Voir Dire Seminar

VOIR DIRE SEMINAR INFORMATION Date Location Course Directors Total CLE Hours

March 10-11, 2022 The Whitehall, 1700 Smith Street Houston, Texas Carmen Roe, Stan Schneider, and John Hunter Smith 14.75 in-person, 6.75 on-demand *Available on-demand

Ethics: 1.0 in-person and on demand

Thursday, March 10, 2022 Time

CLE

Topic

Daily CLE Hours: 7.75 Ethics: 1.0

Speaker

7:30 am

Registration & Continental Breakfast

8:00 am

Opening Remarks

Carmen Roe, Stan Schneider, and John Hunter Smith

8:15 am

.75*

Preservation of Error

Allison Clayton

9:00 am

1.0*

Intoxication Crimes in Voir Dire

Brent Mayr

10:00 am 10:15 am

Break 2.0

12:15 pm .50* Ethics

1:00 pm

.50*

1:45 pm

Ethics .75

Lunch Presentation Race in Voir Dire Race in Voir Dire

Group A – Intoxication | Cougar Room Group B – Preservation of Error | Bayou Ballroom A Group D – Communication | Bayou Ballroom C

2:30 pm .75

Group A – Communication | Bayou Ballroom C Group B – Intoxication | Cougar Room Group C – Preservation of Error | Bayou Ballroom A Group D – Race in Voir Dire | Bayou Ballroom B Break/Switch Groups

.75

Group A – Race in Voir Dire | Bayou Ballroom B Group B – Communication | Bayou Ballroom C Group C – Intoxication | Cougar Room Group D – Preservation of Error | Bayou Ballroom A

4:10 pm 4:15 pm

Brent Mayr & Carmen Roe Allison Clayton & Stan Schneider Eric Davis, John Hunter Smith & State Representative Gene Wu Joshua Karton

Joshua Karton Brent Mayr & Carmen Roe Allison Clayton & Stan Schneider Eric Davis, John Hunter Smith & State Representative Gene Wu Eric Davis, John Hunter Smith & State Representative Gene Wu Joshua Karton Brent Mayr & Carmen Roe Allison Clayton & Stan Schneider

Break/Switch Groups .75

Group A – Preservation of Error | Bayou Ballroom A Group B – Race in Voir Dire | Bayou Ballroom B Group C – Communication | Bayou Ballroom C Group D – intoxication | Cougar Room

5:00 pm

State Representative Gene Wu

Break/Switch Groups

3:20 pm 3:25 pm

Eric Davis

Break

Group C – Race in Voir Dire | Bayou Ballroom B

2:35 pm

Joshua Karton

Lunch Line

12:30 pm

1:30 pm

The Art of Communication

Allison Clayton & Stan Schneider Eric Davis, John Hunter Smith & State Representative Gene Wu Joshua Karton Brent Mayr & Carmen Roe

Adjourn

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

VOIR DIRE SEMINAR INFORMATION Date Location Course Directors Total CLE Hours

March 10-11, 2022 The Whitehall, 1700 Smith Street Houston, Texas Carmen Roe, Stan Schneider, and John Hunter Smith 14.75 in-person, 6.75 on-demand *Available on-demand

Ethics: 1.0 in-person and on demand

Friday, March 11, 2022 Time

CLE

Topic

Daily CLE Hours: 7.0 Ethics: 0

Speaker

7:30 am

Registration & Continental Breakfast

8:00 am

Opening Remarks

Carmen Roe, Stan Schneider, and John Hunter Smith

8:15 am

1.0*

Voir Dire

Robert Hirschhorn

9:15 am

1.0*

Sexual Assault

Heather Barbieri

10:15 am

1.0*

Violent Crimes

Angela Weltin

11:15 am 11:30 am

Lunch Line 1.0*

12:30 pm 12:45 pm

.75

.75

4:00 pm

Joshua Karton& Stan Schneider Heather Barbieri Carmen Roe & Frank Sellers John Hunter Smith & Angela Weltin

Group A – Violent Crimes | Bayou Ballroom C Group B – Voir Dire | Bluebonnet Ballroom Group C – Sexual Assault | Bayou Ballroom A Group D – Burden of Proof | Bayou Ballroom B

John Hunter Smith & Angela Weltin Joshua Karton & Stan Schneider Heather Barbieri Carmen Roe & Frank Sellers

Break/Switch Groups .75

3:10 pm 3:15 pm

Group A – Voir Dire | Bluebonnet Ballroom Group B – Sexual Assault | Bayou Ballroom A Group C – Burden of Proof | Bayou Ballroom B Group D – Violent Crimes| Bayou Ballroom C Break/Switch Groups

2:20 pm 2:25 pm

Frank Sellers

Break

1:30 pm 1:35 pm

Lunch Presentation: Burden of Proof

Group A – Burden of Proof | Bayou Ballroom B Group B – Violent Crimes | Bayou Ballroom C Group C – Voir Dire | Bluebonnet Ballroom Group D – Sexual Assault| Bayou Ballroom A

Carmen Roe & Frank Sellers John Hunter Smith & Angela Weltin Joshua Karton & Stan Schneider Heather Barbieri

Break/Switch Groups .75

Group A – Sexual Assault | Bayou Ballroom A Group B – Burden of Proof | Bayou Ballroom B Group C – Violent Crimes | Bayou Ballroom C Group D – Voir Dire | Bluebonnet Ballroom

Heather Barbieri Carmen Roe & Frank Sellers John Hunter Smith & Angela Weltin Joshua Karton & Stan Schneider

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 Table of Contents

Speaker

Topic Complete Date of Seminar

Brent Mayr Joshua Karton Eric Davis Robert Hirschhorn

Intoxication Crimes in Voir Dire The Art of Communication Race in Voir Dire Voir Dire

Heather Barbieri

Sexual Assault

Angela Weltin

Violent Crimes

Frank Sellers

Burden of Proof

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

Texas Criminal Defense Lawyers Association

Voir Dire March 10-11, 2022

Topic: Intoxication Crimes in Voir Dire Speaker:

Brent Mayr 5300 Memorial Dr Ste 750 Houston, TX 77007-8228 (713) 808-9613 Phone (713) 808-9991 Fax bmayr@mayr-law.com email www. mayr-law.com website

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

2022 TCDLA Voir Dire - Mayr - Intoxication Offenses

VOIR DIRE: TRUTH, TEACHING & TRUST Intoxication Offenses Brent Mayr Mayr Law, P.C. Houston, TX

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GOALS OF VOIR DIRE

PRESENTATION TITLE

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INTOXICATION OFFENSES

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2022 TCDLA Voir Dire - Mayr - Intoxication Offenses

GET THE TRUTH

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GET THE TRUTH

1. There are no good jurors or bad jurors. The question you must ask yourself: “Is this the right case for me?”

2. There are no right answers or wrong answers. The only correct answer is the truth and, more importantly, the truth about how you feel about something.

3. Who wants to be on this jury? If you don’t talk, you don’t walk. If you’ve got nothing to say, be prepared to stay. See Rule 1.

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TEACH THEM THE WAY

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2022 TCDLA Voir Dire - Mayr - Intoxication Offenses

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IUMRING TQ GQNGIUSIQNS IUMRING TQ GQNGIUSIQNS

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IUMRING TQ GQNGIUSIQNS

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2022 TCDLA Voir Dire - Mayr - Intoxication Offenses

RIGHT NOW?

Entirely Guilty

10 9 8 7

IUMRING TQ GQNGIUSIQNS 6 5 4 3 2 1

Entirely Innocent

0

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Presumption of Innocence = 100% NOT GUILTY

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TEACH THEM THE WAY Challenge for cause (Tex. Code Crim. Proc. art. 35.16) “That from hearsay, or otherwise, there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as would influence the juror in finding a verdict.”

12

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2022 TCDLA Voir Dire - Mayr - Intoxication Offenses

TEACH THEM THE WAY Challenge for cause (Tex. Code Crim. Proc. art. 35.16) To ascertain whether this cause of challenge exists, 1.

the juror shall first be asked whether, in the juror's opinion, the conclusion so established will influence the juror’s verdict. If the juror answers in the affirmative, the juror shall be discharged without further interrogation by either party or the court.

2.

If the juror answers in the negative, the juror shall be further examined as to how the juror’s conclusion was formed, and the extent to which it will affect the juror’s action; and . . . if the juror states that the juror feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that the juror is impartial and will render such verdict, may, in its discretion, admit the juror as competent to serve in such case.

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GET THE TRUTH

1. There are no good jurors or bad jurors. The question you must ask yourself: “Is this the right case for me?”

2. There are no right answers or wrong answers. The only correct answer is the truth and, more importantly, the truth about how you feel about something.

3. Who wants to be on this jury? If you don’t talk, you don’t walk. If you’ve got nothing to say, be prepared to stay. See Rule 1.

14

Because the State is the one doing the accusin’

They’re the ones who have to do the provin’

15

5

2022 TCDLA Voir Dire - Mayr - Intoxication Offenses

Guilty

Not Guilty Not Guilty Not Guilty Not Guilty Reasonable Suspicion

Preponderance of the Evidence

Beyond a Reasonable Doubt Clear and Convincing Evidence

Probable Cause

16

Guilty

Not Guilty Not Guilty Not Guilty Not Guilty I suspect they were intoxicated

They probably were intoxicated

It’s more likely than not that they were intoxicated

I’m clearly convinced they were intoxicated

I have no reasonable doubt in my mind in my mind that they were intoxicated

17

Guilty

Not Guilty Not Guilty Not Guilty Not Guilty I suspect they were intoxicated

They probably were intoxicated

It’s more likely than not that they were intoxicated

I’m clearly convinced they were intoxicated

I have no reasonable doubt in my mind in my mind that they were intoxicated

18

6

2022 TCDLA Voir Dire - Mayr - Intoxication Offenses

3 Things to Remember • CLIENT is presumed innocent (100% not guilty) • The State has the burden of proof • They have to prove: – CLIENT operated a motor vehicle in a public place while intoxicated – You can have no reasonable doubt

19

Drink, Drive, Go to Jail Good advice to follow . . . but it’s NOT THE LAW!

20

Loss of the normal use of the person’s mental or physical faculties by reason of the introduction of alcohol

Proof of Intoxication

21

7

2022 TCDLA Voir Dire - Mayr - Intoxication Offenses

0.08 alcohol concentration at the time of driving

Proof of Intoxication

22

Presumption of Innocence = 100% NOT GUILTY

23

Presumption that a breath or blood test is always reliable, valid & accurate?

24

8

2022 TCDLA Voir Dire - Mayr - Intoxication Offenses

Guilty

Not Guilty Not Guilty Not Guilty Not Guilty I suspect they were intoxicated

They probably were intoxicated

It’s more likely than not that they were intoxicated

I’m clearly convinced they were intoxicated

I have no reasonable doubt in my mind in my mind that they were intoxicated

25

Guilty

Not Guilty Not Guilty Not Guilty Not Guilty I suspect the test was valid and accurate

The test was probably valid and accurate

It’s more likely than not that the test was valid and accurate

I’m clearly convinced the test was valid and accurate

I have no reasonable doubt in my mind that the test was valid and accurate

26

0.08 blood alcohol concentration at the time of driving

Proof of Intoxication

27

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2022 TCDLA Voir Dire - Mayr - Intoxication Offenses

BUILD TRUST • Sit down knowing they are going to believe you • Sit down knowing they are going to believe that your client is not guilty • Sit down knowing they are going to be skeptical of the State they are going to believe you • Sit down knowing they are going to believe that your client is not guilty • Sit down knowing they are going to be skeptical of the State

28

THANK YOU Brent Mayr| bmayr@mayr-law.com | www.mayr-law.com

29

10

1 Pres of Innocence (not entirely innocent) Should CLIENT have to prove innocence?

Should CLIENT have to testify?

Beyond a reasonable doubt is too high Drink, drive, go to jail – think it’s the law Have drank and driven Should be the law?

Do not drink alcohol Never have drank alcohol Presume a breath or blood test to be valid?

Can acquit if less than BRD of intoxication

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Texas Criminal Defense Lawyers Association

Voir Dire March 10-11, 2022

Topic: The Art of Communication Speaker:

Joshua Karton 3014 4th St Apt A10 Santa Monica, CA 90405-5516 (310) 392-7558 Phone (310) 392-7558 Fax karton@earthlink.net email

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

COMMUNICATION ARTS FOR THE PROFESSIONAL

ON PAPER VS. IN PERSON: FROM WRITER TO ACTOR COMMUNICATION TECHNIQUES FOR PERSUASIVE ADVOCACY

by JOSHUA KARTON

_______________© 2021 Communication Arts for the Professional_______________

3014 Fourth Street #A -10, Santa Monica, California 90405 Tel/Fax 310.392.7558

TABLE OF CONTENTS I.

From “On Paper” to “In Person”: An Introduction . . . . . . . . . . . . . . . . .

Page i

II.

From Writer to Actor: Breathing Persuasion into an Air Tight Case . . .

A. Voice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

B. Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

C. Eye Contact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

D. Body Language and Movement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

E. Being “In the Moment” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F. Relationships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

G. Role Playing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

H. Stage Fright . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 1 2 5 6 7 8 10 11

III.

Storytelling and the Opening Statement . . . . . . . . . . . . . . . . . . . . . . . . . . .

13

IV.

Checklist for Courtroom Communication Effectiveness . . . . . . . . . . . . .

23

V.

Vocal Warm-Up . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

26

VI.

Controlling Sound: Inflection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

31

VII.

Breathing Exercises for Physical and Vocal Relaxation . . . . . . . . . . . . . . .

32

VIII. A Review of Courtroom Communication Techniques for Advocates . . . . .

36

INTRODUCTION FROM “ON PAPER” TO “IN PERSON” Communication Arts for the Professional assembles and applies the skills of the working theatre artist -- actors, directors, and writers of theatre, film, and television -- to the specific communication requirements of trial advocacy: What transforms presentation into persuasion?

While jurors observe and respect the advocate's presentation of evidence and knowledge of the law, what they respond to is the live human event that the advocate creates in the courtroom. Often, settlements are offered because opponents assess that you will do in court what they can't: marshal the jurors' feelings as well as the facts. Animate jurors with the full force of your credibility. Move jurors into action on your client's behalf. What are the live communication tools fundamental to the moment-to-moment exigencies of pleading, proving, examining, convincing, or even deposing, telephone negotiating, and first client meetings? Law school trains litigators to write for what will be read; the advocate in the courtroom must write not merely for what will be read, but for what must be spoken . . . and then heard, and felt, and believed.

Once the facts have been transmitted, how will the listeners' knowing be transformed into the listeners' caring . . . and choosing? How does an entire courtroom of individuals become a single body of attention, and how is that attention held, built and carried to an undeniable conclusion?

These skills are the foundation of the theatre artist's craft. Through their application, the most skillful of opposing counsel, the most idiosyncratic of judge or jury, the most challenging of witnesses -- even the very courtroom space which houses them -- can all become allies rather than obstacles in the successful "live event" of delivering into the courtroom the advocacy that persuades.

PERSUASIVE ADVOCACY: THE ACTOR/DIRECTOR/WRITER’S AGENDA OF TECHNIQUES A. VOICE AND BODY • • • • • • •

Eliminating Nervousness and Stage Fright Expanding Vocal Range and Resonance Manipulating Vocal Tone (Inflection) Employing Silences as Effectively as Speech Body Language (Yours): How to Use It Body Language (Judge and Jurors): How to Read It and How to Change It Effective Use of Eye Contact

B. OPENINGS AND CLOSINGS • • • • • • •

Storytelling: Structure and Delivery Discovering the Theme that Defines the Case Creating Spontaneity in a Prepared Text Talking About Money Vaulting the Past into the Present: How a Story Comes Alive Translating Legalese into English Stanislavsky Applied to Advocacy: "Generality is the Enemy of All Art."

C. RELATING TO THE JURY • • • • • • •

Presenting a Person, not a Lawyer Gathering and Uniting an Audience Talking to One vs. Talking to Twelve Conducting Jurors' Emotions Quotes for the Deliberation Room Playing the Thirteenth Juror Increasing Juror Participation on Voir Dire

D. DIRECT AND CROSS EXAMINATIONS • • • • • • •

Controlling Where Judge/Jurors Look: at the Witness or the Attorney?

Controlling Where Judge/Jurors Listen: to the Question or the Answer?

Attorney/Witness Relationships: What Jurors Follow Creating Suspense in a Progression of Prepared Questions Alternatives to Anger on Cross Examinations Properly Preparing Your Witness for Depositions and Testimony Effectively Preparing Your Experts for Deposition and Testimony

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The following pages offer ideas and exercises which have been developed as part of workshops, clinics, tutorials and case consultations and which are helpful to the attorney preparing for and engaging in trial.

ON PAPER VS. IN PERSON II. FROM WRITER TO ACTOR: BREATHING PERSUASION INTO AN AIR TIGHT CASE When television writers attend on-the-set rehearsals of scripts they have written for weekly shows, they often become anxious and agitated at what they are not yet hearing, or at what they are hearing that differs from what they've written and are still reading right in front of them. A director of one landmark series, who, though trained for the classics, had known her first onstage fame as an improvisational actress, would counsel these anxious writers, "Close your scripts. Watch the play." Otherwise, they would miss what was actually working better on stage than it did on the page, or miss what should now be cut from the page, because if you were listening instead of reading, you could hear that this or that part of the script wasn't working.

The advocate who goes into the courtroom is usually the writer of the script, as well as the presenter of the script . . . the actor. Hours, weeks, years of preparation have gone into the script. Although the judge is not yet seated at the bench, indeed not a single oath has yet been taken, the writer's job is over. The advocate must close the script and enter the play.

The attorney who walks into court must leave the writer in the office and activate a whole other set of priorities from those of the writer. It is not always easy to make the transition: A.

Voice The writer need never utter one word aloud. The actor needs to be heard by every single member of the jury, and by the judge, the court reporter, the witness, the opposing counsel . . . and heard in a voice to which the jury wants to keep listening.

A widely circulated study reports that over a third of what listeners will take away from spoken communication comes not from the “language content,” (which accounts for less than a tenth), but from the “audio content” -- pitch, volume, tone, inflection, intonation, emphasis, emotion, pace, and pause. Not what is said, but how it’s said.

And, the actor’s voice needs to be a supple enough instrument that it can credibly carry the listener through the shifting emotions of the story’s progress --for example, from the unconsciously rambunctious racket of a family road trip, to the terror of the crash, to the choking grief of the children’s funerals, to the numbing march through the surviving parent’s endless grief -- all without that over-deliberate vocal affectation that in calling attention to itself incurs the accusation of “playing for the jurors’ sympathy” and “overacting.”

(For more on voice, see V. VOCAL WARM-UP) B.

Questions The writer proceeds rhetorically, never asking a question, as law school teaches, without knowing the answer in advance. But the actor is asking the question to focus everyone’s attention on the answer and how it is given. If the actor does not appear to need the answer, the jury will not be compelled to follow the testimony, no matter how vital it is. If the advocate appears unaffected by the answer, or does not acknowledge it, or poses the follow-up question unmindful of it, the jury will not be drawn into the conversation. Speaking merely for the written record, or “to establish a foundation,” may be meaningless to the jury. Conversely, what jurors have been instructed to ignore, or what an attorney wants to “strike from the record,” may be precisely what jurors most clearly recall.

1.

The Sense of a Question: Text When preparing questions, rehearse them aloud. Can they actually be asked, or are they so convoluted that they last longer than the listener’s attention span? Attorneys agree in theory that in voir dire, asking open-ended questions (that is, questions which invite/require more of an answer than a “yes” or a “no”) encourages prospective jurors to reveal themselves; but by “handing over the microphone,” these questions often cause the attorney to feel a loss of control. This sense can be so disconcerting that the open-ended question will be crammed with multiple qualifiers until it becomes an unwieldy behemoth of syntax. Consider the following question, offered in a how-to article on voir dire as a sample open-ended question merely because it

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begins with the word “what” and therefore escapes calling for a “yes” or “no” answer: “What do you think is entailed in the setting of insurance premiums and what do you know about how insurance companies invest the money from these premiums in volatile markets and the way in which the resultant extreme fluctuations in income actually are responsible for insurance premium rates?”

Assuming this question is even allowable, is it understandable?

Listeners will have forgotten the first part of the question by the time the questioner has arrived at the end. Even if the question reads open-ended, it doesn’t play open-ended, and it probably will not uncork any geyser of selfdisclosure from a prospective juror.

2.

The Sound of a Question: Inflection In almost all languages, a rising inflection signals that the questioner is dependent upon getting an answer in order to continue the dialogue. If the inflection doesn’t rise, the speaker doesn’t seem to care. Consider how, after hours on her feet, the wary waitress asks, “What’ll ya have?” The inflection falls, along with her arches. Whatever your order, it won’t make the difference in her day. Compare this with the sound of a question that requires an answer, such as when asking your child about curfew: “You are to be in this house by twelve o’clock. Do you hear me?” The inflection on “me” rises unmistakably, even if “hear” may receive the vocal stress.

On which word of a question does the inflection rise? It need not be on the last syllable of the last word, but when it is, the jurors’ attention between the question and the answer is the most tightly controlled. If too many words follow the rising inflection, the speaker obviously does not need an answer more than he or she needs to continue speaking . . . preferring monologue to dialogue.

To understand how the placement of the inflection and the order of the words in a question influence each other, ask the following question six times to six different people: “How do you feel about the accountability of a doctor?” Each time, raise the inflection on a different word -- “how,” “do,” “you,” “feel,” “accountability,” and “doctor.” The question will be perceived differently by each person. Each will report feeling a different level of

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invitation, responsibility, challenge, confrontation, or expectation; and each will answer with varying degrees of candor, defensiveness, expansiveness, and self-revelation. Then, try re-ordering the words, letting the inflection rise and the stress fall where they may: “The accountability of a doctor . . . how do you feel about that?” “What kind of feelings have you about doctors’ accountability?” “ ‘Doctors’ accountability’ . . . do you have feelings?” Here again, the answers will reveal subtle but significant differences in precisely what the person feels he or she is actually being asked.

3.

In the Wake of the Question: Silence The writer need never deal with the space between questions and answers transpiring in “real time” -- the writer need never tolerate silence in public. A study once claimed that teachers find the silence that follows asking a question so harrowing that they wait an average of less than one second after having asked a question before giving the answer themselves.

Many lawyers share this inability to tolerate silence. Fearing that the silence indicates a loss of momentum or control, they will keep talking, filling in, embellishing -- writing aloud.

The actor, on the other hand, must be able to use the silence and stay connected to the other players during the silence. This is why it is often said that great acting lies not in the speaking of the lines, but in the listening . . . in the re-acting. In voir dire, how prospective jurors “see” you stopping talking to actually listen to and receive their fellows may have a far more powerful effect on how willing they are to answer you, than the particular content of any individual question you ask. During examination, allowing the pause that swells pregnant can provide exactly the opportunity that shifts jurors from passively sitting back and waiting for information, to leaning forward in their seats, actively seeking that information.

Conducting an effective dialogue in the courtroom can be the result of combining two skills: inflecting upward on the question, and then tolerating the silence that follows, the silence in which the drama of suspense is born.

Lawyers often fill closing arguments with rhetorical questions, but then shortchange themselves of their full, inter-active value by failing to inflect them with an upward, and then waiting the necessary moment . . . letting the

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jurors answer in their minds, before you echo that answer aloud. Why tell the jurors, when you can give them the opportunity to be telling you?

C.

Eye Contact No one watches the writer when the writer works. No one is expecting the writer to “look up” or “look back.” Everyone is looking at the actor, or should be, if that is where the director wants the audience’s focus. The actor must be willing to look directly into the eyes of everyone in the play at any given moment to gather and hold their attention. And, depending upon how the director envisions that particular moment in the courtroom, the jurors, more likely than not, are with the advocate/actor “in the play,” and not some observing audience existing outside it.

With some jurors, direct eye contact may not be the best choice, but assess this based on the juror’s comforts and needs, not your own. “Voir dire,” the name of that initial conversation between lawyer and prospective jurors, translates from the French as “to see, to speak.” Some say instead that it is a corruption of the old French, “Vrai dire,” “to speak the truth.” Either way, more than mere words are required -- eye contact as well as language -- particularly if the prospective jurors are to believe you truly view them as vital participants in the impending event.

Certainly, there will be times you will be looking away, for example, when taking or referring to notes. But after you have consulted the notes, re-establish eye contact with the person you are addressing before you resume talking. While looking down at what is written, feel free to stop talking. This moment of silence while reading may feel awkward to you, but it will not look or feel awkward to the juror -particularly if a sustained inflection on the last word before the pause has indicated that more is coming. (Generally speaking, the rising inflection passes audio responsibility on to whomever you are addressing; a sustained inflection signifies that the silence that follows your speaking is only an interim pause, belonging to you, and that you are ready to resume speaking once the purpose of that silence, as orchestrated by you, has been fulfilled.)

After completing a voir dire question, maintain eye contact with jurors if you want them to believe that you value their answers. To deliberately deny eye contact is a technique employed during cross examination to isolate or exclude a witness from the “conversation” you and the jurors are having together. In voir dire and direct examination, while you are being answered, resist the temptation to sneak a

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look at your notes for fear you won’t be ready with your next question the second the answer is completed. Reading or writing during the answer signals either that you are not listening, or that if you are listening your course will not be diverted or influenced by the answer. Or -- and this may perhaps be the most damaging -- that what you are hearing means more to you than who is telling it to you. On direct examination if jurors see that you not actively listening to the person who is giving the testimony -- your own witness -- why should they?

D.

Body Language and Movement The writer need never worry about what to do with the hands; the fingers need only move enough to fill one page and reach the next. Writers can fidget and pace all they want. The actor must reach the audience and/or other players, even if they are at the other end of the room and the actor is pinned behind a podium.

Although the actor can move more freely than the writer, the actor must know how and when to move. Movement must be purposeful, and not distracting.

As a general rule, in the courtroom move to further the message and/or your connection to the jury, not to massage your nerves. You can adjust your stance or posture to release tension, as long as the adjustment appears to clear the way for deeper communication. Your can toss your hair out of your eyes once, and the audience will believe you need to get a better look at them. You can clasp your hands, stare down at the floor, stroke your chin . . . once, maybe twice. But if you repeat these movements -- as in aimlessly pacing, shifting your weight, or rocking -the jurors will regard your movements as characteristic, habitual gestures of selfmedication for nervous tension. You are not using the gestures, the gestures are using you.

One goal of voir dire is to engage jurors sufficiently enough that they reveal their emotions, values, and attitudes; their physical expressions are often far more revealing of these than the verbal ones. Most articles on jury selection advise attorneys to have an observer in court during voir dire specifically to watch and note the prospective jurors’ body language. The importance of this has only been emphasized in the now widely disseminated finding that over half of what is absorbed by listeners from spoken communication is derived from the “non-verbals” -posture, gesture, facial expressions, physical animation, etc. -- beyond any specific words used or the sounds of any voice with which those words are spoken.

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You can elicit revealing behavior from jurors by freeing up your own expressive behaviors. “Freeing up” does not mean pasting on borrowed or canned gestures, or brandishing “theatrical” or ornamental flourishes, but rather integrating a range of your natural physical vocabulary into your communication. You can discover this by “telling” your opening statement to a few people in your office without speaking. Act it out. Use mime, charades, sign language -- however you can make yourself understood without sound. Then, have your audience narrate back to you what they have understood. Still not talking, you fill in the details by acting out those parts of the story that the listeners have missed.

By exploring this technique, you will uncover resources of eloquent storytelling that you bypass when relying solely on words. Movements and gestures that tell the client’s story far more effectively than speech become part of your “working vocabulary.” If you have never done this, you will be surprised by how quickly and deeply the “listeners” are moved by the emotions in your client’s story.

By acting out the story in small sections, and only proceeding once your listeners have narrated back to you what they have understood, you also become more in sync with your audience, more in partnership with the pace of their developing ownership of your client’s story. You discover how much more involved they come when you are communicating with your whole self and body, and not just from the neck up.

When you, and not just your vocabulary, are communicating, physical gestures emanate out from the spine, since this is the main “weight-bearing support” of the body. Is your spine is actively engaged in your communication? Is your face involved? If your communication involves your spine and your face, as well as your voice, you will encourage the jurors' communication back to you in expressive behaviors that reveal themselves far beyond the mere content of their words.

(For more on gesture, see the closing two paragraphs of III. STORYTELLING AND THE OPENING STATEMENT.) E.

Being “In the Moment” The writer can stop and leave, take a break. Not only can the actor not leave, he or she must appear to be more present in the on-going events than anyone else in the room if that is the actor who becomes our representative in the proceedings -- the one through whom we experience the “reality of the play.”

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What this means for the advocate in the courtroom is that the writer’s discipline of shutting out all distractions must give way to the actor’s skill of fielding, incorporating, or even celebrating the unexpected. An advocate who ignores or denies the obvious suffers before the jury. They see it and hear it; why don’t you?

If someone in the courtroom sneezes, or you drop something, or a door bangs, or the lights flicker, acknowledge it and move on. You don’t have to make a speech about it.

Just don’t ignore it. If you pretend not to see and hear what everyone else does, you appear less alive to the immediate environment, and thus, less reliable and trustworthy as our leader or guide.

The writer follows an outline of pre-selected information. The actor must not just follow, but actually respond to, whatever has just happened -- a withering objection, a juror’s yawn, a judge’s bark or glare. Otherwise, the advocate is no more alive/alert to what is actually happening than the pieces of paper on which the notes are written. Nothing lives on that page of the legal pad -- not the client’s loss or suffering, not the advocate’s credibility, not the juror’s capacity to care. No audience in the theatre is ever moved to empathy or action by how perfectly the actors demonstrate their ability to remember their lines verbatim. We do not gasp or weep or stand to cheer because an actor never “lost his place.”

During trial, there are so many “realities” floating within the net of the jurors’ attention -- those presented by your opponent, by the judge, or those brought in by the jurors themselves from their own life experiences. You are asking the jurors to enter and value your client’s reality; you must be demonstrably willing to share in theirs.

The advocate who brings a spontaneity of presence, a sensory awareness and aliveness to the very courtroom environment the jurors are experiencing -- a full surrender to the communal here-and-now -- assures the jurors this advocate is not hiding the truth or standing sentinel before some secret agenda. Rather, “we are all in this together.”

F.

Relationships Most writers work alone, and must usually isolate themselves, physically as well as psychologically, to accomplish the task. The writer need only present a “voice,” not a self, nor a self capable of engagement. But the audience needs to see and feel relationships; it’s what they follow. We trust the actor who seems to be offering up his or her full, true self to the other characters. Who we don’t trust are

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actors who seem more concerned with presenting themselves, with protecting their performance -- with “acting” -- than with connecting with others. Just as an actor must be able to kiss a creep with bad breath if we are to believe that we are seeing a love scene, you must be able to draw sympathetic testimony for your witness, even if you personally find him/her creepy. If you are recoiling from said creep, this will not happen. (He may be a creep, but he’s your creep.) So, from a director’s point of view, witness preparation may not be so much a process of rehearsing what is said, as it is working out how the parties engaged in the dialogue appear to feel about each other. How truly comfortable and confident the attorney and the witness are with each other are what jurors will feel and recall long after specific bits of testimony have been lost along the way.

During voir dire, the attorney is establishing two kinds of relationships: the relationship between the attorney and the individual juror, and the relationship that the jurors observe the attorney has with him- or herself. If you are too out of touch with yourself, the jurors cannot identify a “you” with whom they can connect. I once worked with an attorney during a voir dire workshop, and it was obvious the jurors did not like him. He was so anxious and uncomfortable, how could they? His eyes never left his notes, and his reaction to each answer was the same impervious scribbling. He asked one woman, as he had asked each person before her, her marital status. “Married,” she stammered after a long pause, and then looked down, struggling to correct herself. “ . . . Uh, no. I’m sorry, that’s wrong. I’m single.

I’m widowed. Four months ago. My husband died.” “Any children, “ he said, moving on to his next question, without raising his eyes or his inflection.

At this point, I had to interrupt. He was a perfectly nice man and they were hating him. “Excuse me. In any other situation, if someone told you her husband had died four months ago, c’mon, John, what would you say?”

He flushed, because he realized he had heard information but he had not heard her. He looked directly at her and immediately said, “I’m so sorry.” He meant it, too. He allowed a human connection to develop between them. His eyes softened.

He smiled. Blood flowed in and out of his face. The voir dire didn’t take any longer for it. In fact, it then proceeded at a swifter pace because he wasn’t needing to backpedal through the group’s hostility. By the time he finished, the mock jurors had become so partial to him that they wanted to know when the actual trial was to begin and how they could get on “his” jury.

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If because you are nervous, or to save time, you bulldoze through your prepared questions, if you are more connected to the legal pad than to the person you are addressing, the prospective juror has no one else to bond with except the other prospective jurors -- or opposing counsel, if they are more available. Jurors must feel that their answers personally register with you and prompt a human response.

Unless you appear to have received something from them as people, there has been no exchange, only the giving and noting of information. No transactions, only broadcasts.

The attorney in the voir dire workshop discovered one of the stage director’s axioms: When the on-stage action is dragging, the amateur speeds up; the professional slows down. The action feels like it’s dragging because nothing is really “happening” or “connecting.” You may be reciting, but if you are reacting to no one, or being affected by no one, you will be convincing no one. Once the connection happens, no one is watching the clock.

