down who they likely spoke to.

2. Did they go to their parents, friends- it's likely they started to tell a biased version here and if someone made them go to the police, the story has evolved to make them look good and your client look bad.

3. Did the cops look at the complaining witness background before getting her statement? Do they know if she’s made complaints like this before? Does she have a history of being a victim? Did he look at her case records- know she had debts, getting divorced, filing bankruptcy, what she said in her application for family violence emergency money etc? a. Speak to ex boyfriends she accused etc.?

4. Point out that the cop can find anyone in their data base and their addresses and phone numbers. Or at least make an attempt to. They have more access than you do. d. Lethality Screening/Victim Report: i. Who filled it out ii. Any discrepancies in what they wrote and what the CW says? e. Did they receive any compensation as a “victim”? Get that info pretrial, requires them to follow through with prosecution. i. Now if they told the truth they could owe money back ii. Be charged themselves iii. Let so many people down After initial report to the police:

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a. How soon did they get in contact with the DA’s office, victims advocate coordinator b. Did they take any steps to protect themselves from your client c. Did they try to contact your client again? If they are so scared of him/her, why do they initiate contact?

V. VI.

VII.

What is their goal? Their motivation in testifying? a. Go in knowing Ego is an issue here.

What is YOUR goal? WRITE THESE OUT (no more than 3) a. Examples of this: discredit, show motive, show their motivation to continue to lie. b. Always come back to your theme/theory of the case. If your question does not advance an aspect of your theory of the case, why are you asking it? c. Do not nitpick with the witness on unimportant things. You look petty and the jury will fault you… not the detective.

Ok, you have your background- you have your goals. Now decide your mood and affect to reach those goals. a. Cross examination does not always have to be done in a cross manner, nor does impeachment have to be done in an angry, hostile manner. This is where you get to be creative and play with ideas. Practice before you enter the courtroom. Here are some different ideas: i. Gentle disapproval: with the liar, may be much more effective ii. Sympathetic understanding of confusion or bias: “you just wanted to get medical treatment in case you were pregnant without your parents finding out”; “Your parents would disapprove of a sexual relationship with these men?”; “You really didn’t want him to see your phone”, “you were really upset he was dating your friend”, etc. iii. Disappointment: just a clear showing that you know what law enforcement should be like and they didn’t look at any other sides. Rush to judgment.

Indignation: with the witness who has fabricated or concealed evidence (he has cheated all of us of the fair system we were promised!) She has done a disservice to women. iv. My Favorite: Righteous Anger- used sparingly and only when jury is ready for it and appears angry too. b. Have Clear Organization and Structure- each goal should have a list of questions under it. Make sure they further that goal. i. If they do not further the goal- forget them. Be selective and go for the jugular. DO not nitpick with witness on little matters, may backfire with jury. ii. Block all escape routes before asking key question. For example-if you are impeaching with a prior written statement, first establish how clearly the witness understood what was in the statement before you hit him with the contradiction. Try to leave no wiggle room around the impeachment. iii. Make it dramatic and interesting. Jurors watch tv and movies! If you let the direct have more impact than the cross- you have not won cross.

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VIII.

IX.

X.

a. A good place to start with the complaining witness is the timing, what was going on in the situation. A timeline and context.

Voir Dire- where you lay the ground work to cross. a. Theory b. Get permission!

The Actual Cross: a. I have mine written out, to ensure they are leading. They require yes or no answers and can be answered accordingly. I practice, I look for wiggle room. Do not go into a courtroom without having an idea of your cross questions. I also have any supporting documents needed ready to go with the question. i. Helps you look good, competent and prepared. ii. Shows the witness you know what you are talking about, less likely to mess with you. iii. Shows the DA you know what you are talking about. iv. Shows the judge you know what you are talking about. v. Shows the jury you know what you are talking about.

Maintain Control of the Witness: a. Your goal is a Pavlov’s dog response. b. Try to look good, maintain manners and not ask for help. c. Try not to: i. Interrupt a witness ii. Instruct the witness to answer yes or no.

1. Better alternatives are: a. I’m sorry I confused you, let me try again? b. Can you try and answer MY question? c. You came to tell the truth, if the simple truth is yes, can you just tell us yes? d. What did I ask you? e. Or repeat the same question slowly with rising inflection and use the witness’ name

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Part II: Cross in General (Brief overview- should be read first if you need general info on cross and trial prep) A. How to prepare for a Jury Trial: First of all, for those of you who haven’t had the benefit of a trial college or other training on trials, most lawyers suggest there is an order of how to get ready for trial and prepare your trial notebook: B. How to prepare for Cross: I.

II.

Importance of Cross: a. Storytelling Function- you are telling a story at all times when you speak as an attorney. If you are not telling that story, you should not be speaking. b. Learning how- sources: MacCarthy on Cross-Examination, Terrence MacCarthy, The Art of Cross-Examination by Francis L. Wellman, Collier Books; The Ten Commandments of Cross Examination by Professor Irving Younger. c. TCDLA trial college! d. Difficulty- Cross is a science, not an art. Needs to be learned and studied. May take the most preparation and time of your trial prep. It is hard and should be viewed like surgery. Precise. In and out and no extras! You know the result you want and go for that solely. i. Sadly, most lawyers think cross is where you fight or demolish a witness, or worse, they just repeat what the Prosecutor said.

Preparation- THIS IS KEY! a. This is where you spend your pretrial preparation time, after you have prepared by writing your closing. What details from the evidence are helpful to your story telling? This is where you bring them out. i. Know each witness and what they will say: 1. How do they add or hurt your theory of the case ii. Listen to their direct and know what evidence they have given iii. Be prepared for how they help/hurt your theory. iv. Know their background fully- this is pretrial prep.

1. How- from these sources: a. Discovery b. Informal conversation

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c. d. e. f.

III. IV.

V.

VI.

VII.

VIII.

Investigation facts Subpoena documents Police reports, court histories etc.

Watch the witness’ demeanor in any interviews or on direct (if nothing else available) g. Listen: listen to the witness in interviews and direct exam Scope of Cross: Limited to subject matter of the direct examination and matters affecting credibility of witness.

What is the Purpose? a. Always you are telling your story, advancing your theory. b. At best, helps win a decision on points, not knockouts. c. At worst, you look good and enables you to act like you are scoring, even if you are not.

Style of Cross: a. “Look Good” system b. change from a dialogue to a monologue c. You do not care what the witness says.

What is the Look Good style of cross? a. What is your purpose with the witness? i. Discredit? ii. Show Bias or Motive? iii. Mental Instability? iv. Poor vision/Memory? b. Style/Manner: i. This is entirely up to you. You have to be YOURSELF. ii. Getting permission in Voir Dire if you have to be rough on some witnesses.

Rules: a. Use Short Statements i. Why they are important? Goal is control. ii. Don't make too long of a question. iii. Do not ask open ended questions. b. Your questions are statements.

1. One fact per question.

2. Break this rule and you’ve lost control.

3. Also, you do not look good and loses jury’s attention 4. Only answer is yes or no. c. Make transitions: i. Show the listener where you are going. ii. Ex: “I want to ask you a few questions about what you saw when you left Murphy’s bar at 3 in the afternoon, you understand?” iii. Book marker for listener d. NO LEGALESE! Your goals: Tell your story! a. Use statements of the witness

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IX.

X.

XI.

b. Destroy credibility of those who hurt you. i. Key point is witnesses will abandon logic and truth in order to preserve their sense of self. ii. Create a cross designed to force a witness to agree to a damaging fact or facts in order that the witness may maintain his/her self image intact.

How to: a. I separate witnesses with folders. i. In each folder I have any statements they made, their statement in discovery, notes from videos, info etc b. Write down goals. “I must prove this” c. Then work in reverse, how do you get to that goal? d. Close escape routes: i. Reviewed documents ii. Could make changes and didn’t iii. Didn’t tell anyone about errors iv. Court reporter has machine to take down what you say v.

Different witnesses: different tactics: a. Always be mindful of bias and motive (always relevant!) i. Bias- any relationship between a witness and a party which might cause the witness to slant his testimony. US v. Abel, 469 U.S. 45 (1984).

1. Examples of bias include affairs, hurt feelings, prior issues over money, bad business deals, family relationships ii. Motive- Examples of evidence that may raise questions about the motivation of the witness to testify truthfully or falsely include whether the witness has charges dismissed. Delaware v. Van Atsdall, 475 U.S. 673 (1986); potential future charges, potential charges against family member, etc. b. Cop- never admit to not being thorough c. Mother- never admit to being neglectful d. Expert- never admit to not being knowledgeable e. Snitch- try to hold on to some self respect How to maintain control of witness: a. Your goal is a Pavlov’s dog response. b. Try to look good, maintain manners and not ask for help. c. Try not to: i. Interrupt a witness ii. Instruct the witness to answer yes or no.

1. Better alternatives are: a. I’m sorry I confused you, let me try again? b. Can you try and answer MY question? c. You came to tell the truth, if the simple truth is yes, can you just tell us yes? d. What did I ask you? e. Or repeat the same question slowly with rising inflection and use the witness’ name.

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XII.

May be times we do not want to cross examine: a. Do I need to cross examine this witness? b. Will other witnesses demonstrate the same point with less danger to my client/theory c. Will another witness highlight the illogic or unreasonableness of this witness? d. Children? Crying witnesses? Painful recount would only hurt you?

Does this witness matter? i. Errors in time/distance the jury will forgive the witness, not you. ii. Big issues are the only things to ever fight about.

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Texas Criminal Defense Lawyers Association

Voir Dire & Cross Exam March 2-3, 2023 The Whitehall Houston, Texas

Topic: Cross Examination of the Expert Witness Speaker:

Brent Mayr Mayr Law, P.C. 5300 Memorial Dr., Suite 750, Houston, TX 77007 713.808.9613 phone 713.808.9991 fax bmayr@mayr-law.com email https://mayr-law.com/ website

Author:

Michael Gross Gross & Esparza, P.L.L.C. 1524 N Alamo St San Antonio, TX 78215 210.354.1919 phone 210.354.1920 fax lawofcmg@gmail.com email www.txmilitarylaw.com website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

CROSS EXAMINATION OF EXPERT WITNESSES

by Michael C. Gross Gross & Esparza, P.L.L.C. 1524 North Alamo Street San Antonio, Texas 78215 (210) 354-1919 (210) 354-1920 Fax lawofcmg@gmail.com

prepared for Voir Dire & Cross Examination Texas Criminal Defense Lawyers Association Houston, Texas – March 3, 2023

TABLE OF CONTENTS I.

II.

Getting defense experts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. Consulting experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 B. Testifying experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 C. Have your own forensic expert appointed or retained . . . . . . . . . . . . . . . . . . . . . . 1 1.

Right to expert assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2.

Right to independent expert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 D. Send an engagement letter to your expert along with all documents . . . . . . . . . . . 2 E. Limit what your expert sees and does . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 F. May the State contact your expert pretrial? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 G. Lagrone issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Handling State experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 A. Types of experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1.

Psychiatrists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2.

Psychologists. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 3.

Rape crisis counselors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 4.

Pediatricians . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 5.

Psychotherapists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 6.

Social workers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 7.

CPS workers and reason to believe. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 B. What will the State’s expert be used for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1.

CSAAS - Child sexual abuse accommodation syndrome. . . . . . . . . . . . . . 4 2.

The complainant was abused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 3.

Battered child syndrome . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 4.

Why the outcry was delayed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 5.

Grooming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 C. Obtain records and research the State’s expert . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 1.

Immediately request notice of the State’s experts. . . . . . . . . . . . . . . . . . . . 7 2.

Review the State’s file . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 3.

Obtain a court order for the State expert’s entire file . . . . . . . . . . . . . . . . . 8 4.

Obtain a subpoena for the State expert’s entire file . . . . . . . . . . . . . . . . . . 9 5.

Interview the State expert and obtain the expert’s entire file . . . . . . . . . . . 9 6.

Do a background check on the State’s expert . . . . . . . . . . . . . . . . . . . . . . . 9 D. May you contact the State’s expert pretrial?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 E. Get the State’s expert to testify pretrial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 1.

A hearing using TRE 705(b) coupled with expert’s qualifications . . . . . 10 2.

Determine the admissibility of the expert testimony . . . . . . . . . . . . . . . . 12 a.

TRE 702 inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 i.

Qualification inquiry. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 ii.

Reliability inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 b.

TRE 705(b) checklist . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 F. Is the expert really an expert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 1.