G.

Role Playing Conventional wisdom holds that you should not become fixated on jurors whom you feel do not like you, and that in voir dire you should trust your instincts about people whom you do not like. But sometimes we misread others. Or we see them accurately enough, but our perception affects us too personally, inappropriately.

For example, I may intellectually accept that the judge is not my father, but his wrath may be affecting me as if he were.

In such instances, it can be helpful to use the actor’s role playing skills and simply pretend the person to whom you are speaking is someone else. Plant some physical detail of the imaginary person onto the body of the person whom you are addressing. For example, in your mind’s eye, put a clown’s nose, a pink tutu and ballet shoes on an intimidating opposing counsel, or treat a hostile prospective juror as if he were your grandfather suffering from physical pain or Alzheimer’s disease.

When the opposing expert antagonizes you, but irritability will backfire, picture a zipper running down the back side, and “realize” that your poor beloved wife is trapped in the body-suit of this arrogant, pompous creature, desperate to escape.

Remarkably, this technique often radically changes the other person’s behavior. And, if it doesn’t and the person’s behavior remains negative after your behavior has changed, the jurors begin to perceive the other person as seriously

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disturbed because this other’s behavior is so unilateral, so inappropriate in the context of how this person is actually being treated.

There are also times when your public or professional self has become worn down or burned out. Perhaps your client has exhausted your patience, or you just do not feel like being in court, or you’re nervous and you hear a legal robot usurping your own personality. In such instances, instead of projecting a different role onto another person, allow your imagination to toy, for just a moment, with the possibility of what if . . . you were someone else. Re-cast your role. What if someone else were called in to do your job? Or pretend that -- again, just for a moment -- that you actually were someone else. Allow yourself, for just a moment, to walk, talk, and react as if you were another person, real or fictitious. Spiderman. Al Pacino. Miss Piggy.

Abraham Lincoln. Aunt Ida. Yoda. For most of us, our gifts of impersonation are not so powerful that the observer will detect a metamorphosis or a splintering of personality, only an enlivening release and sharper focus on whomever we are addressing. Since our presentational selves -- our “professional personalities”-- are only a bookmark in the fuller volume of our inner selves, anyway, who often emerges from this exercise is a more “real” you, who has been buried under layers of the lawyer’s burdens.

If your customary “lawyerly” cadences of speech have been taking over, practice your voir dire, your opening statement, your examination questions while jogging, in dialects, as cartoon characters, as opera, as country western songs, as rap - whatever you need to jostle the armor, displace the mask. Rehearsing questions and openings in character voices and dialects also liberates your writing skills, because you surprise yourself by spontaneously using words that are more direct, more colorful, and more evocative than those of the default settings of your customary style. Instead of toning down your actor to accommodate your writer, you find your writer begins to serve your newly limber, refreshed actor.

H.

Stage Fright The writer need never worry about how nerves and fears restrict voice, movement, or expressive behavior. The actor must be able to manage these nerves or fears not just as they affect imagination (as in writer’s block), but as they affect the physical self. The actor cannot hide behind the words.

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The writer can begin working cold, or while eating, drinking, or smoking.

The actor’s machine, however, is run on blood and breath. Unlike the writer’s word processor or Dictaphone, which is at full power as soon as it is plugged in or booted up, the actor’s machine must be warmed-up if the nervous tension is to be released through voice and behavior, rather than being walled up behind them. If an advocate suppresses fears instead of releasing them, the jury will perceive the overlay of selfcontrol for exactly what it is: having something to hide.

A proper warm-up puts the actor’s nerves and fears at the disposal of the character’s purpose, rather than at war with it, and at the disposal of the physical instrument of the presenter, rather than inhibiting it. The purpose of an actor’s warmup is not to create any single mask of presentation, but rather, to release whatever constrains the individual’s unique powers of presentation.

There is no one ideal presentational style. Many young advocates, eager for the confidence they attribute to successful experience, believe the goal is to appear “comfortable” or “smooth.” But credibility is not granted to the person making the least effort; rather, it is vested in the one whose effort requires overcoming the greatest obstacle. In fact, this very struggle to overcome the obstacle is what make for the drama. So, the audience will always watch the actor who limps, or listen to the actor who stammers, as long as they can see and hear that actor struggling through those personal barriers to achieve their goal.

The advocate who mistakenly tries to establish credibility by banishing any indication of the personal cost of standing before the jurors lets them direct their sympathies and sense of justice elsewhere. If the speaker could just as easily be somewhere else as here, why shouldn’t the audience?

Any attorney can captivate the jurors’ hearts and minds if, in telling the client’s story, he or she allows the jurors to see the full, unguarded person inside the professional . . . the self beneath the suit. Once you are so present that you cannot hide your vulnerabilities, jurors can believe they are with someone who is willing to forgo self-protection in order to protect the client.

The physical and vocal relaxation essential for this spontaneous, fully “present” behavior may indeed surface of its own accord well into the trial, but actors make certain it is available from before their first entrance. Given the bond that you can form with prospective jurors during voir dire, and the opening statement’s impact on jurors, the third day may be too late.

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One purpose of an actor’s warm-up is to release the voice out from under the aegis of the daily personality, so that it is ready for whatever it may be called upon to do. And because voice is carried on breath, the breath is the first place to direct your attention in warming up, the first thing to “let go.”

(For more on breath, see V. VOCAL WARM-UP, and VII. BREATHING EXERCISES FOR VOCAL AND PHYSICAL RELAXATION.) Fear causes us to hold our breath in a biological response that directs all the body’s energy for survival into instinctual fight or flight. We may not physically flee the courtroom, but we certainly flee from real intimacy with the jury and hide behind some pose or prose, behind some legal pad of the mind. A widely quoted piece of research purports that the fear of speaking in public -- the minimum required for a courtroom appearance -- rates as the number one fear in human beings. As long as you are holding your breath, poised at the self preservation of fight-or-flight -- you cannot hold the jury or the client. So the warm-up’s first purpose, even before sound is released, is to allow the advocate to release the breath and be fully present: in the body, in the room, on behalf of the client, in relationship to the jurors.

Long before any words are shared, the advocate has begun the process by which stagefright transforms into stage presence.

III. STORYTELLING AND THE OPENING STATEMENT In an article which appeared in the now long-ago American Bar Association Journal issue of April 1, 1986, Gerry Spence considered the question, "How do we make a complex case come alive for the jury?" His answer has been quoted and re-quoted so many times: "Give me the story -- please, the story. If I can finally understand the case in simple terms, I can, in turn, tell the same story to the jury and make them understand it as well. I go about my life confused most of the time, but when I get something clear I usually can communicate it. Getting it clear is not the work of huge minds, which often are baffled by themselves, but the labor of ordinary minds that understand simplest of stories... most of all, lawyers must be storytellers. That is what the art of advocacy comes down to -- the telling of the true story of one's case.

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“Drive down the highway in your car addressing the jury in the rear view mirror.

Tell the story, the alarm on your watch set for three minutes. Tell them why you care about your client. When you arrive home, gather up your children and tell them a bedtime story for practice, for if you can explain it to your children then you finally have acquired the skill to speak to a jury. I say this not out of disrespect for the jury but for the lawyers who cannot speak to children. It takes little skill to mouth the puckery brine of legal gibberish. But it takes skill, indeed, to relate a clear and understandable tale that our children will cherish."

It has been suggested by evolutionary anthropologists that appetite for story is encoded in the genes of the human race. Our studies of other primates and of cetaceans reveal capacities of language in these species that far exceed earlier suppositions, but the creation of stories, those irreducible molecules of beginning-middle-and-end, appear to remain an exclusively human offering. It has also been suggested that the social organization necessary for dividing the hunting from the hearth labors in our species almost 15,000 years ago was only possible because of the ability of the hunters, on their return to the caves, to relate their experiences in story to those who'd stayed to tend the fire. (Cave paintings functioned as visual aids.) These stories had to sufficiently impress the fire tenders with the dangers the hunters had encountered so that the tenders would be willing to forego the adventures. But the stories also had to render the adventures thrilling enough that the hunters would retain importance within the cave once they'd brought the meat and the tenders had eaten. The tenders had to feel as if they had been with the hunter: they had to believe the hunter's story. And visa versa -- the travails of the fire tenders had to be narrated sufficiently to command sufficient respect for the arrangement to continue.

This basic desire for, and vulnerability to, a good story may also lie at the root of that now repudiated but widely circulated finding from the University of Chicago study that 80% of jurors are decided at the end of opening statements. It appears that the evidence is weighed in the context of the story, and not the other way around. (If you bring back only one scrawny bison, instead of your usual half dozen, you better have a good explanation. If it's good enough, I'll feel grateful for what you've brought, and grateful to you for bringing it.

If the story isn't good enough, I'll feel you've either been playing while you should've been hunting, or that you ate the rest on your way home, or that you're keeping another cave elsewhere. Similarly, the fire tender needs a good story if the fire has gone out in the hunters' absence.) The evidence sends me looking for a story in which to support it, but the evidence

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does not create the story on its own. To Mr. Spence, the ability to tell the prevailing story is paramount, but the advocate faces a crucial obstacle: "The problem is that we, as lawyers, have forgotten how to speak to ordinary folks... lawyers long ago abandoned ordinary English. Worse, their minds have been smashed and serialized, and their brain cells restacked so that they no longer can explode in every direction -- with joy, love and rage. They cannot see in the many colors of feeling. The passion is gone, replaced with the deadly droning of intellect. And the sounds we make are all alike, like machines mumbling and grinding away, because what was once free -- the stuff of storytelling -- has become rigid, flanges and gears that convey nothing...

“By the time the case has become processed through the ears of the lawyer, ears trained to listen for words and phrases from which justiciable issues can be formed, the paranoid ears of the litigator tuned to lineal arguments, ears tuned out to the human issues that drove the client to the lawyer's office in the first place -- by the time the simple case has been forced into complex boxes called ‘causes of action’ and run through the judicial mechanisms of interrogatories and depositions, all rendered by the pound and billed for by the hour -- by the time the simple case is finally presented to the jury like one's loved one is delivered up by the pathologist, the liver sliced in neat sections, the brain laid out the same way, the belly gaping open to expose each and every organ, and after all that was extracted for examination is dumped back into the bloody cavity and sewed up again in a glorious final argument -- by that time the once simple case too often has become an abominable soup..."

The jury wants to hear a story. They're hard-wired for it. And you want to tell them a story, depositing in their laps and conscience the responsibility for providing one and only one ending -- the ending you are seeking. Since they are not going to read the story, or hear it off an audiotape, but going to have it told to them live, by you, they have to believe that you are as human as your client is, as they are, at least as human as you are asking them to be. If the iron mask of Lawrence or Lydia Lawyer has descended upon you -- be it in a bid for credibility, from stage fright, in an effort to contain strong emotions, from boredom, indignation, the reason doesn't matter -- the jurors will not be hooked on a live human event.

They will be hearing a report recited, however conscientiously, by a technician of the law.

If they hear it at all.

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There is a wonderful passage in Tom Wolfe's Bonfire of the Vanities, in which he describes how after the prosecutor's voice has droned on for awhile, even the sloppiest housekeeper on the jury finds himself wondering why the city would allow the windows he is staring through to get so filthy. Jurors are wondering lots of things -- will the kids get home safe from school, will my car get vandalized in the parking lot, will the juror three seats over ask me to her group for lunch? For the teller of the tale to supersede all this and focus everyone's attention on this telling as the only true telling, the real story, the teller must be personally involved and be speaking as one human to a group of fellow humans. Not as a professional to amateurs. Not as a bureaucratic or corporate cog to unfortunately necessary guests. One needs to be able to tell the story as if one were talking about, or about what happened to, one's friend, wife, child, father, pet, etc.

The opening statement might be rehearsed while jogging, to so disrupt customary cadences of delivery that bespeak "lawyer," that the story forces its way through in its simplest, most emphatic terms. If you don't like how you're flattening the story, rehearse it in dialect, in gibberish, in mime, as someone else -- whatever will free you out of rote recitation, back into the excitement, discovery, and personal engagement you felt the first time you heard it. Tell the story without the use of any legal terms. "Defendant." What's a defendant? A lonely, lost little girl? Or, a drug-soaked Britney Spears wanna-be? The word "defendant" neither specifies whom the jurors are to see, nor arouses their capacity to care.

Beyond the use of non-legalese, there are some rules of thumb for choosing language that will actively engage the listener. Use active verbs. "The board came down and struck Mrs. Nussbaum's head" is not felt by the listener as fully as "the board flew down and smashed Mrs. Nussbaum's head," or "the board snapped down, smacking Mrs. Nussbaum's head." Even better, however, is "the board snaps down. It smashes..." because by using the present tense, the story is happening NOW, and the listener is inside it. It's one thing to be told, "they thought they heard an intruder. Sam remembers Jenny telling him she could hear footsteps on the stair," and quite another thing to be told "there's a noise downstairs. They hear somebody. Then, they hear somebody on the stairs. Somebody's creeping up the stairs."

The second phrasing puts the listener in Sam and Jenny's place. The first phrasing puts Sam and Jenny inside a story that happened in the irretrievable past with the advocate standing guard. The story phrased in the past tense ended the night the intruder entered the

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house; the same story told in present tense does not end until the jurors do something about making sure this intruder doesn't intrude again. It also puts the advocate and the jurors on equal footing as "experiencers" of the story; the story doesn't "belong" to the teller, but to the audience and the teller together, experiencing it simultaneously.

Use sensory-awakening nouns and adjectives. If you are trying to describe a solid marriage that was destroyed by a manufacturer's negligence, you could say, "Bill and Sally had been married for twenty-five years. They took care of each other, and every one of their friends will tell you they were the most devoted of couples." Or, you could say, "Sally opened her eyes in the morning, and like every morning for the last twenty-five years, the first thing she'd become aware of was the smell of fresh brewed coffee. She waits a minute, looks up, and in walks Bill, his glasses fogged up by the steam rising from the two cups he'd bring in to start their day."

We learn and experience through our five senses. Unless a juror is handicapped in one of these five, his/her ability to touch, smell, taste, see, and hear is more or less equal to yours. If your story can enter the listeners through one of these senses, the listeners can experience the story as if it were happening to them. Again, they are on equal footing with the teller. Since sight is the most used, it is the least potent to evoke. But once your listeners' vulnerability has been dilated through touch or smell, their ability to absorb large amounts of factual information is sizably increased. This exact same amount of information, if misplaced ahead of sensory engagement, will not be absorbed. Compare the difference between, "On the night of April 26, 1994, the night in question, Felix Schlesinger arrived home quite late in what was an unusually bad storm for Flaxton County," and "Drenched, dripping wet, Felix Schlesinger parked his car and climbed back out into the pitch black downpour that had already soaked him. Flaxton County hadn't been socked with a storm like this for thirty years, but on this night, April 26, 1994, Felix can't even see his front door."

Very often, the date isn't important at all, but attorneys just feel more secure announcing particulars, and using phrases such as "The night in question." If the date is significant, it will be remembered by the listener if something about being there, at that time, can be felt first.

One of the things which makes a story different from merely a description of a situation or an event is that the story moves through a beginning to a middle, and on to an

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end. We've already introduced the idea that a story is more magnetizing to the listener who feels his/her active participation will be necessary for the story to achieve its proper ending.

If the teller is human enough, and in direct relationship to the listeners through eye contact and properly chosen language, the listeners will even feel that they are necessary for this story to proceed, moment-to-moment. Anywhere along the way, however, it is possible to lose even the most sympathetic listener if the teller veers off the course of beginning/middle/end. A story may start anywhere -- each story has an infinite number of possible beginnings. Each one of these beginnings can lead to a finite number of middles, but each of these middles must lead to one, and only one, end. If there are 250 relevant bytes of information you need to tell the jury, and you give them all undifferentiated presentational weight, there is a line-up of data, but no story. Within the context of a certain situation, SOMETHING HAPPENED. These 250 bytes must be grouped so that they are part of a 3-part mechanism, a story with a beginning, middle, and an end.

In order to find the simple story Spence speaks of, which underlies all your facts, and which you can communicate to a jury, choose ten words that you would say to the jury, as if ten words were all you were allowed. Find out how much information can be packed into each single word. You are not making a sentence here. You are sending a telegram. So that you won't be usurping the end from the jurors, make sure your end involves a verb telling the jury what to do. (It's understood you cannot argue in opening statement, but you are forming a story skeleton here which can support your relationship to the jury even within the procedural parameters of opening statement.) Make sure that there is at least one other verb somewhere else in the ten words on which to hang what it is that HAPPENED. Beyond this, the other 8 words should chronicle a sensorially transmittable beginning and middle. For example, to prosecute Patty Hearst: "Heiress. Blows it. Dances with Captors. Violently Robs. Protect yourselves." Defending Patty Hearst: "Sheltered. Finegrained. Young. Kidnapped. Raped. Armed. Forced. Responsible? Free her." Reduce your story down to its essential kernel. Know which facts are part of the beginning and which belong to the end. The other value of finding the ten words to tell your story is that in its crystallization of your central story, it clarifies the various points of view within the story and makes clear to you if you are letting them entangle in a confusing manner. For example, it would be saying something subtly but significantly different about Patty Hearst's responsibility if you said, "Heiress. Blows it. Captors become Heroes ... etc." In the earlier

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version, we watch her dance. We are looking at her. In this version, the Captors suddenly become protagonists or equal value. Her responsibility is diluted. We're now paying attention to what's happening to them, not what she's doing or not doing. Amplified thousands of times in the actual narrative telling of a story and into all of the additional words and facts, such vagaries in point of view can badly confuse a jury. (At it's worst, they don't know who the hell you're talking about!)

The ten word telegram makes one aware of how much of talk is padded with piffle, gratuitous and time-wasting and useless to the story being absorbed and believed. In this category: "Your Honor. Counsel. Ladies and Gentleman of the Jury. My name is Robin Woodruff and I represent the plaintiff. I want you to know right off the bat how much this case means to me, how excited I am to have the opportunity to come before you on the Lerners' behalf. Now, over the next several days, you're going to hear lots of witnesses. And they're going to..." All of this is commonly heard in the name of establishing a relationship with the jury. That happened (or did not happen) in voir dire. Besides, your telling me you're excited to be here doesn't convince or persuade me, particularly if your body, voice, or manner belies this statement. If I believe your engagement in the story, I'll believe you.

Similarly, statements such as, "Now if you'll all look over at this chart, you see here in the diagram on the left -- I don't know if you can read this from where you're sitting, what it says is --". If you're pointing and explaining, point, explain, skip the meaningless courtesies, and get on with it. On the other hand, if you're actually wanting everyone to be able to read it, stop. Make sure that they can, and if they can't, move it so they can. This last example also brings up how pronouns can be used in a way that enjoin you with the jury or that separate you from them. A statement such as, "If you'll all look over here at this chart, I'll tell you..." may just as easily be stated, "let's look over at this chart, and what we see is...". The second version puts you and the listeners on the same team.

(A final word about the application of this telegram before you even get to trial. In its oversimplification, it can give you an easy handle for wielding control over the entire case, even in pre-trial. One attorney with whom I worked was representing a client who was suing a developer. He began every contact, every phone call to the other side, regardless of whether he was answering or placing the call, with his telegram. When his secretary would buzz him that opposing counsel was on the line, he'd pick up the phone: " 'Greedy developer poisons village well. Make him pay.' How ya doin', John? Whaddya need?" He used the

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telegram as a mantra, a battle slogan, and it freed him in the rest of the conversation to communicate with a friendly ease. In a previous case which he had won, he had introduced his telegram to the jurors in voir dire, begun his opening statement with it, and later learned that the jurors had then quoted it verbatim in deliberation. The confidence it gave him to initiate every contact with this telegram so unnerved John that two days before trial John came up with a very satisfying settlement.)

Our appetite for story, our deep availability to its structural momentum, our thrill of having one of us render the past into a virtual present for the rest of us, even our accessibility through our senses into our imaginations -- all these remain undiminished. What has virtually disappeared from our culture in the past thirty years are the opportunities to have these capacities satisfied. The court of law is one of the few remaining places where, despite any visual aids or visual depositions, one must be able to create a live human event by telling a story to a group of strangers and compelling their belief into action, all through the telling.

For centuries, live storytelling was all we had. On the road, in the theatre, at your table after you'd taken care of your hunger. But with technology, we are now able to acquire vital information, as well as education and entertainment, without ever sharing the oxygen with another live, present human being. There is no exchange and no guarantee of communication, merely of broadcast. The antennae and skills of live storytelling, unused and untaught, dilapidate. When radio arrived in the living room, people learned to sit and stare at a box which did absolutely nothing, but one could hear stories coming out of it. People found themselves watching it to concentrate: the imagination had a whole world to create to accompany this sound track. Ironically, television's ability to present its little moving shadow facsimiles of humans -- again in a box, but now behind glass and flickering like the fires in the caves -- further estranged us from the palpable, live immanence that had still been implicit in the blind universe of radio. Magically animated homunculi now moved and talked in our rooms right in front of us, but they were oblivious to us. Were they alive? Yes, but no. If they were alive like us, it was somewhere else than here. They couldn't see us, but we saw them. Their space was flattened into ours, and their time was sped up.

The stories which television tells are all accelerated and minced, chopped into tiny scenes sandwiched in between alien commercials. This format has trained us to limit our attention span to less than six minutes. If we are bored we change channels or get up to go

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get food. The miniature human figures on television present themselves to us without ever seeing or hearing us. We could sit in front of them naked, and would they ever know or even care? We become accustomed to a disengagement between story "deliverer" and story "receiver". We become conditioned by television's pervasive presence in our lives to physical and vocal behaviors which we unconsciously bring to the task of live storytelling, but which are wholly inadequate to its dynamic and temporal requirements. Television-talk is snipped lean: "47 dead. 135 wounded. Film at eleven." CNN wants you to know it is there 24/7, even when you are sleeping; so go ahead and sleep, because CNN will be there when you wake up. Television’s narrative arcs are short and its rhythmic presentations compressed. Even enlightened, educational Sesame Street cascaded at quite a clip, not to mention closing arguments on Law and Order. Television is not designed to sustain an audience which cannot leave, to render a long, information-laden tale, or to compel its audience to action,. And, television encourages us to form a conclusion based on what something first looks like.

This last aspect of video, the impact it imparts to initial appearance, is what makes it such a tricky tool in advocacy training. Most people recoil at what they look and sound like when they see and hear themselves on videotape. A teaching aid which leaves the student horrified at his or her own image has definite drawbacks. The student may well be left further inhibited -- trying not to look or sound a certain way. In acting terminology, this is called "playing a negative objective". It doesn't work. One is never freed from restrictive behaviors by trying not to be so weird. This is why the "what should I wear in court?" question has no ultimate answer. Some of the most celebrated trial attorneys wear weird clothes. Part of what they offer a jury is the profound exhilaration of having one's separateness and resistances evaporate, of being enveloped and transformed as one is swept or seduced or stalked into a story. Once we are being held in rapt attention, we are never thinking about what the storyteller looks like. Neither is the storyteller concerned about his or her appearance once this connection is made. When one is telling a personal truth, with passion, in order to persuade the listener, whatever the cost in self-consciousness -- when one has gotten this far, one is never wondering what to do with one's hands. And one never gets this far, or persuades the listener, solely on the basis of one's choice of tie. The search for the right "gesture" leads the live storyteller up this same blind alley as the search for the right image or outfit. In the last several televised elections, we have become increasingly bewildered and alienated by candidates on television pinning onto their bodies certain

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gestures -- such as the jabbing forefinger, or the fist with the extended thumb -- which their handlers and spinners have advised them will read as sincere, or decisive. These signal gestures hail back to the Nineteenth Century school of acting in which certain gestures were used to signify certain emotions. A woman in despair could always be recognized by her arm flung back over her brow. But if it's a symbol, and not an organic behavior, we don't believe it. We know it has been tacked on, and therefore is obscuring our view of whatever is truer that lies beneath.

There is no single flourish of body language or single article of "power clothing" upon which the live storyteller can depend or hide behind. And, there is no purchase in trying to tell a story under the burden of the "negative objective" of trying to let the audience not-see one's true physical self. If one's first allegiance is to make the story come alive for the listeners, and one's physical self has been relaxed sufficiently to be fully available to this task, then self-imposed restrictions and externally imposed obstacles either fall away of their own accord or are burnt through by the intensity of the search to make contact. One can ask:

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IV. CHECKLIST FOR COURTROOM COMMUNICATION EFFECTIVENESS √

Am I trying to do something or to not do something?

√

Am I talking to the people present or am I broadcasting to them?

√ Am I all affect or am I receiving and adjusting to the feedback cues, nonverbal as well as verbal, which these individuals are sending me? √ Am I in eye contact with the listeners or am I really addressing the carpet or the ceiling? Are my hands stuck in my pockets, clasped behind my back, or are they available to fulfill gestures which naturally emanate out of my telling? √ Have I warmed up my voice and physically relaxed both my body and my breathing so that the sound of my voice can reach anyone, anywhere in the room? Is my voice ready and able to carry my intention fully through any part of my story or my questioning? √ Have I chosen and conveyed a clear theme for this case which is underlying the strategy of my questioning? √

Am I telling a story with a clear beginning, middle, and end?

√

Am I engaging the listeners through their senses?

√ Am I letting people to whom I ask questions -- witnesses on direct and jurors in voir dire -- answer? √ Am I speaking in clear, active English, or am I speaking in the legal lingo that separates me from the jurors? √ When I move, is it because the communication demands it or is it to lull myself out of nervous tension? Am I moving to further my relationship to these people, or to protect myself from their scrutiny? Am I carrying the listeners into a

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process of inquiry which they will share or am I checking off a list of information, satisfied to move forward all by myself? √ Am I in active relationship with these prospective jurors or am I in relationship with my legal pad in the presence of on-lookers? √ Are the jurors being invited to care by a full human being, or is the jury being given an oral book report by a competent robot? √ Am I using language which counts or am I using more words than meaning, creating sound that does not communicate? √ Am I allowing the presence of silence as an essential a component to live communication, as essential as the sound of my own voice? √ Am I bringing my full self, my whole person into the courtroom, or just my lawyer? √

Am I telling a personal story?

(Find out. Put two chairs facing each other and sit across from someone.

Begin your opening statement. At a hand signal from your silent partner, begin a second story, a personal story. [One Christmas when you were a kid. The funniest or saddest movie you ever saw. Your first date with your husband. How once you were unfairly or wrongly accused of something when you were a child. Your first day at your present job. Etc.] Use sensory detail and active verbs.

Share what it felt like. Make clear what happened. At a hand signal from the person across from you, switch back to your opening statement. Note the differences in your two storytelling styles. Allow your partner to keep switching you without warning from one story to the other, back and forth, beginning again if you come to the end of either, until you are talking in both stories "like yourself". Continue the exercise as you separate the chairs and slowly work yourself up to a standing position, and then a good distance away from your listener. At any point in the

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separating, if you find yourself having reverted to a fixed style, be willing to stop, and continue again in the personal story. Do not make getting to the finish position your goal; your goal is to get there having maintained contact between your listener and "the real you" every inch of the way.)

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V. A.

VOCAL WARM-UP

Steps 1.

Tension Awareness

Stand with feet at shoulder width, arms hanging loosely at your sides.

Inhale and exhale through the mouth without holding in the abdomen, allowing the ribs to expand with each inhalation.

Wrap shoulders up around ears, hold until shoulders have accepted the fact that they will be there "forever". Release shoulders, letting them fall, not placing them back where you feel they "should" be. Repeat at least three times. Extend to rest of the body, so that your shoulders, arms, hands, face, torso, buttocks and legs are tense. Release. Repeat at least three times.

Repeat this last step, including scrunching face into a tiny fist, and then opening it wide. Repeat at least three times.

2.

Head Rolls

Let head fall forward, rolling gently from side to side -- ear to shoulder, not nose to shoulder. Repeat several times, until you have relaxed the sides and back of the neck and you are not merely moving the head on its pivot, or merely moving the neck's tension into another part of your body (such as into your fingers). Use exhalations of breath to release tension out of body.

Extend the head roll, so that it goes all the way around -- front, side, back, side. Keep it loose and free from tension, and try to pick up some speed without picking up tension. Remember to change directions often (at the end of each breath). Stop and focus eyes on a single object if you get dizzy.

3.

Drop Downs

Release jaw hinge and let head fall forward, the chin onto the chest.

Allow the weight of the head to lead the body all the way down, in slow motion -- one vertebra at a time -- until you are folded "in half" with your head, arms and entire top of your body dangling down. Hang there -- relax.

Think to yourself that you will be in this position forever, so you can release any vestige of impatience to move on the next step. Breathe. Repeat at least three times.

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4.

Touching Sound

Begin by gently voicing the sound "huh". Let the sound slowly extend, one per breath, into "huuuuuhhhh". (Take several breaths to accomplish this.) Then, close the lips at the end of the sound -"huuuuummmmmm". Collect the sound in the mouth and massage the lips with it. Repeat several times until lips are tickling. (To test if you are humming on lips, pinch your nose while humming. If sound is cut off entirely, you are humming in your nose.)

Every time you take a breath, pick a new note to hum on, thus warming up your entire vocal range.

Re-open the hum on the word "mmmmmmUUUUUUHHHHHHH".

5.

Put It All Together

Begin a hum. Drop your head. Move it from side to side, and then extend this into a full head roll. Feel the hum move around in your head as your head moves in the head roll. Reverse direction of head roll. Remember to pick a new note when you take a new breath. Now, allow head to continue down, until you are in a full drop down. When you reach the bottom, open your eyes, look at a point between your legs that is behind you, open up the sound and send it to that point. Humming again, work your way back up your spine, balancing your head at the top, opening your eyes, and focussing on a spot opposite you. Open up the sound again, and send it to that spot.

Repeat steps #1 and #5.

B.

Reminders While Doing a Vocal Warm-up: 1.

Keep breathing.

2.

Try always to maintain a broad balanced base, with your feet about shoulder distance apart.

3.

Do not lock your knees.

4.

Tension will try to hide and hang on. Check yourself often during your warm-up to see where it lurks in your body.

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5.

C.

D.

When balancing your head after coming up from a drop down, don't go "past" your stop, lifting the chin forward and crunching up your neck.

Keep the face forward, so the neck extends as long as possible.

Articulators: 1.

Scrunch your face into a teeny, tiny fist. Then open it wide -- mouth wide open, tongue out, eyes popping. Repeat.

2.

Make a tiny "o" with your mouth -- just the lips. Then open your lips into a large, tight grin. Whistle and grin. Repeat.

3.

With the heels of your hands, smooth down the jaw line, beginning up at the hinge connecting your upper and lower jaws, and tracing all the way down off the chin. Let the jaw hang slack, and using your hands, gently apply enough external pressure to push the jaw back and forth, and then side to side.

4.

Take the tip of your tongue, and place it behind the lower front teeth.

Now try to thrust the back of your tongue out of your mouth. Now relax the back of your tongue. Repeat.

5.

Blow through your lips like a "motorboat". Repeat.

6.

Blow through your lips and tongue like a "raspberry". Repeat.

7.

Tongue twisters. Till you laugh.

Resonators: "MEE-MAY-MAH-MOE-MOO"

This exercise is designed to warm up all the resonating cavities of the body.

It will increase the range and placement of your voice. Do this at the end of your vocal warm-up, never cold without first some warming up.

MEE: Quack like a duck and force the voice way up in the nasal resonating region, squeaking MEE, flow down to MAY: across the nose and sinuses in the middle of your face, honking out MAH,

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flow down to MAH: right at the mouth -- the whole mouth cavity resonating, flow down to MOE: down into your throat, where your vocal chords live, flow down to MOO: way down into your chest. If the sound is in your chest, it will vibrate when you pound your chest. STAY ON VOICE -- FULL SOUND FOR ENTIRE DURATION OF BREATH. E.

Sirens:

From all the way down to a MOO level in your chest, up through all the resonators to a MEE level, make a pure vocal sound which never breaks, but changes shape: Ooooooo.... Oh.... Ah.... Aye.... Eeeeee.... (MOO-MOE-MAH-MAY-MEE without the "M".)

Repeat, but after "Eeeee" don't stop, reversing direction right back down again, all the way to "Oooo," completing one full, unbroken circuit.

Repeat SIREN in the other direction, beginning in the top resonator.

F.

Flop Outs: 1.

Let head's weight fall forward carrying down into a full drop-down position. Lift the head forward, and let it extend outward and upward, leading the spine out one vertebra at a time from the tailbone, until the spine is stretched parallel to the floor in a concave position, dipped through the small of the back. Then, again starting at the base of the spine, let the body flop down into the convex position of the drop down. The motion feels almost serpentine.

Go slowly at first and then build up speed. You must be very loose to do this movement.

2.

Repeat a series of flop outs opening a hum into an "Mmmmmm-uuuuuhhhhhhh".

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(NOTE: Flop outs should only come in your warm-up after you have combined humming, opening the hum, and drop downs. NEVER do this exercise "cold".)

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VI. CONTROLLING SOUND: INFLECTION A.

Falling Inflection: "City Burns. Ten Dead. Details at 11." This is the inflection that means "THE END," communicating that the speaker has finished something, and is separating from the listener. "Good night, John Boy." "And they all lived happily ever after."

In court, a falling inflection is often used inappropriately in a long series of perfunctory questions (such as, "What is your name? What is your address? How long have you resided at that address?") as the speaker finishes each item in a checklist. Despite the script "pretending" to be curious or needful of response, the inflection is signalling the jurors to not listen to the answers, that the answers do not matter.

A continued pattern of falling inflections will actually make the listeners drowsy.

B.

Rising Inflection: "You took the money and did what ?" Most closely associated with questions asked with an actual need to learn the answer (as well as with the lilt of British Speech), this inflection invites, or demands, a response.

C.

Sustained Inflection: "Your honor, my worthy opponent is drunk, has bad breath, failed the bar more times than even I did, won't return phone calls . . ." This is the inflection we associate with lists. It keeps the speaker in audio control even if no longer speaking, communicating to the listener that more is still coming. "Once upon a time . . . "

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VII. BREATHING EXERCISES FOR PHYSICAL AND VOCAL RELAXATION Supposedly, a lot of the population tests a higher degree of fear at standing up and speaking in public than of death. One of the body's first responses to fear is to hold the breath. Postures of readiness -- the soldier at attention, the diver poised on the board, the student waiting to be told, "Bluebooks open!" -- all involve inhaling and waiting. In none of these examples, however, is the individual expected to talk. Breath is the fuel and the medium on which the voice is carried. So the advocate in the courtroom must re-learn how to verify that he or she is capable, at any moment, of taking a full, deep breath. If you want to create an audience out of the jury who will hold its collective breath waiting for the witness' answer to your drop-dead question, you must be able to consciously control your own breath. Through training the body to respond to a deep, relaxed way of breathing, stage fright can become either a thing of the past, or something quite usable.

A.

Vacuum Breath

Begin by closing your eyes. Slow down and extend your inhalations and exhalations. Breathe through your mouth. Fill your body with air. Inhale down into the small of your back. After a particularly complete exhalation, stop. "Spit out" in short blows the remaining reserve of air in the lungs. Keep "spitting" until there is nothing left. Truly nothing. Then just wait. You will feel your diaphragm drop and your lungs will fill so full of air you may well cough. You have just experienced the involuntary breathing of humans. Relearning how to allow a relaxed, full breath is not a matter of having to do anything so much as eliminating the restrictions we have applied to our breathing.

(So. The mind proceeds from Step X on to Step X+1, satisfied and confident at having learned Step X, but the body has not had time to actually learn Step X at all.

Restrictive habits of breath and posture, particularly as they govern the bodies of intellectually impatient and accomplished adults, may be doubly difficult to unlearn.

Their seeds are planted, in part or in whole, long before the creature learned to read or even speak the language. As a result, issuing verbal orders in subvocalized inner monologue, i.e., telling yourself, "Okay, relax my shoulders. NOW!" can be accomplished without in any way actually entering the area of muscular tension or

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relaxing the shoulders one iota. Shoulders can be obediently yanked down, with all their tension intact. In order for the mind to allow the body the risk of experiencing itself without the armor or the bandages to which it has become accustomed, or addicted, the organism must learn that it can literally survive without the "assistance" of defense provided by these habits. The organism must re-learn how to "live through" the entire breath. Appreciating the logic of these procedures in no way guarantees that the body has re-learned them. The student must slow down sufficiently to become conscious of each subtle, habitual pulling away from the simple but radical experience of breathing without interfering. Someone who is wanting to re-learn to breathe without unconsciously, "automatically" tensing the shoulders, will often be able to accomplish in little time 7/8 of an inhalation free of shoulder tension interference, but then speed through the last 1/8, trying to outrace the shoulders' entry into the process. The lesson has been "understood”, but the body still has not yet experienced one full breath without the shoulders muscling their way in. It will take several attempts, each one requiring greater concentration and greater relaxation, for the mind to tolerate being present, without directing the body through the familiar paths to which both mind and body have become long accustomed.

When you begin to explore the breath, you will inadvertently come across the emotional memories associated with the "sites" where you applied the restrictive habit. Your eyes may inexplicably well with tears. As you begin to remove the restrictions, your intake of oxygen is increased and you may find yourself giggling.

Whatever emotions come up, notice them, respect them, but breathe through them and do not be diverted from your focus on the exercise.)

B.

Taking Inventory for Vocal Production

Many vocal problems are at root breath problems. If you are trying to improve a "problem voice", begin with the breathing exercises outlined above.

A wispy, squeaky, or breathy voice may drop dramatically simply by providing it with a breath that is not shallow. Smooth down the jaw line with the heels of your hand, all the way from your ears to off your chin. Use the articulation exercises outlined in the "Vocal Warm-up" to relax your tongue. Start at the highest note in your range, working down to the lowest on the sound "ah". Don't separate the notes, but let them merge in a siren, as explained in the Resonator section (See V. D. ) from

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the "Vocal Warm-up". Work your way up and down your range, going only as far as you can on each full breath. Never rush the breath to accommodate a destination. Let the range expand a single note at a time at the end you are trying to strengthen.

Always make sure that you are working on full voice, filling the breath entirely with sound. Do not just push out breath -- this will damage the vocal chords. Do not try to work loudly -- if you use supported breath fully given over to carrying the sound, the volume will be more than loud enough. Find where in your range the sound is produced with the greatest ease -- this is your "natural placement".

C.

Volume -- Adjusting Sound to Space

Many voices do not reach the ear of the listener. A smaller percentage shoot right past the listener's ear and into deafening decibels. Again, it may first be a question of breath. Most people who speak too softly don't take in breaths that are deep enough; most who over-shout are gulping in great gasps rather than relaxed inhalations. Once the breath has been released, imagine that you have a ping-pong ball of sound in your mouth. The sound is heard as "huh". Pop the sound out of your mouth to someone. Find out if it actually reached the person, or popped out on the floor in front of the person, or shot right past the person and bounced against the wall behind. Now have the partner pop the sound back to you. After you become comfortable conceiving of the sound as a tangible entity that you are sending back and forth to each other, play a game of ping-pong, or "vocal volleyball". By involving your whole body in the aiming, chasing, slamming, and volleying, you will re-discover your natural coordination for adjusting volume to distance. (Be honest about admitting when you've hit it off the court or into the net!)

D.

Releasing Voice From the Body

Finally, stand a good distance from your partner -- as far away as across the room if it is not more than 15 feet. Stand with your feet at shoulder width, the hip bones directly beneath the shoulders, the shoulders released and dropped, the pelvis slightly tipped under but neither swayed back nor thrust forward. The arms hang loosely at the sides. The spine is released to its full extension and the head rests easily atop the spine, as if it were suspended by a helium balloon. This position is

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called "the neutral stance".

Relax your face entirely. Begin your opening statement. DO NOT MOVE FROM THIS POSITION. Do not gesture. Do not employ your facial expressions, such as raised eyebrows or furrowed brows. As you make your way through your opening, keep disengaging your habitual expressions and gestures from your power to communicate. Let your voice do all the work. This is not easy. It is certainly not "natural". But you will hear (or your partner will tell you) how much clearer and more present the voice becomes when it is all on its own, and when tension is not allowed to enter anywhere in the body. When you find yourself clenching your fists or curling your toes or trying to gesture with either head, face, or limbs, stop, breathe into the location where tension has entered, and release it on the exhalation. When the tension cannot be cul-de-sac'ed into the body, when it cannot be stashed into nervous or habitual mannerism or gesture, it is forced into the vocal expression.

Then, the voice will enlarge to accommodate it. The voice will learn how to carry all the feeling and information to the listener.

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VIII. A REVIEW OF COURTROOM COMMUNICATION TECHNIQUES FOR ADVOCATES: A.

Vocal Warm-Up Tension awareness/breath release Head rolls Drop downs Touching sound Humming/opening sound Articulators Resonators Sirens Flop outs Warm-up the face and voice and shake tension out of the body before entering the courtroom. End the warm-up with tongue-twisters so that you actually get your tongue confused and make some mistakes and laugh in frustration.

The effort not-to-make-a-mistake keeps the speaker tentative and masked behind word choice. Ending the warm-up by enforcing some flubs, before engaging in inter-active communication, moves the speaker past this.

B.

Controlling Sounds Inflection: Use rising inflection on the terminal syllable of a question and then be willing to be quiet -- really "give the microphone over" to the witness or the prospective juror. If you find yourself consistently tagging questions with a phrase such as "Isn't that true?" or "Would you agree with that?" you may well be perceived as impatient, contesting, or even scolding.

Consciously employ sustained and rising inflections in lieu of these tagging phrases, or connecting sounds such as "um." The inflection can direct the listener to connect ideas or answer questions and saves you "over-writing," or communicating an attitude toward the listener.

Sound exercises for directing and landing the voice.

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C.

Opening Statement A jury needs to be able to follow a story with a strong storyline, for which you provide the beginning and the middle, and they provide the rightful ending.

Use of sustained inflections so the story doesn't end till it is over.

The jury needs a consistent Point of View to embrace as its own.

A jury also needs a clear EMOTIONAL basis of prosecution or defense.

There should be no wasted language or an overabundance of legalese.

When possible, use active verbs in the present tense and sensorially evocative language to create a living, felt experience for the listener.

(Create a telegram that accomplishes all this in 10 words.)

D.

Personal vs. Professional Delivery The story you tell in court must mean as much to you as an incident from your own life. We have to feel that it is PERSONALLY IMPORTANT to you that the case is decided in the favor of your client.

Let yourself laugh, early on. The laugh releases breath, facial tension, stage fright, and the human being out from under the lawyer persona.

E.

Eye Contact An advocate who can look someone in the eye, in an unprotected, neutral stance, and really ask a question that is IMPORTANT to him or her... and who can also look ME in the eye is an advocate who is speaking for ME. Before talking, take a moment to establish eye contact with the people to whom you are about to begin talking, so you are never reading at or reciting at them.

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F.

Five Senses The five senses are what we all have in common. If you can make the jury understand and embrace your point of view through their senses, you will have them experiencing your client's story as your client did.

G.

Movement Remember to keep yourself on a broad balance base. Move when you are moving on in your thoughts -- in other words, when you are making a transition -- in your opening and closing. Beware of shifting around from side to side, foot to foot. Beware of shifting eyes -- look people straight in the eye.

Shifty people are not on the side of truth and justice. You are. Use moving towards or away from someone or something, pointing, etc. to your advantage as a technique for giving and taking focus.

H.

Examining Witnesses Remember to treat each witness individually. Treat them in such a fashion that the jury members will regard that witness in the way that you want that witness to be regarded by the jury. Treat sympathetic witnesses like real people in your life who elicit that response from you, or like fictional personalities that elicit that response from you. (Example: your Aunt Harriet, Bambi, for sympathetic; Captain Hook, your Uncle Louis for someone you want to nail, etc.)

Also -- remember to control the focus of the jury while examining your witnesses. Is this someone that you want the jury to look at? Is this someone that you would rather the jury was not focusing on -- should they be looking at you instead?

I.

Directing Juror Focus through Eye Contact During Examinations Start the question on the witness and end it at on a juror, if you want the jury to focus on you during the answer rather than on the witness. Start the question on the juror and end it on a witness if you want the jury to focus on the witness during the answer. If you want jurors to look at you alone, don't

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ever look at the witness. If you want them to look at the witness alone, only look at the witness. When you say "Objection", do so standing with a sustained inflection if you want to take back the focus. Experiment with different combinations.

J.

Role Playing Speak to witness, judge, or juror as if he or she were someone else.

Speak to witness, judge, or juror as if you were someone else.

K.

Rehearsal Rehearse aloud. By practicing aloud, you will discover that for clarity of communication, you may wish to re-phrase a lengthy question into a proposition, followed by a quick, short question. For example: "Does anyone feels doctors should not be held accountable even if they have been negligent in treating a patient and severe injuries result from that negligence?" The writer may be satisfied with this wording, but the actor will make better contact with, "Let's say in treating a patient a doctor is negligent, and severe injuries result from that negligence. Do you feel the doctor's accountable?" or "Some people would feel the doctor is definitely NOT accountable.

Anyone here agree with that?"

Rehearse aloud every technical term you will mention. If the listener is going to have to own an understanding of "ankylosing spondylitis" sufficient to its effect on your client's life, your teeth, tongue, and lips must know their way unhaltingly, through this word, each sound clear enough that the listener can repeat it silently. It is possible for the writer to be so sight familiar with technical terminology that the actor has never had to actually speak it, or taken the time to rehearse it aloud, and will do so in court for the first time, awkwardly.

Rehearse aloud every amount of money you will mention. To write a number, and speak it aloud are two entirely different actions. A reticence to speak aloud of money is trained in us early and deeply. To ask a juror if there will be any difficulty in committing to compensation of several million dollars in a

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voice that inadvertently drops or stumbles as it utters the "m-m-m-money" words sends a very mixed message.

After "constructing" an opening, rehearse with a listener, deliberately sabotaging your facility with language: 1.

By working in mime without any words at all. This will allow you to extend your powers of communication, to discover the kinesthetic aspects of the story that truly connect to the creature reality of the listener, and to locate the human dimension of your client's case (and the appropriate body language) that words obscure; 2.

By delivering it in a foreign language or gibberish or with a speech impediment that forces you to compensate with tools of persuasive behavior you normally leave dormant; 3.

By delivering it as a persona other than your normal courtroom presenter (General Patton, Daffy Duck, Marilyn Monroe, Jimmy Stewart, Aunt Winifred, etc.). These alternate archetypes spontaneously offer up boldnesses of expression and conviction that your careful lawyer writer often overlooks.

L.

Breathe.

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COMMUNICATION ARTS

FOR THE

PROFESSIONAL

JOSHUA KARTON pioneered the application of the communication techniques of theatre/film/television to the art of trial advocacy. He has served on the faculties and designed curriculum for the American Association for Justice’s Ultimate Course, the National Association of Criminal Defense Lawyers, National Criminal Defense College, Justice Advocacy Africa, the Trial Lawyer’s College, the United States Judge Advocate Generals’ Corps, American Bar Association, Loyola and California Western Schools of Law, numerous state trial lawyers associations and criminal defense associations, developed programs and seminars for live and virtual CLE training, as well as maintaining a professional practice of individual case consultation and witness preparation. Over thirty years of work in this field culminated in his preparation of the winning oral argument to the United States Supreme Court in Hamdan v Rumsfeld.

He is the 2016 recipient of the Lifetime Achievement Award from Stetson University College of Law’s Center for Excellence in Advocacy, and co-author of Theater for Trial (published by Trial Guides, 2017.)

After attending the Universities of California and Edinburgh, he studied at the American Conservatory Theatre, returning there to teach after writing/directing the film/video exhibits of THEATRICAL EVOLUTION, winner of the New York Drama Desk Award. His acting students at ACT and at USC’s School of Theatre include the recipients of Oscars and Emmys . Television writing and acting have ranged from Forever Fernwood to Beverly Hills 90210. He was an editor at Samuel French Trade and the creator of Bantam Books' "Film Scenes for Actors," series. His museum education programs and installations have been the recipient of grants from the Arco Foundation, the Ford Motor Company Fund, the California Arts Council, and the Kellogg Foundation.

TM

TM

COMMUNICATION ARTS FOR THE PROFESSIONAL assembles and applies the skills of working theatre artists -- actors, directors, and writers -- to the communication needs of the legal profession. While jurors observe and respect the advocate's presentation of evidence and knowledge of the law, what they respond to is the live human event that the advocate creates in the courtroom. What are the techniques -neither gimmicks nor tricks -- that make litigation come alive off the legal pad? What are the actual mechanics of live storytelling, interviewing, examining, proving, and persuading? CAP trains advocates to "write" not merely for what will be read, but for what must be spoken . . . and then heard, and felt, and believed. CAP equips litigators in areas such as vocal range and flexibility, body language, eliminating stage fright, storytelling structure and delivery, shaping jurors' perceptions of witnesses, creating and controlling emotion in the courtroom, coordinating spontaneous behaviors into prewritten or outlined scripts, invisibly directing where jurors look, what they hear, and what they quote in deliberation.

3014 Fourth Street #A-10, Santa Monica, California 90405 Tel/Fax 310. 392. 7558

Texas Criminal Defense Lawyers Association

Voir Dire March 10-11, 2022

Topic: Race in Voir Dire Speaker:

Eric Davis 1201 Franklin St Rm 13 Houston, TX 77002-1929 (713) 274-6730 Phone (713) 437-8563 Fax eric.davis@pdo.hctx.net email

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

Race and Voir Dire Race is an issue in Jury Selection in nearly every trial in America and wealth isn't an issue. The following is an excerpt concerning Bill Cosby’s trial.

After multiple blacks who indicated that they could be fair were struck by the prosecution, Bill Cosby was convicted by a mostly white jury.

“Brian J. McMonagle, one of Mr. Cosby’s lawyers, said that the woman was being excluded for racial reasons, noting that prosecutors had rejected a black female sales coordinator a day earlier. “We believe this is a systematic exclusion of African-Americans who answered that they could be objective,” Mr. McMonagle said. Mr. Cosby came to Pittsburgh, he added, “hoping he could find a favorable, diverse jury.”

“We believe it is paramount that there be a diverse jury and we believe that we cannot get a diverse jury,” he said.

Eric J. Davis Chief of the Felony Trial Division Harris County Public Defender’s Office Houston, Texas

ERIC J. DAVIS CHIEF OF THE FELONY TRIAL DIVISION HARRIS COUNTY PUBLIC DEFENDER’S OFFICE Eric J. Davis has been a practicing attorney since 1994 and accepted employment at the Harris County Public Defender’s Office in September of 2011. There Mr. Davis serves as an Assistant Public Defender. He is the Chief of the Felony Trial Division. As Chief, Mr. Davis supervises over 45 lawyers, eight investigators and several other administrative employees. He oversees training in the Felony Trial Division. And he still regularly defends and tries criminal cases, siting first chair in multiple jury trials each year. Immediately prior to joining the Public Defender’s Office, Mr. Davis was the senior member of Davis & Associates, PLLC, a law firm based in Houston, Texas. Mr. Davis graduated from Howard University with honors in 1991 and from Tulane University Law School with honors in 1994. He is also a graduate of Gerry Spence's Trial Lawyer's College where he honed his trial skills by learning from some of the best trial lawyers in the country. Following graduation, Mr. Davis was asked to join the staff of the college. He currently serves on the staff of the Trial Lawyers College and helps train lawyers from across the country. In 2020, he received the Mentor of the Year Award from the Harris County Criminal Lawyers Association for his efforts mentoring and training lawyers. He received that same award from the Harris County Criminal Lawyers Association in 2016 as well. Mr. Davis regularly presents at Continuing Legal Education courses (CLE) and is routinely a top rated speaker at those CLEs. In 2019, Mr. Davis was recognized as one of the “Best of the Best” by the National Association of Criminal Defense Lawyers for a CLE presentation he gave that year on “Arguing and Defining Reasonable Doubt for Juries.” And since 2020 Mr. Davis has served as a director on the board of directors for the National Association of Criminal Defense Lawyers.

Mr. Davis started his legal career as a prosecutor in Florida. While serving as a prosecutor, Mr. Davis was selected (based on trial skill) to serve in a sex crimes unit where lawyers focused on prosecuting all types of sexual assault cases. This experience and training helped Mr. Davis develop experience in handling these types of cases. As a criminal defense attorney, he has successfully represented people accused of sex crimes, some in high-profile cases, and has obtained many dismissals and "not guilty" verdicts. He has successfully defended numerous criminal cases in Federal and State Court. He has obtained “not guilty” verdicts and dismissals in all types of cases and in numerous different counties. Mr. Davis has tried over 100 cases to verdict. He has tried all types of federal and state court cases ranging from Capital Murder, to multiple defendant drug conspiracies, to misdemeanors. Moreover, Mr. Davis has defended federal criminal cases in every federal district in the State of Texas and in federal district courts in Florida, Louisiana, and Illinois.

In 2003, Mr. Davis received a commendation from the Texas State Legislature for his service as Special Counsel to the Texas State Commission on Judicial Conduct. For the Commission, Mr. Davis was lead counsel in a case that removed a judge from office who was mistreating citizens by wrongfully jailing them and addressing them in an abusive manner in court. Handling the case from beginning to end, Mr. Davis was able to obtain an order that the Judge be removed from office and that he never be allowed to hold judicial office again. The case was widely featured in several television news programs and newspaper articles.

In 2006, Mr. Davis received the “Unsung Hero Award" from the Harris County Criminal Lawyers Association. In that same year, he received the "Man of the Year Award" from the Houston Business and Professional Women's Association. Also that same year, Mr. Davis made national news and was featured in

several stories printed in the Houston Chronicle for his work that exonerated a man who had been wrongfully imprisoned for over 18 years for an alleged sexual assault of a child. Although the government reported that there were no samples to test for DNA in the case, Mr. Davis pressed forward and found the DNA that freed his client. After the client was pardoned, Mr. Davis secured financial compensation for him in excess of $450,000.00. The case was covered by local and national news outlets.

Although Mr. Davis has successfully defended many criminal cases, most notable is the successful defense of a double homicide in 2007 where the prosecutor boasted prior to trial that there was no way Mr. Davis’ client could win. With the client's approval, Mr. Davis rejected the prosecutor’s 40 year plea deal, fought the case at trial, obtained a "not guilty" verdict and secured the client’s freedom. Additionally, Mr. Davis has been able to secure "not guilty" verdicts and dismissals in other murder cases as well. In 2009, prosecutors were disciplined for improperly striking all African- Americans from a jury panel in a murder case defended by Mr. Davis and Texas Southern University Law School Graduate, Jacquelyn R. Carpenter. The case made the front page of the Houston Chronicle and was reported on several television and radio news stations. Mr. Davis and Ms. Carpenter subsequently tried the case again to another all-white jury and obtained a “not guilty” verdict. Another client defended by Mr. Davis who had a Capital Murder case dismissed was featured in an article in the New York Times. Mr. Davis has obtained multiple “Not Guilty” verdicts in other murder cases on homicide on behalf of his clients that are not specifically mentioned in this bio.

In 2011, the same year Mr. Davis joined the Public Defender’s Office, Mr. Davis completed his second, successive successful representation of a client charged in a Federal Medicare Fraud Conspiracy by securing multiple “Not Guilty” verdicts on behalf of a Doctor charged. This client and a previous client were both acquitted of all of charges - federal Medicare Fraud and Conspiracy charges. Both victories were in cases against federal prosecutors from the Federal Medicare Fraud Task Force that pulled experienced prosecutors from around the country to try those cases. Those prosecutors specialized in the prosecution of those types of cases and that Federal Task Force rarely lost cases. And following those cases, a Task Force Prosecutor surprisingly confided in Mr. Davis that Task Force Prosecutors privately referred to him as “Taskforce Kryptonite.”

Mr. Davis also has experience handling appeals and post-conviction writs in both Federal and State Courts. In 2008, Mr. Davis, arguing before the United States Fifth Circuit Court of Appeals, obtained the reversal of a life sentence which was imposed by a Federal District Court in a drug conspiracy case. In 2009, Mr. Davis argued before the Thirteenth Court of Appeals in Texas and obtained the reversal of a 75 year sentence. The court ordered a new trial for the client.

Additional details regarding Mr. Davis' education, admissions, affiliations with professional associations and presentations follow.

Education Tulane University Law School, Juris Doctorate: May 1994, cum laude Howard University, Bachelor of Arts: May 1991, magna cum laude

Licensure and Admissions

The United States Supreme Court, admitted 2003 The United States Court of Appeals for the Fifth Circuit, admitted 2001 The United States District Court, Southern District of Texas, admitted 2000 The United States District Court, Western District of Texas, admitted 2002 The United States District Court, Eastern District of Texas, admitted 2002 The United States District Court, Northern District of Texas, admitted 2002 The United States District Court of Colorado, admitted 2007 The United States District Court, Central District of Illinois, admitted 2007 The State Bar of Texas, licensed 1997 The Florida Bar, licensed 1994 (Membership from 1994-2016)

Professional Associations State Bar of Texas National Bar Association The Texas Bar Foundation, Fellow Harris County Criminal Lawyers’ Association National Criminal Defense Lawyers’ Association, board of directors 2020-present Texas Criminal Defense Lawyers’ Association Alumni Association of the Trial Lawyers College, Staff from 2006 to present

Published Judicial Opinions United States v. Harris, 566 F.3d 422 (5th Cir. 2009).

In re Thurman Bill Bartie, 138 S.W.3d 81 (Tex. App. Austin 2004).

State of Texas v. Joshua Reynolds, 371 S.W.3d 511 (Tex. App. Houston [1st Dist] 2012).

Seminars and Presentations Staff, Trial Lawyers College, Actively teaching all trial skills at the Trial Lawyers College in Wyoming and at regional seminars, 2006- present.

National Association of Criminal Defense Lawyers CLE – Midwinter Meeting & Seminar: “Mental Illness & the Law: Addressing and Litigating Behavioral Health Disorders in Criminal Cases”, February 24-27, 2021. Served as Co-Moderator (worked on developing topics as well as inviting and organizing the Speakers for the CLE).

The Riverside County Public Defender’s Office, Race and Jury Selection, February 8, 2021, Riverside, California, virtual webinar.

The New Mexico Federal Public Defender’s Office, Race and Voir Dire in Federal Court, January 20, 2021, Albuquerque, New Mexico, virtual webinar.

The Texas Criminal Defense Lawyers Association CLE – Battling the Resistance, Cross Examination, December 18, 2020, Webinar, El Paso, Texas.

The Texas Criminal Defense Lawyers Association CLE – Defending Those Accused of Sexual Offenses, Effective Story Telling in Sex Cases, December 3-4, 2020, Webinar, Houston, Texas (Presentation evaluation 4.9/5.0) Also served as Co-Moderator (worked on inviting and organizing the Speakers for the CLE and moderating the CLE).

The Texas Criminal Defense Lawyers Association CLE – Battling the Resistance, Cross Examination, November 19, 2020, Webinar, Brownsville, Texas.

National Association of Criminal Defense Lawyers CLE –RACE MATTERS III: The Impact of Race on Criminal Justice, Race and Voir Dire, October, 2020, virtual webinar.

The Texas Criminal Defense Lawyers Association CLE – Race in Criminal Justice, Race in Practice, July 30, 2020, Webinar, Texas 46th Annual Advanced Criminal Law Course 2020, Texas State Bar, Served as a Co-Moderator, inviting and coordinating speakers, of the Sexual Assault Break-out Session, July 18-20-2020.

The Texas Criminal Defense Lawyers Association CLE – The 33rd Annual Rusty Duncan Advanced Criminal Law Course, Mitigation and Punishment, June 18-20, 2020, San Antonio, Texas.

The Texas Criminal Defense Lawyers Association CLE – The Making of a Trial Warrior, Effective Storytelling: Drafting and Delivering Great Opening and Closing Statements, March 5-6, 2020, Austin, Texas. (Presentation evaluation 4.9/5.0) Defender Services Office Training Division, Race In Federal Criminal Court: Strategies in Pursuit of Justice, Addressing Issues of Race with the Jury Panel, February 6-8, 2020, New Orleans, LA. The Texas Criminal Defense Lawyers Association CLE – Defending Those Accused of Sexual Offenses, Cross Examination of the Child Witness, December 5-6, 2019, Dallas, Texas (Presentation evaluation 4.91/5.0) National Association of Criminal Defense Lawyers CLE –“The Gris-Gris of Voir Dire,” Voir Dire When Forensics Are in Your Case, October 16-18, 2019, New Orleans, LA. (Rated amongst the Top 5 speakers at the CLE).

The Texas Criminal Defense Lawyers Association CLE- “Voir Dire,” Voir Dire in Violent Crimes, September 12-13, 2019, Austin, Texas (Presentation evaluation 4.86/5.0).

National Association of Criminal Defense Lawyers CLE – Annual Meeting & Seminar: “Ringing Liberty’s Bell”, Defining and Arguing Reasonable Doubt for Juries, July 31-August 3, 2019, Philadelphia, Pennsylvania. (Rated amongst the Top 5 speakers at the CLE). Named one of the Best of the Best presentations for 2019. Also served as Co-Moderator (worked on inviting and organizing the Speakers for the CLE and moderating the CLE) 45th Annual Advanced Criminal Law Course 2019, Texas State Bar, Punishment in Sexual Assault Cases, July 22-25, 2017, Dallas, Texas. (Also served on the CLE planning committee and as a Co-Moderator, inviting and coordinating speakers, of the Sexual Assault Break-out Session).

Louisiana Criminal Defense Lawyers Association CLE – Law & All That Jazz, From Bebop to Fusion to Effective Voir Dire: The Sounds of Freedom, April 25-27, 2019, New Orleans, Louisiana.

The Texas Criminal Defense Lawyers Association CLE - 8th Annual Hon. Craig Washington & Sen. Rodney Ellis Seminar, Pre-Trial Investigation and Trial Preparation, February 22, 2019, Houston, Texas.

National Association of Criminal Defense Lawyers CLE –RACE MATTERS II: The Impact of Race on Criminal Justice, Race and Voir Dire, January 10-11, 2019, Los Angeles, California. (Top Rated Speaker

at the entire CLE).

The Texas Criminal Defense Lawyers Association CLE- Sexual Assault: Gladiators in Suits, Cross Examination of Child Witness: Et Tu, Brute?, December 6-7, 2018, Fort Worth, Texas. (Rated amongst the Top 5 speakers at the CLE).

The Texas Criminal Defense Lawyers Association CLE- Phones, Forensics & Snitches, Oh My! , Handling Priors- the Big One, the Little One, and all the Other, September 13-14, 2018, Lakeway, Texas. (Tied for Top Rated Speaker at the entire CLE).

Criminal Law Clinic Boot Camp, Thurgood Marshall School of Law, Brady v. Maryland and 39.14, August 13, 2018, Houston, Texas.

National Association of Criminal Defense Lawyers CLE, Defending Idaho: Advanced Advocacy and Trial Skills Course, Effective Voir Dire, August 9, 2018, Boise, Idaho.

National Association of Criminal Defense Lawyers CLE, Defending Idaho: Advanced Advocacy and Trial Skills Course, Cognitive Biases and Their Impact on the Criminal Justice System, August 8, 2018, Boise, Idaho.

National Association of Criminal Defense Lawyers CLE, Defending Idaho: Advanced Advocacy and Trial Skills Course, Cross Examining Emotional and Difficult Witnesses, August 9, 2018, Boise, Idaho.

National Association of Criminal Defense Lawyers CLE –Murder, Mayhem and Malice in Miami, Murder?!?... It’s Self-Defense, July 26-28, 2018, Miami, Florida.

44th Annual Advanced Criminal Law Course 2018, Texas State Bar, Punishment in Sexual Assault Cases, July 23, 2018, San Antonio, Texas (Also served as a Co-Moderator, inviting and coordinating speakers, of the Sexual Assault Break-out Session).

Faculty, Wisconsin State Public Defender Trial Skills Academy 2018, Voir Dire Lecture, May 12-18, 2018, Fontana, Wisconsin.

National Association of Criminal Defense Lawyers CLE Advanced Skills in Sexual Assault Defense Training, Cross- Examining Difficult Witnesses, March 8-9, 2018, Indianapolis, Indiana.

National Association of Criminal Defense Lawyers CLE Advanced Skills in Sexual Assault Defense Training, Voir Dire in Sexual Assault Cases, March 8-9, 2018, Indianapolis, Indiana.

The Texas Criminal Defense Lawyers Association CLE- To Kill a Sex Crime, Punishment: How to Get as Few Licks as Possible, December 7-8, 2017, Austin, Texas. (Tied for Top Rated Speaker at the entire CLE).

2017 Annual Criminal Defense Conference of the Wisconsin State Public Defender’s Office, Voir Dire to Win Your Case, November 17, 2017, Milwaukee, Wisconsin.

2017 Annual Criminal Defense Conference of the Wisconsin State Public Defender’s Office, Using and Cross Examining Experts, November 17, 2017, Milwaukee, Wisconsin.

43rd Annual Advanced Criminal Law Course 2017, Texas State Bar, Punishment in Sexual Assault Cases, July 18, 2017, Houston, Texas.

National Association of Criminal Defense Lawyers CLE – The Voodoo of Voir Dire, It’s Not Just Lagniappe, It’s Voir Dire on Self-Defense, March 1-4, 2017, New Orleans, Louisiana. (Top Rated Speaker

at the entire CLE).

The Texas Criminal Defense Lawyers Association Voir Dire – Outside The (Jury) Box CLE, Jury Selection on Defenses, September 8-9, 2016, Dallas, Texas. (Rated amongst the Top 5 speakers at the CLE).

Faith and Law Around the Globe, Integrity as Defense Counsel, April 21-26, 2016, Entabeni Safari Conservancy, South Africa.

Harris County Criminal Lawyers Association CLE on Maneuvering Search & Seizure Law, Ethics in Contesting Searches, March 4, 2016, Houston, Texas. (Top Rated Speaker at the entire CLE).

National Association of Criminal Defense Lawyers CLE -The Science of the Mind: Litigating Mental Health in Criminal Cases, Voir Dire in Mental Health Cases, February 17-20, 2016, Austin, Texas.

The Texas Criminal Defense Lawyers Association Nuts N’ Bolts and Morton Act CLE, Mitigation and Punishment Hearings, January 7, 2016, Lubbock, Texas. (Rated amongst the Top 5 speakers at the CLE).

The Texas Criminal Defense Lawyers Association 28th Annual Rusty Duncan Advanced Criminal Law Course, Mitigation and Punishment, June 18-20, 2015, San Antonio, Texas. (Rated amongst the Top 5 speakers at the CLE).