When a CPS social worker is unqualified. . . . . . . . . . . . . . . . . . . . . . . . . 15 2.

When a SANE is unqualified . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 G. Motions in limine are vital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 iii

I.

subject matter on which he will testify. Also subject to discovery in civil cases are ‘the facts known by the expert that relate to or form the basis of the expert’s mental impressions and opinions formed or made in connection with the case in which the discovery is sought, regardless of when and how the factual information was acquired;’ as well as ‘the expert’s mental impressions and opinions formed or made in connection with the case in which discovery is sought, and any methods used to derive them[.]’ Thus, in civil cases, there is no work-product protection for that potential testifying expert’s data, tests, reports, or opinions.” Pope v. State, supra.

Getting defense experts A.

Consulting experts

“Under Texas civil law, the world of experts is divided into two parts: consulting experts and testifying experts. ‘The identity, mental impressions, and opinions of a consulting expert whose mental impressions and opinions have not been reviewed by a testifying expert are not discoverable.’ The Texas Supreme Court has stated that ‘[t]he policy behind the consulting expert privilege is to encourage parties to seek expert advice in evaluating their case and to prevent a party from receiving undue benefit from an adversary’s efforts and diligence.’ But that protection ‘is intended to be only “a shield to prevent a litigant from taking undue advantage of his adversary’s industry and effort, not a sword to be used to thwart justice or to defeat the salutary object” of discovery.’” Pope v. State, 207 S.W.3d 352 (Tex. Crim. App. 2006). A consulting expert is not designated as a defense expert witness under Article 39.14 of the Texas Code of Criminal Procedure. Id. Information regarding a consulting expert is subject to the attorney-client privilege and work product privilege. Id. If you designate a consulting expert as an expert under Article 39.14, the expert’s identify and qualifications are not protected by the work product privilege and the State may comment on your failure to call this witness to testify at trial. Id. B.

C.

Have your own forensic expert appointed or retained

Indigent defendants in criminal cases have a due process right to state-provided expert assistance when an ex parte showing is made to the trial judge. Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985).

If the state has an expert witness, you need your own defense expert witness to at least consult with you, if not testify for the defense, about the forensic evidence the state seeks to use at trial.

The motion should be filed ex parte and sealed.

The state has no business hearing about the motion, being present for the motion, or knowing who are your experts at this point.

Make sure your are seeking your own defense expert. Do not ask the trial judge, for instance, to have a court expert conduct a competency evaluation of your client. Such evaluations are not privileged since it is not your expert who is conducting the evaluation.

Testifying experts

“If a party might call an expert whom he has consulted as a witness at trial and the opposing side has requested designation of any potential experts, the party must designate that person as a testifying expert. A party who has designated a person as a potential testifying expert must be willing to divulge his name, address, telephone number, resume, and the

1.

Right to expert assistance

The Supreme Court has held that, “without the assistance of a psychiatrist to conduct a professional examination on issues relevant to the defense, to help determine 1

whether the insanity defense is viable, to present testimony, and to assist in preparing the cross-examination of a State’s psychiatric witnesses, the risk of an inaccurate resolution of sanity issues is extremely high.” Ake v.

Oklahoma, supra. Due process requires that “when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Id.

2005). If your client cannot afford experts, you have three options: (1) subpoena to testify at trial the experts who treated your client, introduce at trial the records through these experts, and have these experts provide their expert opinions; (2) withdraw from the case after proving to the judge your client’s indigence, and request appointment of new counsel; or (3) remain on the case and take a reduced fee but request an investigator and experts from the trial judge for a now-indigent client pursuant to Ake. Id. at 468.

If insanity will be an issue at trial, due process requires that the accused be given the means to advance that claim at trial. De Freece v. State, 848 S.W.2d 150 (Tex. Crim. App. 1993). “[T]he trial court abuses its discretion in failing to appoint, or to give ‘prior . . . approval’ to ‘reasonable expenses incurred’ by counsel for the accused to obtain, a competent psychiatrist to assist in the evaluation, preparation[,] and presentation of his insanity defense.” Id. In DeFreece, the Court of Criminal Appeals relied on Ake, supra.

An appointed defense expert must be independent from the state. The defense expert must “play a partisan role in the defense, providing defense counsel with the ‘tools’ to challenge the State’s case.” Taylor v. State, 939 S.W.2d 148 (Tex. Crim. App. 1996), citing De Freece v. State, 848 S.W.2d 150 (1993). “In this context, due process, at a minimum, requires expert aid in an evaluation of a defendant’s case in an effort to present it in the best possible light to the jury.”

2.

D. According to the Court of Criminal Appeals, Ake also applies to non-psychiatric experts. Rey v. State, 897 S.W.2d 333 (Tex. Crim. App. 1995). If an indigent defendant establishes a substantial need for an expert, without which the fundamental fairness of the trial will be called into question, Ake requires the appointment of an expert, regardless of the field of expertise. Id.

Right to independent expert

Send an engagement letter to your expert along with all documents

You should always send an engagement letter to your expert so your expert understands what is it you want the expert to do for you.

You do not, for example, want your expert to conduct tests that could be adverse to your defense. In a case where psychological testimony about your client is anticipated, you do not want an MMPI conducted by your expert because this could result in a finding that your client is antisocial which the prosecution will then use against your client at trial if your expert testifies. You should also use the

As retained counsel, you may not put off investigating medical issues or put off consulting with necessary experts until your client pays you money for experts. Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2

engagement letter to remind the expert that all information the expert receives in your case is privileged and confidential.

representation, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” Comment 3 to this rule states as follows: “Paragraph (b) of this Rule provides that unless authorized by law, experts employed or retained by a lawyer for a particular matter should not be contacted by opposing counsel regarding that matter without the consent of the lawyer who retained them. However, certain governmental agents or employees such as police may be contacted due to their obligations to the public at large.” (Emphasis added).

In keeping with Pope v. State, supra, once you have an appointed or retained expert, send the expert an engagement letter which describes the expert as a consulting expert or testifying expert and describes what exactly you want the expert to do for you.

E.

Limit what your expert sees and does

G. Be careful what information you send to your client. TRE 705 allows the opponent to inquire into the facts or data upon which your expert relies in forming an opinion. You also do not want your expert to be caught unawares at trial by being confronted with information the expert was never provided by you and which affects the expert’s opinion. You also want to be careful about what testing is performed by your expert such as an MMPI or PCL. The individual answers given by your client to some tests may be used against your expert and client.

Check with your expert to see what is best for your client’s defense and case.

F.

Lagrone issues

“[W]hen the defendant initiates a psychiatric examination and based thereon presents psychiatric testimony on the issue of future dangerousness, the trial court may compel an examination of appellant by an expert of the State’s or court’s choosing and the State may present rebuttal testimony of that expert based upon his examination of the defendant; provided, however, that the rebuttal testimony is limited to the issues raised by the defense expert.” Lagrone v. State, 942 S.W.2d 602 (Tex. Crim. App. 1997), citing Soria v.

State, 933 S.W.2d 46 (Tex. Crim. App. 1996).

A trial judge may order criminal defendants to submit to a state-sponsored psychiatric exam on future dangerousness when the defense introduces, or plans to introduce, its own future dangerousness expert testimony.” Id.

May the State contact your expert pretrial?

Rule 4.02(b) of the Texas Disciplinary Rules of Professional Conduct discusses “Communication with One Represented by Counsel” and states as follows: “In representing a client a lawyer shall not communicate or cause another to communicate about the subject of representation with a person or organization a lawyer knows to be employed or retained for the purpose of conferring with or advising another lawyer about the subject of the

If you run into a Lagrone situation, it is best to ask the judge to strictly limit the State’s expert to the exact same testing performed on the defendant by the defense expert. It is also best to ask the judge to allow the defense expert to attend the testing so the defense expert may see first-hand how the testing was performed.

3

II.

Handling State experts A.

Types of experts

1.

Psychiatrists

5.

Psychotherapists have been recognized as expert witnesses in sexual abuse cases. Kipp v. State, 876 S.W.2d 330 (Tex. Crim. App. 1994).

Psychiatrists have been recognized as expert witnesses in sexual abuse cases. Farris v.

State, 643 S.W.2d 694 (Tex. Crim. App. 1982); Cohn v. State, 849 S.W.2d 817 (Tex. Crim.

App. 1993) (psychiatrist testified as to the demeanor and emotion children typically have following an instance of sexual abuse).

6.

Psychologists

Psychologists have been recognized as expert witnesses in sexual abuse cases.

Gonzales v. State, 831 S.W.2d 347 (Tex. App. San Antonio 1992, pet. ref’d) (court did not err in admitting the testimony of a child psychologist); Nolte v. State, 854 S.W.2d 304 (Tex. App. - Austin 1993, pet. ref’d).

3.

CPS workers and reason to believe

CPS workers have been recognized as expert witnesses in sexual abuse cases.

Johnson v. State, 970 S.W.2d 716 (Tex. App. Beaumont 1998) (caseworker’s testimony was in reference to the investigation that resulted in the reasonable belief that a sexual assault had occurred and, therefore, the testimony did not constitute an improper conclusion as to the guilt of defendant but merely assisted the jury in their deliberations).

Rape crisis counselors

Rape crisis counselors have been recognized as expert witnesses in sexual abuse cases provided they do not testify that the child is telling the truth. Black v. State, 634 S.W.2d 356 (Tex. App. - Dallas 1982, no pet.); Miller v.

State, 757 S.W.2d 880 (Tex. App. - Dallas 1988, pet. ref’d).

4.

Social workers

Social workers have been recognized as expert witnesses in sexual abuse cases. Harnett v. State, 38 S.W.3d 650 (Tex. App. - Austin 2000, pet. ref’d).

7.

2.

Psychotherapists

B.

What will the State’s expert be used for

1.

CSAAS - Child sexual abuse accommodation syndrome

In Duckett v. State, 797 S.W.2d 906 (Tex. Crim. App. 1990), overruled on other grounds, Cohn v. State, 849 S.W.2d 817 (Tex. Crim. App. 1993), the court recognized that commentators have stated that, “The accommodation syndrome has a place in the courtroom. The syndrome helps explain why many sexually abused children recant allegations of abuse and deny that anything

Pediatricians

Pediatricians have been recognized as expert witnesses in sexual abuse cases provided they do not testify that such children are truthful. Yount v. State, 872 S.W.2d 706 (Tex. Crim. App. 1993).

4

occurred. If use of the syndrome is confined to these rehabilitative functions, the confusion clears, and the accommodation syndrome serves a useful forensic function.” In Duckett, an expert in the field of child sexual abuse was allowed to testify that, because of CSAAS, the child-complainant understandably appeared confused and changed her testimony. Such testimony is admissible as long as the doctor does not testify that the child was telling the truth or could be believed.

sound trial strategy, and it was an unreasonable application of Strickland for the County Court to hold otherwise.” Id. at 611.

2.

The complainant was abused

The court in United States v. Charley, 189 F.3d 1251 (10th Cir. 1999), gave an excellent breakdown of how courts have handled the issue of whether or not a doctor may testify that, in the doctor’s opinion, the child complainant was abused. In Charley, the doctor testified that, based solely upon the statements of the children to the doctor and to other people, the doctor concluded that the children had been abused. There was no physical evidence of sexual abuse found by the doctor. The court held that this testimony was inadmissible.

It has been suggested, however, that CSAAS has no scientific validity. Gersten v.

Senkowski, 426 F.3d 588 (2nd Cir. 2005) (conviction reversed and writ granted based on counsel’s failure to investigate and consult with expert psychologist witnesses). In Gersten, Dr. Yuille, an expert forensic psychologist, confirmed for the court post-conviction that what is known as CSAAS is no longer accepted in the child sexual abuse research community.