The Texas Criminal Defense Lawyers Association Voir Dire CLE -A Taste of Voir Dire, Voir Dire: SelfDefense and Other Defenses, March 5-6, 2015, Houston, Texas. (Top Rated Speaker at the Entire CLE).

Public Defender’s Office CLE on Criminal Appointments in Harris County, Impeachment—a Nuts and Bolts Demonstration, October 9-10, 2014, Houston, Texas. (Rated amongst the Top 5 speakers at the CLE).

Criminal Law Clinic Boot Camp, Thurgood Marshall School of Law, Michael Morton Act: What does it mean in terms of practice? And, 38.23? What is it and how to get the Judge to give it to you?, August 1617, 2014, Houston, Texas.

Advanced Criminal Law Course 2014, Texas State Bar, Mitigation and Punishment, Making the Best Out of a Bad Situation, July 21-24, 2014, Houston, Texas.

The Texas Criminal Defense Lawyers Association Federal Law Seminar, Presentation and Paper on Ethics in Federal Court, March 6, 2014, Houston, Texas. (Rated amongst the Top 5 speakers at the CLE).

Friendship Community Bible Church, Men’s Health & Criminal Justice Awareness Day, Panel Discussion, December 14, 2013, Sugarland, Texas.

The Harris County Institute of Forensic Science’s Expert Witness Testimony Workshop & Mock Trial, Demonstrated Cross Examination of Experts – Medical Examiner and Ballistics Expert, November 7-8, 2013, Houston, Texas.

The Texas Criminal Defense Lawyers Association Cross Examination CLE, Presentation and Paper, Impeaching the State’s Witnesses in a Criminal Trial, March 7, 2013, Dallas, Texas. (Rated amongst the Top 5 speakers at the CLE).

American Bar Association, National Taskforce on Stand Your Ground Laws, Southwest Regional Hearing, Testimony Regarding the Impact of Stand Your Ground Laws on the Criminal Justice System, February 8, 2013, Dallas, Texas.

The First Annual Hon. Craig Washington & Senator Rodney Ellis Criminal Law Seminar, Presentation and Paper on Cross Examination, February 2012, Houston, Texas.

Round-Table Discussion on Stand Your Ground Laws at South Texas College of Law, 2012, Houston,

Texas.

Staff, Texas Criminal Defense Lawyers Association, CLE on Voir Dire, 2011, Roundtop, Texas.

Race and Voir Dire

In December of 2018 in Houston, Texas, two good trial lawyers were trying a case where self-defense was an issue. The case involved a Black man who was accused of killing a White man. It was the third time in three years they tried the case. The first jury which consisted of blacks, whites and Hispanics was hung 10 to 2 in favor of acquittal. The second jury which also consisted of blacks, whites and Hispanics was hung 11 to 1 in favor of acquittal. This third trial, with a new set of prosecutors and no black people on the jury, saw a verdict of guilty on the charge of murder. The jury deliberated under three hours before returning a verdict. Why the difference in results? Race.

Prosecutors know they have a distinct advantage when trying a black defendant to an all-white jury. As such, jury selection and the use of peremptory challenges is wrought with the danger of racial manipulation. A recent study of trials in Caddo Parish, Louisiana, revealed that potential jurors who were black were much more likely to be struck from juries than non-blacks. In Caddo Parish, an area known for its many death sentences, prosecutors used peremptory strikes against 46% of black jurors, but only 15% of other jurors, according to a study by Reprieve Australia.1 That study showed evidence of systematic discrimination in the jury selection process that appeared virtually unchecked. The results were consistent with findings from Alabama, North Carolina, and other parts of Louisiana.

1

U. Noye, "Blackstrikes: A Study of the Racially Disparate Use of Peremptory Challenges by the Caddo Parish District Attorney’s office," (Reprieve Australia, August, 2015).

In an Alabama study, prosecutors used peremptory strikes to remove 82% of eligible black potential jurors from trials in which the death penalty was imposed. A study of death penalty cases in North Carolina found that prosecutors struck 53% of black potential jurors but only 26% of others.2 The racial composition of the juries in Caddo Parrish appeared to make a difference in the ultimate outcome of the cases. The study found that no defendants were acquitted by juries with 2 or fewer black jurors, but 19% were acquitted when 5 or more jurors were black.3 Given that the prosecutor’s chances of winning go up with nondiverse juries, it is easy to see why prosecutors take this short cut. The availability of this short cut through peremptory challenges, makes the threat of discrimination during jury selection more real. In Batson v. Kentucky, legendary U.S. Supreme Court Justice Thurgood Marshall noted that “[t]he inherent potential of peremptory challenges to distort the jury process by permitting the exclusion of jurors on racial grounds should ideally lead the Court to ban them entirely from the criminal justice system.”4 Justice Death Penalty Information Center, Studies: Racial Bias in Jury Selection. https://deathpenaltyinfo.org/node/6224.

3 Id. It should be noted that Louisiana, unlike most other states, does not require unanimous verdicts. 10 out of 12 jurors voting in unison is all that is needed to return a verdict.

2

4

Batson v. Kentucky, 476 U.S. 79, 107(1986).

Marshall thought the danger was so great that banning peremptory challenges from the process was the only way to safeguard defendants from discrimination.

Although the U.S. Supreme Court has yet to take a position as strong as Justice Marshall’s, it has reversed multiple cases where peremptory challenges were exercised in a discriminatory manner. In fact, in recent years, the Supreme Court has taken an aggressive stand and has rendered multiple favorable decisions on Batson issues. Thus, Batson challenges are still a viable tool that lawyers can use to combat discrimination in the jury selection process. This paper will discuss properly making a Batson Challenge and the law surrounding it. And given that race appears to make a difference in the jury selection process, this paper will discuss methods of conducting voir dire on race.

Batson Challenges Unlike challenges for cause, which are normally based on logical reasons why potential jurors are biased, prejudiced, or unqualified to serve in a particular case; peremptory challenges are often inspired by hunches, improper considerations, intuition, or “shots in the dark.”5 And as advocates, lawyers use peremptory challenges not to select an impartial jury, but to select a jury that will be partial to their client’s cases. This happening simultaneously on both opposing sides further hampers the process. In 1997, two law professors affiliated with Pepperdine Law School identified five main problems surrounding the use of peremptory challenges.6 They assert: First, attorneys who exercise peremptory challenges aim to select a jury that is biased in favor of their client. This motive hinders, rather than advances, the guarantee of a trial by an impartial jury. Second, the exercise of peremptory challenges is largely based on the attorney’s biases and prejudices toward persons of a particular race, religion, gender, age, educational background, socioeconomic status, and other associations. Such exercise has led to discrimination against classes of potential jurors, which may profoundly affect both parties’ ability to obtain a trial by an impartial jury. Although the U.S. Supreme Court See MICHAEL J. SAKS & REID HASTIE, SOCIAL PSYCHOLOGY IN COURT 55 (1978).

See Carol A. Chase & Colleen P. Graffy, A Challenge for Cause Against Peremptory Challenges in Criminal Proceedings, Loyola of Los Angeles International and Comparative Law Journal (1997).

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has issued rulings in the past decade to curb the use of peremptory challenges as an instrument of racial or gender discrimination, those rulings have not had their anticipated effect. The third main problem with peremptory challenges is that their availability has led to extensive and intrusive voir dire examination of potential jurors, and thus, increased the duration of jury trials. Fourth, the use of challenges has raised the cost of jury trials due to the use of expensive jury “experts” who assist attorneys in identifying jurors most likely to favor one side or the other. Finally, the mere existence of peremptory challenges permits the courts to avoid deciding whether a juror is truly biased or prejudiced because the attorney may still exercise a peremptory challenge if the judge denies a challenge for cause.7

Making Batson Challenges Batson v. Kentucky provides a three-step process for adjudicating claims of discriminatory use of peremptory challenges. “First, a defendant must make a prima facie showing that a preemptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination.”8 The third step turns on factual findings made by the lower courts.

Prima Facie Case Establishing a prima facie case of purposeful discrimination, involves first identifying that a stricken juror is a member of a protected cognizable group. Then, the party raising the challenge needs to show that this fact, along with any other relevant circumstances, creates an inference that the opposing party has used a peremptory challenge – or multiple challenges – to strike potential jurors on the basis of their membership in that group. Such a prima facie case can be made by offering a wide variety of evidence, so long as the totality of the facts gives rise to the inference of discriminatory purpose. One common method of doing so is articulating a comparative analysis of the panel demonstrating there was a pattern of striking a disproportionate number of members of the cognizable protected group.9 For example, in Dewberry v. State, 776 S.W.2d 589 (Tex. Crim. App. 1989), 7

Id. Snyder v. Louisiana, 552 U. S. 472, 477 (2008) (internal quotation marks and brackets omitted).

9 Miller L v. Cockrell, 537 U.S. 322, 331 (2003).

8

the prosecutor striking five out of six black venire members was held to constitute a prima facie case. Similarly, in Salazar v. State, 795 S.W.2d 187 (Tex. Crim. App. 1990), the Court found exercising one strike against the only Hispanic venire member constituted a prima facie case. Another method of establishing a prima facie case is by showing that there was racially disparate questioning during the voir dire process.10 In Miller-El v. Cockrell, the U.S. Supreme Court overturned the conviction of a black defendant, ruling unconstitutional the prosecutorial peremptories that removed 10 of 11 black prospective jurors during jury selection and citing as evidence of racial discrimination the disparate questions asked of white and black members of the jury pool.11 Lawyers looking to make Batson Challenges and to preserve the appellate record must make sure that the entire voir dire process is recorded by the court reporter. It would be nearly impossible to litigate on appeal a prima facie case based on disparate questioning if that questioning was not recorded.12 Whether or not voir dire examination itself was recorded, the movant must make a record of the Batson challenge in some fashion. This can be done by describing on the record the overall makeup of the jury panel and specifying those members, by juror number or name, who were struck by peremptory challenges and members of a cognizable group. See Williams v. Woodford, 384 F.3d 567, 584 (9th Cir. 2004). Counsel should state how many members of cognizable groups were on the overall panel, including which cognizable groups they were members of, as well as the number of jurors who were struck via peremptory challenge that were members of those cognizable groups.

Batson encourages the trial judge to consider the defending party’s pattern of strikes because it may strongly support the inference of a discriminatory intent. But the pattern is not definitive. Because the judge must consider any relevant circumstances, the party making the challenge should refer to any aspect of the voir dire that supports the inference of a discriminatory intent, including, for example, that the opposing counsel targeted a certain racial group in asking questions pertaining to cause and hardship. It could also include not asking questions of jurors in the non-targeted racial group. Although the defending party has a burden to provide a race-neutral explanation for the strike, the burden to prove discriminatory intent “rests with, and never shifts from, the opponent of the strike.” Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curium.) Counsel should request an examination of the prosecutor’s notes once the Batson Challenge is made. And if it contains any See Holloway v. Horn, 355 F.3d 707, 722 (3rd Cir. 2004).

Miller Ll, 537 U.S. at 331.

12 Theoretically, if the voir dire is not recorded, a lawyer could ask the trial court to take judicial notice of the questioning that had taken place during voir dire. This would force the defendant to rely on the trial judge’s recollection as opposed to a contemporaneous record.

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helpful information, counsel should state the helpful information on the record and should request that a copy be made part of the record.

Filing a Pretrial Batson Motion In a recent case, Foster v. Chatman, 578 US (2016), where the Supreme Court reversed a death sentence on a Batson violation, the defense attorneys anticipated the prosecution striking black prospective jurors on the basis of race. So, prior to trial, they filed a motion to prevent the practice pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), stating: “1. [Foster] is an indigent eighteen year old black person accused of the capital murder of an elderly white lady, and the State is seeking the death penalty. 2. The District Attorney’s office in this County and his staff have over a long period of time excluded members of the black race from being allowed to serve on juries with a black Defendant and a white victim. . .. 3. It is anticipated that the District Attorney’s office will attempt to continue its long pattern of racial discrimination in the exercise of its peremptory challenges. At a pretrial hearing, the parties and the court agreed to defer the Batson motion until after the striking of the jury.”13 Counsel litigating Batson issues should consider filing a Batson Motion Pretrial. If anything, the motion will put the prosecutor and court on notice that the Defense fully intends to raise Batson and combat discrimination. Conversely, it might tip your hand to the prosecution if your goal is to plant error in the case. The motion itself will probably do nothing to preserve the issue for appeal.

Conducting Voir Dire on Race People don’t like to talk about race, especially in public. And getting some people to talk about race in a room full of strangers like the setting for voir dire is difficult. Lawyers are people too and have the same difficulty talking about race. Yet it’s evident that in many criminal cases, even cases where race is a direct issue, lawyers do their clients a disservice by refusing to talk about the issue. In America, some think that Race is always an issue in the criminal justice system…. an issue in every case. The problem is that lawyers are often afraid of being accused of “playing the race card.” Feelings against political correctness and “playing the race card,” have silenced challenges to discrimination. Even after cops are routinely acquitted when they kill a black man, the “Black Lives Matter” slogan is met with “All Lives 13

U. S Supreme Court Brief of Petitioner Timothy Tyrone Foster, p. 4.

Matter.” Many view this as nothing more than an attempt to silence protest of discrimination. No greater place is there the silencing of challenges against discrimination and classism than in the criminal justice system. Our current political climate reveals that there are intrinsically negative attitudes towards certain groups.

In the time we have allotted for voir dire, we cannot change these attitudes. A better use of our time allotted for voir dire is trying to find out what people’s attitudes are.

In this section, I plan to present several different approaches to voir dire on race.14

Self-Disclosure My primary approach to formulating Voir Dire Questions is self-disclosure.

I basically explore what are my fears about the case, formulate questions based on those fears and then share them with the jury. My approach is the same with the issue of race. This approach for me might look like this: Jesse Jackson tells the story about one night when he was walking down the streets of Chicago and got nervous when he heard footsteps approaching him from behind. Beginning to prepare himself for the worse, he quickly turned and was relieved when he saw that it was three young white males running in his direction instead of three young black males. He made note of this feeling and immediately felt ashamed.

Jessie Jackson isn’t alone in this feeling. In my neighborhood, there’s a park across the street. There are no benches, or swings in the park.

There aren’t even any artificial lights in the park at night…. just trees and hills. People come to see the park because Beyoncé’ grew up in my neighborhood and worked out in the park. One evening I was driving home and I saw a young black man step out from the darkness of the park. Feeling suspicion, I stopped him and asked him what he was doing in the park so late. He told me, I’m from out of town and I wanted to see Beyoncé’s park before my flight tonight. I too felt embarrassed.

Even me a criminal defense lawyer had these feelings.

(One might share their own personal story similar to the one recounted by Jessie Jackson… and disclose how they felt), And then follow up with:

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It is a mistake to assume that, all other things being equal, a non-white juror is a better defense juror in a criminal case than a white juror.

I am sure we all have heard the saying that you should not judge a book by its cover…. What does that mean? Many of us at some point have probably done that….and many of us probably have been judged by a cover – either because you are old, or young, fat, bald, a bleach blonde, have facial hair, drive a motorcycle, etc. What is the risk to an innocent man if jurors rely on judging based on a surface characteristic like skin color rather than looking to the evidence?

Backing into the Issue A method suggested by Helen Simotas, an assistant Public Defender in our office’s Mental Health Division, calls for one to start of in the general and then narrow the focus on race. Her method suggests opening with a question like “What kind of jury do you think my client should have?” And then see where people go with it. After some discussion, you she would then say “He’s entitled to a jury of his peers…. What do you think that may look like?” And then further if race doesn’t come up start with, “Do you think a jury of all females would be a jury of his peers?

All males? All whites? Blacks? How does it make you feel when I ask these questions? How do you think my client feels? Do you think it would make a difference if he had an all-white jury panel?”15 The goal is to start with the general concept of a fair trial and then narrow it to the issue of race. If some jurors aren’t comfortable with the issue of race, Helen suggests making the issue more about a fair trial.

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Michael Vick certainly wouldn’t get a fair trial with these characters on his jury.

All Alone I have heard a story about a talk from Joe Johnson of Topeka, KS. It was told to me that Johnson, who is African American, tells the following story to mostly white venire panels: Let’s say you visit New York one day. While you are there, you ask a hotel concierge where is the best place to listen to some live jazz.

Without hesitation, the concierge recommends a jazz club in Harlem.

‘It’s the best,’ he says. “Now as a white person you’ve only heard about Harlem but you’re thinking this could be fun. So, you dress up and you go to the jazz club and have a great time. Maybe you have too great a time, because while you’re there you get into an argument with someone and it ends up with you getting arrested.

The next morning you are brought to court and when you get there, you immediately notice that the judge is black. Most of the court staff and lawyers are black. The prosecutor is also black.

You look across the courtroom and you see 12 black jurors — waiting to decide your fate. As a non-black person ... please raise your hand if you might be a little worried about getting a fair trial in that situation. *Looks at people raising their hands and asks* “Why??”

Upon first hearing this question, one cannot deny the brilliance of the question. It asks the jurors to place themselves in the potential role of the defendant. Moreover, it is also a fairly disarming way to discuss race.

The Tyrone Moncriffe Method A great lawyer who tries a lot of cases at high level and who has been trying them for a long time name Tyrone Moncriffe shared his approach to Voir Dire on race with me. Tyrone is an African American and typically tries the most serious cases and wins. Here’s his approach to voir dire on the topic:

Ladies and Gentleman, when I first started practicing law, a prosecutor told me something I never forgot, he said he was trained to eliminate all of the black people off the jury if the defendant was black, his reasoning was simple, white people could not identify with his world and was more than likely to vote guilty even if the evidence was minimal. So, he would prefer an all-white jury or no more than one black because he felt the whites would bully the one black juror. As you see Mr. Smith is a black man, there are 65 jurors in this room, will all of the black jurors raised their hands for me, notice there are only 7 black jurors, some people feel that there is nothing wrong with an all- white jury, some people feel an all-white jury could never be fair with a black defendant, raise your hand if.........(after exploring this as much as possible, I tell the panel) that it is against the law for people to be struck because of their race, we have a right to have a hearing on that issue and challenge the state if that happens, who believes we should have that right ? (Note - the state will leave a few blacks on the panel following this Voir Dire so it is important that they understand the power of their independence with insulation questions). “Mrs. Smith if you were on the jury and you felt the defendant was innocent but 11 other jurors disagreed with you, do you know that you do not have to change you vote to please them? You could send a note to the judge and say I have made up my mind and will never change, this honorably judge will encourage you to stick with your vote and not let the others bully you, could you promise this judge that you would do that if it came to this?

Its All About the Prosecution I have a trial coming up in January 2019 that is a retrial following a hung jury where I believe the prosecutor is going to strike all of the minorities from the jury. I believe this because there were some peremptory strikes in the previous trial that were questionable and the state’s responses to our Batson Challenges were questionable too. Moreover, the prosecutor just won a case where an all-white jury was seated. So, I am preparing for that aspect of the case.

I am thinking about asking a question in Voir Dire that would go something like....

I’ve been practicing criminal law for 24 years now. And I started my career as a prosecutor. And in that job, I learned that some people think race makes a difference. I remember losing a trial where we had a black defendant and 5 black jurors on the jury. Following that loss, a senior prosecutor who had been watching the trial came into my office and told me that I lost the case because we had too many black people on the jury. I was surprised and startled by these comments. So, I have seen situations where all of the minorities have been eliminated from the jury by the Prosecution because they think race matters. I heard discussions like this and have been in debates like this in my experience. Some people think an all-white jury will have no impact, while others feel it will make it more difficult for an accused person to be judged fairly.

What do you think? Why?” Then later ask, “If the jury does end up being all white, how will you make sure the case is decided only on the evidence?”

The goal of the question is to encourage the prosecution not to use their strikes discriminatorily. And the idea is to alert the jury to the possibility that the prosecution might attempt to discriminate in this case.

Scaled Questions Scaled-response questions are questions that have a predefined answer list with options that are incrementally related to each other with the purpose of measuring the intensity to which a respondent feels toward or about something. For example, a grocer may want to ask its customers how they rate the taste of a Suopermarket’s brand of tomato soup; the scaled-response list might be on a scale of 1 to 7, where 1 means they do not like the taste at all, and 7 means they completely love the taste. Scaled questions can be based on any number of responses, but are often 5, 7 or 10 point scales. They can also gauge feelings on issues. Typically the questions are asked individually of every member of the panel. This format can encourage more of the prospective jurors to express themselves, thereby expanding the pool of persons who can be asked follow up questions on an individual basis.

Here’s how one might conduct voir dire on race using scaled questions:

I would like you to answer the following question(s) by picking one of three answers, True, partly true, or false. Here are the questions: Racism by whites against (insert race/ethnicity of the defendant) is a thing of the past? True, partly true or false. (The lawyer will then go to each prospective juror seeking an individual answer). There is more racial prejudice today than there was 30 years ago? True, partly true or false.

(The lawyer will again go to each prospective juror seeking an individual answer). (Insert race/ethnicity of victim/defendant/plaintiff) commit more violent crimes than whites. True, partly true or false. (The lawyer will again go to each prospective juror seeking an individual answer). Blacks use more illegal drugs than whites. True, partly true or false. (The lawyer will again go to each prospective juror seeking an individual answer).

Using scaled questions, you can ask just about anything in a non threatening manner.

You can also get every person on the panel to answer these questions. The only draw back is that people are often not honest and it can be tough to gauge their sincerity without individualize discussion.

Conclusion It is my hope that this material is helpful to you and your clients. Attached are several interesting resources on the issue that may prove helpful. If you need any assistance, feel free to contact me. My email is eric.davis@pdo.hctx.net. The work we do is important. And as Thurgood Marshall once said, “I wish I could say that racism and prejudice were only distant memories. We must dissent from the indifference. We must dissent from the apathy. We must dissent from the fear, the hatred and the mistrust…We must dissent because America can do better, because America has no choice but to do better.”

Race and Jury Selection Psychological Perspectives on the Peremptory Challenge Debate Samuel R. Sommers Michael I. Norton

The legal system is a domain of potential relevance for psychologists, whether in the capacity of expert witness or citizen juror. In this article, the authors apply a psychological framework to legal debate surrounding the impact of race on the process of jury selection. More specifically, the authors consider race and the peremptory challenge, the procedure by which attorneys may remove prospective jurors without explanation. This debate is addressed from a psychological perspective by (a) examining traditional justifications for the practice of the peremptory challenge, (b) reviewing research regarding the influence of race on social judgment, (c) considering empirical investigations that examine directly race and peremptory challenge use, and (d) assessing current jury selection procedures intended to curtail racial discrimination. These analyses converge to suggest that the discretionary nature of the peremptory challenge renders it precisely the type of judgment most likely to be biased by race. The need for additional psychological investigation of race and jury selection is emphasized, and specific avenues for such research are identified.

Keywords: jury selection, peremptory challenge, influence of race, stereotyping, bias reduction

F

rom ubiquitous media coverage of each so-called trial of the century to the growing popularity of research at the intersection of psychology and law, it is clear that the U.S. legal system is an institution with a unique ability to capture the attention of the average American—layperson and psychologist alike. Perhaps this fascination stems from the knowledge that at any time, anyone could be thrust into a real-life legal drama as juror or witness, plaintiff or defendant, even consultant or expert witness. As such, all Americans have a vested interest in the machinations of the courtroom, and this participatory system emphasizes objectives such as perceived legitimacy and representativeness. However, the recent U.S. Supreme Court ruling in Miller-El v. Dretke (2005; see also Snyder v. Louisiana, 2008) serves as a reminder that one of the largest and most recurring obstacles to these efforts to ensure fairness in the courtroom is the potentially biasing influence of race on judgment, a topic quite familiar to the contemporary psychologist.

Miller-El (2005) marks but a recent episode in the Supreme Court’s decades-long struggle to curb the influence of race on the process of jury selection. Although September 2008 ● American Psychologist Copyright 2008 by the American Psychological Association 0003-066X/08/$12.00 Vol. 63, No. 6, 527–539 DOI: 10.1037/0003-066X.63.6.527

Tufts University Harvard Business School

judges and scholars have also addressed problems regarding the racial representativeness of those reporting to jury duty (see Cohn & Sherwood, 1999; Ellis & Diamond, 2003), much of the controversy surrounding race and jury selection focuses specifically on attorneys’ manipulation of jury composition through use of the peremptory challenge, the practice by which a fixed number of prospective jurors can be excused without evidence of their partiality. At the heart of this debate is how to reconcile the historically discretionary nature of the peremptory challenge with the efforts to protect the rights of defendants to be tried by a jury of their peers and the rights of citizens of all races to serve as jurors. In Miller-El (2005), the Court overturned the conviction of a Black defendant, ruling unconstitutional the prosecutorial peremptories that removed 10 of 11 Black prospective jurors during jury selection and citing as evidence of racial discrimination the disparate questions asked of White and Black members of the jury pool. The Court found that the prosecutor’s explanations for challenging some Black jurors were equally applicable to White jurors who were not challenged, indicating disparate treatment on the basis of race.

The impact and historical significance of Miller-El (2005) have since been assessed in several law review articles (e.g., El-Mallawany, 2006; Hitchcock, 2006; Jackson, 2006). Psychologists also have unique contributions to offer this discourse, as has been the case with other legal debates over the past half century. Here we refer to the use of basic research to adjudicate difficult issues—from the Clarks’ studies in Brown v. Board of Education (1954) to more recent American Psychological Association amicus curiae briefs regarding capital punishment (Atkins v. Virginia, 2002; Roper v. Simmons, 2005)—as well as empirical assessment of procedural issues such as jury size (Davis, Kerr, Atkin, Holt, & Meek, 1975; Kerr & MacCoun, 1985), death qualification (Cowan, Thompson, & Ellsworth, 1984; Haney, 1984), and judicial instructions (Diamond, 1993; Lieberman & Sales, 1997). Indeed, quesSamuel R. Sommers, Department of Psychology, Tufts University; Michael I. Norton, Marketing Unit, Harvard Business School.

Samuel R. Sommers was supported by a Tufts University Faculty Research Award. We thank Nalini Ambady, David Baldus, Phoebe Ellsworth, and Mary Rose for their helpful comments regarding this article.

Correspondence concerning this article should be addressed to Samuel R. Sommers, Department of Psychology, Tufts University, 490 Boston Avenue, Medford, MA 02155. E-mail: sam.sommers@tufts.edu

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Samuel R. Sommers tions central to the race and jury selection controversy have barely begun to be addressed empirically: To what extent does race influence jury selection judgments? Through what psychological processes? How easy is it to identify the impact of race on any particular peremptory challenge?

Absent data on these and other important issues, it is premature to offer concrete policy recommendations, but clearly psychological theory and findings regarding racial stereotyping and bias can inform this ongoing debate.

Moreover, this controversy provides an instructive case study for psychologists with more basic interests in race, person perception, and social judgment.

In the first section of this article, we review the history of the peremptory challenge, examine its interaction with race, and assess from a psychological perspective traditional justifications for the practice. We then examine the psychological literature on race and social judgment, assessing the extent to which race likely influences peremptory use, as well as the difficulty inherent in identifying such influence. Next, we consider the few empirical investigations that have examined directly the relationship between race and peremptory challenge use. Finally, we evaluate the viability of current safeguards against the influence of race during jury selection and consider options for their improvement. Throughout the article, we identify avenues for future research that will allow psychologists to offer more substantive and specific contributions to this debate.

The Story of the Peremptory Challenge Background and Assumptions During jury selection, there are two routes through which litigants seek removal of prospective jurors. In a successful

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challenge for cause, the judge is persuaded that a juror will not be impartial and, thus, removes this individual from the jury panel. Such challenges are unlimited in number, but judges are typically hesitant to accept them absent clear evidence of a fixed opinion that would preclude impartiality (Babcock, 1975; Baldus, Woodworth, Zuckerman, Weiner, & Broffitt, 2001; Hans & Vidmar, 1982). The second option— often pursued after a failed challenge for cause—is to use one of a limited number of peremptory challenges (sometimes referred to simply as peremptories), by which a prospective juror is excused without justification. Peremptories enjoy a long legal history, although they are not guaranteed by the U.S. Constitution (Alschuler, 1989; Broderick, 1992). The most common argument in support of the practice is that it allows attorneys to remove jurors whom they believe but cannot prove to be biased. As such, peremptories are presumed to create fair juries and reassure litigants that they have a say as to who judges them (Batson v. Kentucky, 1986; Hans & Vidmar, 1982).

Babcock (1975) noted two additional benefits: preventing the unpleasantness of articulating concerns about juror bias and enabling attorneys to remove jurors who have been alienated by probing questions during jury selection, or voir dire.

Rarely have these alleged benefits been examined empirically (Broderick, 1992). Do peremptories improve jury impartiality? The number of peremptories allowed varies by state and type of case, yet no published analyses compare jury selection outcomes across courthouses, perhaps because of difficulties in operationalizing impartiality.

More testable is the assumption that attorneys can accurately and consistently deduce a juror’s verdict predisposition—not to mention an inability to remain impartial— during voir dire. But few empirical studies support that proposition: “An attorney’s ability to predict appears limited by a very low ceiling of precision” (Hastie, 1991, p.

712; see also Finkelstein & Levin, 1997; Johnson & Haney, 1994; Zeisel & Diamond, 1978). Data suggest that attorneys sometimes focus voir dire questions on indoctrination as opposed to bias identification (Hastie, 1991), leaving them ill-prepared to use peremptories. Moreover, jurors frequently conceal information during voir dire and are unable to assess their own impartiality (Kerr, Kramer, Carroll, & Alfini, 1991; Seltzer, Venuiti, & Lopes, 1991).

In sum, although some attorneys may be better than others at identifying biased jurors—and some biases may be easier to identify than others— data provide little evidence of a reliable link between peremptory use and impartial juries.

Some analyses even indicate that voir dire produces juries with attitudes no different from the attitudes of a group of 12 randomly selected individuals (e.g., Johnson & Haney, 1994).

Other purported benefits of the peremptory challenge have also received scant empirical attention. Does the peremptory challenge provide a safeguard for attorneys who wish to avoid empanelling jurors irritated by aggres- sive questioning? This proposition seems plausible, al- though Rose’s (2003) interviews with jurors indicate that many do not take personally either the questions they are

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Michael I. Norton

asked during voir dire or the experience of being excused from a jury. Do peremptories increase the perceived fairness of the system? General surveys could address this question directly, but such studies have not been conducted. Relevant findings are reported by MacCoun and Tyler (1988), who found that laypeople prefer juries to judges and prefer 12-person juries to 6-person juries, in large part because of the greater community representativeness associated with larger juries. Combined with the finding that peremptory challenge use often creates less representative juries (see Baldus et al., 2001), this result provides indirect evidence that peremptories do not bolster the legitimacy of the legal system and can, in some cases, even undermine it. Overall, although the arguments in favor of peremptory challenges carry intuitive appeal, they remain largely unexamined and, on some counts, inconsis- tent with empirical data.

Peremptories and Race That the peremptory challenge might not live up to its reputation for improving jury impartiality and system legitimacy is not as problematic as the allegation that the practice also enables racial discrimination during jury selection. Indeed, the peremptory controversy centers on race, although other criticisms include, for example, that the practice contributes to making voir dire a cumbersome and inefficient process. Regarding the ostensible advan- tages of peremptories, these benefits seem even less likely to be realized when challenges are based on race. First, racebased peremptories do not lead to more impartial juries. To the contrary, both legal rulings and empirical data suggest that diverse jury compositions can reduce bias and encourage more thorough deliberations (Peters v. Kiff, 1972; Sommers, 2006). Concerning legitimacy, juries that

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are not racially representative of their communities tend to elicit skepticism rather than confidence in the system (Ellis & Diamond, 2003; Hans & Vidmar, 1982). And with regard to other advantages suggested by Babcock (1975), she has acknowledged that they are not applicable when peremptories are based on race (Babcock, 1993).

The Supreme Court has addressed the issue of race and peremptories several times. As far back as in the 19th century, the Court ruled against statutes excluding members of particular racial groups from jury duty (Neal v.

Delaware, 1880; Strauder v. West Virginia, 1879) while separately affirming the importance of peremptories in jury selection (Lewis v. U.S., 1892; Pointer v. U.S., 1894). The first case in which race and peremptory use intersected was Swain v. Alabama (1965). The appeal of Robert Swain, a Black man convicted of murder and sentenced to death by an all-White jury, was based on the exclusion of all six Black prospective jurors by prosecutorial peremptories. The Court ruled that these challenges were constitutional, as it should be presumed that attorneys have legitimate reason for peremptories in any given case and, in the wake of unnecessary restrictions, “the challenge, pro tanto, would no longer be peremptory” (Swain, 1965, p. 222). The majority conceded that more systematic efforts to exclude members of a racial group from jury service across several trials would constitute a violation of equal protection rights, but demonstrating that such bias had occurred proved to be impossible. In denying Swain’s appeal, for instance, the Court majority was not swayed by the fact that no Black individual had ever survived voir dire to serve as juror on a criminal or civil jury in Talladega County, a region with a Black population of 26%.

Twenty years later, the Court’s ruling in Batson v.