Id. at 600-601, 611. Dr. Yuille explained that the inventor of the theory has retreated from his position of classifying it as a syndrome, and CSAAS “and its alleged five components has no validity and is not regularly accepted in the scientific community.” Id. The writ was granted and this decision was upheld on appeal: “. . . even a minimal amount of investigation [by trial counsel] into the purported [CSAAS] would have revealed that it lacked any scientific validity for the purposes for which the prosecution utilized it: as a generalized explanation of children’s reactions to sexual abuse, including delayed disclosure and blurred memory, and that had counsel investigated the possibility of challenging the prosecution’s psychological expert he would have discovered that exceptionally qualified experts could be found . . . Defense counsel’s lack of preparation and failure to challenge the credibility of the key prosecution witness could not be based on

“The opinion offered by Dr. Ornelas falls under Fed. R. Evid. 702. Among other things, that Rule imposes a special gatekeeping obligation on the trial judge to ensure that an opinion offered by an expert is reliable. See Kumho Tire, 119 S. Ct. at 1176. Indeed, ‘where [expert] testimony’s factual basis, data, principles, methods, or their application are called sufficiently into question . . . the trial judge must determine whether the testimony has ‘a reliable basis in the knowledge and experience of [the relevant] discipline.’ Id. at 1175 (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592, 125 L.Ed.2d 469, 113 S.Ct. 2786 (1993)). The trial judge has broad discretion, reviewable for its abuse, ‘to determine reliability in light of the particular facts and circumstances of the particular case.’ Kumho Tire, 119 S. Ct. at 1179. The trial judge is granted great latitude in deciding which factors to use in evaluating the reliability of expert testimony, and in deciding whether to hold a formal hearing. Id. at 1176.”

5

“Here, no reliability determination was made at all with respect to Dr. Ornelas’ unconditional opinion that D.J. and J.J. were sexually abused. As a practical matter, that issue might have been disposed of simply by sustaining the objection, on foundation grounds, to the question seeking to elicit Dr. Ornelas’s opinion. At that point, government counsel might have approached the subject in a more acceptable way, and if not, a bench conference could have ended the line of questioning. Or, the subject could have been explored and passed on prior to trial, in the sound discretion of the trial judge. See Kumho Tire, 119 S. Ct. at 1176. But, as it happened, nothing was adduced here which demonstrates that the testimony had an adequate foundation. The record does not disclose, for example, what data would support ruling out all causes except sexual abuse for the girls’ physical complaints, or to what degree Dr. Ornelas relied on her purely subjective views.

Cf. id. at 1177. Indeed, Dr. Ornelas herself, as indicated above, ordered a work-up to determine if an anatomical problem (rather than sexual abuse, presumably) was causing the girls to wet the bed. III R. at 324-25. Thus, if Dr. Ornelas’s unqualified opinion was based on the girls’ medical history, there is insufficient support in this record for the district court’s decision to admit it. See Gier v. Educational Serv. Unit No. 16, 845 F. Supp. 1342 (D. Neb. 1994) (conducting a reliability inquiry and determining that expert opinion testimony that sexual abuse in fact occurred was, in that particular case, not reliable), aff’d, 66 F.3d 940 (8th Cir. 1995).”

encroaches upon the jury’s vital and exclusive function to make credibility determinations, and therefore does not “assist the trier of fact” as required by Rule 702. See United States v.

Azure, 801 F.2d 336, 339-40 (8th Cir. 1986); see also United States v. Shay, 57 F.3d 126, 131 (1st Cir. 1995); Whitted, 11 F.3d at 785-86; Weinstein’s Federal Evidence § 702.03[5] (1998). Indeed, the government concedes that, in this case, testimony to the effect that D.J. and J.J. were ‘telling the truth . . . would be impermissible.’ Appellee’s Br. at 26. Most courts that have considered the issue have concluded that expert testimony, based on the statements of the alleged victim, that sexual abuse in fact occurred is inadmissible under Fed. R. Evid. 702 (or similar military or state evidentiary rules) because, in such cases, the expert offering the opinion is merely vouching for the credibility of the alleged victim. Thus, if Dr. Ornelas largely based her opinion on the statements of the girls, then under the foundation (or lack thereof) presented in this case, we consider it inadmissible. Therefore, regardless of whether Dr. Ornelas’s conclusion was based on the girls’ medical history or on their allegations of abuse, its admission was erroneous.”

In Salinas v. State, 166 S.W.3d 368 (Tex. App. - Fort Worth 2005, pet. ref’d), a pediatrician testified she diagnosed sexual abuse based solely upon the history provided by the child-complainant. The appellant claimed that such evidence was improperly admitted expert testimony that directly commented on the credibility of the complainant. The appellate court held that because there was no physical evidence of digital penetration, the doctor’s “testimony could only be seen as an attempt to directly bolster the credibility of the complainant and a direct comment on the complainant’s truthfulness.” “The trial court

“On the other hand, if Dr. Ornelas’ opinion was largely based on crediting the girls’ account, whether disclosed to her or others, she was essentially vouching for their truthfulness.

In general, expert testimony which does nothing but vouch for the credibility of another witness 6

abused its discretion in admitting the pediatrician’s testimony that she had diagnosed sexual abuse based on the child’s medical history.”

3.

enforcement, as in the current case. Virtually all of the testimony at issue found support in the cases: that grooming was an attempt by the offender to create a compliant victim, involved an escalation of conduct over time, could involve spending intimate time alone with the child, was like dating, was designed to desensitize the child, often began with innocuous touches, and could involve supplying the child with alcohol or pornography, giving gifts, giving back rubs or massages, engaging in games or horseplay, or talking about the adult’s own prior sexual experiences.” Morris v. State, 361 S.W.3d 649 (Tex. Crim. App. 2011).

Battered child syndrome

It has been held to not be an abuse of discretion to allow an expert to testify as to the behavioral characteristics of sexually abused children. Perez v. State, 113 S.W.3d 819 (Tex. App. - Austin 2003, pet. ref’d), overruled on other grounds, Taylor v. State, 268 S.W.3d 571 (Tex. Crim. App. 2008).

4.

Why the outcry was delayed

In a child abuse case “where the child waited some five years to report the alleged assault, the credibility of the child is a fact directly at issue. Therefore, [expert’s] testimony regarding symptoms of child abuse victims in general, including the frequent existence of the delayed outcry, tends to make the existence of a fact of consequence to the determination of the action more probable: that is, that the victim is telling the truth.” Vasquez v. State, 819 S.W.2d 932 (Tex. App. - Corpus Christi 1991, pet. ref’d).

5.

C.

Obtain records and research the State’s expert

1.

Immediately request notice of the State’s experts

Article 39.14(b) of the Texas Code of Criminal Procedure states, “On a party’s request made not later than the 30th day before the date that jury selection in the trial is scheduled to begin or, in a trial without a jury, the presentation of evidence is scheduled to begin, the party receiving the request shall disclose to the requesting party the name and address of each person the disclosing party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence. Except as otherwise provided by this subsection, the disclosure must be made in writing in hard copy form or by electronic means not later than the 20th day before the date that jury selection in the trial is scheduled to begin or, in a trial without a jury, the presentation of evidence is scheduled to begin. On motion of a party and on notice to the other parties, the court may order an earlier time at which one or more of the other parties must make the disclosure to the requesting party.”

Grooming

“Grooming” of children for “sexual molestation was a legitimate subject of expert testimony under Tex. R. Evid. 702 and was useful to the jury. The subject matter was within the scope of the field of studying the behavior of people who sexually victimized children.

Cases referring to the subject were legion, and recognition of the concept extended far beyond Texas. Grooming evidence had been received by courts from numerous types of expert, including people who working in law 7

You should immediately request, pursuant to Art. 39.14 the State’s list of experts with a letter to the State filed with the court clerk. The longer your request is pending and the closer to trial the State provides you with its witness list, the better chance you have of keeping its witnesses off the stand. By analogy, cases addressing the notice provision of TRE 404 (b) are informative. If the request for 404(b) notice was made months before trial, notice is insufficient if given Friday before trial starting on Monday even if the defense received the notice that Friday afternoon. Hernandez v.

State, 914 S.W.2d 226, 234 (Tex. App. - Waco 1996, no pet.); Neuman v. State, 951 S.W.2d 538, 540 (Tex. App. - Austin 1997, no pet.).

Such notices are not, however, per se unreasonable. Sebalt v. State, 28 S.W.3d 819 (Tex. App. - Corpus Christi 2000, no pet.).

Courts look to the totality of the circumstances such as the length of time the defense request had been pending, but the primary consideration is whether notice was given in sufficient time to prevent unfair surprise. Id. Notice provided on Thursday regarding a pivotal witness for trial to begin on Monday allowed only one business day to prepare, so such notice was insufficient given the importance of the extraneous act to the case. Webb v. State, 36 S.W.3d 164, 177178 (Tex. App. - Houston [14th Dist.] 2000, pet. ref’d). The longer before trial notice was requested, the more likely notice given a few days before trial is likely to be found unreasonable. Id. Naming on a subpoena witness list the name of the complainant in an extraneous offense is insufficient notice since it fails to give the defense notice of the State’s intention to introduce evidence of a particular extraneous offense. Id. at 178-179.

2.

encountered a case where we confronted a State’s expert witness. This paper is designed to assist you in preparing for that confrontation.

Once you are appointed or retained to represent your client, you should immediately review the prosecution file. In the file, you will find the specific case numbers for the medical examiner, crime lab, or any other entity used by the state such as CIL # 05-00249 or BCME # 04-2081. These specific case numbers will be used by you to obtain further information from the State expert. Request from the prosecutor a copy of the crime lab reports, medical examiner’s reports, and any other expert reports. Sometimes prosecutors will provide you with these copies if you just ask for them.

Take accurate notes of any diagrams made by the police. The distances indicated in the diagrams may be useful in your crossexamination, for instance, of the bloodstain pattern analysis expert. Your expert will need this information to better provide you with an opinion regarding your case or with crossexamination points for the state expert.

3.

Obtain a court order for the State expert’s entire file

Article 39.14 of the Texas Code of Criminal Procedure allows, in pertinent part, defense counsel to file a discovery motion for the state to produce and permit the inspection and copying by the defense of any designated documents which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the state or any of its agencies. You should file a discovery motion to obtain the entire file of the state expert. Once the judge has signed the order, take a file stamped copy to the state expert to obtain a copy of the expert’s

Review the State’s file

All of us at one time or another have 8

entire file. You go get the file - do not rely upon the prosecutor to provide you with a copy.

4.

Obtain the subpoena from the district clerk and take the discovery motion, the court order, and the subpoena to the state expert.

There can now be no objection from the state expert in providing you with everything the expert has in the expert’s file.

Obtain a subpoena for the State expert’s entire file

Obtain a subpoena application from the office of the district clerk. Determine the name of the custodian of records for the state expert’s office and their fax number and complete the duces tecum portion of the subpoena application (to include all tests, notes, test results, raw data, and any other information regarding the scientific testing) for instanter compliance with the subpoena and file it with the district clerk.

5.

Interview the State expert and obtain the expert’s entire file

Do not rely solely upon the prosecution file. Almost always, the state expert will have more information in the state expert’s file than the prosecution will have in its file. Go to the state expert’s office and physically look at the originals to ensure you have everything the expert has in the expert’s file. Have the state expert explain the entire file to you. State experts have informed me that very few defense counsel ever interview the state experts or obtain copies of their files.

The fax number for the records custodian should appear on the subpoena so you may fax the subpoena to the state expert as proper service of the subpoena if the state expert or custodian requires service rather than personal delivery. Article 24.01(b) of the Texas Code of Criminal Procedure states that service may not be by a participant in the proceeding for which the appearance is sought. To get around this limitation, Article 24.04(a)(3) of the Texas Code of Criminal Procedure states that a subpoena may be properly served by electronically transmitting a copy of the subpoena, acknowledgment of receipt requested, to the last known electronic address of the witness. Article 24.04(c)states that a subpoena served in this manner must be accompanied by notice that an acknowledgment of receipt of the subpoena must be made in a manner enabling verification of the person acknowledging receipt. All you need do to satisfy this requirement is type this notice and acknowledgment on the fax cover letter and fax the subpoena along with the cover letter to the state expert.

6.

Do a background check on the state’s expert

Use the internet to see what information is available regarding the state expert. When you meet with the state expert, ensure you obtain a copy of the expert’s curriculum vitae which should have a list of articles the expert has written. Look at these articles to see if any of them apply to the subject matter of your case.

Another valuable tool is Lexis or Westlaw. Enter the name of the expert and conduct a case search for that expert. Once you determine in which cases the expert has testified, see which cases involved the same subject matter as your case. You can then go to the office of the district clerk, appellate section, and order the transcript of the trial testimony for your review. You can then read the testimony of the expert and, if helpful to your case, obtain 9

a copy of the testimony along with the cover page and court reporter’s certificate page to impeach the expert at trial.

D.

outside the jury’s hearing.”

You should always request this hearing to test the admissibility of the expert’s opinion, to obtain discovery, to ensure you have copies of everything the state expert has used to form an opinion, and to get a record of what the expert has to say.

May you contact the State’s expert?

Rule 4.02(b) of the Texas Disciplinary Rules of Professional Conduct discusses “Communication with One Represented by Counsel” and states as follows: “In representing a client a lawyer shall not communicate or cause another to communicate about the subject of representation with a person or organization a lawyer knows to be employed or retained for the purpose of conferring with or advising another lawyer about the subject of the representation, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” Comment 3 to this rule states as follows: “Paragraph (b) of this Rule provides that unless authorized by law, experts employed or retained by a lawyer for a particular matter should not be contacted by opposing counsel regarding that matter without the consent of the lawyer who retained them. However, certain governmental agents or employees such as police may be contacted due to their obligations to the public at large.” (Emphasis added).

E.

Get the State’s expert to testify pretrial

1.

A hearing using TRE 705(b) coupled w i th ex p ert’s qualifications

Be careful to state on the record exactly what is your intent with the hearing – i.e., use this hearing to obtain/explore all documents and other information/facts/data on which the expert is basing the expert’s opinion, and also use this hearing to challenge the expert’s qualifications and the relevance/reliability of the expert’s proposed testimony as discussed in the next section of this paper. Expert testimony must be based upon specialized knowledge/skill/ education that is not in possession of the jurors – e.g., that red liquid coming from a body is blood is knowledge commonly held by most people and such opinion is lay and subject to TRE 701, Opinion Testimony by Lay Witnesses. The following case law should be considered in preparing for and litigating this hearing. Remember that the analysis in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 125 L.Ed.2d 469, 113 S.Ct. 2786 (1993) (drugs caused birth defects) deals with scientific evidence whereas the analysis in Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 143 L.Ed.2d 238, 119 S.Ct. 1167 (1999) (tire inflation expert testimony not allowed) deals with non-scientific expert testimony.

The gatekeeper function in Daubert considers a 5-factor flexible test under FRE 702 for “validity” of scientific evid: (1) if technique or theory can be or has been tested; (2) if theory/technique has been subject to peer review/publication; (3) known or potential rate of error; (4) existence/maintenance of

TRE 705(b) states, “Before an expert states an opinion or discloses the underlying facts or data, an adverse party in a civil case may – or in a criminal case must – be permitted to examine the expert about the underlying facts or data. This examination must take place 10

standards/controls; and (5) degree to which theory/technique is accepted in scientific community. This test requires counsel to determine if there is an insufficient connection between the expert’s opinion and the facts of case – i.e., the expert must connect the proper methodology with the facts of the case. In applying the 5-step test, a judge should not be a “super-expert” or scrutinize an expert in such a way as to exclude all but the perfect expert testimony. A judge should not apply too stringent a reliability test. United States v. 14.38 Acres, 80 F.3d 1074 (5th Cir. 1996) (court’s gatekeeper role not intended to replace adversary system). The task of the judge/ gatekeeper after Daubert is to ensure an expert reached an opinion by the same avenues the expert uses in the expert’s day-to-day work.

by the ipse dixit (a dogmatic and unproven statement) of the expert. Id. The expert must show the expert used the same intellectual rigor in reaching his conclusion as would be expected of him in his professional life outside the courtroom. For example, a judge should not exclude an expert on auto repair merely because the expert is not published in a peer-review journal or sociologist who cannot be definitive about a possible rate of error in his findings.

Tyus v. Urban Search Mgt., 102 F.3d 256 (7th Cir. 1996). It is Improper to exclude expert testimony because the testimony was too general to be helpful because the expert “would have given the jury a view of the evidence well beyond their everyday experience.” Id. “. . . [D]oubts about whether an expert’s testimony will be useful should generally be resolved in favor of admissibility.” Fox v.

Dannenberg, 906 F.2d 1253 (8th Cir. 1990). If a juror, without assistance, is as capable as an expert of answering a question, the expert’s opinion on that issue is not helpful and should be excluded as expert testimony. See Scott v.

Sears, Roebuck & Co., 789 F.2d 1052 (4th 1986) (women in high heels tend to avoid sidewalk grates – witness is merely repeating what’s common knowledge/common sense).

Prejudice occurs if an expert merely bolsters the credibility of a fact witness by restating that testimony in expert garb. United States v. Cruz, 981 F.2d 659 (2d Cir. 1992) (government agent defined “broker” in drug transaction which merely corroborated government’s main fact witness who said accused was intermediary; prejudice because strongly suggested to jy that govt agent believed govt fact witness was credible and D guilty). An expert is not required to have encyclopedic knowledge about the field in question or to be published. Ellis v. K-Lan Co., 695 F.2d 157 (5th Cir. 1983) (expert’s lack of familiarity with statutory standard affects the weight and not admissibility of his testimony);

Under the test in Kuhmo, a judge ensures the reliability and relevancy of expert testimony by making certain that the expert employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. Id. The Daubert 5-factor test is meant to be helpful with non-scientific evidence, but not definitive. Id. A judge should consider the specific Daubert factors where they are reasonable measures of the reliability of expert testimony. A challenge to an expert is not routine but is for the unusual case where it is apparent an expert has underresearched issues, seriously misapplied a methodology, or acted clearly inconsistently with professional standards. Not every accountant/electrician/plumber should be the subject of a Daubert hearing. In Kumho, the expert’s opinion was subjective and unsupported by any other tire failure expert, and more important, the expert discounted evidence that under his own test indicated the tire had been improperly inflated. Daubert and the FRE do not require a judge to admit opinion evidence that is connected to existing data only 11

United States v. Dysart, 705 F.2d 1247 (10th Cir. 1983) (osteopathy doctor qualified testify about competency stand trial where he received 1 year training in psychiatry even though he’d never published on such matters).

2.

education may testify thereto in the form of an opinion or otherwise.’ Id. at 702. Finally, Rules 401 and 402 render testimony admissible only if it ‘tend[s] to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ Id. at 401, 402. ‘These rules require a trial judge to make three separate inquiries, all of which must be satisfied before admitting expert testimony: “(1) the witness qualifies as an expert by reason of his knowledge, skill, experience, training, or education; (2) the subject matter of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony will actually assist the fact-finder in deciding the case.” Rodgers v. State, 205 S.W.3d 525, 527 (Tex. Crim. App. 2006).

‘These conditions are commonly referred to as (1) qualification, (2) reliability, and (3) relevance.’ Vela, 209 S.W.3d at 131.”

Escamilla v. State, 334 S.W.3d 263 (Tex. App. - San Antonio 2010, pet. ref’d) (emphasis added).

Determine the admissibility of the expert testimony

TRE 705(c) states, “An expert’s opinion is inadmissible if the underlying facts or data do not provide a sufficient basis for the opinion.”

TRE 702 states, “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.”

TRE 703 states, “An expert may base an opinion on facts or data in the case that the expert has been made aware of, reviewed, or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.”

a.

TRE 702 inquiry

Under TRE 702, the trial court must be satisfied that three conditions are met before expert testimony is admitted: (1) the witness qualifies as an expert by reason of his or her knowledge, skill, education, training, or experience; (2) the subject matter of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony will actually assist the jury in deciding the case. Malone v. State, 163 S.W.3d 785 (Tex. App. - Texarkana 2005, pet. ref’d).

“‘The Texas Rules of Evidence set out three separate conditions regarding admissibility of expert testimony.’ Vela v.

State, 209 S.W.3d 128, 130 (Tex. Crim. App. 2006). Rule 104 requires that ‘[p]reliminary questions concerning the qualification of a person to be a witness . . . be determined by the court . . . .’ TEX. R. EVID. 104(a). Under Rule 702, ‘[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or

TRE 702 contains two initial hurdles that must be overcome before expert testimony will be admissible. Roise v. State, 7 S.W.3d 225 (Tex. App. - Austin 1999, pet. ref’d). The proponent of the testimony must establish: (1) 12

that the scientific technical, or other specialized knowledge will aid the trier of fact; and (2) that the expert is qualified to testify on the subject.

Id., citing Penry v. State, 903 S.W.2d 715, 762 (Tex. Crim. App. 1995).

must be into the actual qualification. That is, there must be a “fit” between the subject matter at issue and the expert’s familiarity therewith.”

Broders, 924 S.W.2d at 153. The proponent must establish that the expert has knowledge, skill, experience, training, or education regarding the specific issue before the trial court which would qualify the expert to give an opinion on that particular subject. Id.

Unlike the common-law requirement, a trial court under Rule 702 may admit an expert’s testimony on a matter within most jurors’ understanding if the testimony concerns some type of technical or specialized knowledge and would assist the jurors in their fact-finding function. Glasscock v. Income Prop. Serv., Inc., 888 S.W.2d 176, 179-81 (Tex. App. - Houston [1st Dist.] 1994, writ dism’d). i.

The proponent of the expert has the burden to first establish that the expert is qualified to testify about scientific, technical, or other specialized matters. Penry v. State, 903 S.W.2d 715, 762 (Tex. Crim. App. 1995).

Pursuant to TRE 104(a), the trial judge makes a preliminary determination about whether the witness is sufficiently knowledgeable to be considered an expert. Id.

Qualification inquiry

The inquiry regarding whether or not an expert is qualified is “a flexible one.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 594, 125 L.Ed.2d 469, 113 S.Ct. 2786 (1993).

No rigid formula exists for determining whether a witness is qualified to testify as an expert. 2 Steven Goode, Olin Guy Wellborn, III, & M. Michael Sharlot, Guide To The Texas Rules of Evidence: Civil and Criminal § 702.3, at 54 (Texas Practice Supp. 2000). The expertise must be measured against the particular opinion the expert is offering. Roise v. State, 7 S.W.3d 225 (Tex. App. - Austin 1999, pet. ref’d). While the proponent of the testimony has the burden of establishing the expert’s qualifications, the trial court has the responsibility to ensure that the experts truly have expertise concerning the actual subject about which they are offering an opinion. Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996).

The qualifications of a witness to testify as an expert is within the discretion of the trial judge. See TRE 104(a); Ventroy v. State, 917 S.W.2d 419 (Tex. App. - San Antonio 1996, pet. ref’d). A judge’s decision to permit a witness to testify as an expert will not be disturbed on appeal absent a showing of an abuse of discretion. Id. “‘It is almost impossible to lay down any definite guidelines for determining knowledge, skill or experience required in a particular case or of a particular witness.’

Rogers v. Gonzales, 654 S.W.2d 509, 513 (Tex. App. - Corpus Christi 1983, writ ref’d n.r.e.).

‘Special knowledge’ may be acquired by virtue of the witness’s experience. Reece v. State, 878 S.W.2d 320, 325 (Tex. App. - Houston [1st Dist.] 1994, no pet.). Moreover, contrary to appellant’s trial objection, licensure, or certification in the particular discipline is not a per se requirement. Southland Lloyd’s Ins. Co. v. Tomberlain, 919 S.W.2d 822, 827 (Tex. App. - Texarkana 1996, writ denied); Guentzel v.

A degree alone is not enough to qualify a purported expert to give an opinion, as the case may be, on every conceivable medical question, legal question, or psychological question. Roise, 7 S.W.3d at 234. “The inquiry 13

Toyota Motor Corp., 768 S.W.2d 890, 897-99 (Tex. App. - San Antonio 1989, writ denied). ii.

S.W.2d at 573.” Gregory v. State, 56 S.W.3d 164 (Tex. App. - Houston [14th Dist.] 2001, pet. granted).

Reliability inquiry A trial judge’s gate keeping obligation under Rule 702 – to insure that the expert witness’s testimony rests upon a reliable foundation and is relevant to the task at hand applies to all expert testimony not just scientific expert testimony. Roise, 7 S.W.3d at 235-36 (citing Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 143 L.Ed.2d 238, 119 S.Ct. 1167 (1999)); see also Jackson v. State, 17 S.W.3d 664, 670 (Tex. Crim. App. 2000).” Harnett v.

State, 38 S.W.3d 650 (Tex. App. - Austin 2000, pet. ref’d).

The proponent of scientific evidence must show, by clear and convincing proof, that the evidence is sufficiently reliable and relevant to assist the jury in understanding other evidence or in determining a fact issue.

Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Salazar v. State, 127 S.W.3d 355, 359 (Tex. App. - Houston [14th Dist.]

2004, pet. ref’d).

In Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998), the court stated “an appropriately tailored translation of the Kelly test” for expert testimony outside the hard sciences. When the expert is from a discipline which involves technical or other specialized knowledge, experience, and training as opposed to the scientific method, the test for reliability is: (1) whether the field of expertise is a legitimate one, (2) whether the subject matter of the expert's testimony is within the scope of that field, and (3) whether the expert's testimony properly relies on and/or utilizes the principles involved in the field. Weatherred, 15 S.W.3d at 542; Nenno, 970 S.W.2d at 561.

Before an expert may give an opinion in a case, three criteria must be met: (1) the witness must be competent and qualified to testify; (2) the subject must be one upon which the aid of an expert’s opinion will be of assistance to the jury; and (3) his testimony may not state a legal conclusion. Sattiewhite v.

State, 786 S.W.2d 271 (Tex. Crim. App. 1989).

To be admissible, expert testimony must assist the jury on a matter in which the jury is not qualified to intelligently determine the matter without the help of the expert. Schutz v. State, 957 S.W.2d 52 (Tex. Crim. App. 1997). The expert testimony, however, must aid – not supplant – the jury’s decision. Id.

“To be considered reliable, evidence based on a scientific theory must satisfy three criteria: (1) the underlying scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique must have been properly applied on the occasion in question. Hartman v. State, 946 S.W.2d 60, 62 (Tex. Crim. App. 1997) (citing Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992)); see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 125 L.Ed.2d 469, 113 S.Ct. 2786 (1993). Under Texas Rule of Evidence 104(a) and (c) and Rule 702, the proponent must establish all three criteria outside the presence of the jury, before the trial court may admit the evidence. Kelly, 824

An expert’s testimony regarding scientific evidence is admissible if three criterion are met: (1) the underlying scientific theory is valid; (2) the technique applying the theory is valid; and (3) the technique was properly applied. Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992).

With nonscientific expert testimony involving technical or other specialized knowledge, experience, or training, the expert may testify if three criterion are met: (1) whether the field of expertise is a legitimate one; (2) whether the subject matter of the 14

expert’s testimony is within the scope of that field; and (3) whether the expert’s testimony properly relies on or utilizes the principles involved in the field. Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998), overruled in part on other grounds, State v.

Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1999). b.

Behavioral Health at the Spring Branch Medical Center. However, Wright testified that she worked on only 15 to 25 cases of child abuse while at Child Protective Services in 1990-1991, and that she had worked on only 20 to 30 child-abuse cases during her private practice for the last five years. Wright’s private practice does not concentrate solely on children, and at the time of trial, she did not have any child- abuse victims as clients. Wright testified that she had never conducted independent scientific studies on sexually abused children or on the proper techniques used to interview abused children. Moreover, Wright had not published any articles on sexually abused children or the protocols for interviewing abused children. See, e.g., Perez v. State, 25 S.W.3d 830, 837 (Tex. App. - Houston [1st Dist.] 2000, no pet.) (expert had never written an article regarding her area of testimony as a factor in finding expert unqualified).” The trial judge refused to allow the expert to testify and the appellate court affirmed. “Appellant did not satisfy his burden of establishing that Wright was qualified to testify as an expert in the areas stated above. We find that, because Wright had so little experience in dealing specifically with abused children and little experience in the techniques typically used to interview abused children, the trial court did not abuse its discretion in finding her not qualified to testify as an expert witness.”

TRE 705(b) checklist

Given the above, you should cover the following areas in your 705(b) hearing: 1.

2.

3.

4.

5.

6.

7.

the expert’s qualifications; the validity of the underlying scientific theory used by the expert; the technique used by the expert to apply the theory; how the expert applied the technique; the legitimacy of the field of expertise; whether the subject matter of the expert’s testimony is within the scope of that field; and whether the expert’s testimony properly utilizes the principles involved in the field.

F.

Is the expert really an expert

1.

When a CPS social worker is unqualified

In Fox v. State, 115 S.W.3d 550 (Tex. App. - Houston [14th Dist.] 2002, no pet.), a CPS social worker who worked with abused children had a master’s degree in social work and a degree in psychology. The defense called the expert to testify regarding: (1) the proper protocols for interviewing a child who has been abused; (2) developmental stages of a child; and (3) behavioral patterns of an abused child. The expert “had been a social worker in the public sector for ten years and in private practice for five years; and [] had been the Director of

2.

When a SANE is unqualified

In Escamilla v. State, 334 S.W.3d 263 (Tex. App. - San Antonio 2010, pet. ref’d), the State called a SANE as an expert witness. The SANE testified that her examination of the child “revealed two symptoms consistent with sexual abuse: a tear close to D.A.E.'s anus and the wide dilation of D.A.E.'s anus within seven seconds after retraction of the child's buttocks.”

The appellant claimed the trial judge “erred in allowing Garza to testify regarding the dilation 15

of D.A.E.'s anus because her opinion was not based on a valid scientific theory, the technique applying the theory was not valid, and the technique was not correctly applied.” Id.

technique or methodology was generally accepted in the medical community, she stated, ‘Our trainings through the Office of the Attorney General.’” Id.

“Garza stated that in 2009, the year of the underlying trial, she had conducted close to 100 sexual assault examinations. Following her examination of D.A.E., Garza said she found a tear close to D.A.E.'s anus that was consistent with sexual abuse, either by manipulation or forcible penetration. She also stated that the wide dilation of D.A.E.'s anus within seven seconds after retraction of the child’s buttocks was consistent with sexual abuse. According to Garza, it takes at least one minute for a normal anus to start to dilate, but it took only seven seconds for D.A.E.'s anus to dilate.” Id.

“We conclude the State established Garza’s qualifications and Garza was able to explain her methodology with sufficient clarity.

However, Garza could not elaborate on the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community; she could make only vague references to literature supporting her underlying scientific theory and technique; and she did not appear to understand the concept of ‘the potential rate of error of the technique.’ Therefore, we must conclude the State did not carry its burden to ‘establish some foundation for the reliability of [Garza’s] opinion.’ Vela, 209 S.W.3d at 134. Thus, the trial court erred by allowing into evidence her opinion that the quick dilation of D.A.E.'s anus was consistent with sexual abuse.” Id.

“When asked to explain the reasoning or methodology she used in reaching her opinion about dilation, Garza could not be any more specific than to state ‘based on my training,’ ‘my readings and stuff,’ the conferences she attends, and ‘research and the peer reviews.’

Garza explained that by ‘peer review’ she meant ‘where . . . SANE nurses . . . are able to share information, learn from each other. We’re able to review cases . . . see slides, pictures.’

When asked if she knew the known or potential rate of error for the application of the theory on anus dilation, Garza could only state ‘we base ourselves on what the patient tells us, the history and our findings.’ Although Garza said she based her opinion on literature by Dr. Nancy Kellogg, Garza could not name a specific article written by or a study conducted

by Dr. Kellogg. Garza also said she based her opinion on literature by Dr. John McCann, but she could only reference a magazine article possibly written in 2008. When asked whether the technique or methodology she used in formulating her opinion was generally accepted in the medical community, Garza responded, ‘It is accepted.’ However, when asked why her

G.

Motions in limine are vital

Motions in limine do not preserve error.

Webb v. State, 760 S.W.2d 263 (Tex. Crim.

App. 1988); Maynard v. State, 685 S.W.2d 60 (Tex. Crim. App. 1985). This is true whether the motion is granted or denied. Willis v. State, 785 S.W.2d 378 (Tex. Crim. App. 1989); Webb. The remedy for a violation of a ruling on a motion in limine rests with the trial court.

Brazzell v. State, 481 S.W.2d 130 (Tex. Crim.

App. 1972). The trial court may hold the litigant or attorney in contempt or use other remedies or sanctions. Id. To preserve error for appeal regarding a motion in limine issue, you must object to the admission or exclusion of evidence or other action. Id. Use motions in limine to incorporate all caselaw, statutes, and reasoning for your appellate issue. Number the motion in limine 16

and refer to the number when that issue arises during trial and have the judge overrule the grounds stated in that motion in limine. This helps you to code your objections before the jury and not sound obstructionist.

17

Texas Criminal Defense Lawyers Association

Voir Dire & Cross Exam March 2-3, 2023 The Whitehall Houston, Texas

Topic: Cross Exam 101

Speaker:

Michael Gross Gross & Esparza, P.L.L.C. 1524 N Alamo St San Antonio, TX 78215 210.354.1919 phone 210.354.1920 fax lawofcmg@gmail.com email www.txmilitarylaw.com website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

CROSS EXAM 101

MICHAEL C. GROSS Gross & Esparza, P.L.L.C. 1524 North Alamo Street San Antonio, Texas 78215 www.txmilitarylaw.com Lawofcmg@gmail.com (210) 354-1919

TCDLA Voir Dire & Cross Exam Houston, Texas March 2-3, 2023

GROSS & ESPARZA, P.L.L.C. 1524 North Alamo Street San Antonio, Texas 78215 lawofcmg@gmail.com www.txmilitarylaw.com (210) 354-1919 MICHAEL C. GROSS CURRICULUM VITAE EDUCATION B.A., Trinity University, San Antonio, Texas, 1984 J.D., St. Mary’s University, San Antonio, Texas, 1987 PROFESSIONAL ACTIVITIES AND RECOGNITIONS Judge Advocate, U.S. Marine Corps, 1988-1992 Associate, Zimmermann & Lavine, P.C., Houston, Texas, 1992 - 1996 Law Office of Michael C. Gross, P.C., San Antonio, Texas, 1996 - 2012 Gross & Esparza, P.L.L.C., San Antonio, Texas, 2012 - Present Board Certified, Criminal Trial Advocacy, National Board of Trial Advocacy, 1997 Board Certified, Criminal Law, Texas Board of Legal Specialization, 1995 Board Certified, Criminal Appellate Law, Texas Board of Legal Specialization, 2011 President, Texas Criminal Defense Lawyers Association, 2011-2012 President, San Antonio Criminal Defense Lawyers Association, 2011-2012 Board of Disciplinary Appeals, Vice Chair 2021-present, Member 2018-present Defender of the Year, San Antonio Criminal Defense Lawyers Association, 2008 Defender of the Year, San Antonio Criminal Defense Lawyers Association, 2009 Named in Best Lawyers in America, 2005 - 2022 Named Best Lawyers 2015 San Antonio Non-White-Collar Lawyer of the Year - 2015, 2017 Named in Texas Super Lawyers in Texas Monthly Magazine, 2004 - 2022 Named Top 50 Texas Super Lawyers in Central and West Texas Region, 2010 - 2012, 2014 Named in Best Lawyers in San Antonio by Scene in San Antonio Magazine, 2004 - 2022 Named Top 10 Criminal Defense Attorneys in San Antonio by Scene Magazine - 2013 AV rated by Martindale Hubble COURT ADMISSIONS Supreme Court of the United States, 1991 Supreme Court of the State of Texas, 1987 United States Court of Appeals for the Armed Forces, 1990 United States Court of Appeals for the Fifth Circuit, 1990 United States Court of Appeals for the Tenth Circuit, 1998 United States District Court for the Northern District of Texas, 1990 United States District Court for the Southern District of Texas, 1991 United States District Court for the Eastern District of Texas, 1991 United States District Court for the Western District of Texas, 1992

TABLE OF CONTENTS I.

Investigation and Preparation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. Courthouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.

Criminal record check. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2.

Divorce records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 3.

Civil suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 4.

Property records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 5.

Assumed name records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 6.

Marriage license records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 7.

Voter registration records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 8.

Witness list . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 B. Internet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.

Lexis/Westlaw. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2.

Google/Yahoo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 3.

Publicdata.com . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 4.

Social media . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 5.

Bcad.org . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 6.

Tdcj.state.tx.us . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 7.

Mysanantonio.com . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 C. Subpoenas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.

Jail records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2.

School records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 3.

TDC records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 4.

Phone records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 5.

Apartment records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 6.

Probation officer files . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 7.

Work records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 8.

Crime lab/ME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 9.

Counseling records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 D. Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 E. Interviews/contacts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II.

Cross-Examination and the Rules of Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. The proper mindset . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. General rules for cross-examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1.

Do you need to cross-examine the witness . . . . . . . . . . . . . . . . . . . . . . 2 2.

Watch the witness during direct examination. . . . . . . . . . . . . . . . . . . . 3 3.

Be courteous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 4.

Be professional . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 5.

Speak succinctly and plainly. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 C. Do the rules of evidence apply, and how do they apply . . . . . . . . . . . . . . . . . . 3 1.

TRE 101(d) - Hierarchy of the rules . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2.

TRE 101(e) - When the rules do not apply . . . . . . . . . . . . . . . . . . . . . . 3 3.