Kentucky (1986) eased this unattainable standard, marking a significant change in thinking since Swain (1965). With this ruling, the Court majority served notice that the prevention of racial discrimination now trumped the historical sanctity of the peremptory challenge. Per Batson, a defense attorney simply has to make a reasonable argument that race influenced prosecutorial peremptory use in the case at hand—not systematically across cases— before the burden shifts to the prosecution to prove otherwise. Batson was a landmark ruling in that for the first time, attorneys could be asked to justify peremptories. This first meaningful restriction on the peremptory challenge has since been extended to defense attorneys (Georgia v. McCollum, 1992), civil trials (Edmonson v. Leesville Concrete Co., 1991), and trials in which the defendant and juror are not of the same race (Powers v. Ohio, 1991). The Batson ruling was also noteworthy in that it singled out race as a characteristic on which peremptories could not be based. Subsequent defendants have appealed on the grounds that peremptories were used to target jurors of other demographics, but the Court generally has upheld only those appeals based on gender (J. E. B. v. Alabama, 1994).

As monumental as it was, Batson (1986) left many questions unanswered, most notably how exactly judges are supposed to evaluate the legitimacy of peremptories. Some subsequent decisions have rendered it more difficult

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to show that a peremptory challenge is based on race, such as the ruling that to comply with Batson, an attorney must simply provide any race-neutral justification and not necessarily one that is “persuasive or even plausible” (Purkett v. Elem, 1995, p. 768). Other rulings, such as Miller-El (2005), suggest criteria for evaluating peremptory challenge justifications, but there remains no clear standard by which judges are to make this determination. Consistent with such ambiguity, archival analysis indicates that Batson and its progeny have had little effect on actual peremptory challenge use or jury racial composition (Baldus et al., 2001). Consider, for example, pre-Hurricane Katrina Jefferson Parish, Louisiana, where, despite a Black population of 23% according to the 2000 census, only 4% of jurors in post-Batson capital murder trials have been Black (Liptak, 2007). Of course, race-based peremptory use is not the only explanation for data such as these: Large numbers of racial minority group members are eliminated from jury service before even reaching the courthouse because of racial and socioeconomic disparities in jury summons refusals, undeliverable jury summonses, and financial hardships that preclude jury service (see Ellis & Diamond, 2003). Still, the continuing problem of nonrepresentative juries in the wake of Batson have led some to resurrect the call to eliminate peremptories found in Justice Thurgood Marshall’s concurring opinion: “Eliminating the shameful practice of racial discrimination in the selection of juries . . . can be accomplished only by eliminating peremptory challenges entirely” (Batson, 1986, pp. 102–103).

Clearly, many issues surrounding race and jury selection remain unresolved, and we believe that psychologists are uniquely equipped to inform this ongoing debate. For example, rulings from Swain (1965) through Miller-El (2005) imply that race affects peremptory challenge use in some cases, but what does the psychological literature on race and social judgment suggest regarding the pervasiveness and nature of this influence? If race impacts peremptory challenge use, what is the likelihood that self-reported justifications for such challenges will reveal this influence?

That is, to what extent are attorneys unaware of the influence of race on their judgment, and, even when they are aware of it, how easy is it for them to come up with raceneutral justifications? These are issues to which we now turn our attention.

Race and Social Judgment Influence of Social Category Information It is well documented that social category information such as race can have profound effects on judgment (for a review, see Fiske, 1998). The impact of race has been demonstrated in countless settings: medical diagnoses (e.g., LaVeist, Arthur, Morgan, Plantholt, & Rubinstein, 2003), Diagnostic and Statistical Manual of Mental Disorders evaluations (e.g., Neighbors, Trierweiler, Ford, & Muroff, 2003), ratings of professors (e.g., Vescio & Biernat, 1999), assessments of students (e.g., Staiger, 2004), perceptions of political candidates (e.g., Sigelman, Sigelman, Walkosz, & Nitz, 1995), and evaluations of job applicants (e.g., Ber-

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trand & Mullainathan, 2004), to name a few. Researchers have also examined the effects of race on legal judgment, with much of this work focusing on the influence of a defendant’s race on jurors (see Sommers, 2007). Findings from these varied domains suggest not only that the influence of race on perception and judgment is pervasive but also that it is often automatic (Devine, 1989; Fiske & Neuberg, 1990) and very quick (see Eberhardt, 2005; Ito & Urland, 2003).

Through what processes does race affect social judgment? Two common answers in the psychological literature involve cognition (i.e., stereotypes) and motivation or affect (i.e., prejudice), explanations that are not mutually exclusive. In examining these possibilities in the domain of jury selection, it is important to consider how they interact with attorneys’ primary goal of empanelling a favorable jury that increases their likelihood of winning the case.

After all, although explicit purposes of voir dire include empanelling an impartial and representative jury, the U.S. legal system is adversarial by nature. In practice, attorneys’ chief objective in this process is to select jurors whom they believe will be sympathetic to their side of the case (Hans & Vidmar, 1982).

Although we know of no direct empirical assessment of the relationship, ample theoretical and anecdotal evidence suggests that attorneys’ stereotypes regarding jurors of different races contribute to the impact of race on jury selection. As Fiske (1998) described, people tend to rapidly categorize others on salient dimensions such as race. This categorization is often accompanied by stereotypic associations that affect perception and judgment, and such stereotype activation is not always conscious. Colloquial use of the word stereotypes connotes exaggerated and negatively valenced beliefs about an outgroup, but stereotypes need not be negative— or inaccurate—to influence judgment. Simply believing that members of a group are likely to possess certain characteristics or attitudes is typically sufficient to affect judgment and bring about confirmatory information search processes (Darley & Gross, 1983; Snyder & Swann, 1978).

There is little reason to suspect that legal judgments are immune from this influence of category-based beliefs.

Stereotypes are particularly likely to affect judgments that are based on limited information, made under cognitive load, and hurried by time pressure (e.g., Kruglanski & Freund, 1983; Kunda, Davies, Adams, & Spencer, 2002; van Knippenberg, Dijksterhuis, & Vermeulen, 1999), all apt descriptions of typical voir dire. Indeed, jury selection guides, training manuals, and other sources of jury folklore include countless strategies based on explicit stereotypes: Defense attorneys should seek female jurors unless the defendant is an attractive woman; poor jurors are good for the defense in a civil case because they are uncomfortable with large sums of money; civil plaintiffs should avoid jurors with professions based on precision, such as bank tellers or accountants (Fulero & Penrod, 1990; Olczak, Kaplan, & Penrod, 1991). In the pursuit of a favorable jury, there appears to exist among attorneys a “time-honored stratagem of selecting jurors by way of superstition, ste-

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reotypes, body language, implicit theories of attitude and personality” (Kovera, Dickinson, & Cutler, 2002, p. 165) as well as other “seat-of-the-pants” intuitions (Broderick, 1992, p. 410).

It is clear that comparable juror stereotypes exist for race (Page, 2005). Many jury selection manuals include explicit instructions to consider race. Justice Breyer’s opinion in Miller-El (2005) summarized some of these racial stereotypes, ranging from the general belief that Black jurors are sympathetic toward civil plaintiffs to point-based strategies by which value is allocated to prospective jurors on the basis of race. Baldus et al. (2001) provided another example, describing a training video for prosecutors that cited race in describing “good” and “bad” jurors. Such juror stereotypes may also exert influence through nonconscious processes. To the extent that attorneys have been exposed to or have developed their own racial stereotypes relevant to juror performance—Blacks are skeptical of police; Whites are forgiving of corporate malfeasance—no conscious effort may be necessary for these stereotypes to influence voir dire evaluations.

A provocative issue in considering juror stereotypes is that some of these assumptions about race may be accurate.

Research suggests, for instance, that Black jurors are often more lenient toward Black defendants than are White jurors (see T. W. Brewer, 2004; Mitchell, Haw, Pfeifer, & Meissner, 2005; Sommers, 2007). One might therefore argue that it is rational for attorneys to consider race given their desire to select a sympathetic jury. However, whereas juror stereotypes tend to be global—Black jurors will not convict Black defendants—research suggests that actual effects by juror race are more context dependent. For example, when trial evidence is strong, non-White jurors are often more punitive toward ingroup versus outgroup defendants (Kerr, Hymes, Anderson, & Weathers, 1995; Taylor & Hosch, 2004). Moreover, to the extent that between-race differences in juror tendencies derive from variability in experience and ideology (e.g., Cowan et al., 1984), attorneys may be better served assessing these directly instead of relying on race as a proxy. Of course, from a practical standpoint, these issues are moot, as the Supreme Court has deemed race-based peremptories unconstitutional regardless of the accuracy underlying them.

What about affective or motivational processes? Does racial prejudice among attorneys predict race-based peremptory challenge use? To answer this question, we first propose that the race-related stereotypes that influence jury selection are likely not the same stereotypes that psychologists typically associate with racial prejudice, such as those regarding lack of intelligence, morality, or humanity.

Rather, research on juror folklore implies that the influence of race on jury selection often derives from attorneys’ domain-specific beliefs about the tendencies of jurors of different races: Blacks are acquittal prone; racial minority jurors are lenient toward same-race defendants. To our knowledge, however, no studies have examined the link between attorney endorsement of race-related juror stereotypes and peremptory challenge use during jury selection, September 2008 ● American Psychologist

and the precise nature of this relationship remains speculative.

More generally, psychological research has demonstrated that prejudice often leads decision makers to judge less favorably and allocate fewer resources to particular outgroups (for a review, see M. B. Brewer & Brown, 1998).

In contemporary America, such preferences may not be as overt as they were in previous eras (e.g., Dovidio & Gaertner, 1998; Kinder & Sears, 1981), but they are not uncommon. At the same time, affect and attitudes toward outgroup members—like stereotypic beliefs—are not always negative. Laypeople feel greater warmth toward certain racial groups than others (Fiske, Cuddy, Glick, & Xu, 2002), and the perceived acceptability of prejudice also varies by target group (Crandall, Eshelman, & O’Brien, 2002). Indeed, an emerging body of research suggests that outgroup membership can sometimes have positive effects on perceivers’ judgments (e.g., Barden, Maddux, Petty, & Brewer, 2004; Wittenbrink, Judd, & Park, 2001). For example, some Whites process persuasive arguments more systematically when conveyed by a Black source (Petty, Fleming, & White, 1999; White & Harkins, 1994) or about a Black target (Sargent & Bradfield, 2004), findings attributed to motivations to avoid prejudice. In the context of jury selection, however, no research has examined whether such prejudice-related affect or motivation—in either con- scious or nonconscious form—impacts judgments, despite the testability of these relationships.

One could argue that such race-related motivations are unlikely to gain traction in attorneys’ jury selection judgments unless they also facilitate the effort to empanel a favorable jury. As with any walk of life, certainly there are attorneys who harbor animosity toward particular racial groups, but does such sentiment affect peremptory challenge use? Consider, for example, archival data indicating that prosecuting and defense attorneys are often mirror opposites in their use of peremptory challenges (e.g., Turner, Lovell, Young, & Denny, 1986): In cases with Black defendants, prosecutors tend to challenge Black prospective jurors and defense attorneys tend to challenge White prospective jurors. The most parsimonious and intuitive explanation for this finding would not be that prosecutors harbor anti-Black prejudice—and thereby seek to deprive Black citizens of their rights to serve as jurors— whereas defense attorneys hold comparable antipathy toward Whites. More plausible is an account that focuses on stereotypes concerning which jurors are likely to be favorable to each side of the case. To the extent that prejudice does impact peremptory challenge use, it seems likely that these effects are less overt, such as leading attorneys to perceive less rapport with certain jurors during voir dire or predicting a tendency to view outgroup jurors as homogeneous. Of course, these are empirical questions.

In sum, our review of the psychological research has illustrated that race has pervasive effects on judgments across domains. Such influence seems particularly likely to occur in a jury selection process that provides decision makers with a limited amount of individuating information about jurors and actually champions the use of category531

based assumptions. However, researchers have not examined directly the link between attorneys’ race-related juror stereotypes and their jury selection tendencies, nor has research explored the relationship between attorney prejudice and peremptory challenge use. The specific psychological mechanisms by which race impacts jury selection therefore remain uncertain, as does the extent to which such influence is based on conscious versus nonconscious processes.

Identifying the Influence of Race Basic research not only indicates that the influence of race on social judgment is widespread and occurs through multiple processes but also that this influence is difficult to identify in any one instance (see Norton, Sommers, Vandello, & Darley, 2006). Particularly problematic are attempts to assess such influence using self-report data, as courts do in the wake of Batson (1986). One limitation of self-report data is the potential for the effects of race to occur outside conscious awareness, as detailed above. If a decision maker is not aware of the impact of race on a decision, he or she obviously cannot cite race as being an influential factor. Complicating matters further is people’s well-documented tendency to offer compelling explanations for behavior even when they are unaware of the factors that were influential (Nisbett & Wilson, 1977; Shafir, Simonson, & Tversky, 1993). To the extent that race affects judgment in an implicit, nonconscious manner, ef- forts to identify this influence via self-report are at best uninformative and at worst misleading (Page, 2005).

However, even if some attorneys consciously consider race, it is unlikely that their self-reports will capture this influence (Crosby, Bromley, & Saxe, 1980). Laypeople often exhibit motivations to avoid prejudice (e.g., Dovidio & Gaertner, 1998; Dunton & Fazio, 1997; Plant & Devine, 1998; Sommers & Norton, 2006), and many Whites resist admitting that they have even noticed race during social interaction (Norton, Sommers, Apfelbaum, Pura, & Ariely, 2006), much less that race has affected their judgment. Even if most attorneys are not particularly susceptible to such normative concerns in the courtroom, the explicit prohibition in Batson (1986) constitutes an even stronger constraint against admitting to the influence of race. It is therefore highly unlikely that many attorneys will cite race in justifying peremptories, even if they are aware of its influence.

How do decision makers explain judgments without admitting to the influence of race? Research suggests that people are remarkably facile at generating neutral explanations to justify biased judgments (Norton, Vandello, & Darley, 2004). In one series of studies in which race was manipulated, Norton et al. (2004) presented White participants with information about two college applicants, one of whom was Black and one of whom was White. When asked whom they would admit, participants overwhelm- ingly selected the Black applicant, evidencing a desire to appear unbiased. In explaining their decisions, though, participants rarely cited race. Rather, when the Black ap- plicant had a higher grade point average, participants rated

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grades as the most important factor for admission. When the Black applicant had lower grades but more Advanced Placement classes than the White applicant, the number of advanced classes was deemed more important. Norton et al.

(2004; Norton, Sommers, Vandello, & Darley, 2006) suggested that the ease of generating such neutral explanations impedes identification of the influence of race on judgments, a conclusion with legal implications for not only jury selection but also sentencing, employment discrimina- tion cases, and other decisions involving subjective criteria and even a modicum of discretion.

Given these limitations of self-report, psychologists tend to rely on other means of assessing the influence of race. One option is to examine judgment across scenarios.

In jury selection, one could examine the racial composition of an attorney’s previous juries. Admittedly, though, courts often focus on the narrower question of, Is there evidence of racial bias in this particular case? (see McCleskey v.

Kemp, 1987; Swain, 1965). Another strategy is to present multiple individuals with the same scenario in which the race of the principals is varied (e.g., Norton et al., 2004; Sommers & Ellsworth, 2000). Such manipulation cannot be used during actual voir dire, but as Miller-El (2005) suggests, disparate treatment by race can be deduced from inconsistencies in peremptory challenge use. Psychologists have also begun to turn in greater numbers to subtle, nonreactive measures of decision makers’ racial attitudes (e.g., Fazio, Jackson, Dunton, & Williams, 1995), as well as assessment of implicit attitudes (e.g., Greenwald, Nosek, & Banaji, 2003). However, these are measures with which courts remain largely unfamiliar and uncomfortable (Krieger, 2004) and about which psychologists continue to debate (e.g., Banaji, Nosek, & Greenwald, 2004; Karpinski & Hilton, 2001). In sum, whereas psychologists use a multitude of methods to examine the effects of race—some of which could be used in the courtroom, some of which are less feasible for such use—the legal system relies exclusively on self-report, a problematic strategy given the unreliability and inaccuracy of such reports.

Investigations of Race and Peremptory Use Archival Data To this point, our review suggests two conclusions: (a) A prospective juror’s race likely influences peremptory challenge use in many instances and (b) this influence is unlikely to be captured via self-report measures. Archival analyses support both propositions. First, Rose (1999) observed jury selection for 13 trials in North Carolina, all but one of which involved a Black defendant. Overall, Black prospective jurors were no more likely than White prospective jurors to be challenged, but, as alluded to above, race had different effects on prosecution and defense attorneys: Although 71% of Black juror challenges were made by prosecutors, 81% of White juror challenges were made by the defense. This asymmetry implies an expectation that White jurors are more pro-prosecution or at least are relatively less sympathetic to Black defendants than are Black

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jurors. Similar findings have been reported for post-Batson jury selections in other jurisdictions (Baldus et al., 2001; McGonigle, Becka, LaFleur, & Wyatt, 2005).

Second, archival data also indicate that regardless of its actual influence on jury selection judgments, attorneys are unlikely to cite race when asked to justify peremptory use. Even before Batson (1986), in interviews at a federal district court in Illinois regarding more than 100 peremptories, attorneys provided a race-related explanation for only 8 peremptory challenges (Diamond, Ellis, & Schmidt, 1997). Of course, it is possible that race actually did not influence the vast majority of these judgments. But more recently, Melilli (1996) examined close to 3,000 instances in which attorneys alleged that their counterpart’s peremptory challenge use violated Batson; most involved a prosecutor removing a Black prospective juror. On only 55 occasions—just 1.8% of the time— did an attorney forced to justify a peremptory challenge admit that race had been influential.

Just as noteworthy is that the vast majority of attorneys’ race-neutral justifications are accepted by judges as legitimate. Melilli (1996) reported that attorneys required to justify a peremptory challenge successfully convinced the trial judge that the challenge was legitimate more than 80% of the time, whereas Raphael and Ungvarsky (1993) offered the similar conclusion that “only a small percentage of the neutral explanations for peremptory strikes were rejected” (p. 235). Thus, attorneys appear capable of generating a wide array of neutral justifications for race- based peremptory challenges—including age, marital sta- tus, occupation, socioeconomic status, previous involve- ment with the criminal justice system, jury experience, and demeanor—leaving judges with little choice but to accept their explanations (Raphael & Ungvarsky, 1993). Taken together, these analyses of real cases support the conclusion that race-related juror stereotypes are likely influential during jury selection, even while attorney self-reports suggest otherwise.

Experimental Studies Although archival analyses converge on findings consistent with psychological theory, they do not offer definitive conclusions regarding race and peremptory use. As courts have been quick to point out, correlational studies cannot provide conclusive evidence of causality (e.g., McCleskey v. Kemp, 1987). Furthermore, archival analyses cannot rule out the possibility—as improbable as it may be—that in each one of the instances when attorneys failed to cite race as being influential, they did so because the judgments were truly race neutral. A skeptic could assert that juror race simply happened to be confounded with the nonracial factors that were actually influential in these instances. Only through an experimental design can researchers ad- dress claims such as this one by testing simultaneously the influence of race on jury selection judgments and the relative unlikelihood that attorney self-reports will provide evidence of this influence.

We conducted such an experimental investigation using three participant samples: college students, law stu-

dents, and trial attorneys (Sommers & Norton, 2007). Participants were presented with a criminal trial summary with a Black defendant and instructed to assume the role of prosecutor. They were told that they had one peremptory challenge remaining and were asked which of two prospective jurors they would challenge. The two jurors exhibited different characteristics that pretesting indicated would concern the prosecution: Juror A was a journalist who had written about police misconduct; Juror B had little background in science or math and stated that he believed people often manipulate statistics such as those used to evaluate the results of forensic lab analysis. We varied the race of the prospective jurors such that in one condition, photographs revealed Juror A to be Black and Juror B to be White, whereas in the other condition, Juror A was White and Juror B was Black.

As expected, prospective jurors were significantly more likely to be challenged when Black than when White.

This difference was evident across all three samples and was strongest among our sample of attorneys. We also asked participants to justify their decision to the judge, and we coded these open-ended responses. As predicted, very few participants cited race as a factor. That is, self-report measures did not reflect the significant influence of race on peremptory challenge use. Instead, consistent with the predictions of Norton et al. (2004; Norton, Sommers, Vandello, & Darley, 2006), participants focused their justifications on race-neutral characteristics that bolstered their decision. When Juror A was Black, participants were likely to cite as their chief influence his familiarity with police misconduct. When Juror B was Black, participants were likely to identify his skepticism about statistics as their primary concern. These differences emerged even though the content of the juror profiles was constant across conditions. Thus, even though participants were more likely to challenge Black prospective jurors, their explanations for this tendency were both plausible and race neutral.

In an extension of these findings, gender—another social category that is both salient and prohibited from influencing jury selection (J. E. B. v. Alabama, 1994)— had similar effects. In response to a trial summary with a female defendant, participants were more likely to chal- lenge a female juror than a male juror, although these decisions were typically justified in gender-neutral terms (Norton, Sommers, & Brauner, 2007). More troublingly, instructions emphasizing the prohibition against consider- ing gender did not ameliorate the effect, suggesting that reminding attorneys of restrictions on peremptory chal- lenge use would not curtail the impact of proscribed cate- gory information. In addition, judgments in this study were not predicted by participants’ gender-related ideologies or scores on measures of sexism, providing support for the conclusion that jury selection judgments are driven more by beliefs about juror tendencies than by attorney preju- dice.

Taken together, recent experimental data demonstrate the influence of race on jury selection judgments as well as the limitations of self-report measures for capturing this influence. However, these findings are few in number, 533

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leaving unexamined a range of empirical questions. As mentioned above, to the extent that race-based peremptories are driven by juror stereotypes, what is the exact nature of these beliefs? In a trial with a White defendant, would prosecutors continue to avoid Black jurors or would they actually show a preference for non-White jurors? Are expectations related to race and gender unique to these social categories or indicative of a more general stereotype that jurors are lenient toward fellow ingroup members? Furthermore, how often do race-based challenges occur during jury selection relative to peremptories based on more general concerns about impartiality? These are all issues worthy of future examination.

Policy Questions Evaluating Current Procedures The Batson (1986) ruling led to current practices designed to prevent the influence of race on peremptory use: When a reasonable argument is made that an opposing attorney has based a challenge on race, that attorney must convince the judge otherwise. Our review suggests that it is naive to believe that this procedure is sufficient to identify and prevent race-based peremptories. It is far too easy to generate plausible, race-neutral justifications that leave judges no choice but to accept them (Raphael & Ungvarsky, 1993).

Consider some of the successful justifications cata- logued

by Melilli (1996). On 28 occasions, attorneys per- suaded a judge that a peremptory challenge was based on a juror’s experience as a crime victim; in 15 cases, attorneys cited that a juror had never been a crime victim. Prospec- tive jurors were dismissed for being too eager to serve as well as too eager to avoid jury service, for being childless as well as for having children, for timidity as well as for assertiveness. On its own, any one of these justifications would be reasonable; viewed in the aggregate, they demonstrate that the range of available justifications is so broad as to render compliance with Batson almost a formality.

One of the only meaningful uses for these self-reported justifications may be thorough scrutiny of the explanation for each peremptory. The Miller-El (2005) opinion provides an example of such careful analysis for the questioning of Billy Jean Fields, a Black prospective juror challenged by the prosecution. Fields expressed support for capital punishment, explaining that he believes the government acts on God’s behalf when carrying out the death penalty. When asked to justify his challenge of Fields, the prosecutor voiced concern about the prospective juror’s religious attitudes and death penalty beliefs, and, in particular, “the comment that any person could be rehabilitated if they find God” (Miller-El, 2005, p. 240). Not only did this explanation mischaracterize Fields’s statement, but it was also inconsistent with the fact that several Whites who were not challenged revealed precisely this type of ambivalent attitude toward capital punishment and rehabilitation.

But even if time and resources permitted such parsing of voir dire in every trial, the overall utility of this strategy is unclear. Not all explanations permit the type of analysis carried out in Miller-El (2005). What if the prosecutor had

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claimed that he excluded Fields because of poor eye contact? Moreover, Justice Clarence Thomas’s dissenting opinion raises the possibility that the challenge of Mr. Fields was more ambiguous than appears at first. Using other excerpts from the same voir dire, Thomas argued that Fields was, in many respects, an undesirable juror. Thomas also referred to other factors—such as the point during the voir dire at which each juror was questioned—as race- neutral considerations that could have been influential. If the Miller-El opinions offer a firm conclusion, it may be that peremptories are based on such subjective criteria that it is almost impossible to pin down the factors that influ- ence any one challenge.

In sum, theoretical and empirical analyses suggest that the peremptory challenge is a practice ripe with the potential for the influence of race. Stereotypes based on a wide range of juror characteristics guide peremptory challenge use, and there is no reason to believe that race is an exception. Indeed, the peremptory challenge, by its inherently discretionary nature, is precisely the type of judgment most likely to be biased by race. This conclusion is problematic from a constitutional perspective, but it has other repercussions as well. For one, racially imbalanced juries undermine confidence in system legitimacy (Ellis & Diamond, 2003; Hans & Vidmar, 1982): It is difficult to imagine Black defendants in Talladega County in 1965 or in Jefferson Parish today having faith that they will be tried by a jury of their peers. Furthermore, research on group processes suggests that heterogeneity predicts performance benefits on tasks such as those required of juries (Hoffman & Maier, 1961; Phillips, Mannix, Neale, & Gruenfeld, 2004; Sommers, 2006). That racially homogeneous juries sometimes demonstrate less optimal decision-making processes than do heterogeneous juries is yet another potential downside to race-based peremptories.

Considering the Future What, then, is to be done about racial discrimination during jury selection? What will be the fate of the peremptory challenge? Some have joined Thurgood Marshall’s call for its elimination, arguing that the practice is irreconcilable with the effort to prevent disparate treatment by race (e.g., Broderick, 1992; Marder, 1995; Melilli, 1996; Miller-El, 2005, Breyer’s concurring opinion, p. 264). Would the elimination— or at least a reduction in number— of peremptories curb the influence of race on jury selection? At first blush, the extensive literature on race and social judgment suggests an affirmative answer. The discretionary nature of peremptories renders them susceptible to the nonconscious influence of race; peremptories also remain the easiest route by which attorneys can intentionally manipulate jury racial composition. Eliminating or reducing in number peremptory challenges would therefore seem likely to decrease the influence of race on jury selection and increase jury representativeness, a conclusion supported by Baldus et al.’s (2001) mathematical modeling of over 300 murder trials in Philadelphia.

However, the issue is complicated. We have focused our analysis of the peremptory challenge on the influence

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of race because the most frequent, contentious, and psychologically relevant debate on this issue also focuses on race. But although the Supreme Court has placed an emphasis on preventing racial bias and achieving racially representative juries, another overarching objective of jury selection—from the perspective of the system—is the creation of impartial juries. The question of how best to achieve this goal of impartiality is also amenable to psychological investigation, as voir dire is an exercise in applied person perception. But it is clear that the balance between protecting against attorney racial bias and against more general forms of juror bias is delicate, and tipping it too far in the direction of racial concerns risks undermining the pursuit of impartial juries.

Eliminating peremptories would, for example, handcuff litigants who suspect that a prospective juror is not impartial yet are unable to convince the judge of this. That said, we also note that there is scant empirical evidence that attorneys are consistently able to identify biased jurors during voir dire. Moreover, analyses and anecdotes indicate that attorneys typically use their peremptories to target jurors perceived to be unsympathetic to their side of the case, which is not in keeping with the ideal of assembling a truly impartial jury. In many instances, the end result of this process is nevertheless a balanced jury, as both sides will have identified and challenged their least sympathetic jurors. But in other cases, such as when the two attorneys are not equally matched in their ability to weed out unsympathetic jurors, the adversarial nature of the system will not promote impartiality. Allowing but a handful of peremptories per case—according to the Bureau of Justice Statistics (2004), the current state average is just over 12 for each side in a capital trial and over 7 for criminal trials in which the defendant does not face life in prison— could constitute a compromise serving the objectives of both impartial juries and prevention of racial bias.

Another complication is that eliminating peremptories might not end the influence of race on jury selection. First, challenges for cause in some cases— capital murder trials, for example— have the side effect of disproportionately excusing jurors of particular racial groups (e.g., Cowan et al., 1984). Second, attorneys might still be able to use challenges for cause to influence jury racial composition.

Many have suggested that a reduction in number of peremptories must be accompanied by expanded voir dire of individual jurors and loosening of standards for granting challenges for cause (see Council for Court Excellence, District of Columbia Jury Project, 1998; Diamond et al., 1997; Marder, 1995). Without peremptories in their toolbox, attorneys might dig deeper during voir dire questioning of jurors of certain racial groups in the hope of uncovering a basis for a successful challenge for cause. Although for-cause challenges do not present as direct and unregulated a route for race-based exclusion as do peremptories, they still may contribute to the influence of race on jury selection, particularly if judges become less conservative in evaluating them. Experimental, field, and archival methods could be used to assess these possibilities.

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In light of the legal system’s reliance on precedent and tradition, we believe it is unlikely that the peremptory challenge will meet its end anytime in the near future, despite its potential to facilitate the very racial bias the Supreme Court wishes to avoid. Are there modifications to existing procedure that would curb the influence of race?

Psychologists can play an important role in answering this question, and we call on our fellow researchers to consider the ways in which we can contribute to this discussion. In an effort to begin this process, we devote the remainder of this article to applying the general psychological literature on amelioration of racial bias to the specific domain of the courtroom. That is, we identify situational variables and procedures that have been found to moderate the general effects of race on social judgment, and we consider whether their implementation in a jury selection context is feasible.

Given the paucity of existing data regarding judg- ment processes during jury selection, our analysis does not include formal policy recommendations but rather is intended to generate new ideas and identify areas of future investigation.

Consciousness raising. One strategy psychologists have identified to combat the influence of race on judgment is raising consciousness regarding implicit stereotypes (see Blair, 2001; Greenwald & Banaji, 1995). In future studies, psychologists could investigate whether drawing attention to the subtle, automatic effects of race decreases attorneys’ use of race-based peremptories. We wonder, though, whether mere awareness of these issues would be influential in this domain. We have found that an explicit reminder of the prohibition against considering gender does not curtail the effects of gender on mock attorney judgments (Norton et al., 2007). Moreover, we presume that many attorneys intentionally consider race in selecting a jury. Consciousness raising seems unlikely to be effective in an adversarial system with clear incentives for winning and when it comes to stereotypes perceived to be accurate. This conclusion should be tested empirically, but absent more severe sanctions for violating Batson (1986), it is difficult to imagine motivating attorneys to self-correct for the influence of race during jury selection.

Category masking. Another bias reduction strategy entails rendering decision makers blind to a target’s category membership (see Kang & Banaji, 2006).

Research on orchestras, for example, demonstrates that female musicians are more likely to be hired when they audition behind a screen, effectively concealing their gender (Goldin & Rouse, 2000). Regarding jury selection, much of the information obtained during voir dire—legal experiences, demographics, educational and occupational history, attitudes about the case— could be assessed via written questionnaire. Until recently, this procedure has been used almost exclusively in high-profile cases (Diamond et al., 1997), but more extensive use of questionnaires—perhaps even in conjunction with a subsequent, limited, face-to-face voir dire— could allow for category masking during jury selection. Future research could assess the accuracy of such questionnaire data compared with 535

verbal voir dire responses, keeping in mind, of course, that the latter are hardly without limitations of their own.

Increasing available information.

Questionnaires could also generate more diagnostic information on which to base peremptories, as would giving attorneys greater latitude in voir dire questioning. The dubious utility of voir dire for identifying biased jurors derives, in large part, from the brief and superficial nature of the process (Council for Court Excellence, District of Columbia Jury Project, 1998; Kovera et al., 2002). Practical constraints restrict the number of questions posed to each juror, leaving attorneys with little basis for evaluation besides superficial characteristics. Stereotypes are particularly influential in precisely this type of situation, when a decision maker is under time pressure and deprived of individuating information (Kruglanski & Freund, 1983; Sherman, Stroessner, Conrey, & Azam, 2005). Thus, it may be that “the way to reduce the use of these hunches and stereotypes is to provide the attorneys with better information” (Diamond et al., 1997, p. 93) and, perhaps, more time to review it.

Notably, such options stand in stark contrast to recent efforts to streamline jury selection by limiting or even eliminating attorney-directed voir dire (see Babcock, 1975; Diamond et al., 1997).

Prejudgment ratings.

Another possibility identified by psychological research would be to require attorneys to articulate before voir dire the juror characteristics they prefer for their case. Although bias reduction through assessment of prejudgment preferences has met with mixed empirical support (Norton et al., 2004; Uhlmann & Cohen, 2005), in jury selection, it would at least permit more meaningful scrutiny of peremptory challenge use. For example, a prosecutor with a stated goal of finding jurors sympathetic to police would have difficulty justifying the challenge of a Black juror married to a police officer or the failure to challenge a White juror with negative police attitudes. Alternatively, attorneys could rate or rank prospective jurors after reading their questionnaire responses but before a subsequent voir dire. The effects of such procedures could be assessed by researchers, and although they may depart from traditional conceptualizations of the peremptory challenge by requiring attorneys to reveal strategy and articulate stereotypes, Batson (1986) already introduced drastic changes to this landscape 20 years ago. Because attorneys are now asked to justify some peremptories, it does not seem terribly problematic to require them to do so earlier rather than later in the voir dire process.

Affirmative jury selection. Yet an entirely different option would be to shift focus away from efforts to prevent biased peremptory use and to focus instead on promoting the selection of diverse juries. For starters, oversampling of racial minorities for jury duty summonses—as well as other related strategies— could address some of the racial disparities that emerge in jury pool composition before voir dire even begins (e.g., Cohn & Sherwood, 1999). With regard to jury selection itself, precedent exists for affirmative policies designed to ensure racial minority representation on empanelled juries. Into the 19th century,

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in the United States as well as England, defendants from racial or ethnic groups at high risk for juror prejudice were sometimes tried by special “split juries,” on which at least half of the jurors were guaranteed to be from the same minority group as the defendant; as recently as the 1990s, grand juries in Hennepin County, Minnesota, were created so as to be proportionally representative of their surrounding community (see Ellis & Diamond, 2003; Fukurai & Davies, 1997; Ramirez, 1994). Clearly, practices such as these face potential practical as well as legal obstacles, but it is worth bearing in mind that although psychologists have touted category masking as one potential remedy for biased judgments, they have also cited affirmative strategies as an alternative worthy of consideration (e.g., Greenwald & Banaji, 1995; Kang & Banaji, 2006).

Random selection. Of course, a surefire way to prevent race from influencing jury selection would be to adopt a procedure endemic to much psychological research: random selection. Indeed, random juries would be more representative of their communities (Baldus et al., 2001) and, in many instances, would not vary significantly from those produced by voir dire (Johnson & Haney, 1994). Doing away with voir dire is hardly realistic, however. Such a change would prevent any chance of identifying prospective jurors who cannot remain impartial and would strip litigants of any control over who sits on their jury. As such, it is safe to say that random selection remains the province of the research psychologist and is not a feasible strategy in the legal domain.

Conclusions The theory and empirical findings reviewed herein converge on the conclusion that the peremptory challenge, by its very nature, is fertile ground for the influence of race on jury selection. Current safeguards against such influence are untenable: Even when attorneys are aware of the impact of race, they are unlikely to admit it, and even when judges scrutinize peremptory justifications for evidence of discrimination, they are unlikely to find it. The procedures adopted in the wake of Batson (1986) essentially inform attorneys, “Use any stereotypes you like in jury selection, but be sure to ignore race and gender.” Unfortunately, this sounds like the instruction for an experiment on failed thought suppression rather than a directive likely to prevent the impact of race on jury selection. Assuming that the goal of curbing the effect of race on jury selection is not to be abandoned, our review suggests that modifications to current procedures are required.

However, we also propose that the contributions of psychology to this debate should transcend this conclusion.

There remain many aspects of jury selection about which too little is known: If some attorneys make better use of voir dire than do others, what are the situational and per- sonality factors that predict such success? To what extent does confirmation bias affect voir dire? More relevant to our focus on race, what is the precise nature of stereotypes regarding juror race? Do attorneys’ assumptions reflect specific beliefs about jurors of different races or more general expectations regarding ingroup leniency? To what

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extent is race influential through nonconscious processes as opposed to intentional trial strategy? Empirical answers to these and other questions would illuminate the processes underlying jury selection, impact the development of policy recommendations, and deepen the understanding of how race impacts person perception and social judgment in the real world.

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Babcock, B. A. (1993). A place in the palladium: Women’s rights and jury service. University of Cincinnati Law Review, 61, 1139 –1180.

Baldus, D. C., Woodworth, G. G., Zuckerman, D., Weiner, N. A., & Broffitt, B. (2001). The use of peremptory challenges in capital murder trials: A legal and empirical analysis. University of Pennsylvania Journal of Constitutional Law, 3, 3–169.

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Blackstrikes A Study of the Racially Disparate Use of Peremptory Challenges by the Caddo Parish District Attorney’s office

Ursula Noye Blackstrikes Fellow Reprieve Australia August 2015

Blackstrikes1: A Study of the Racially Disparate Use of Peremptory Challenges by the Caddo Parish District Attorney’s office Abstract While selecting juries in criminal trials the prosecutor may use a limited number of discretionary “peremptory challenges” to strike prospective jurors from the panel. Data was collected from more than 300 felony jury trials prosecuted by the Caddo Parish District Attorney’s office, Louisiana between 2003 and 2012. The rate at which prosecutors used their challenges to strike jurors was examined against the race of the jurors struck or accepted. Prosecutors chose to strike black prospective jurors at three times the rate of not blacks, a finding which is statistically significant.

Background In 2007, in State v. Coleman2, the Louisiana Supreme Court held that prosecutors from the Caddo Parish District Attorney’s office had violated the Equal Protection Clause of the Constitution by striking a black prospective juror on account of his race: “the prosecutor clearly and unmistakably indicated that the decision to strike Miller was motivated by this prospective juror's race”(Coleman at 516).

Caddo has a very racialized history. It is home to the last capital of the confederacy and was at one time home to the highest number of extra‐judicial killings of black residents ‐ lynchings ‐ in the South. Until November 2011, the national confederate flag flew at the entrance to the Caddo District Courthouse.

Against this backdrop, this study was designed to identify and document the disproportionate rate at which prosecutors from the Caddo Parish District Attorney’s office strike black prospective jurors and not black prospective jurors and the effect of this pattern on the makeup of juries in Caddo parish.3

Mechanics of jury selection The mechanics of jury selection can be categorized into four stages ‐ eligibility, summons, qualification and selection – which are summarized below.

1

The term “Black Strikes” describes the use by prosecutors of peremptory challenges to strike black prospective jurors from service at a greater rate than they strike not blacks. It is a play on the phrase “back strikes”, a legitimate use of peremptory challenges during jury selection used to control the overall make up of the jury panel.

2

2006‐0518 (La. 11/02/07); 970 So. 2d 511

3

The original Blackstrikes study was conducted in 2004 and documented the racially disproportionate use of peremptory challenges by prosecutors in Jefferson Parish, Louisiana. See the report at http://www.blackstrikes.com/resources/report/black_strikes_report_september_2003.pdf

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1. Eligibility Jury selection begins with the Parish Jury Commission’s creation of a list of the parish who may be eligible for jury service. During the period of this study, the list was compiled using voter registration data supplied by the Secretary of State. This list forms the jury pool from which prospective jurors may be selected.

2. Summons In anticipation of the need for jurors to serve on particular court dates, the Jury Commissioners select a list of names from the pool using a method intended to achieve a random selection. Those persons are then sent a summons to attend for jury service. The volume and frequency of issuing summonses depends on the number of jury trials – criminal and civil – that are listed before the court. Caddo Parish issues between 500 and 600 summonses for up to 6 trials scheduled for a two‐week trial period.

A jury summons is accompanied by a short juror questionnaire that contains a section in which the recipient may request to be excused from service or answer questions that indicate that he or she is not qualified to serve.

Venirepersons, upon return of their questionnaire and assuming they are not disqualified from service, are assigned to a date upon which they are to attend court for jury service 3. Qualification Once at court, groups of venirepersons will be sent to particular courtrooms to participate in jury selection for individual cases. The jury coordinator selects this smaller group from the available venirepersons using a method intended to achieve a random selection.

Once at court, jurors participate in voir dire, a process by which the judge, prosecutor and defense counsel each ask questions to determine: whether each venireperson is qualified to serve as juror under Louisiana law; whether there exists any legal reason why the venireperson should be excluded from service on that particular jury based upon a challenge for cause; and, whether either party might wish to exercise a peremptory challenge to exclude the venireperson from service on that particular jury.

During or at the completion of voir dire of a group of venirepersons the court on its own motion or at the urging of one of the parties may exclude a juror for good cause or as a result of the particular hardship that jury service at that time may cause the venireperson. The most common reasons to challenge for cause are because the prospective juror could not be impartial or would not be willing to consider the evidence or render a verdict in the manner the law prescribes.4 Jurors who are not excluded by the court for hardship or good cause form the qualified venire from which the final jury is selected.

4

La. C. Crim. P. Art. 797, 798

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In Louisiana juries are be made up of twelve persons in capital cases and in cases in which the penalty is necessarily hard labor and six persons in cases in which the punishment may be hard labor or confinement without hard labor for more than six months.

4. Selection The names of the venirepersons who form the qualified petit jury venire are then tendered to the defense and prosecution for selection of the jury that will serve in the case.

Each party has the right to exercise a limited number of peremptory challenges to exclude otherwise qualified jurors from service in that trial without the need to show a legal cause for the exclusion. Each side has twelve peremptory challenges in a case with a twelve person jury or six peremptory challenges in a case with a six person jury. 5 In Caddo Parish, the prosecution and defense attorneys simultaneously submit “strike sheets” to the judge listing the jurors against whom they exercise their peremptory challenges.

No reason is given for the exercise of the challenge; the juror is simply dismissed from the panel. This process occurs without the participation of the prospective jurors and they are not advised of whose decision it was to remove them from the panel.

The process continues until both the State and the Defense have accepted a complete jury or run out of peremptory challenges and frequently requires several rounds of peremptory challenges. Even where both parties initially accepted a venire person, at any time before the full jury is assembled and sworn, a party may still exercise a peremptory challenge against that venire person. This process is known as “back striking” and is intended to allow attorneys to make the decision to peremptorily challenge an individual juror in the light of the balance of the whole jury.

The court will then usually undertake a similar process to select alternate jurors, who will sit through the trial and take part in the verdict in the event that a juror becomes unavailable during the trial. The court will often grant the State and the Defense a single peremptory challenge per alternate juror to assist in the selection process.

While ordinarily no reason need be given for the exercise of a peremptory challenge, a peremptory challenge cannot be motivated by the race or gender of the venireperson. As no reason is given for the peremptory challenge this prohibition is particularly difficult to enforce. However, where a pattern of racially (or gender) disproportionate challenges or some other evidence is offered to make out a prima facie case that challenges are being made based on race (or gender) then reasons must be offered. The reasons offered must be race neutral but need not be persuasive or show good cause for having exercised the challenge. The judge must then decide whether it has been proven by a preponderance of the evidence that the peremptory challenge was motivated by the race (or gender) of the venireperson.

5

La. C. Crim. P. Art. 799

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The process of attacking a peremptory challenge on the basis of race is known as a Batson challenge, referring the United States Supreme Court case of Batson v. Kentucky, 476 U.S. 79 (1986).

Gathering the data To commence the study, the criminal Clerk’s Office was approached to provide a list of all criminal jury trials held between January 2003 and December 2012. The Office provided a list of 476 trials identified by case number and sometimes also by the defendant’s last name.

The record for all trials were not able to be examined as the files were either sealed6 or unable to be located and/or accessed by the Clerk’s Office. Some additional trial records did not provide sufficient data for analysis as jury selection was not complete due to the defendant pleading guilty or the court declaring a mistrial during jury selection. A further group of trial records could not be used in the study because the information identifying either the prospective juror or selection outcome was unclear or incomplete.

Ultimately, data from 332 trials and the selection outcomes for over 8,000 otherwise qualified prospective jurors were included in this study.

The court records for the cases, along with the voter registration roll, were examined to extract relevant data including: the name, race, gender and selection outcome7 for each prospective juror; the name, race and gender of the defendant; jury pool date, trial date and trial outcome; and the names of the judge, prosecutors(s) and defense attorney(s). Specifically, prospective juror information was gathered as follows: 

the name of each prospective juror using official minute entries from jury selection, voir dire transcripts, official jury selection charts prepared by minute clerks, other juror lists included in the trial record;



the race and gender of each prospective juror using sources in the trial record including minute entries, voir dire transcripts and jury selection charts, compared with publicly available data in the Secretary of State’s voter registration list; and



the selection outcome using the minute entries from jury selection, voir dire transcripts, the trial court’s official jury charts, and peremptory challenge forms submitted by each attorney.

Defendant information was gathered as follows: 

6

the name of the defendant(s) using official minute entries, bill of information/indictment and voir dire transcript; and

The clerk’s office advised that 65 records were sealed as they concerned sex offenses and contained victim information.

7

The jury selection outcome describes whether a qualified prospective juror was accepted to serve or struck peremptorily by either side and if struck, which party exercised the peremptory strike.

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

the race and gender of the defendant(s) using official minute entries.

Trial information was gathered as follows: 

the names of the judge and State and Defense attorneys using the official minute entries from the jury pool date and jury selection charts;



the jury pool date from the official minute entries, voir dire transcript and jury selection charts;



the trial date from the official minute entries and voir dire transcript; and



the trial outcome from the official minute entries, verdict sheet and voir dire transcript.

The raw data was almost exclusively accessed on location in the parish courthouse. Caddo Parish court records were largely available and complete and the record of jury selection consistently entered.

Official minute entries in some cases were accessed from the Clerk of Court’s online portal but most were obtained by reviewing the files and requesting hard copies of relevant court documents selected from the file.

Coding the data Race categories Race categories for prospective jurors and defendants that were used by the Clerk’s Office and the Secretary of State have been adopted by this study. They include: 

Black (B),



White (W),



Hispanic (H),



American Indian (AI),



Indian (I), and



Other (O).

For the purposes of analysis, race categories have been aggregated into two groups: Black (B) and Not Black (W, H, AI, I and O), as this study inquires only into whether District Attorneys are more likely to strike Black prospective jurors than Not Black prospective jurors.

Jury selection categories

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Selection outcomes of qualified jurors were coded as follows:8 

those peremptorily struck by the State (SP),



those peremptorily struck by both the State and the Defense (PJ)



those peremptorily struck by the Defense (DP)



those accepted by both parties for jury service (J)



those accepted by both parties for service as alternate jurors (A),

These outcomes were grouped into one of two categories: those accepted by the State for service (J, A and DP); and those struck by the State from service (SP and PJ).

This coding reflects the decision making stage for the State’s attorneys: when faced with the possibility of having a particular qualified juror on the jury did they accept that juror or use a peremptory challenge to exclude them?

Results of the Study The dataset The 2010 census recorded the population of Caddo Parish as 47.2% black and an adult black population of 44.2%.

The dataset consists of 332 criminal jury trials held between January 2003 and December 2012.

Of the 332 trials, 277 (83%) involved a black defendant.

Of the juries, 224 were 12 person juries and 108 were 6 person juries.

The juries were distributed across the time period as follows: Year of trial Number of trials

8

2003

25

2004

27

2005

35

2006

43

2007

41

2008

25

2009

38

Selection outcomes for those challenged for cause or unused in selecting the ultimate jury were also recorded.

Page 7 of 11

Year of trial Number of trials 2010

30

2011

40

2012

28

There were 8,318 qualified jurors tendered to the State for peremptory challenge or acceptance. Of the 8,318 tendered jurors, 35% were black and 65% were not black.

Overall pattern of prosecution peremptory challenges The number of jurors accepted or struck by the state is as follows: Race

Accepted 1570 (54%)

Struck 1338 (46%)

Not Black

4580 (85%)

830 (15%)

5410

TOTAL

6150

2168

8318

Black

TOTAL 2908

What this table shows is that when presented with an otherwise qualified black juror, the State exercised its discretion to peremptorily strike that juror 46% of the time. By comparison, when presented with an otherwise qualified juror who was not black, the state exercised its discretion to peremptorily strike the juror 15% of the time.

This disparity is shown in the following chart:

Page 8 of 11

In short, over the course of a ten year period, Caddo parish prosecutors exercised peremptory challenges against black prospective jurors at more than three times the rate at which they exercised peremptory challenges against white prospective jurors.

A statistical analysis of this disparity in strikes rates shows that the difference is extremely statistically significant (p<.0001).9 That is, the chance that the disparity is unrelated to the race of prospective jurors is less than one‐in‐ten thousand.

In 93% of trials, prosecutors struck black prospective jurors at a higher rate than not black jurors. By comparison, prosecutors struck not black prospective jurors at a higher rate than black jurors in 6% of trials. And in 1% of trials, there was no difference in the rate prosecutors struck black and not black prospective jurors.

Individual patterns of prosecution peremptory challenges The size of the data set allowed the identification of strike rates for individual prosecutors. In some cases, more than one prosecutor participated in jury selection and for the purposes of this analysis, jury selection outcomes were attributed to each prosecutor. Data is only reported for those prosecutors who were found to have prosecuted more than 20 trials in the data available for this study.

The results for the individual prosecutors are listed in the table below, in descending order based upon the rate at which they challenged black more than not black prospective jurors:

9

Chi‐Square or Fisher’s Exact Test

Page 9 of 11

Percentage of Black jurors challenged

Percentage of Not Black jurors challenged

Blackstrike Rate

Trials Studied

Barber, Brian H

41%

8%

5.0

22

Brown, Jason

51%

11%

4.5

53

Kervin, Damon

53%

12%

4.4

31

Thompson, Dhu

51%

16%

3.2

49

Hall, Lea

47%

15%

3.2

48

Cox, Dale

38%

14%

2.7

22

Prudhomme, Geya

48%

18%

2.7

30

O'Callaghan, Brady

47%

19%

2.5

47

Langford, Ben

40%

17%

2.4

26

Edwards, William J

43%

21%

2.1

25

Smith, Kodie

37%

19%

2.0

24

Midboe, Sarah

37%

20%

1.8

24

Prosecutor

Racial makeup of juries The study of 332 trials also allowed observations to be made of the racial makeup of criminal juries sitting in Caddo Parish over a ten year period.

Assuming that the race of a prospective juror does not influence jury selection, in Caddo Parish that has a 44.2% black adult population one would expect an average of 5.3 black jurors per twelve person jury. In the 224 such juries included in the study, an average of 3.86 jurors per jury were black.

Again assuming no racial effect in jury selection, one would expect juries with 2 or fewer black members to occur in only 10.1% of trials.10 In Caddo, 22% of trials have 2 or fewer black jurors.

The presence of two or fewer black members of the jury is particularly important in Louisiana which allows majority verdicts upon the vote of ten out of twelve jurors. In theory, a jury with two or fewer black jurors could return a verdict without regard to the votes of the black jurors. Indeed, an historical 10

This estimate was generated by using a Poisson distribution to model expected jury racial makeup given the parishes overall demographic.

Page 10 of 11

case has been made that majority verdicts were introduced in Louisiana in 1898 with the intent of undermining the value of black votes on juries.

Racial makeup of juries and trial outcomes Of the 224 twelve person juries studied, 200 returned a verdict (guilty as charged, guilty of a lesser offense or acquittal). The remaining juries did not return a verdict due to mistrial or a change of plea during the course of the trial.

In this study, the rate of acquittal appears to increase with the number of black jurors. Not one defendant was acquitted in a trial where there were two or fewer black jurors. The acquittal rate in the 49 trials where the number of black jurors was three or more, was 12 %.

In trials with five or more black jurors, defendants are acquitted 19% of the time. This is the average acquittal rate in jury trials in the State of Texas over the last four years. This is also the average number of black jurors (five) that, given Caddo’s adult black population, to be expected in each trial.

Conclusions This data reveals that in 332 trials over a ten year period, when presented with a prospective black juror, prosecutors from the Caddo Parish District Attorney’s Office exercised their discretion to peremptorily strike that black juror 46% of the time. By comparison, when presented with a prospective juror who is not black, prosecutors exercised their discretion 15% of the time.

That is, prosecutors are more than three times as likely to strike black than not black prospective jurors.

A statistical analysis of this disparity shows that the difference is significant. Some individual prosecutors struck black prospective jurors at rates of 4.5 and 5 times the rate they struck those who are not black.

While a disparity in the rate of strikes between prospective jurors who are black and not black may be subject to innocent explanation, the consistently high blackstrikes rate across 332 trials over ten years indicates otherwise. In the absence of evidence to the contrary, the pattern disclosed in this study strongly suggests that race has played a role in the exercise of peremptory challenges by the Caddo Parish District Attorney’s office.

Page 11 of 11

No. 14-8349 ================================================================

In The

Supreme Court of the United States -----------------------------------------------------------------TIMOTHY TYRONE FOSTER, Petitioner, v.

BRUCE CHATMAN, WARDEN, Respondent.

-----------------------------------------------------------------On Writ Of Certiorari To The Superior Court Of Butts County, Georgia -----------------------------------------------------------------BRIEF OF PETITIONER -----------------------------------------------------------------STEPHEN B. BRIGHT* PATRICK MULVANEY PALMER SINGLETON KATHERINE CHAMBLEE SOUTHERN CENTER FOR HUMAN RIGHTS 83 Poplar Street, NW Atlanta, GA 30303 404-688-1202 sbright@schr.org Counsel for Petitioner * Counsel of Record ================================================================ COCKLE LEGAL BRIEFS (800) 225-6964 WWW.COCKLELEGALBRIEFS.COM

i CAPITAL CASE QUESTION PRESENTED Timothy Tyrone Foster, a black defendant, was charged with killing an elderly white woman, Queen Madge White. The prosecutor struck all four black prospective jurors and argued for a death sentence to “deter other people out there in the projects.” At trial and on direct appeal, Georgia’s courts denied Foster’s claim of race discrimination under Batson v. Kentucky, 476 U.S. 79 (1986).

During state habeas corpus proceedings, Foster obtained the prosecution’s notes from jury selection, which were previously withheld. The notes reveal that the prosecution (1) marked the names of the black prospective jurors with a “B” and highlighted them in green on four copies of the venire list; (2) circled the word “BLACK” next to the “Race” question on five juror questionnaires; (3) identified three black prospective jurors as “B#1,” “B#2,” and “B#3”; (4) ranked the black prospective jurors against each other in case “it comes down to having to pick one of the black jurors”; and (5) gave explanations for its strikes that were contradicted by its notes. The Georgia courts again declined to find a Batson viola- tion.

The question presented is this: Did the Georgia courts err in failing to recognize race discrimination under Batson in the extraordinary circumstances of this death penalty case?

ii TABLE OF CONTENTS Page QUESTION PRESENTED...................................

i

TABLE OF CONTENTS ......................................

ii

TABLE OF AUTHORITIES .................................

iv

ORDERS AND OPINIONS BELOW....................

1

STATEMENT OF JURISDICTION .....................

1

RELEVANT CONSTITUTIONAL PROVISIONS

2

STATEMENT OF THE CASE..............................

2

A.

Pretrial Motion Under Batson...................

4

B.

Jury Selection ............................................

4

C.

Trial ...........................................................

9

D.

Post-trial Litigation................................... 11

E.

Habeas Corpus Proceedings ...................... 13

SUMMARY OF THE ARGUMENT...................... 21 ARGUMENT ........................................................ 25 THE PROSECUTION, DISPLAYING A “MIND TO DISCRIMINATE,” OBTAINED AN ALL-WHITE JURY BY STRIKING BLACK PROSPECTIVE JURORS ON THE BASIS OF RACE .................................................25 I.

The Prosecution Exhibited Discriminatory Intent When Evaluating the Prospective Jurors ....................................................26

iii TABLE OF CONTENTS – Continued Page II.

The Prosecution’s Purported Reasons for the Strikes of the Black Prospective Jurors Are Not Credible in Light of the Evidence of Discriminatory Intent and the Prosecution’s Misrepresentations to the Trial Court ....................................................28 A. Marilyn Garrett ......................................30 B. Eddie Hood .............................................40

III.

The State Habeas Court’s Decision Is Not Entitled to Deference ....................................50

CONCLUSION ........................................................53

iv TABLE OF AUTHORITIES Page CASES Addison v. State, 962 N.E.2d 1202 (Ind. 2012) ..........34 Adkins v. Warden, 710 F.3d 1241 (11th Cir. 2013) ..................................................................26, 32 Avery v. Georgia, 345 U.S. 559 (1953) ........................25 Batson v. Kentucky, 476 U.S. 79 (1986) ............. passim Brown v. Kelly, 973 F.2d 116 (2d Cir. 1992) ...............37 Conner v. State, 327 P.3d 503 (Nev. 2014) .................34 Ex parte Travis, 776 So. 2d 874 (Ala. 2000) ...............24 Foster v. State, 374 S.E.2d 188 (Ga. 1988) ...................1 Foster v. State, 525 S.E.2d 78 (Ga. 2000).............10, 13 Gibson v. Head, 646 S.E.2d 257 (Ga. 2007) ...............19 Harris v. Hardy, 680 F.3d 942 (7th Cir. 2012).....30, 37 Hernandez v. New York, 500 U.S. 352 (1991) ............51 Holder v. Welborn, 60 F.3d 383 (7th Cir. 1995) ..........52 J.E.B. v. Alabama, 511 U.S. 127 (1994) .....................39 McGlohon v. State, 492 S.E.2d 715 (Ga. App. 1997) ........................................................................28 Miller-El v. Cockrell, 537 U.S. 322 (2003) ...........21, 27 Miller-El v. Dretke, 545 U.S. 231 (2005) ............ passim Powers v. Ohio, 499 U.S. 400 (1991) ..........................50 Rose v. Mitchell, 443 U.S. 545 (1979) .........................50 Russell v. Acme-Evans Co., 51 F.3d 64 (7th Cir. 1995) ........................................................................29

v

Page

TABLE OF AUTHORITIES – Continued Smith v. Chrysler Corp., 155 F.3d 799 (6th Cir. 1998) ........................................................................28 Snyder v. Louisiana, 552 U.S. 472 (2008) .....25, 29, 52 State v. McFadden, 191 S.W.3d 648 (Mo. 2006).........49 Turner v. Murray, 476 U.S. 28 (1986) ........................49 United States v. Cartlidge, 808 F.2d 1064 (5th Cir. 1987) ...........................................................29, 38 United States v. Sherrills, 929 F.2d 393 (8th Cir. 1991) .................................................................37 United States v. United States Gypsum Co., 333 U.S. 364 (1948) ........................................................52 Zant v. Foster, 406 S.E.2d 74 (Ga. 1991) ...................13 STATUTES AND CONSTITUTIONAL PROVISIONS Ga. Code Ann. § 15-12-165 (1985) ................................5 Ga. Code Ann. §§ 50-18-70 to -77 (2002) ....................14 U.S. Const. amend. VI ..................................................2 U.S. Const. amend. XIV ...............................................2 28 U.S.C. § 1257 (2012) ................................................1

1 ORDERS AND OPINIONS BELOW The order of the Supreme Court of Georgia denying Foster’s application for a certificate of probable cause to appeal from the denial of habeas relief is unreported and appears in the Joint Appendix (J.A.) at 246. The order of the Superior Court of Butts County, Georgia, denying habeas relief is unreported and appears at J.A. 172-245. The decision of the Supreme Court of Georgia affirming Foster’s convic- tion and death sentence on direct appeal, Foster v. State, 374 S.E.2d 188 (Ga. 1988), appears at J.A. 14567. The order of the Superior Court of Floyd County, Georgia, denying Foster’s motion for new trial is unreported and appears at J.A. 131-44. The section of the transcript from the Superior Court of Floyd County, Georgia, in which the court denied Foster’s pretrial objection under Batson v. Kentucky, 476 U.S. 79 (1986), appears at J.A. 36-60.

------------------------------------------------------------------

STATEMENT OF JURISDICTION The Superior Court of Butts County, Georgia, denied Foster’s application for habeas corpus relief on December 9, 2013. J.A. 172-245. The Supreme Court of Georgia denied Foster’s application for a certificate of probable cause to appeal on November 3, 2014. J.A. 246. Foster’s petition for a writ of certiorari was filed in this Court on January 30, 2015, and granted on May 26, 2015. This Court has jurisdiction pursuant to 28 U.S.C. § 1257(a) (2012).

------------------------------------------------------------------

2 RELEVANT CONSTITUTIONAL PROVISIONS This case involves the Fourteenth Amendment to the United States Constitution, which provides, in pertinent part: “[N]or shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” It also involves the Sixth Amendment to the United States Constitution, which provides, in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. . . .”

------------------------------------------------------------------

STATEMENT OF THE CASE Timothy Tyrone Foster, an eighteen-year-old African-American, was charged in 1986 with killing Queen Madge White, an elderly white woman, in Rome, Georgia. At Foster’s capital trial the following year, the prosecutors used four of their nine peremptory strikes to remove all four black prospective jurors, resulting in an all-white jury to try this racial- ly charged case. They claimed that the strikes were not based on race, asserting eight to twelve “race- neutral” reasons for each. The lead prosecutor later urged the jury to impose a death sentence to “deter other people out there in the projects.” T.T. 2505.1 1

“J.A.” refers to the Joint Appendix. “T.R.” refers to the clerk’s record from Foster’s 1987 trial. “T.T.” refers to the transcript from Foster’s 1987 trial. “P.T.” with a date in parentheses refers (Continued on following page)

3 Ninety percent of the families living in the local housing projects were black.

Despite maintaining that race was “not a factor” in its jury selection strategy, J.A. 41, the prosecution had focused extensively on the race of prospective jurors in preparing for jury selection. Its notes, which Foster obtained years after the trial and presented in state habeas corpus proceedings, include lists in which the black prospective jurors were marked with a “B” and highlighted in green, notations identifying black prospective jurors as “B#1,” “B#2,” and “B#3,” notations that ranked the black prospective jurors against each other in case the prosecution had to accept a black juror, and a strike list in which the five black panelists qualified to serve were the first five names in the “Definite NOs” column, meaning they were slated for definite strikes. Some of the notes directly contradict the prosecution’s “race-neutral” explanations for its strikes and its representations to the trial court.

to the transcript of a pretrial or post-trial hearing on the specified date. “J.Q.” refers to a juror questionnaire from Foster’s 1987 trial. (The questionnaires comprise two separate volumes of the clerk’s record; they appear in order of juror number.) “H.R.” refers to the clerk’s record from Foster’s habeas corpus case. “H.T.” refers to the transcript and exhibits from Foster’s 2006 habeas corpus hearing.

4 A. Pretrial Motion Under Batson Foster’s defense attorneys expected the prosecution to strike black prospective jurors on the basis of race. Prior to trial, they filed a motion to prevent the practice pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), stating: 1. [Foster] is an indigent eighteen year old black person accused of the capital murder of an elderly white lady, and the State is seeking the death penalty.

2. The District Attorney’s office in this County and his staff have over a long period of time excluded members of the black race from being allowed to serve on juries with a black Defendant and a white victim. . . .

3. It is anticipated that the District Attorney’s office will attempt to continue its long pattern of racial discrimination in the exercise of its peremptory challenges.

J.A. 17-18. At a pretrial hearing, the parties and the court agreed to defer the Batson motion until after the striking of the jury. P.T. 83-85 (Feb. 5, 1987).

B. Jury Selection During the week of April 20, 1987, ninety-five prospective jurors were either questioned by the court

5 or summarily excused.2 Ten of the ninety-five were black.

The court instructed all of the prospective jurors on the panel to fill out questionnaires, T.T. 20-22, and then conducted individually sequestered voir dire, T.T. 182-1322. It gave both parties the opportunity to question each prospective juror about a broad range of issues, including pretrial publicity, religion, occupation, and mitigation. T.T. 182-1322.

After questioning and challenges for cause, fortytwo prospective jurors were designated for the striking of the jury, with the prosecution allotted ten peremptory strikes and the defense twenty, as provided by Georgia law at the time.3 Five of the forty- two were black. However, on the morning of jury selection, Shirley Powell, one of the five black pro- spective jurors, was excused for cause and replaced with a white woman. T.T. 1326-29. That left four black prospective jurors: Eddie Hood, Evelyn Hardge, Mary Turner, and Marilyn Garrett. The prosecution

2

This number does not include those prospective jurors who did not report or those who were never reached by the trial court because their juror numbers on the venire list were higher than 133 – the number of the final panelist questioned by the trial court. T.T. 1310-22.

3 See Ga. Code. Ann. § 15-12-165 (1985) (current version at § 15-12-165 (LexisNexis through 2014 Reg. Sess.)).

6 struck all four to obtain an all-white jury. J.A. 22-31, 38-40.4 After the striking of the jury, the trial court addressed the defense’s Batson objection, stating, “Let’s take care of the black jurors first.” J.A. 37. In response, Stephen Lanier, the district attorney and lead prosecutor, began by explaining that his general approach was to discriminate against women, not black people: “Women have a tendency in a case of this nature where the death penalty is being sought – they have serious reservations, time conflicts or whatever it may be, but that is what I look at when I am trying a death penalty case. . . .” J.A. 42. He later said that “eighty percent” of his strikes were against women and that “three of the four blacks were wom- en.” J.A. 57.

Lanier then addressed Eddie Hood, stating: “He was exactly what I was looking for in terms of the age, between forty and fifty, good employment and married.

The only thing that I was concerned about, and I will state it for the record. He has an eighteen year old son which is about the same year old as the defendant.”

J.A. 44. Even though the age of Hood’s son was “the only thing” he was concerned about, Lanier gave at least eight more reasons for striking 4

The prosecution used nine of its ten peremptory strikes in striking the jury; it had saved its tenth strike for the final juror in the qualified pool, but she was not reached until the selection of alternates. J.A. 31-32.

7 Hood, including that Hood had a son with a misdemeanor conviction from five years earlier, J.A. 44-45, he did not make enough eye contact during voir dire, J.A. 46, and he “asked to be off the jury,” J.A. 45.

Lanier also said Hood might oppose the death penalty because he belonged to the Church of Christ, J.A. 46, although Hood had said he was not opposed to the death penalty and was willing to impose it, T.T. 26970, 274, 278.5 The prosecution had not questioned Hood about any of its purported reasons for striking him.

T.T. 274-78. Lanier then said, “All I have to do is have a race neutral reason, and all of these reasons that I have given the Court are racially neutral.” J.A. 48.

Although Lanier had not yet addressed the other three black prospective jurors, the trial court denied the Batson motion and was prepared to move on to other things: “Well, the Court overrules the motion, and finds that Batson has been met.” J.A. 49. However, Lanier stated that he wanted to “perfect the record” by giving reasons for the other three strikes.