TRE 104(a) - Preliminary questions . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 4.

TRE 611 - Mode and order of examining witnesses. . . . . . . . . . . . . . . 3 5.

TRE 705 - Disclosing underlying facts/data and examining expert . . . 4 6.

TRE 612 - Writing used to refresh a witness’ memory . . . . . . . . . . . . 4 7.

TRE 803(5) - Recorded recollection. . . . . . . . . . . . . . . . . . . . . . . . . . . 5 8.

TRE 615 - Producing a witness’ statement in criminal cases. . . . . . . . 5 9.

TRE 607 - Who may impeach a witness. . . . . . . . . . . . . . . . . . . . . . . . 5 10.

TRE 608(b) - Truthfulness witness impeached w/specific instances . . 6 iii

11.

12.

13.

TRE 609 - Impeachment by evidence of a criminal conviction . . . . . . 7 TRE 613 - Witness’ prior statement and bias or interest . . . . . . . . . . . 7 TRE 412 - Evidence of previous sexual conduct in criminal cases . . . 9

APPENDIX Writing used by a witness to refresh memory under TRE 612 Impeachment with a prior inconsistent statement under TRE 613(a) Impeachment with bias or interest under TRE 613(b) Recorded recollection under TRE 803(5) Correct false impression and witness’s credibility and collateral matter Asking witness if another witness was lying during testimony Cross-examination of a snitch

iv

I.

INVESTIGATION PREPARATION

A.

Courthouse

global search:

AND

1.

Lexis/Westlaw - run the name of the witness to see if caselaw has covered that witness before (Dr. Death, police, etc.).

The courthouse is a good source and good starting point for background information on witnesses:

2.

Google/Yahoo - run the name to see what internet sources have talked about the witness.

1.

Criminal record check pending cases, past cases, violations of probation, pretrial bond information (prior addresses, financial information, character references, bond forfeitures), previous attorneys, complainants, co-defendant’s stipulations (police reports, lab reports).

3. publicdata.com - driver’s license, criminal history, VIN’s, license plates.

4. twitter, etc.

2.

Divorce records - identity of former spouse, grounds for divorce, financial information, prior addresses, allegations of abuse, drug use, child abuse, failure to pay child support, previous attorneys.

5. bcad.org - land values, owners, addresses, layout of properties.

6. tdcj.state.tx.us - prior incarcerations and TDC numbers for current and former inmates.

3.

Civil suits - previous and pending suits against people, previous and pending suits against the witness, financial information, prior places of employment, fraudulent suits.

7. mysananton i o.com archives research for Express News articles naming the witness (these articles are at the San Antonio Public Library on microfilm rolls).

4.

Property records - homes bought or sold, identity of people who have conducted financial transactions with the witness, loan application information, mortgage companies, previous attorneys.

C.

Subponeas

Send a business records affidavit to comply with Texas Rule of Evidence 902(10) at the same time you obtain the documents. Obtain instanter subpoenas for those documents with which you need to impeach the witness or support the witness.

If you encounter entities that balk at timely producing the documents, suggest that early production of the documents is much more convenient that sitting on the benches in the courthouse hallways waiting to testify as the custodian. Most entities have no problem timely producing documents once they have a subpoena:

5.

Assumed name records names of business associates, businesses owned by the witness, previous attorneys.

6.

Marriage license records current and former spouses and addresses.

7.

Voter registration - current address and date of birth.

8.

Witness list - the criminal district clerk will print this for you.

B.

Social media - facebook,

1.

Jail records - disciplinary, classification review, visitation, medical, criminal history, and booking information/ photo.

Internet

After conducting the initial background search, go online for a more 1

officers, teachers, managers, family, and other witnesses.

2.

School records - special education, regular education, testing, counseling, attendance, and disciplinary.

If you cannot afford an investigator or a notary, have friendly witnesses fill out a voluntary statement in their own handwriting.

3.

TDC records - disciplinary, investigative, incident reports, admission summary, social and criminal history, IQ, medical, classification, pen packets.

4.

Phone records - history of cell phone and other telephone calls, addresses, and billing information.

6.

Probation officer files conditions probation, violations probation, references, phone numbers, dates birth, prior convictions, truthfulness of witness.

7.

Work records - references, prior work history, work application, disciplinary history resumes, CV’s.

Crime lab/ME - notes and

tests.

9.

Counseling records psychiatric records, counseling records.

D.

-

Discovery

File a Michael Morton Act request for a list of the state’s lay and expert witnesses. File a motion for discovery to obtain plea agreements, contracts, payment records for snitches, letters of immunity, criminal history, lab reports, lab notes, lab testing, ME records. Do not rely on the DA file for the above information since the file is not always complete.

A.

The proper mindset

B. General examination

Printed public information parts of the police report are available at the PD for a fee.

E.

CROSS-EXAMINATION AND THE RULES OF EVIDENCE

“Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent . . . But defense counsel has no comparable obligation to ascertain or present the truth . . . If [defense counsel] can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course.

Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth . . . more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.” United States v. Wade, 388 U.S. 218, 256-258, 87 S.Ct. 1926, 1947-1948, 18 L.Ed.2d 1149 (1967) (White, J., dissenting in part and concurring in part).

5.

Apartment records - rental agreements, credit checks, references.

8.

II.

rules

for

cross-

The following rules are taken from Francis L. Wellman’s The Art of CrossExamination (Macmillan Publishing Co., 4th Ed., 1962).

Interviews/contacts

Neighbors, co-workers, former coworkers, employers, former employers, former spouses or significant others, officers, estranged children, probation

1.

The first inquiries are: Has the witness testified to anything that is material against us? Has his testimony 2

injured our side of the case? Is it necessary for us to cross-examine him at all?

to be removed by reasonable construction.

2.

TRE 101(e)(1) states that these rules do not apply to the determination of questions of fact preliminary to admissibility of evidence under Rule 104.

2.

A skillful cross-examiner seldom takes his eye from an important witness while he is being examined by his adversary since this helps estimate his integrity.

The rules of evidence do not apply to suppression hearings. Granados v. State, 85 S.W.3d 217, 227-230 (Tex. Crim. App. 2002).

3.

Be courteous and conciliatory toward the witness since the sympathies of the jury are invariably on the side of the witness, and they are quick to resent any discourtesy toward the witness.

3.

Rule 104(a) states that preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court. In making its determination the court is not bound by the rules of evidence except those with respect to privileges.

4.

The counsel who has a pleasant personality; who speaks with apparent frankness; who appears to be an earnest searcher after truth; who is courteous to those who testify against him; who avoids delaying constantly the progress of the trial by innumerable objections and exceptions to perhaps incompetent but harmless evidence; who seems to know what he is about and sits down when he has accomplished it, exhibiting a spirit of fair play on all occasions – he it is who creates an atmosphere in favor of the side which he represents, a powerful though subconscious influence with the jury in arriving at their verdict. Even if, owing to the weight of testimony, the verdict is against him, yet the amount will be far less than the client has schooled himself to expect.

If the state intends to offer a coconspirator’s statement against your client, the trial judge must first determine pursuant to Rule 104, the existence of a conspiracy, its pendency, whether our client was a member, and whether the statement was made in furtherance of the conspiracy.

Casillas v. State, 733 S.W.2d 158, 166-168 (Tex. Crim. App. 1986). The trial judge also decides, for instance, whether an expert is qualified to testify under Rule 702 and whether experts in a field reasonably rely on particular data under Rule 703. Gregory v.

State, 56 S.W.3d 164, 178 (Tex. App. Houston [14th Dist.] 2001, pet. granted); St. Paul Medical Center v. Cecil, 842 S.W.2d 808, 815 (Tex. App. - Dallas 1992, no writ).

5.

Speak distinctly yourself, and compel your witness to do so. Bring out your points so clearly that people of the most ordinary intelligence can understand them.

4.

TRE 611 states that the court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. A witness may be crossexamined on any matter relevant to any issue in the case, including credibility.

Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the testimony

C. Do the rules of evidence apply, and how do they apply?

1.

TRE 101(d) states that, despite the rules of evidence, a court must admit or exclude evidence if required to do so by the United States or Texas Constitution, a federal or Texas statute, or a rule prescribed by the United States or Texas Supreme Court or Court of Criminal Appeals. Where possible, inconsistency is 3

of the witness. Ordinarily leading questions should be permitted on cross-examination.

When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

1995). Counsel may voir dire the expert as to the validity of the theory. Chisum v.

State, 988 S.W.2d 244, 248-250 (Tex. App. - Texarkana 1998, pet. ref’d). Counsel may then challenge the reliability of the expert’s opinion and cross-examine the expert in front of the jury without undue fear of i nadvertently eliciting damagi ng information. Alba v. State, 905 S.W.2d 581, 588 (Tex. Crim. App. 1995); Goss v. State, supra.

A trial judge acts properly in admonishing counsel to avoid being repetitious. Hoang v. State, 997 S.W.2d 678, 681-682 (Tex. App. - Texarkana 1999, no pet.). A trial judge acts properly in refusing to allow a witness to testify in a narrative form. Schermbeck v. State, 690 S.W.2d 315, 317 (Tex. App. - Dallas 1985, no pet.). Questions which assume facts not in evidence are improper. Turcola v. State, 643 S.W.2d 164, 167 (Tex. App. - Dallas 1982, no pet.). Questions which ask a witness to speculate are impermissible. Id.

6.

TRE 612 states that if a witness uses a writing to refresh memory for the purpose of testifying either while testifying or before testifying, in criminal cases; an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.

The scope of your cross-examination should not be curtailed by the trial judge.

Refusing to allow counsel, for instance, to cross-examine the state’s witness about a pending charge against the witness to establish bias violates a defendant’s constitutional rights. Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996).

In Texas, the scope of cross-examination is wide open. Felder v. State, 848 S.W.2d 85, 99 (Tex. Crim. App. 1992).

TRE 612 allows a witness to use a writing while testifying to refresh the witness’ memory. If the witness states that she does not remember a certain matter, counsel may show the witness a writing and allow the witness to read it to herself.

Callahan v. State, 937 S.W.2d 553, 560 (Tex. App. - Texarkana 1996, no pet.).

Counsel must establish that the witness is having difficulty recalling an event before showing the witness a document to refresh recollection. Id. (Emphasis added). If the witness then states her memory has been jogged and the witness now recalls the matter independent of the writing, the witness may testify to that independent recollection. Welch v. State, 576 S.W.2d 638, 641 (Tex. Crim. App. 1979); Callahan v. State, supra. If the witness still cannot recall the matter, however, she cannot testify unless counsel lays the proper predicate for admitting the contents of the writing under Rule 803(5) for past recollection recorded.

Id. A trial judge should confirm whether the witness is testifying upon a record or upon his own recollection. Unites States v.

Riccardi, 174 F.2d 883, 889 (3rd Cir. 1949).

Circumstances may convince the trial judge that a witness’ claim of revived recollection is implausible. Wilhoit v. State, 638 S.W.2d

5.

TRE 705(b) states that prior to the expert giving the expert’s opinion or disclosing the underlying facts or data, a party against whom the opinion is offered upon request in a criminal case shall be permitted to conduct a voir dire examination directed to the underlying facts or data upon which the opinion is based. This examination shall be conducted out of the hearing of the jury.

Defense counsel is undeniably entitled to voir dire experts pursuant to this rule and denial of a timely motion to voir dire the expert is error. Goss v. State, 826 S.W.2d 162, 168 (Tex. Crim. App. 1992).

This voir dire concerns the underlying facts or data of the expert’s opinion and not the qualifications of the expert. Jenkins v. State, 912 S.W.2d 793, 814 (Tex. Crim. App. 4

489, 496-497 (Tex. Crim. App. 1982); Guerra v. State, 676 S.W.2d 181 (Tex. App. - Corpus Christi 1984, pet. ref’d).

If the entire contents of the statement relate to the subject matter concerning which the witness has testified, the court shall order that the statement be delivered to the moving party.

7.

TRE 803(5) states that one exception to the hearsay rule is a record concerning a matter about which a witness once had personal knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly.

Once a witness testifies for the state, the defense is entitled to inspect any previous written statements made by that witness. Gaskin v. State, 353 S.W.2d 467 (Tex. Crim. App. 1961). This is the Gaskin rule. Rule 615 expanded the Gaskin rule to include some statements that have not been reduced to writing such as an audio taped interview. Jordan v. State, 897 S.W.2d 909, 914 (Tex. App. - Fort Worth 1995, no pet.).

Another rule, the “use before the jury” rule, allows counsel to obtain a writing used to refresh the witness’ memory at trial, or a writing used or exhibited or read from at trial regardless of who wrote the document.

Bailey v. State, 365 S.W.2d 170 (Tex. Crim.

App. 1963). Rule 615 allows a trial judge to order disclosure only of those statements in the possession of the party calling the witness. Marquez v. State, 757 S.W.2d 101, 103 (Tex. App. - San Antonio 1988, pet. ref’d).

TRE 803(5) requires that the writing was made or adopted by the witness when the matter was fresh in her memory. Welch v. State, supra. The evidence must establish that the witness had personal knowledge or that the writing was accurate when made.

Johnson v. State, 967 S.W.2d 410, 415-417 (Tex. Crim. App. 1998). Remember that Rule 803(8)(A)(ii) excludes police reports from the hearsay exception.

The purpose of defense counsel inspecting the writing used to refresh recollection is to cross-examine the witness and test whether his memory really has been revived and highlight inconsistencies between the writing and the witness’ testimony. Powell v. State, 5 S.W.3d 369, 381-382 (Tex. App. - Texarkana 1999, pet. ref’d). The purpose of admitting a writing under Rule 612 is not for the truth of the matter asserted, but for testing the credibility of the witness. Robertson v. State, 871 S.W.2d 701, 709 (Tex. Crim. App. 1993).

9.

TRE 607 states that the credibility of a witness may be attacked by any party, including the party calling the witness.

Impeachment of a witness means adducing proof that such witness is unworthy of belief or credit. Willingham v.

State, 897 S.W.2d 351, 358 (Tex. Crim.

App. 1995). Impeachment is aimed at attacking the credibility of a witness.

Adams v. State, 862 S.W.2d 139, 147 (Tex. App. - San Antonio 1993, pet. ref’d). The defense has the right to cross-examine a state witness and to impeach that witness with evidence that might reflect bias, interest, prejudice, prior inconsistent statements, character traits affecting credibility, lack of capacity, and contradiction. Roberts v. State, 963 S.W.2d 894, 900 (Tex. App. - Texarkana 1998, no pet.).

8.

TRE 615 states that in criminal cases after a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney for the state or the defendant and defendant’s attorney, as the case may be, to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter concerning which the witness has testified.

5

Exposing a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. Davis v. Alaska, 415 U.S. 308, 316-317, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974). A defendant has the right to test the witness’ recollection, to probe into the details of his alibi, or to sift his conscience so that the jury might judge for itself whether the witness is worthy of belief. Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1045-1046, 35 L.Ed.2d 297 (1973). Impeachment evidence is inadmissible if it is inadmissible hearsay.

Tucker v. State, 771 S.W.2d 523, 531-532 (Tex. Crim. App. 1988). Defense may cross-examine witness about pending felony charge and possible punishment. Carroll v.

State, 916 S.W.2d 494, 497 (Tex. Crim.

App. 1996). Defense may cross-examine witness about witness’ mental illness around time of event in question and time of trial.

Virts v. State, 739 S.W.2d 25, 28 (Tex. Crim. App. 1987). Defense may crossexamine witness about alleged bigotry.

Hurd v. State, 725 S.W.2d 249, 250-252 (Tex. Crim. App. 1987). Defense may cross-examine witness about motive or bias to testify. Harris v. State, 642 S.W.2d 471 (Tex. Crim. App. 1982). Defense may cross-examine DWI arresting officer about quota system for DWI arrests. Alexander v.

State, 949 S.W.2d 772 (Tex. App. - Dallas 1997, pet. ref’d). Defense may crossex am i ne wi t nes s about al l eged nymphomania in sexual assault case since evidence would tend to prove both consent and motive to lie. Chew v. State, 804 S.W.2d 633 (Tex. App. - San Antonio 1991, pet. ref’d).

a gun in the past year. Gutierrez v. State, 764 S.W.2d 796 (Tex. Crim. App. 1989).

Facts which are not collateral include facts which would be independently provable by extrinsic evidence, apart from the contradiction, to impeach or disqualify the witness such as facts showing bias, interest, convictions, and want of capacity or opportunity for knowledge. Bates v. State, 587 S.W.2d 121, 141 (Tex. Crim. App. 1979).

Counsel may cross-examine witness regarding witness’ lack of powers of observation or witness’ lack of opportunity to exercise his powers of observation. San Antonio Transit Co. v. McCurry, 212 S.W.2d 645 (Tex. App. - San Antonio 1948, writ ref’d n.r.e.). Counsel may crossexamine the witness regarding the witness’ intoxication at the time the event was witnessed. Carroll v. State, 916 S.W.2d 494, 498 (Tex. Crim. App. 1996). Drug use is also fair game provided in each case that the alcohol or drug use was recent or so extensive as to affect the witness’ ability to observe. Courtney v. State, 735 S.W.2d 949, 951-952 (Tex. App. - Beaumont 1987, no pet.).

10.

TRE 608 states that a witness’ credibility may be attacked by testimony about the witness’ reputation for being untruthful or opinion evidence that the witness is untruthful.

TRE 608(b) states that specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.

If a witness is cross-examined on a collateral matter even to impeach his testimony, the cross-examiner cannot then contradict the witness. Arechiga v. State, 462 S.W.2d 1, 2 (Tex. Crim. App. 1971).

You are stuck with the answer. Goldstein v.

State, 803 S.W.2d 777, 793-794 (Tex. App. - Dallas 1991, pet. ref’d). When a witness stated he had not seen the complainant carry a gun in the past year, counsel was not permitted to introduce extrinsic evidence that the complainant had been seen carrying

You can cross-examine the witness on specific instances of conduct if the witness makes a blanket statement concerning his exemplary conduct such as he had never been charged or convicted of any offense. Stephens v. State, 417 S.W.2d 286, 288 (Tex. Crim. App. 1967). Each time the witness volunteers additional information, you are justified in asking for 6

clarification. Feldman v. State, 71 S.W.3d 738, 756 (Tex. Crim. App. 2002).

circumstances supporting such claim or the details of such statement, including the contents and where, when and to whom made, must be made known to the witness, and the witness must be given an opportunity to explain or to deny such circumstances or statement. If written, the writing need not be shown to the witness at that time, but on request the same shall be shown to opposing counsel. If the witness unequivocally admits such bias or interest, extrinsic evidence of same shall not be admitted. A party shall be permitted to present evidence rebutting any evidence impeaching one of said party’s witnesses on grounds of bias or interest.

11. TRE 609 states that for the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record but only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party.

TRE 609 applies to all witnesses, party and non-party alike. Nelson v. State, 765 S.W.2d 401, 404 (Tex. Crim. App. 1989). Deferred adjudication is not admissible under Rule 609 but is admissible to show a witness’s bias, motive, or ill will emanating from the witness’ status of deferred adjudication. Juneau v. State, 49 S.W.3d 387, 389-390 (Tex. App. - Fort Worth 2000, pet. ref’d).

A foundation must be laid before impeaching a witness with a prior inconsistent statement. L.M.W. v. State, 891 S.W.2d 754, 759 (Tex. App. - Forth Worth 1994, no pet.). A proper foundation includes establishing where, when, and to whom the statement was made. Downen v.

Texas Gulf Shrimp Co., 846 S.W.2d 506, 512 (Tex. App. - Corpus Christi 1993, writ denied). Counsel must allow the witness to admit or deny making the prior statement.

Id. The witness is then allowed to admit having made the statement or explain or deny the statement. Alvarez-Mason v. State, 801 S.W.2d 592, 595 (Tex. App. - Corpus Christi 1990, no pet.). Extrinsic evidence of the prior statement is inadmissible unless counsel first tells the witness about the contents of the statement and affords the witness the chance to explain or deny the statement. Osteen v. State, 61 S.W.3d 90 (Tex. App. - Waco 2001, no pet.). The statement may be oral, written, sworn, or unsworn. Stapleton v. State, 868 S.W.2d 781 (Tex. Crim. App. 1993); McGary v.

State, 750 S.W.2d 782, 787 (Tex. Crim.

App. 1988).

12.

TRE 613(a) states that in examining a witness concerning a prior inconsistent statement made by the witness, whether oral or written, and before further cross-examination concerning, or extrinsic evidence of, such statement may be allowed, the witness must be told the contents of such statement and the time and place and the person to whom it was made, and must be afforded an opportunity to explain or deny such statement. If written, the writing need not be shown to the witness at that time, but on request the same shall be shown to opposing counsel. If the witness unequivocally admits having made such statement, extrinsic evidence of same shall not be admitted. This provision does not apply to admissions of a party-opponent as defined in Rule 801(e)(2).

Extrinsic evidence of the prior statement is admissible if the witness recalls giving the prior statement but cannot recall the specific prior statement. Ramsey v.

Luck Stores, 853 S.W.2d 623, 636-637 (Tex. App. - Houston [1st Dist.] 1993, writ denied). Likewise if the witness claims he might have made the prior statement but he

TRE 613(b) states that in impeaching a witness by proof of circumstances or statements showing bias or interest on the part of such witness, and before further cross-examination concerning, or extrinsic evidence of, such bias or interest may be allowed, the 7

does not remember. Downen v. Texas Gulf Shrimp Co., 846 S.W.2d 506, 512-513 (Tex. App. - Corpus Christi 1993, writ denied). If the witness admits having made the prior statement, counsel can still cross-examine the witness about the details of the prior inconsistent statement which are inconsistent with the witness’ testimony.

Ferguson v. State, 97 S.W.3d 293, 295-297 (Tex. App. - Houston [14th Dist.] 2003, pet. ref’d).

must have been made by the witness or imputed to the witness, and not by another person. A witness, for example, cannot be impeached with hearsay statements made by police officers. Mosquera v. State, 877 S.W.2d 40 (Tex. App. - Corpus Christi 1994, no pet.).

The prior statements are inconsistent if they indicate evasive answers, inability to remember, silence, or changes of position.

Allen v. State, 788 S.W.2d 637, 642 (Tex. App. - Houston [14th Dist.] 1990, pet. ref’d)(Sears, J., dissenting). The witness’ statements need not directly contradict each other. Id. A witness’ testimony may be impeached with prior statements that are inconsistent with the impression created by the testimony. Id. Counsel may crossexamine a witness about failure to come forward with information prior to trial.

Abney v. State, 1 S.W.3d 271, 275-276 (Tex. App. - Houston [14th Dist.] 1999, pet. ref’d). The rule of admissibility of evidence of prior inconsistent statements should be liberally construed and the trial judge should have discretion to receive any evidence which gives promise of exposing a falsehood. Aranda v. State, 736 S.W.2d 702, 707 (Tex. Crim. App. 1987).

Trial judge deprives a defendant of constitutional right to effective crossexamination by refusing to grant continuance so defendant could obtain transcript of prosecution witnesses’ testimony from prior trial since the credibility and perceptions of these eyewitnesses was essential to the state’s case. White v. State, 823 S.W.2d 296, 300 (Tex. Crim. App. 1992). It is essential that a defendant have the means to adequately impeach these witnesses. Id. The general theory of impeachment by proof of a prior inconsistent statement by the same witness is to show that he has a capacity for making errors. Cirilo v. Cook Paint and Varnish Co., 476 S.W.2d 742, 748 (Tex. App. Houston [1st Dist.] 1972, writ ref’d n.r.e.).

Given the witness’ previous statement and his present testimony are contradictory, one of them must be erroneous. Id.

Counsel may cross-examine a witness about his motivation to testify for or against the defendant or the state. Carpenter v. State, 979 S.W.2d 633, 634 (Tex. Crim.

App. 1998). Counsel must be able to attack the credibility of a witness by proving the witness’ ill-feeling, bias, motive, and animus. Id. A trial judge must allow some cross-examination of a witness to show bias.

United States v. Abel, 469 U.S. 45, 50, 105 S.Ct. 465, 468, 83 L.Ed.2d 450 (1984). A witness’ bias is a relevant issue to trial and the Confrontation Clause provides counsel the right to explore potential biases of an accusing witness through cross-examination.

Hoyos v. State, 982 S.W.2d 419, 420-421 (Tex. Crim. App. 1998). Wide latitude is allowed in cross-examination here since the jury is entitled to know any relevant facts that would tend to influence the witness’ testimony. Adams v. Petrade Int’l, Inc., 754 S.W.2d 696, 711 (Tex. App. - Houston [1st

Prior inconsistent statements that are hearsay are not substantive evidence.