J.A. 49. Referring to his notes at times, he went on to proffer more than thirty reasons for the strikes of

5

Lanier also said that he struck Hood because he had food poisoning during voir dire, J.A. 45-46, his wife worked at Northwest Regional Hospital, J.A. 45, the defense did not ask him enough questions about certain issues, J.A. 47, and his brother was formerly a consultant with law enforcement toward people involved in drugs, J.A. 46.

8 Evelyn Hardge, Mary Turner, and Marilyn Garrett.

J.A. 49-57.

Lanier said that Garrett had the “most potential.” J.A. 55. In a brief filed after trial, he made clear that he considered Garrett to have “the most potential to choose from out of the four remaining blacks in the 42 panel venire.” T.R. 438 (emphasis added). The opportunity to strike Garrett came about, he said, because he had planned to strike another black venire member, Shirley Powell, but she was excused for cause on the morning of jury selection. T.R. 43839. Lanier said that he would have accepted Garrett “except for this one thing, her association and involvement in Head Start,” which “deals with low income, underprivileged children,” and “her age being so close to the defendant.” J.A. 56. Garrett was thirtyfour; Foster was nineteen. J.Q. #86 at 1; T.R. 588. The prosecutors later labeled Garrett a “social worker” with Head Start and said they “wanted to stay away from any social worker.” J.A. 103. But Garrett was not a social worker; she was a teacher’s aide. J.Q. #86 at 2.

Lanier then asserted at least seven other rea- sons for striking Garrett, including that she was a woman, J.A. 57, she appeared nervous, J.A. 55, and she “didn’t ask off ” the jury, J.A. 56 (even though one reason asserted for the strike of Hood was that he “asked to be off the 6 jury,” J.A. 45). As with Hood, the 6

Lanier also said he struck Garrett because she was divorced, J.A. 56; she said “yeah” to the court four times, J.A. 55; the defense did not ask her about certain issues, J.A. 56; and she (Continued on following page)

9 prosecution had not asked Garrett about any of these issues in voir dire. T.T. 952-53.

With respect to the strike of Turner, Lanier gave at least twelve reasons, including that Turner was not candid on her questionnaire and in statements to the court. J.A. 51-54. The prosecution had not asked Turner about any of the supposed inaccuracies in her statements. T.T. 595-98. Lanier also stated that Turner was “hostile to the Court and counsel,” J.A. 52, and confused and hesitant about certain ques- tions, J.A. 53. As for Hardge, Lanier gave at least nine reasons for striking her, including that she was “confused” and “irrational.” J.A. 51. Lanier asserted that all four black prospective jurors were some combination of confused, J.A. 46, incoherent, J.A. 51, hostile, J.A. 52, disrespectful, J.A. 55, and nervous, J.A. 55, and that three of the four did not make sufficient eye contact, J.A. 46, 53, 55. After Lanier stated the reasons for each strike, the trial court promply upheld them and found no Batson violation.

J.A. 51, 55, 58.

C. Trial With an all-white jury selected, the prosecution presented its evidence. White, a retired schoolteacher, T.T. 1603, was killed by strangulation, T.T. 2053, during a burglary of her home in which a large air indicated that she was not familiar with the victim’s neighborhood, but Lanier thought she was, J.A. 55-56.

10 conditioner and other items were taken, T.T. 1675-98.

Foster was arrested after his girlfriend informed the police that he was involved in the crime and had given her several items taken from White’s home. T.T. 171012. Upon interrogation, Foster gave two state- ments in which he acknowledged entering the home and participating in the crime. T.T. 1726-71. He was found guilty on all three counts – murder, burglary, and theft by taking. T.T. 2444-45.

The issue of penalty was sharply contested. There were questions about how many people were involved 7 in the crime and the precise role of Foster, who is intellectually limited.8 The circumstances of Foster’s life also weighed against a death sentence. In addition to his intellectual deficits, Foster was young 7

Defense counsel stated to the jury, “I think a lot of you find it hard to believe that Tim was there alone.” T.T. 2347-48. The prosecution’s investigator later testified in the habeas proceedings: “No one can carry an air conditioner as big as he had that he took out that window to get into that lady’s house, and carried it home. He couldn’t have done it by himself.” H.T. 216. The investigator believed that Foster’s father was involved in the crime. H.T. 216-17.

8

Dr. Douglas Laipple, a psychiatrist, testified at trial that Foster was in the borderline range for intellectual disability. T.T. 2232. Subsequent to trial, Foster presented sufficient evidence of intellectual limitations to warrant a separate trial to determine whether he was ineligible for the death penalty under Georgia’s law prohibiting the execution of people with intellectual disability. H.R. 132-33. Although Foster had received IQ scores ranging from 58 to 80 throughout his life, the jury found that he failed to meet his burden of proving intellectual disability. See Foster v.

State, 525 S.E.2d 78, 79 (Ga. 2000).

11 and the product of parents who introduced him to drugs at an early age and showed little concern for him. T.T. 2185-86, 2234. When defense counsel met with Foster’s parents to discuss mitigation and the possibility that Foster could receive a death sentence, Foster’s father refused to cooperate, saying he “could always make another child.” H.T. 38.

District Attorney Lanier argued at the penalty phase that the jury should impose a death sentence in part to “deter other people out there in the projects.”

T.T. 2505. At the time, thirty-two of the thirty-four units in the local housing projects were occupied by black families. T.R. 551. The jury sentenced Foster to death. T.T. 2547-51.

D. Post-trial Litigation After the death sentence was imposed, Foster’s counsel renewed their Batson objections in a motion for new trial. T.R. 375-421. They also filed a motion for discovery of the prosecution’s notes from jury selection.

J.A. 61-65. They argued that because “the State use[d] part of its notes to justify its exclusion of black jurors in this case,” the notes “should be availa- ble to this Court and other Courts which examine[ ] the intent of the State.” J.A. 62-63. The trial court denied the motion for discovery. J.A. 66-68.

Lanier filed a response to Foster’s motion for new trial asserting even more reasons for his strikes of the black prospective jurors than he asserted at the Batson hearing. T.R. 424-45. For example, he claimed

12 he had struck Marilyn Garrett in part because her cousin had been arrested on drug charges. T.R. 424; J.A. 105. However, he had stated after the death verdict was returned that he did not learn about Garrett’s cousin until after jury selection. P.T. 8-9 (May 1, 1987).9 At the hearing on Foster’s motion for new trial, Lanier stated that he wanted “to voluntarily take the stand” to provide further explanation of his reasons for the strikes, J.A. 78, but he added, “I just would like, if I take the stand, I would like for defense counsel to be put on notice that I don’t want him to have access to my file,” J.A. 79. After receiving assur- ances from the trial court that the defense could not gain access to his file, Lanier testified. He reiterated several of his reasons, offered new ones, J.A. 79-113, and stated that he struck Garrett because she was a social worker, J.A. 95, 102-03. The trial court later issued a written order denying the motion for new trial and stating that the prosecution did not violate Batson. J.A. 131-44.

Foster appealed his conviction and death sentence to the Georgia Supreme Court, arguing in part that the trial court erred in overruling his Batson objection and denying his motion for discovery of the 9

Although this separately paginated transcript states the date as April 20, 1987, which was the first day of the trial, it also states that it reflects a “hearing held at the bench after the trial of the case and sentencing phase.” The sentencing phase concluded on May 1, 1987. T.T. 2547.

13 prosecution’s notes from jury selection. The Georgia Supreme Court affirmed, holding that the trial court did not err in finding that the strikes were “sufficiently neutral and legitimate.” J.A. 152.10 The court also held that Foster was not entitled to the prosecution’s notes.

J.A. 152.

E. Habeas Corpus Proceedings In 1989, Foster filed a petition for a writ of habeas corpus in the Superior Court of Butts County, Georgia.

H.R. 5-24. The following year, the case was remanded to the Superior Court of Floyd County for a trial on whether Foster was ineligible for the death penalty under Georgia’s intellectual disability exclu- sion. H.R. 132-33. After a Floyd County jury returned a verdict in 1999 finding that Foster did not meet the definition of intellectual disability in the trial court’s instructions,11 the habeas case resumed in Butts County.

10

The Georgia Supreme Court upheld the strike of Marilyn Garrett based on two of the reasons asserted – that she was a social worker, and that her cousin had been arrested on drug charges. J.A. 151. But Garrett was not a social worker, J.Q. #86 at 2, and Lanier did not know about her cousin’s drug issue until after jury selection, P.T. 8-9 (May 1, 1987).

11 See Foster v. State, 525 S.E.2d 78, 79 (Ga. 2000). During the intellectual disability trial proceedings, which included a pretrial appeal to the Georgia Supreme Court, Zant v. Foster, 406 S.E.2d 74 (Ga. 1991), the remainder of Foster’s habeas petition was held in abeyance. J.A. 173.

14 In 2006, Foster’s habeas counsel obtained the prosecution’s jury selection notes from the 1987 capital trial pursuant to a request under the Georgia Open Records Act.12 The notes include the following evidence, which Foster presented at a 2006 habeas hearing in support of his Batson challenge: First, the prosecution’s file includes four different copies of the venire list of prospective jurors with the names of the black prospective jurors marked with a “B” and highlighted in green. J.A. 253-76.13 Each of the four lists includes a key in the top-right corner of the first page indicating that “[Green highlighting] 14 Represents Blacks.” J.A. 253, 259, 265, 271. The following is the first page of one of the four lists, which shows black prospective jurors (9) Eddie Hood, (15) Louise Wilson, (19) Corrie Hines, (22) Evelyn Hardge, and (28) Bobbie Johnson marked with a “B” and highlighted in green:

12

See Ga. Code Ann. §§ 50-18-70 to -77 (2002).

The prosecution’s investigator confirmed that the four lists are “four different versions of the same document, that is, they had different handwritten notations on them.” H.T. 202. The lists were circulated around the district attorney’s office so that various staff members, including “[s]ecretaries, investiga- tors, [and] district attorneys” could make notes on them. H.T. 219; see also H.T. 190-91.

14 The lists also include yellow highlighting for venire members with “prior case” experience. J.A. 253-76.

13

15

J.A. 253.

16 Second, the word “BLACK” next to the “Race” question was circled on the juror questionnaires of five black prospective jurors. J.A. 311, 317, 323, 329, 334. For example:

J.A. 329.

Third, the prosecution identified black prospective jurors Eddie Hood, Louise Wilson, and Corrie Hines as “B#1,” “B#2,” and “B#3,” respectively, in its notes. J.A. 295-97. For example, Eddie Hood was identified as follows:

J.A. 295.

17 Fourth, the notes reveal that the prosecution compared the black prospective jurors against each other in case it had to accept one of them. A note about Evelyn Hardge states, “Might be the [b]est one to put on [j]ury.” J.A. 294. A draft affidavit from the prosecution’s investigator relates his view that “if it comes down to having to pick one of the black jurors, [Marilyn] Garrett, might be okay.” J.A. 345.15 Fifth, the prosecution’s strike lists prioritize the striking of black prospective jurors and contradict the representations made by Lanier to the trial court with regard to his strike of Marilyn Garrett. Lanier claimed in his post-trial pleading that his team “had, in [its] jury notes, listed [Marilyn Garrett] as ques- tionable,” T.R. 438, and only decided to strike her after Shirley Powell was excused for cause, T.R. 439. However, Garrett was included on the prosecution’s list of “Definite NOs,” which was created before Powell, who was also on the list, was excused:

15

The investigator discussed ten black prospective jurors in his draft affidavit. J.A. 343-47. When District Attorney Lanier submitted the final version of the affidavit to the trial court in response to Foster’s motion for new trial, it discussed only three of the ten, and the sentences referring to the race of Garrett and the other black prospective jurors had been deleted. Compare J.A. 343-47 (draft affidavit) with T.R. 555-57 (affidavit filed with trial court).

18

J.A. 301. The first five names on the “Definite NOs” list are the five black prospective jurors who were on the panel when the list was made. The same page includes a “Questionables” list including the names of six white prospective jurors from the final pool, four of whom were struck by Lanier. J.A. 301. The lists of “Definite NOs” and “Questionables” correspond precisely to the strikes Lanier ultimately made.16 16

The prosecution struck the four black prospective jurors on the list of “Definite NOs,” J.A. 22, 23, 26, 29, and the one white prospective juror on the list, Bobbie Grindstaff, when she was called as a possible alternate, J.A. 33. The prosecution struck George McMahon, who was listed second under “Questionables” but with an arrow pointing to the “Definite (Continued on following page)

19 They also are consistent with the three other juror lists from the prosecution’s file in which the jurors to be struck were marked “N” for “No.” J.A. 287-90, 299- 300, 348-49.17 In response to Foster’s evidence at the habeas hearing, Georgia presented affidavits from Lanier and Douglas Pullen, the other prosecutor. J.A. 168-71.

Lanier and Pullen stated that they did not make the marks on the four highlighted venire lists or instruct others to do so, but they did not address the other information from their file. J.A. 168-71.

The state habeas court denied relief. J.A. 192-96.

It explained the Batson framework and stated that it would “reach[ ] step three again on the basis of the new evidence presented in [the state habeas] proceedings.” J.A. 193. It addressed two categories of notes from the prosecution’s file: the highlighted copies of NOs.” J.A. 27, 301. It also struck the prospective jurors listed first (Lou Ella Hobgood), third (Anna Jo Gale), and fifth (Mary Hackett) on the list of “Questionables,” J.A. 22, 23, 27, 301, as well as one prospective juror (James Bevels) from its “Alter- nates” list who was added to the final pool on the morning the jury was struck, J.A. 30, 301.

17

Georgia objected to the admission of any evidence regarding Foster’s Batson claim on the ground that the claim had been raised and addressed on direct appeal. H.R. 1156. However, state law permits habeas petitioners to raise issues previously decided where there is new evidence that was not “reasonably available” at the time of the prior proceeding. Gibson v. Head, 646 S.E.2d 257, 260 (Ga. 2007). The state habeas court over- ruled Georgia’s objection and admitted a certified copy of the documents described above. H.T. 19-20.

20 the venire list and two lists of qualified jurors that identified the race of each prospective juror. J.A. 193.

With respect to the highlighted lists, the court noted that the lists had been circulated to “10 to 12 different individuals” in the office of the district attorney “to help pick a fair jury, especially given that this was a death penalty case.” J.A. 195. The court did not address any of the other lists or notes.

The court expressly relied on the Batson rulings from Foster’s trial and direct appeal. J.A. 193, 196. It stated that “both the trial court and the Georgia Supreme Court conducted lengthy examinations of [Foster’s] initial Batson claims and found no error,” and the highlighted lists and other material in the file did not “override this previous consideration.”

J.A. 193. The court concluded, “[Foster’s] renewed Batson claim is without merit.” J.A. 196.18 Foster filed an application for a certificate of probable cause to appeal in the Georgia Supreme Court, which was denied on November 3, 2014. J.A. 246. This Court granted certiorari on May 26, 2015,

18

Although the state habeas court referenced res judicata because Foster’s Batson claim had been raised and addressed on direct appeal, it made clear that it was conducting a step three analysis under Batson in light of the new evidence and that if Foster had prevailed, he would have overcome any res judicata bar. J.A. 192-96. Thus, the res judicata issue was determined entirely by the constitutional Batson analysis.

21 to evaluate Foster’s claim of race discrimination under Batson.

------------------------------------------------------------------

SUMMARY OF THE ARGUMENT The evidence of racial motive by the prosecution in this racially charged capital case is extensive and undeniable. The prosecutor struck all four black citizens who were in the venire from which the jury was selected. The exclusion of these citizens was not 19 the product of “happenstance,” but the result of the prosecution’s identification of them as black and its determination to keep them off the jury.

The names of the black citizens were marked with a “B” and highlighted in green on four lists of the entire venire that were circulated among staff members in the prosecution’s office. J.A. 253-76; H.T. 190-91, 219. The race of black citizens was circled on the prosecution’s juror questionnaires, J.A. 311, 317, 323, 329, 334, and three black citizens were labeled “B#1,” “B#2,” and “B#3,” J.A. 295-97. The black citizens were compared to each other in case “it comes down to having to pick one of the black jurors.” J.A. 345.

19

See Miller-El v. Dretke, 545 U.S. 231, 240-41 (2005) (describing the prosecution’s disproportionate use of strikes against black prospective jurors and observing that “[h]appenstance is unlikely to produce this disparity”) (quoting Miller-El v. Cockrell, 537 U.S. 322, 342 (2003)).

22 After voir dire and challenges for cause, five black citizens remained in the venire. Their names were the first five of six names on the prosecution’s list of “Definite NOs,” J.A. 301 – prospective jurors who were definitely to be struck – showing that the prosecution’s highest priority was striking black venire members.

One of the five, Shirley Powell, was removed for cause shortly before jury selection. T.T. 1326-29. The prosecution struck the remaining four: Eddie Hood, Evelyn Hardge, Mary Turner, and Mari- lyn Garrett.

J.A. 22-31.

In response to Foster’s objection pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), the prosecutors piled on eight to twelve reasons for each strike.

J.A. 41-57. They even advanced new reasons for the strikes at the hearing on Foster’s motion for new trial, which was six months after jury selection and the verdicts in the case. J.A. 79-115. Some of the reasons were incredible; others were contradicted by the record or the prosecution’s own notes; and many applied to 20 white prospective jurors the prosecution accepted.

For example, District Attorney Lanier said he struck Marilyn Garrett because she was affiliated with Head Start and “her age being so close to the 20

See Miller-El v. Dretke, 545 U.S. at 241 (“If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step.”).

23 defendant.” J.A. 56. Garrett was thirty-four and Foster was nineteen. J.Q. #86 at 1; T.R. 588. The prosecution accepted eight white prospective jurors who were thirty-five or under, including a white man who was just two years older than Foster and served on the jury.

With respect to Head Start, the prosecu- tors labeled Garrett a “social worker,” J.A. 95, and said they “wanted to stay away from any social work- er,” J.A. 102-03. But Garrett was not a social worker; she was a teacher’s aide. J.Q. #86 at 2. The prosecu- tion accepted every white teacher and teacher’s aide in the venire.

The prosecutors said their only concern with Eddie Hood, who was identified as “B#1,” was that he had an eighteen-year-old son. J.A. 44. However, the final jury included two white jurors who had sons in the same age range, as well as the juror noted above who was two years older than Foster. The prosecutors also said one of Hood’s three sons had been convicted of misdemeanor theft – “basically the same thing that this defendant is charged with.” J.A. 45. But it was hardly the same charge. Hood’s son received a suspended sentence for stealing hubcaps from a car in a mall parking lot five years earlier. T.R. 446. Foster was facing the death penalty for murder and other crimes.

At the motion for new trial hearing, the prosecutors changed their main reason for striking Hood, stating that “the bottom line” for the strike was Hood’s affiliation with the Church of Christ. J.A. 11011. Even though Hood said repeatedly that he was

24 not opposed to the death penalty and could impose it, T.T. 269-70, 274, 278, Lanier told the trial court at the Batson hearing that he struck Hood because the church “definitely takes a stand against the death penalty.” J.A. 46. This was contradicted by the prosecution’s notes, which said the church “doesn’t take a stand on [the] Death Penalty,” leaving the issue “for each individual member.” J.A. 302. The notes also said: “NO. NO Black Church.” J.A. 302 (emphasis in original). The prosecutors did not ask Hood if he knew whether his church had a position on the death penalty and, if so, whether he followed it. T.T. 274-78.

Similarly, they did not ask other black citizens about the reasons they gave for striking them, even though in many instances doing so would have established whether their supposed concerns were valid.21 Taken together, the evidence clearly establishes purposeful discrimination by the prosecution in securing an all-white jury that would respond to its plea “to deter other people out there in the projects,” T.T. 2505, by imposing a death sentence on Foster, a black youth from the projects, T.T. 2212.

The Georgia habeas court, which issued the decision under review, failed to consider “all relevant 21

See Miller-El v. Dretke, 545 U.S. at 246 (“ ‘[T]he State’s failure to engage in any meaningful voir dire examination on a subject the State alleges it is concerned about is evidence suggesting that the explanation is a sham and a pretext for discrimination.’ ”) (quoting Ex parte Travis, 776 So. 2d 874, 881 (Ala. 2000)).

25 circumstances” as Batson requires because it relied upon and deferred to the rulings from Foster’s trial and direct appeal proceedings even though those rulings were made without the prosecution’s jury lists and notes. J.A. 192-96. Under a proper Batson analysis, the totality of the evidence establishes a constitutional violation.

------------------------------------------------------------------

ARGUMENT THE PROSECUTION, DISPLAYING A “MIND TO DISCRIMINATE,” OBTAINED AN ALLWHITE JURY BY STRIKING BLACK PROSPECTIVE JURORS ON THE BASIS OF RACE. Because peremptory strikes “constitute a jury selection practice that permits ‘those to discriminate who are of a mind to discriminate,’ ” Batson v. Kentucky, 476 U.S. 79, 96 (1986) (quoting Avery v. Georgia, 345 U.S. 559, 562 (1953)), this Court has established a three-step process for addressing claims of race discrimination in this context. The defendant first must make a prima facie showing of discrimination. Snyder v. Louisiana, 552 U.S. 472, 476 (2008). If that showing is made, the prosecution must offer raceneutral explanations for the strikes in question. Id. at 476-77. Finally, at step three, the court must determine whether the defendant has established purposeful discrimination. Id. at 477. At step three, “all of the circumstances that bear upon the issue of racial animosity must be consulted.” Id. at 478. The Batson issue in this case hinges on step three –

26 whether Foster has established purposeful discrimination in light of all relevant circumstances.

I.

The Prosecution Exhibited Discriminatory Intent When Evaluating the Prospective Jurors.

The prosecution’s venire lists and notes reveal a sharp focus on the race of the prospective jurors and a determination to prevent black citizens from serving on the jury. When combined with the prosecution’s total exclusion of black prospective jurors through peremptory strikes, the notes and records establish that the prosecution was motivated by discriminatory intent.

The names of the black prospective jurors were marked with a “B” and highlighted in green on four separate copies of the list of the entire venire. J.A. 25376.22 This required using a green highlighter to go through each list as evidenced by the differences in the highlighting on the different copies. The race- coded lists were circulated throughout the entire district attorney’s office for the notations of secretar- ies, investigators, and assistant district attorneys,

22

See Adkins v. Warden, 710 F.3d 1241, 1256 (11th Cir. 2013) (“[O]ur conclusion that the state struck Mr. Morris for racial reasons is buttressed as well by the fact that the prosecu- tion explicitly noted the race of every black veniremember (and only black veniremembers) on its jury list in preparation for voir dire. . . .”).

27 H.T. 190-91, 219,23 showing a culture and comfort level with circulating jury lists coded by race throughout the office.24 Beyond the highlighted lists, the race of five black prospective jurors was circled on the prosecu- tion’s juror questionnaires. J.A. 311, 317, 323, 329, 334. The first three black prospective jurors in the pool – Eddie Hood, Louise Wilson, and Corrie Hines – were marked as “B#1,” “B#2,” and “B#3,” with notes about each. J.A. 295-97.

A separate list contained notes on seven black prospective jurors, J.A. 293-94, and included the notation that Evelyn Hardge “[m]ight be the [b]est one to put on [j]ury,” J.A. 294. No white prospective jurors were included on the list. The prosecutor’s investigator expressed the view that “[i]f it comes down to having to pick one of the black jurors, Ms. Garrett, might be okay.” J.A. 345.

However, the prosecution did not accept any black citizens for jury service. All of the black pro- spective jurors were on the “Definite NOs” list – the four who were ultimately struck and Shirley Powell, 23

The highlighted lists were created prior to voir dire, as reflected by the fact that they included information on prospective jurors who did not report to court as well as prospective jurors who were quickly excused for cause. J.A. 253-76.

24 See Miller-El v. Cockrell, 537 U.S. 322, 347 (2003) (relying on “the culture of the District Attorney’s Office” as a factor indicating discrimination).

28 who was excused for cause on the morning of jury selection. J.A. 301. Moreover, the names of the five black prospective jurors were the first five names on the “Definite NOs” list. Only one white person appeared on the “Definite NOs” list – a woman the prosecutors unsuccessfully challenged for cause because they believed she was “definitely against the death penalty.” J.A. 87; T.T. 1152.

Thus, the prosecution’s intention was to strike every black prospective juror, and that took priority over any strikes of white prospective jurors.

II.

The Prosecution’s Purported Reasons for the Strikes of the Black Prospective Jurors Are Not Credible in Light of the Evidence of Discriminatory Intent and the Prosecution’s Misrepresentations to the Trial Court.

The prosecutors piled reason upon reason for their strikes of the black venire members, undermin- ing 25 their credibility in the process. They exaggerated

25

See McGlohon v. State, 492 S.E.2d 715, 717 (Ga. App. 1997) (finding discrimination in jury selection in part because the striking party “proffered a ‘laundry list’ of reasons for almost every strike”); see also Smith v. Chrysler Corp., 155 F.3d 799, 809 (6th Cir. 1998) (observing in an employment discrimination case that an employer’s “strategy of simply tossing out a number of reasons to support its employment action in the hope that one of them will ‘stick’ could easily backfire” if “ ‘the multiple grounds offered . . . are so intertwined, or . . . fishy and (Continued on following page)

29 facts to make the black panelists seem problematic, gave reasons that also applied to white prospective jurors,26 and contradicted themselves and their own notes. They asserted two reasons lifted verbatim from a case in which a Batson challenge was denied.27 They even continued to give new reasons after the trial was 28 over. Significantly, they had not asked questions in voir dire about the reasons they later gave for the strikes.29 Because Batson is not “a mere exercise in suspicious’ ” (quoting Russell v. Acme-Evans Co., 51 F.3d 64, 70 (7th Cir. 1995))).

26 See Miller-El v. Dretke, 545 U.S. 231, 241 (2005) (explaining that if a proffered reason for the strike of a black prospective juror applies just as well to a white prospective juror who was accepted, that is evidence of discrimination); see also Snyder v.

Louisiana, 552 U.S. 472, 483-84 (2008) (comparing a black panelist who was struck with white panelists who were accepted and finding discrimination).

27 Compare T.R. 424 (“[Eddie Hood] avoided eye contact with the prosecutor. As a personal preference, eye contact is highly valued as a jury selection technique.”), with United States v. Cartlidge, 808 F.2d 1064, 1071 (5th Cir. 1987) (“She avoided eye contact with the prosecutor. As a personal preference, eye contact is highly valued as a jury selection technique.”); compare also T.T. 425 (stating that Marilyn Garrett “appeared to have a low income occupation”), with Cartlidge, 808 F.2d at 1071 (stating that a black prospective juror “appeared to have a low income occupation”). Cartlidge was decided four months before Foster’s trial and was cited by Lanier in the trial court. J.A. 117.

28 These reasons “reek[ ] of afterthought.” Miller-El v. Dretke, 545 U.S. at 246.

29 See Miller-El v. Dretke, 545 U.S. at 246 (recognizing that a prosecutor’s failure to ask questions about a purported reason for a strike suggests that the reason is a pretext for discrimina- tion).

30 thinking up any rational basis”30 and a “pretextual reason bears on the plausibility of other reasons given,”31 the prosecutors’ stated reasons are not credible in light of the totality of the circumstances.

A. Marilyn Garrett Marilyn Garrett was a stable, lifelong member of the Floyd County community. She went to grade school and high school in Floyd County in the 1950s and 1960s and was raising her two children there at the time of Foster’s 1987 trial. J.Q. #86 at 1, 3. At thirtyfour years old, she had two jobs – one in manufacturing, which she had held for nine years, and a second as a teacher’s aide, which she had held for three years. J.Q. #86 at 1-2. She attended church every Sunday and sang in the choir. J.Q. #86 at 2, 5. She stated clearly that she was willing to impose the death penalty. T.T. 951.

Lanier represented to the trial court that he had not intended to strike Garrett and decided to strike her only after he learned that he would not need to use a strike on another black prospective juror, Shirley Powell, who was excused for cause on the 30

Miller-El v. Dretke, 545 U.S. at 252.

Harris v. Hardy, 680 F.3d 942, 960 (7th Cir. 2012). As the United States Court of Appeals for the Seventh Circuit observed, “The implausibility of [one] rationale is reinforced by the pretextual significance of the other justifications offered for the strike[.]” Id. at 958.

31

31 morning the jury was struck. T.R. 438-39. The prosecution’s notes reveal that this was not true. Although the prosecution’s investigator thought that if it came down to accepting a black juror, Garrett “might be 32 okay,” Garrett was listed as a “Definite NO,” J.A. 301, and was marked with an “N” for “N[o]” on all three of the prosecution’s other strike lists, J.A. 287- 90, 299300, 348-49. All four lists were made before Powell was excused and correspond precisely to the strikes Lanier 33 ultimately made.

Lanier also provided an elaborate explanation of his purported thought process following the excusal of Powell, none of which was true. He stated initially that Garrett had the “most potential,” J.A. 55, later clarifying in his response to Foster’s motion for new trial that he meant “the most potential to choose from out of the four remaining blacks in the 42 panel venire,” T.R. 438. He claimed that “the State had to choose between [white prospective] Juror [Arlene] Blackmon or Juror Garrett, the only two questionable jurors the State had left on the list.” T.R. 439. He then went on to compare Garrett and Blackmon. T.R. 43941. But again, Garrett was on the “Definite NOs” list, not the “Questionables” list. J.A. 301. Moreover, 32

J.A. 345. In the final version of the affidavit submitted to the trial court, this statement and another statement about Garrett’s strength as a prospective juror relative to other black prospective jurors had been deleted. T.R. 556.

33 See supra note 16 (explaining that the lists correspond with Lanier’s strikes).

32 the “Questionables” list makes clear that the prosecution’s final decisions were between Blackmon and two other white prospective jurors.34 The final decisions had nothing to do with Garrett.

Lanier said that he would have accepted Garrett “except for this one thing, her association and involvement in Head Start,” which “deals with low income, underprivileged children,” and “her age being so close to the defendant.” J.A. 56.35 Garrett was thirtyfour and Foster was nineteen. J.Q. #86 at 1; T.R. 588.36 Lanier accepted eight white prospective jurors who were thirty-five or under, two of whom 37 served on the jury. Don Huffman, one of the two who served, was twenty-one – just two years older than

34

The “Questionables” list states: “Hatch or Blackmon” and “Hackett Blackmon.” J.A. 301. The prosecution ultimately struck Hackett, J.A. 22, and accepted Blackmon and Hatch, J.A. 29, 31.

35 When Lanier said this was the “one thing” that kept him from accepting Garrett, he had already given six other reasons for striking her. J.A. 55-56.

36 See Adkins v. Warden, 710 F.3d 1241, 1257 (11th Cir. 2013) (finding the prosecutor’s age explanation pretextual where the struck jurors were not actually close in age to the defen- dant).

37 See J.Q. #4 at 1 (Ratliff, 24); J.Q. #10 at 1 (Nicholson, 35); J.Q. #23 at 1 (Coultas, 36); J.Q. #48 at 1 (Hammond, 26); J.Q. #70 at 1 (Horner, 32); J.Q. #71 at 1 (Fincher, 34); J.Q. #92 at 1 (Floyd, 21); J.Q. #106 at 1 (Huffman, 21). Nicholson, 35, and Huffman, 21, served on the jury. J.A. 34-35. The others were struck by defense counsel.

33 Foster and thirteen years younger than Garrett. J.Q. #106 at 1.

With respect to her involvement with underprivileged children, Garrett worked with Head Start as a teacher’s aide. J.Q. #86 at 2. Lanier claimed to want jurors who were “teachers [and] those associated with teachers” because the victim was a retired school teacher. T.R. 427. Accordingly, he accepted every white teacher and teacher’s aide in the qualified pool, all of whom were women, without asking them any questions about the children with whom they worked.38 Garrett, a teacher’s aide, had the same job in the same school district as Martha Duncan, a white juror Lanier said he accepted because she was a teacher’s aide. T.R. 430. The questionnaires of Garrett and Duncan are practically identical: Garrett [Occupation]: Rome City Schools Head Start – Teachers aide

38

See J.Q. #10 at 2 (Nicholson); J.Q. #18 at 2 (Bing); J.Q. #88 at 2 (Duncan); J.Q. #114 at 2 (Berry); see also T.T. 288-91 (prosecution’s voir dire of Nicholson); T.T. 335-40 (prosecution’s voir dire of Bing); T.T. 961-63 (prosecution’s voir dire of Duncan); T.T. 1346-47 (prosecution’s voir dire of Berry). Nicholson, Bing, and Duncan served on the jury. J.A. 34-35. Berry was in the alternate pool and was struck by the defense. J.A. 33.

34 [Position and duties]: Teachers Aide – help teacher as needed with 20 children J.Q. #86 at 2.

Duncan [Occupation]: teacher’s Aide – North Heights [a Rome City School] Kindergarden [sic] [Position and duties]: teacher’s Aide. I help the teacher with the children.

J.Q. #88 at 2. Without any follow-up in voir dire, there was no meaningful way to distinguish between Garrett and Duncan on the basis of their jobs. Yet Garrett was 39 struck, and Duncan served on the jury.