Willover v. State, 70 S.W.3d 841, 846 (Tex. Crim. App. 2002). Therefore, prior inconsistent statements made by a state witness could not be used by a defendant as evidence to support a claim that if guilty at all, he was guilty only of lesser included offense. Gillum v. State, 792 S.W.2d 745, 747 (Tex. App. - Houston [14th Dist.] 1990, pet. ref’d). Pursuant to Rule of Evidence 105(a), however, a party may not complain on appeal if evidence is admitted without limitation if the party failed to timely request a limiting instruction. Garcia v.

State, 887 S.W.2d 862, 878-879 (Tex. Crim.

App. 1994).

The prior inconsistent statements 8

Dist.] 1988, writ denied).

The rule regarding cross-examination for bias encompasses all facts and circumstances which when tested by human experience, tend to show that a witness may shade his testimony for the purpose of helping or harming a particular litigant’s position for reasons unrelated to the merits of the suit.

Carroll v. State, 916 S.W.2d 494, 497-499 (Tex. Crim. App. 1996). A pending criminal charge is an appropriate area of cross-examination. Id.

13.

TRE 412 states that in a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, evidence of specific instances of an alleged victim’s past sexual behavior is also not admissible, unless it is evidence: (A) that is necessary to rebut or explain scientific or medical evidence offered by the State; (B) of past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior which is the basis of the offense charged; (C) that relates to the motive or bias of the alleged victim; (D) is admissible under Rule 609; or (E) that is constitutionally required to be admitted; and its probative value outweighs the danger of unfair prejudice.

Cross-examination is proper regarding bias when witness has a pending civil suit against the defendant arising out of the same incident. Rodriguez v. State, 90 S.W.3d 340, 362 (Tex. App. - El Paso 2001, pet. ref‘d). Counsel must first establish a specific connection between the witness’ testimony and the cause, disclosing an actual bias or motive. Willingham v. State, 897 S.W.2d 351, 358 (Tex. Crim. App. 1995).

The evidence which may show bias covers a wide range and the field of external circumstances from which probable bias may be inferred is infinite. Jackson v. State, 482 S.W.2d 864, 868 (Tex. Crim. App. 1972). In a DWI case, for example, if the defendant rear ended the complainant’s car, possible bias is demonstrated through proof of his civil claims relating to the rear ending. Grady v. State, 962 S.W.2d 128, 130-131 (Tex. App. - Houston [1st Dist.]

1997, pet. ref’d). Counsel may crossexamine a state’s witness on the status of his deferred adjudication probation to show a potential motive, bias or interest to testify for the state. Irby v. State, 327 S.W.3d 138 (Tex. Crim. App. 2010). Cross-examination is proper regarding possible plea agreements. McDuff v. State, 939 S.W.2d 607, 617-618 (Tex. Crim. App. 1997).

Cross-examination is proper against an accomplice witness that a criminal charge is pending and the witness is hoping for favorable treatment. Lewis v. State, 815 S.W.2d 560, 565-566 (Tex. Crim. App. 1991). Cross-examination is proper regarding details of plea bargain agreement.

Virts v. State, 739 S.W.2d 25, 30-31 (Tex. Crim. App. 1987).

The unfair prejudice language includes prejudice to the complainant who will potentially be stigmatized if the defendant is able to introduce evidence of sexual behavior. Stephens v. State, 978 S.W.2d 728, 733 (Tex. App. - Austin 1998, pet. ref’d). Counsel should have evidence of prior sexual conduct and not simply rely on questioning of the complainant because if complainant denies previous sexual conduct, trial judge may refuse to allow counsel to question the complainant since a mere denial of prior sexual conduct does nothing to explain or rebut medical evidence. Landry v. State, 958 S.W.2d 942, 943-944 (Tex. App. - Beaumont 1998, pet. ref’d).

Counsel may cross-examine regarding complainant’s sexual intercourse with other people to explain medical testimony about trauma to vagina. Miles v.

State, 61 S.W.3d 682 (Tex. App. - Houston [1st Dist.] 2001, pet. ref’d). Counsel may cross-examine complainant regarding relationship with another man to show complainant had motive to falsely accuse defendant of rape. Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988).

9

WRITING USED BY A WITNESS TO REFRESH MEMORY UNDER TRE 612 1.

Question presented. What are the options counsel has when a writing has been used to refresh a witness’ memory?

2.

Summary of facts. A witness uses a writing to refresh the witness’ memory.

3.

Discussion. When a writing is used by a witness to refresh the witness’ memory, the opposing party, pursuant to TRE 612, upon request can inspect the document and use it for purposes of cross-examination. Robertson v. State, 871 S.W.2d 701, 708 (Tex. Crim. App. 1993). Further, the opposing party can introduce the document, not for the truth of the matter asserted, but for use by the jury in comparing the document to the witness’ testimony. Id. However, if it is claimed by the party calling the witness that the writing contains matters not related to the subject matter of the testimony, the trial court must review the writing to determine whether it contains unrelated portions. Id. If so, those portions are redacted from the document and preserved for appellate review. Id. Failure to produce the document upon request results in the court must strike the witness’s testimony or, if justice so requires, a mistrial. TRE 612(c).

IMPEACHMENT WITH A PRIOR INCONSISTENT STATEMENT UNDER TRE 613(a) 1.

Question presented. How can you impeach a person with a prior inconsistent statement?

2.

Discussion.

You must do the following under Rule 613(a): 1. Tell the witness about the contents of the statement; 2. Tell the witness about when, where, and to whom the statement was made; 3. Ask the witness if he made the alleged contradictory statement; 4. Ask the witness if the prior statement was different from his current trial testimony or if his prior statement was silent in the respects complained about or why he failed to make a statement concerning those matters (remember post arrest silence always inadmissible); 5. Allow the witness to deny it and attempt to disprove it, or if he admits making it, to explain the statement; 6. If the witness denies making the statement, extrinsic evidence of it becomes admissible under Rule 613(a).

Beauchamp v. State, 870 S.W.2d 649, 652 (Tex. App. - EI Paso 1994, pet. ref’d); Allen v. State, 788 S.W.2d 637, 640-641 (Tex. App. - Houston [14th Dist.] 1990, pet. rerd).

IMPEACHMENT WITH BIAS OR INTEREST UNDER TRE 613(b) 1.

Question presented. How can you impeach a person regarding bias or interest?

2.

Discussion.

A witness may be impeached by showing the witness has reason to slant his testimony against or in favor of a party to the case. “Exposing a witness’ motivation to testify for or against the accused or the State is a proper and important purpose of cross-examination.” Carpenter v.

State, 979 S.W.2d 633, 634 (Tex. Crim. App. 1998). There should be given “great latitude in showing any fact which would tend to establish ill feeling, bias, or motive for fabrication on the part of any witness testifying against the accused.” Richardson v. State, 744 S.W.2d 65, 79 (Tex. Crim. App. 1987), vacated on other grounds, 492 U.S. 914, 109 S.Ct. 3235, 106 L.Ed.2d 583 (1989). There is an “overwhelming weight of authority” that a trial judge must allow some cross-examination of a witness to show bias. United States v. Abel, 469 U.S. 45, 50, 105 S.Ct. 465, 468, 83 L.Ed.2d 450 (1984).

The impeaching party must establish a witness’ attitude results in the witness favoring or disfavoring a particular party’s position for reasons unrelated to the merits of the case. Carroll v. State, 916 S.W.2d 494, 497-498 (Tex. Crim. App. 1996). The impeaching party must establish a specific connection between the witness’ testimony and the cause, disclosing an actual bias or motive. Willingham v. State, 897 S.W.2d 351, 358 (Tex. Crim. App. 1995). Examples include evidence that charges are pending against the witness, a financial stake in the case, an attempt to divert suspicion from the witness, or relationships that engender affection, hostility, prejudice, loyalty, or other emotions, to name a few.

RECORDED RECOLLECTION UNDER TRE 803(5) 1.

Question presented. May the prosecutor impeach a witness using recorded recollection?

2.

Discussion.

“The predicate for past recollection recorded is set forth in TRE 803(5) and requires that four elements be met: (1) the witness must have had firsthand knowledge of the event, (2) the written statement must be an original memorandum made at or near the time of the event while the witness had a clear and accurate memory of it, (3) the witness must lack a present recollection of the event, and (4) the witness must vouch for the accuracy of the written memorandum.” Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998). “In particular, to meet the fourth element, the witness may testify that she presently remembers recording the fact correctly or remembers recognizing the writing as accurate when she read it at an earlier time.”

Id. “But if her present memory is less effective, it is sufficient if the witness testifies that she knows the memorandum is correct because of a habit or practice to record matters accurately or to check them for accuracy.” Id. “At the extreme, it is even sufficient if the individual testifies to recognizing her signature on the statement and believes the statement is correct because she would not have signed it if she had not believed it true at the time.” Id. “However, the witness must acknowledge at trial the accuracy of the statement.” Id. “An assertion of the statement’s accuracy in the acknowledgment line of a written memorandum or such an acknowledgment made previously under oath will not be sufficient.” Id. “No statement should be allowed to verify itself, especially by boilerplate language routinely added by police, lawyers, or others experienced in litigation.” Id. “Given the record before us, it is apparent that the State did not lay a proper predicate for the admissibility of Taylor’s statement under Rule 803(5). As noted before, the Rule requires that four elements be met. In this case there was no testimony given to satisfy the first element requirement of firsthand knowledge. Taylor did not testify regarding the basis of the allegations contained in his statement, i.e., whether he was present during the commission of the offense.

Nor was there any testimony given which supported the fourth element. Taylor never guaranteed that his memory was correctly transcribed or that the factual assertions contained in the statement were true. Consequently, the statement read into evidence was inadmissible hearsay.”

CORRECT FALSE IMPRESSION AND WITNESS’S CREDIBILITY AND COLLATERAL MATTER 1.

Question presented. May defense counsel question a witness on a collateral matter?

2.

Summary of facts. A witness testifies and leaves a false impression of his “trouble” with the police. Defense counsel intends to cross-examine the witness on this collateral matter.

3.

Discussion. The general rule is that a party is not entitled to impeach a witness on a collateral matter. Ramirez v. State, 802 S.W.2d 674 (Tex. Crim. App. 1990). The test as to whether a matter is collateral is whether the cross-examining party would be entitled to prove it as a part of his case tending to establish his plea. Id. There is, however, an exception to the general rule that a party is not entitled to impeach a witness on a collateral matter. Id. When a witness leaves a false impression concerning a matter relating to his or her credibility, the opposing party is allowed to correct that false impression. Id.

ASKING WITNESS IF ANOTHER WITNESS WAS LYING DURING TESTIMONY 1.

Question presented. May the State ask a witness if another witness was lying during their testimony?

2.

Summary of facts. The State asks a witness if another witness was lying during their testimony.

3.

Discussion.

The following is from Temple v. State, 342 S.W.3d 572 (Tex. App. - Houston [14th Dist.] 2010, no pet.). To preserve error for appellate review, a defendant must timely object to the error during trial. Tex. R. App. P. 33.1(a). If the objection is overruled, the defendant has preserved error. When the objection is sustained, and the defendant desires to preserve argument that the error incurably infected his right to a fair trial, he should request an instruction to disregard and move for a mistrial. Jackson v. State, 287 S.W.3d 346, 353-354 (Tex. App. Houston [14th Dist.] 2009, no pet.). Failure to request additional relief after an objection is sustained preserves nothing for review. Caron v. State, 162 S.W.3d 614, 617 (Tex. App. Houston [14th Dist.] 2005, no pet.). Appellant contends that the State’s questions relative to witness veracity abrogated his due-process rights. When objecting to these questions, appellant did not object on the basis that the questions violated his due-process rights. Thus, appellant has waived his due-process complaints.

On the first day of appellant’s cross-examination, the prosecutor asked appellant whether a witness “just made all that up” regarding a fact issue. One of counsel’s objections was, “It’s asking one witness to comment on . . . the truth of the testimony of another.” It is well-settled that an attorney may not impeach one witness’s testimony with the testimony of other witnesses.

Lopez v. State, 200 S.W.3d 246, 257 (Tex. App. - Houston [14 Dist.] 2006, pet. ref’d) (citing Ex parte McFarland, 163 S.W.3d 743, 755 n.37 (Tex. Crim. App. 2005)). Thus, we hold that the trial court erred by overruling appellant’s objection to the prosecutor’s veracity questions.

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