At the motion for new trial hearing, the prosecutors for the first time called Garrett a “social worker,” J.A. 95, 102-03, and said that they “wanted to stay away from any social worker,” J.A. 103. But Garrett was not a social worker. She was a teacher’s aide, just like Duncan.40 Moreover, Duncan had a son Foster’s age – a factor that was supposedly a key reason 39

See Miller-El v. Dretke, 545 U.S. at 241, 246 (holding that the failure to ask questions and the acceptance of similarly situated white panelists are evidence of pretext and discrimination).

40 See Conner v. State, 327 P.3d 503, 510 (Nev. 2014) (“A raceneutral explanation that is belied by the record is evidence of purposeful discrimination.”); Addison v. State, 962 N.E.2d 1202, 1215 (Ind. 2012) (“[M]ischaracterization of [a juror’s] voir dire testimony is troubling and undermines the State’s proffered raceneutral reason for the strike.”).

35 Lanier struck Eddie Hood, J.A. 44, who had been identified as “B#1.”

Lanier made it clear that Garrett’s affiliation with Head Start and her age were the reasons he struck her – not the many other reasons he gave. J.A. 56. Regardless, the other reasons fall far short of showing that the strike was not the product of discriminatory intent.

Both Garrett and Duncan, the other teacher’s aide, answered questions from the trial court by stating that they were not familiar with the neighborhood in North Rome where the victim lived. T.T. 950-51, 959. Lanier said he struck Garrett because he believed she was in fact familiar with the area since she went to high school nearby. Yet he accepted Duncan, who lived in the area. In explaining his strike of Garrett, Lanier said: [Garrett] said she was not familiar with the North Rome area, and unfortunately, in her questionnaire, she grew up – she went to Main Elementary or Main School, which is again two blocks from where this crime happened. She said – and yet she drives by the North Rome area every day from Morton Bend Road when she goes to work.

J.A. 55-56. Remarkably, even though Duncan also said that she lacked familiarity with the neighbor- hood in which the victim lived, T.T. 959, Lanier claimed he accepted her because she lived “less than a half mile from the murder scene and [the school at

36 which she worked was] located less than 250 yards [away],” T.R. 430. Lanier could have asked either juror about their familiarity with the area, but he did not.41 Even though Lanier professed that Garrett had good potential and that he would have accepted her but for her job with Head Start, he described her as showing “complete disrespect for the Court” and being “[n]ot a very strong juror.” J.A. 55. He said: I looked at her, and she would not look at the Court during the voir dire, kept looking at the ground. . . . Her answers were very short, if the Court will recall. . . . Said yeah to the Court on four occasions. Shows a complete disrespect for the Court and its authority. She appeared very shaky, very nervous. Her voice quivered. Not a very strong juror.

J.A. 55. Lanier could not have actually believed those things and still viewed Garrett as a good potential juror whom he almost accepted, as he represented to the trial court. Moreover, Lanier’s representation that Garrett said “yeah” to the trial court is contradicted by the transcript, which shows that she answered “yes” to the trial court’s questions on three occasions

41

If asked, Garrett would have explained – as she did in a post-trial affidavit – that she went to Main High School from 1964 through 1966 because it was the only black school in the county; she was bused there from twenty miles away. T.R. 420.

37 and did not say “yeah” to the trial court a single time.

T.T. 950-52.42 The trial court did not make any findings about Garrett’s demeanor. J.A. 58, 60, 141-43. As a result, Lanier’s assertions are all that support his demeanorbased reasons, and such reasons are susceptible to abuse.43 This is particularly relevant since Lanier claimed to have problems with the demeanor of all four black prospective jurors, whom he described as “bewildered,” J.A. 51, “hostile,” J.A. 52, “defensive,” J.A. 53, “nervous,” J.A. 55, and “impudent,” J.A. 55. He also claimed that three of the four – Garrett, Eddie Hood, and Mary Turner – had problems with eye contact. J.A. 46, 53, 55. With Hood, Lanier lifted his explanation verbatim from a reported case, saying that Hood “avoided eye contact with the prosecutor” and that “as a personal preference, eye contact is 42

This was not a matter of imprecise transcription. The transcript reflects that numerous white prospective jurors answered “yeah” to questions on voir dire. See, e.g., T.T. 960, 970 (Martha Duncan); T.T. 529, 532 (Billy Graves); T.T. 941, 946 (Arlene Blackmon).

43 See, e.g., Harris v. Hardy, 680 F.3d 942, 965 (7th Cir. 2012) (“Demeanor-based explanations for a strike are particular- ly susceptible to serving as pretexts for discrimination.”); Brown v. Kelly, 973 F.2d 116, 121 (2d Cir. 1992) (“[B]ecause such afterthe-fact rationalizations are susceptible to abuse, a prosecutor’s reason for discharge bottomed on demeanor evidence deserves particularly careful scrutiny.”); United States v. Sherrills, 929 F.2d 393, 395 (8th Cir. 1991) (“Determining who is and is not attentive requires subjective judgments that are particularly susceptible to the kind of abuse prohibited by Batson.”).

38 highly valued as a jury selection technique.” T.R. 424.44 Lanier also claimed to be concerned that Garrett “didn’t ask off ” the jury despite her two jobs and two children. J.A. 56. But among the many reasons he gave for striking Eddie Hood (“B#1”) was that Hood “asked to be off the jury” because of his other com- mitments.

J.A. 45. The fact that Lanier used both “ask[ing] off ” and not “ask[ing] off ” as reasons for his strikes of black prospective jurors suggests that the reasons were pretextual.

Adding even more reasons, Lanier mentioned that Garrett was divorced, J.A. 56, but he accepted three of the four white prospective jurors who were divorced.45 He also said he struck Garrett because defense counsel did not ask her any questions about insanity, J.A. 56, but they did,46 or alcohol, J.A. 56, 44

See United States v. Cartlidge, 808 F.2d 1064, 1071 (5th Cir. 1987) (“She avoided eye contact with the prosecutor. As a personal preference, eye contact is highly valued as a jury selection technique.”).

45 The final pool of forty-two prospective jurors included four people other than Garrett who were divorced: Anne Coultas, James Cochran, George McMahon, and Leslie Hatch. J.Q. #23 at 2; J.Q. #33 at 2; J.Q. #45 at 2; J.Q. #107 at 2. Lanier struck McMahon, J.A. 27, and accepted the other three, who were struck by the defense, J.A. 23, 24, 31.

46 Defense counsel asked Garrett, “How do you feel about the use of the insanity defense?” T.T. 955; “[H]ave you ever had any feelings on the insanity defense or thought a lot about it or read anything?” T.T. 955; and “Do you believe in the concept of mental illness?” T.T. 955.

39 but they did.47 He added that defense counsel did not ask Garrett many questions about publicity, but they asked her several questions about publicity and learned that she knew little about the case.48 Lanier also said he struck Garrett because she was a woman, J.A. 56, asserting that he used “eighty 49 percent” of his strikes on women, J.A. 57. Not including alternates, he used six of his nine strikes on women, J.A. 22-31, but even that number is inflated because three of the seven women he struck were the black women. He struck three white women and two white men, J.A. 22-31 – a disparity that pales in comparison to his pattern of strikes against black people. The final jury included five women. J.A. 34- 35.

47

The defense asked, “Have you ever known anyone with a drug or alcohol problem?” T.T. 955; “[H]ave you ever consumed alcoholic beverages?” T.T. 956; and “Are you against the use of alcohol now?” T.T. 956.

48 See T.T. 956-57 (“Q: I believe you said that you only read the Sunday paper of the Rome News Tribune, so you haven’t read a whole lot about this case, have you? A: No. Q: Have you heard anything on the radio? A: Some. Q: What have you heard on the radio about Tim? A: I heard that he was arrested for the crime. Q: What have you heard about Ms. White on the radio? A: That she was a retired teacher. Q: Have you heard anything in your community about this case? A: No.”).

49 This Court later recognized that “[b]ecause gender and race are overlapping categories, gender can be used as a pretext for racial discrimination.” J.E.B. v. Alabama, 511 U.S. 127, 145 (1994).

40 Even after the trial, Lanier continued to pile on additional reasons for his strike of Garrett, asserting that she “appeared to have a low income occupation.”

T.R. 425. But Garrett worked two jobs, J.Q. #86 at 2, one of which was the same job as white juror Martha Duncan, as explained above. Lanier also stated in the post-trial proceedings that he struck Garrett because she said she did not know anyone with a drug problem even though her cousin had been arrested for drug possession. J.A. 105; T.R. 425. But Lanier had said earlier, after the death verdict was returned, that he did not learn about Garrett’s cousin’s drug issue until after jury selection.50 B. Eddie Hood Like Marilyn Garrett, Eddie Hood was a longtime resident of Floyd County. He moved there as a child and had lived there for thirty-nine years. J.Q. #9 at 1. He was married with four adult children, and he had worked in the same job in a pulp mill for seventeen years. J.Q. #9 at 2-3. He also worked parttime painting houses. J.Q. #9 at 5.

The prosecution was fixated on Hood’s race from the outset, noting a “B” beside his name on the venire 50

See P.T. 8-9 (May 1, 1987) (“It has come to our attention since the trial of this case that Angela Garrett whom the Metro Drug Task Force has just arrested for cocaine, who is a teacher at a school and has been subsequently dismissed from school because of the drug problem.”) (emphasis added).

41 list and highlighting him in green, J.A. 253, 259, 265, 271, identifying him as “B#1,” J.A. 295, and circling his race on his juror questionnaire, J.A. 329. It also singled him out in voir dire. The prosecutors encour- aged seven of the first eight prospective jurors they questioned to give acceptable answers about pretrial publicity by prefacing their questions with some variation of this statement: “What we are just looking for is what you know so that you can be a fair and impartial juror and base your verdict solely on what 51 you hear in the courtroom.” T.T. 190. However, they omitted any such preface for Hood, the only black prospective juror in the first eight. T.T. 274-78. They then questioned Hood aggressively about exposure to pretrial publicity despite his consistent responses that he knew little about the case. T.T. 276-77. This type of differential treatment is evidence of discrimi- nation.52 Lanier said that “[t]he only thing that [he] was concerned about” with Hood was that he “has an eighteen year old son which is about the same year old as the defendant.” J.A. 44. However, the final jury included two white jurors who had sons close in age

51

See also T.T. 218-19 (Ratliff); T.T. 244 (Hackett); T.T. 290 (Nicholson); T.T. 314 (Barbogello); T.T. 339 (Bing); T.T. 364 (Evans).

52 See Miller-El v. Dretke, 545 U.S. at 255-56 (recognizing contrasting voir dire questions as evidence of discrimination).

42 to Foster,53 as well as Don Huffman, a white juror who himself was just two years older than Foster.

J.Q. #106 at 1. When Hood was asked if the defendant’s age would be a factor to him in sentencing, he answered, “None whatsoever,” T.T. 280, whereas white juror Billy Graves, who had three teenage sons, said “[p]robably so” in response to the same question, T.T. 527. Yet the prosecution struck Hood and accepted Graves, who served on the jury.

Lanier also said that one of Hood’s three sons had been convicted of theft – “basically the same thing that this defendant is charged with.” J.A. 45. But Hood’s son had been given a suspended sentence for stealing hubcaps from a car in a mall parking lot five years earlier, T.R. 446; Foster was charged with murder and other crimes and was facing the death penalty.

By the time of the motion for new trial hearing, Lanier had changed his main reason for striking Hood, declaring that “the bottom line on Eddie Hood is the Church of Christ affiliation.” J.A. 110-11. Hood had indicated repeatedly that he could impose the death penalty. T.T. 269, 270, 274, 278. Nevertheless, at the initial Batson hearing, Lanier said, “[I]t is my experience that the Church of Christ definitely takes 53

Lanier accepted Martha Duncan, the teacher’s aide, even though she had sons who were twenty and twenty-five. J.Q. #88 at 3. He also accepted Billy Graves, whose sons were thirteen, fifteen, and seventeen. J.Q. #31 at 3.

43 a stand against the death penalty.” J.A. 46. At the motion for new trial hearing, Lanier said that his knowledge of the church came from Douglas Pullen, the assistant prosecutor. J.A. 101. Pullen stated at the hearing that a lay minister from a “majority black” Church of Christ in Columbus had warned him to be cautious with members of his faith, although he had never said that there was “any tenet of [the Church of Christ] that involved the death penalty.”

J.A. 114. Pullen also said that in his experience, members of the Church of Christ usually were disqualified because of their opposition to the death penalty. J.A. 114. Hood had expressed no such opposition.

Pullen’s representation about the church’s position is consistent with the prosecution’s notes, which say under the heading “Church of Christ” that the church “doesn’t take a stand on [the] Death Penalty” and the issue is “left for each individual member,” J.A. 302. But underneath that is written, “NO. NO Black Church.” J.A. 302 (emphasis in original). These notes suggest that the prosecutors did not have a problem with the Church of Christ because it had a position on the death penalty. They had a problem with the Church of Christ because it was a “Black Church.” J.A. 302.

Of course, the prosecutors could have asked Hood if he knew his church’s position on the death penalty and, if so, whether he agreed with it. Their failure to inquire may have been because Hood stated five times during voir dire that he was not opposed to the death

44 penalty and that he could impose it.54 So instead of questioning Hood about his church and its position, the prosecutors simply asserted that he might be opposed to the death penalty, despite all evidence to the 55 contrary, based on his religious affiliation. At the same time, they accepted Arlene Blackmon, who was Catholic, J.Q. #106 at 2, even though they believed that Catholics would have reservations about imposing the death penalty, J.A. 83-86.

To suggest that his concerns about the Church of Christ were justified, Lanier stated repeatedly that three white prospective jurors who were members of the Church of Christ – Vonda Waters, Gertrude Green, and Thelma Terry – had been struck for cause

54

See T.T. 269 (“[Court]: Are you opposed to or against the death penalty? A: I am not opposed to it. Q: If the facts and circumstances warrant the death penalty, are you prepared to vote for the death penalty? A: Yes.”); T.T. 270 (“[Court]: [A]re you prepared to vote for the death penalty? Now you said yes to that.

A: All right. Q: Are you still saying yes? A: Uh-huh.”); T.T. 274 (“[Court]: If the evidence warrants the death penalty, could you vote for the death penalty? A: Yes. I could vote for the death penalty.”); T.T. 278 (“[Pullen]: And if the facts and circumstances warranted, you could vote to impose the death penalty? A: Yes.”).

55 If the prosecution had asked Hood about his church’s view on the death penalty, he would have said the following, as he did in a post-trial affidavit: “To my knowledge, my church does not take a stand against capital punishment. I answered the Court’s questions on my views of capital punishment as honestly as I could, and there is nothing in my religious beliefs that would prevent me from giving the death penalty.” T.R. 421.

45 due to their opposition to the death penalty. J.A. 46.56 This was false. Waters was excused because she was five-and-a-half months pregnant; she was never questioned during voir dire. T.T. 893. Green was excused by joint motion after she said she could vote for the death penalty but could not vote for life imprisonment. T.T. 729-30. Terry was excused because she had already formed an opinion about Foster’s guilt.

T.T. 557-58.

Lanier also said that Hood “appeared to be confused and slow in responding to questions concerning his views on the death penalty.” T.R. 434.

However, as previously noted, Hood was unequivocal in his willingness to impose death. He showed some confusion when answering questions about life imprisonment, T.T. 269-74, but his confusion was no different than that shown by many white members of the panel, including Don Huffman, T.T. 1100-01, who served on the jury, J.A. 35. The trial court acknowledged that its death qualification questions were confusing, stating: “I think these questions should be reworded. I haven’t had a juror yet that understood

56

See also T.R. 435 (“Church of Christ affiliates are reluc- tant to return a verdict of death. This fact is substantiated by Church of Christ jurors Terry (#35), Green (#53) and Waters (#78) being excused for cause due to feeling against the death penalty.”); J.A. 114 (“[T]hree out of four jurors who professed to be members of the Church of Christ, went off for Witherspoon or Witherspoon/Witt reasons.”).

46 what that meant.” T.T. 994.57 In its order on the motion for new trial, the trial court reiterated that Hood’s “particular confusion about the death penalty questions was not unusual.” J.A. 138. In sum, Lanier sought to exploit an ambiguous question that confused virtually all of the jurors to suggest that Hood opposed the death penalty, even though Hood expressed no reservations about imposing it.

Yet another reason offered for the strike of Hood was that he had been hospitalized for food poisoning during voir dire. J.A. 45-46. Because of that, Lanier argued, “I was not sure of his medical – or health capability.” J.A. 46. But on the Friday before the jury was struck, the trial court was told that Hood had recovered and was “out painting” a house. T.T. 1303.

The court responded: “I believe that would qualify him physically to be here Monday at 9:30. If he can paint a house, he can sit in the jury box.” T.T. 1303.58 Lanier also expressed concern that Hood’s wife worked at Northwest Regional Hospital, where she was a supervisor in food services. J.Q. #9 at 2. Lanier said that the hospital “deals a lot with mentally disturbed, mentally ill people. . . . [T]hey intend [sic] to be more sympathetic and are for the underdog.”

57

The trial court made other similar comments throughout voir dire. See, e.g., T.T. 1052, 1101-02.

58 In its order on Foster’s motion for new trial, the trial court observed that Hood “seemed well on the day of jury selection.” T.R. 568.

47 J.A. 45. But Lanier expressed no such concern about Arlene Blackmon, a white woman who had worked at the same hospital in food services and housekeeping and served on the jury. J.Q. #83 at 2; T.T. 939. The prosecution asked Blackmon about her work at the hospital in voir dire, T.T. 939,59 but it did not ask Hood about his wife’s work, T.T. 274-79.

Adding more reasons, Lanier said that he struck Hood because “the defense did not ask him a lot of questions,” such as questions about insanity, the age of the defendant, and pretrial publicity. J.A. 47. But the defense did ask Hood about those subjects, and Hood 60 gave clear answers. Lanier also said that the defense did not ask Hood about his membership in any social or fraternal organizations. J.A. 47. Howev- er, Hood had written on his questionnaire that he did not belong to any social or fraternal organizations, 59

See T.T. 939 (“[Pullen]: I noticed that you had formerly worked at the Regional Hospital. Do you have any particular training, education or interest in psychiatry, psychology or mental health or anything of that nature? A: No, sir. Q: What did you do when you were at the hospital? A: When I first started there, I was in the kitchen, and after that I was in housekeeping.”).

60 See T.T. 280 (“Q: Do you have a feeling about the insanity defense? A: Do I have any opinion about that? I have not formed an opinion on that.”); T.T. 280 (“Q: Is age a factor to you in trying to determine whether or not a defendant should receive a life sentence or a death sentence? A: None whatsoever.”); T.T. 281 (“Q: Okay. The publicity that you have heard, has that publicity affected your ability to sit as a juror in this case and be fair and impartial to the defendant? A: No, it has no effect on me.”).

48 J.Q. #9 at 4, and, as Lanier must have observed, the defense did not ask a single prospective juror about social or fraternal organizations.

Lanier said that it “concerned [him] . . . that [Hood] had a relative who did counsel people involving drugs,” because intoxication was “the primary defense in this case.” J.A. 46. But Hood, when asked if any member of his family was involved in law enforcement, said, “I have a brother who was involved with the law enforcement some years ago as a – sort of a consultant toward people involved in drugs.” T.T. 279. That statement revealed very little about what Hood’s brother actually did, and Hood added, “I don’t know anything about the nature of his work.” T.T. 279.61

By Lanier’s purported criteria, white venire members Martha Duncan, Arlene Blackmon, and Don Huffman were prime candidates for prosecution strikes. Duncan was a teacher’s aide in the Rome City Schools and had a son close in age to Foster. J.Q. #88 at 2-3. Blackmon was Catholic, J.Q. #106 at 2, a religion the prosecutors connected to reservations about the death penalty, J.A. 83-85, 91, and she used 61

Lanier also said he struck Hood because Hood “asked to be off the jury.” J.A. 45. But as explained in the discussion of Garrett, Lanier said he struck Garrett because she “didn’t ask off ” the jury. J.A. 56. In addition, Lanier said that Hood made “no eye contact,” J.A. 46; this issue is discussed in the section on Garrett since Lanier claimed that Garrett, Hood, and Turner all had problems with eye contact.

49 to work at Northwest Regional Hospital, J.Q. #83 at 2. And Huffman was just two years older than Foster, J.Q. #106 at 1, and was confused by the death qualification questions, T.T. 1100-01. Yet all three of those prospective jurors were accepted and served, and Garrett and Hood were struck.

Lanier’s strikes “correlate with no fact as well as they correlate with race.” Miller-El v. Dretke, 545 U.S. 231, 266 (2005). Even if some of the stated reasons, “when examined in isolation, appear to have some validity,” the totality of the circumstances renders it “obvious that these explanations were merely pretext for the State’s exercise of its peremptory strikes for racially discriminatory reasons.” State v. McFadden, 191 S.W.3d 648, 657 (Mo. 2006).

As this Court has recognized, there is a unique opportunity for racial prejudice to operate in a capital case involving an interracial crime “[b]ecause of the range of discretion entrusted to a jury in a capital sentencing hearing.” Turner v. Murray, 476 U.S. 28, 35 (1986). After Lanier struck all four black prospec- tive jurors, he urged the jury to impose a death sentence to “deter other people out there in the pro- jects,” T.T. 2505, which were ninety percent black, T.R. 551. That argument simply would not have been made if the jury was racially diverse. But Lanier ensured that he would have an all-white jury, and Foster, a black youth from the projects, was sentenced to death.

50 Race discrimination in the selection of jurors “offends the dignity of persons and the integrity of the courts.” Powers v. Ohio, 499 U.S. 400, 402 (1991). “A venireperson excluded from jury service because of race suffers a profound personal humiliation heightened by its public character.” Id. at 413-14. In addition, this type of discrimination “casts doubt on the integrity of the judicial process” and places the fairness of a criminal proceeding in doubt. Rose v. Mitchell, 443 U.S. 545, 556 (1979). It is not only unconstitutional but unseemly that black citizens who were called to do their civic duty in this case were thoroughly disrespected by the prosecution and reduced to “B”s and “Definite NOs.” III. The State Habeas Court’s Decision Is Not Entitled to Deference.

The order of the state habeas court does not warrant deference because it relies upon the rulings of the trial court and the Georgia Supreme Court, J.A. 193, 196, even though neither of those courts had considered the prosecution’s venire lists and notes, which made the discrimination in this case abundantly clear. The state habeas court, in conducting its own 62 step three analysis under Batson, failed completely to recognize the racial motivations revealed by the prosecution’s notes, characterizing them as nothing 62

As the court stated, it “reach[ed] step three [of Batson] again on the basis of the new evidence.” J.A. 193.

51 more than the “highlighting of the names of black jurors and the notation of their race” in concluding that they did not “override” the prior rulings. J.A. 193. The state habeas court found nothing wrong with circulating race-coded jury lists to “secretaries, investigators and other assistant district attorneys” – “10 to 12 different individuals.” J.A. 195. It did not evaluate any of the stated reasons in light of the new evidence. It did not address how the strike lists undermine the prosecutors’ credibility. And remarkably, it relied on the affidavit of the prosecution’s investigator as evidence of non-discrimination even though the original draft of the affidavit had ranked the black prospective jurors against each other in case “it comes down to having to pick one of the black jurors.” J.A. 345.

Because the state habeas court deferred to prior decisions that were based on just a fraction of the evidence that was ultimately presented, it failed to give meaningful consideration to “all relevant circumstances” as Batson requires. Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting Batson v. Kentucky, 476 U.S. 79, 96 (1986)).63 63

In addition, the rationale for applying the deferential standard of clear error on Batson issues is not present in this case.

In a typical case, the trial court is best positioned to observe the prosecutors and jurors and evaluate the evidence of discrimination firsthand. See Hernandez v. New York, 500 U.S. 352, 369 (1991) (plurality opinion); id. at 372 (O’Connor, J., joined

by Scalia, J., concurring in judgment). In this case, however, the habeas court was not involved in the selection of (Continued on following page)

52 Even if granted some level of deference, the state habeas court’s decision rejecting Foster’s Batson claim must be reversed. The evidence of race discrim- ination in this case is overwhelming, such that this Court should be “left with the definite and firm conviction that a mistake has been committed.” United States v.

United States Gypsum Co., 333 U.S. 364, 395 (1948); see also Snyder v. Louisiana, 552 U.S. 472, 474 (2008) (reversing conviction pursuant to Batson under the clear error standard).

------------------------------------------------------------------

the jury at trial and considered the Batson claim nineteen years after trial. See Holder v. Welborn, 60 F.3d 383, 388 (7th Cir. 1995) (“[The] rationale given by the Supreme Court for the use of the clearly erroneous standard is inapplicable to the circum- stances in this case, where a magistrate conducted the Batson hearing more than eight years subsequent to the voir dire proceeding.”).

53 CONCLUSION For the foregoing reasons, Petitioner Foster respectfully requests that this Court reverse the decision of the Superior Court of Butts County, Georgia.

Respectfully submitted, STEPHEN B. BRIGHT* PATRICK MULVANEY PALMER SINGLETON KATHERINE CHAMBLEE SOUTHERN CENTER FOR HUMAN RIGHTS 83 Poplar Street, NW Atlanta, GA 30303 404-688-1202 sbright@schr.org Counsel for Petitioner * Counsel of Record

Texas Criminal Defense Lawyers Association

Voir Dire March 10-11, 2022

Topic: Voir Dire Speaker:

Robert Hirschhorn 2300 Highland Village Road Suite 470 Highland Village, TX 75077 (972) 434-5879 Phone (972) 434-0176 Fax rbh@cebjury.com email www.cebjury.com website

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

TCDLA: Voir Dire – March 11,2022

Robert B. Hirschhorn, J.D. Cathy Bennett & Associates Jury & Trial Consultants 2300 Highland Village Road, Suite 470 Highland Village, Texas 75077 (972) 434- 5879 Website: www.cebjury.com Robert’s email: rbh@cebjury.com

Tips for picking a Jury in the Post-Covid Era

TABLE OF CONTENTS I.

ROBERT B. HIRSCHHORN’S BIO ................................................... 1

II.

ARTICLES .................................................................................... 2 1. 81 Criminal Jury Selection Tips ............................................... 2 2. The Good, the Bad and the Ugly of an Effective 30 minute Voir Dire in a Criminal Case .................................................. 12

III.

QUESTIONNAIRES .................................................................... 20 3.

4.

5.

6.

7.

IV.

1 Page Sexual Assault – Contact Questionnaire ................... 20 1 Page DWI (with test) ......................................................... 22 1 Page Murder Self Defense Questionnaire.......................... 24 1 Page Hardship Questionnaire ............................................ 26 1 Page Publicity Questionnaire ............................................ 27

VOIR DIRE QUESTIONS ............................................................. 28 8. Voir Dire Questions – Sexual Assault ................................... 28 9. Voir Dire Questions – DWI ................................................... 41 10.Voir Dire Questions – Zimmerman ....................................... 50 11.Voir Dire Questions – Hardship ............................................ 57 12.Voir Dire Questions – Publicity ............................................ 58

PRELIMINARY QUESTIONNAIRE You have been chosen to serve as a potential juror in the case of United States of America vs. Joel G, Steven M and David R. Each of the defendants have been indicted on various charges including conspiracy and bribery. The defendants assert that they are Not Guilty of all the charges. This case has received a substantial amount of publicity over the course of the last two years and it would not be surprising or improper if you have heard, read, seen or discussed this case.

The purpose of this questionnaire is to assist the Court in determining 3 things: 1. Have you heard or read about this case and if so, 2. Have you formed any opinions on whether any or all of the defendants are guilty of the charges; and, 3. Do you have an extraordinary hardship that would prevent you from serving as a juror in this case. Please answer the questions as thoroughly and as honestly as possible so the Court and the attorneys involved with this case can give full consideration to your answers. If you need additional space for any answer, please write on the back of this questionnaire.

1.

What are your main sources of news [check () all that apply]:  Local newspaper  Internet

2.

 Other newspapers

 Television

 Radio

 Family/friends

 Other:

In the past 2 years, approximately how many times do you remember reading, hearing or seeing any media reports about former State Representative John Doe, any of the defendants listed above or this case?  More than 20 Times

 10 - 20 Times

 6 - 10 Times

 1 -5 Times

 None

3.

Of all the things you have heard, read or seen about any of the defendants or this case, what stands out the most in your mind?

4.

Have you formed any opinions on whether the defendants are guilty of any or all of the charges in this case? G YES G NO If YES, please explain:

5.

6.

__________________________________________________________________________________ Is there any other reason why you could not serve as a totally fair and impartial juror in this case?

G YES G NO If YES, please explain: __________________________________________________________________________________ This trial is expected to last approximately three to four (3-4) weeks. A trial of this length is an extraordinary hardship on virtually every juror. Do you have such a severe or extraordinary hardship that it would be impossible for you to serve as a juror in this case?

G YES G NO

If YES, please explain and provide as much detail as possible:

_________________________________________________________________________________ _________________________________________________________________________________

81 CRIMINAL JURY SELECTION TIPS PREPARING FOR JURY SELECTION 1.

Voir dire begins the day the client walks through your door.

2.

Keep a voir dire notebook. Issues will arise throughout the discovery process that will help you prepare for jury selection.

3.

Every case, like every good book, has a trial theme. The purpose of the trial theme is to grab the jury’s attention like a newspaper uses headlines to grab the readers’ attention.

4.

Use visual aides in voir dire. Examples would be: Explaining the burden of proof, showing who the key witnesses are, showing a diagram of the location in question, showing a sample verdict form, etc.

5.

Trilogies are a Powerful, Permanent and Profound communication tool.

6.

Determine from the Judge the size of the panel in advance of jury selection.

7.

Determine from the Judge or other Court staff how the jurors will be seated in the courtroom and prepare a seating chart.

8.

Once you know how many jurors the Judge intends to call, make 8½” x 11" cards that contain the juror numbers. The jurors can hold the cards up when answering questions during voir dire. Have the cards laminated.

Consider leaving the cards with the Court once the case is over.

9.

In cases where the jury will be assessing the punishment (i.e., Death Penalty case), decide whether you want a Guilt / Innocence or punishment jury. In our view, it is a fatal mistake to try to combine the two because you’ll get the worst of both worlds.

10.

No matter how many cases you have tried, there are no two trials that are exactly alike. Therefore, regardless of your experience in front of a jury, practice your voir dire on laypeople, not your office staff or law partners.

11.

Have someone assist you with jury selection. This person will become your eyes and ears. This will allow you the freedom to truly listen to and have a conversation with the jurors. You will not have to worry about remembering or writing down what the jurors have said, someone will be doing this for you.

2

12.

If a juror questionnaire is used, the lawyer should complete one as well.

This is another way to humanize yourself in front of the jury.

13.

Try to persuade the Judge to deal with challenges for cause at the end of voir dire as opposed to when they arise. It is always more time efficient to do the challenges for cause at the end of voir dire.

14.

If the Judge will not allow the use of a juror questionnaire and intends to place unreasonable time limits on voir dire, prepare a Motion for Additional Time to Conduct Voir dire.

DRESSED FOR SUCCESS 15.

Remember the wise advice we got from our parents: First impressions are lasting impressions; and, You never get a second chance to make a first impression. You and your client are the center of attention and your goal is to make a favorable and lasting first impression on the jury.

16.

Never wear power clothing during voir dire unless you have to give your Opening Statement the same day. Power clothing should be worn when you want the jury to focus their attention on you. Thus, Opening Statements, critical cross examinations and Closing Arguments are the proper time to wear power clothing. During voir dire, warm and friendly colors should be worn.

17.

A trial lawyer should not wear a double-breasted suit. Jurors perceive it as too slick.

Male lawyers should not wear clear polish on their nails. Jurors perceive it as too slick.

18.

19.

Don’t wear: Expensive jewelry, diamonds, pinky rings (or more than one ring on each hand), earrings that dangle, fancy rings, Rolex watches, gold bracelets, etc.

20.

All of the tips stated above apply to your clients, their spouses and your witnesses.

21.

Never have your client wear new shoes. It is a dead giveaway that you’ve told them what to wear.

22.

Research has shown that jurors trust married men who wear wedding bands more than married men who don’t wear wedding bands.

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23.

Tell your clients that they are being observed from the minute they leave their house to the time they get back home. They need to remember to act the same way in the elevator, bathroom and hallways as they do in the courtroom.

JUROR QUESTIONNAIRE 24.

With a simple and straightforward case, your questionnaire should be no longer than 2 or 3 pages. The more complex the issues and the more time you have to review the questionnaires, the longer the questionnaires can be.

25.

Logically organize your questionnaire. The first section should be biographical, the next section should be issue-specific to your case, the third section should be psychological profile questions, and the final section should contain questions to determine any connections jurors have to the parties, lawyers or witnesses and any hardship issues.

26.

At least 10% of the questions should be open-ended, 10% should be scaled, and remaining questions on the questionnaire should be the YES NO variety.

27.

Every YES NO question should have a follow-up question (i.e., why, please explain your answer, please tell us why you feel this way, etc.).

28.

Provide the Court with black ink pens and clipboards for the jurors.

29.

Give the Judge a diskette that contains your juror questionnaire. If the Court has to resolve any disagreement on the questionnaire, many Judges will make the changes right on the disk. It is easier and more time efficient to process and analyze information on a questionnaire that you are accustom to using.

GENERAL VOIR DIRE PRINCIPLES 30.

During voir dire, a lawyer should only have with him/her a seating chart of the jurors and the questions that are going to be asked of the jury.

31.

Use your seating chart to address the jurors by name rather than by juror numbers.

32.

Never do your voir dire from behind a podium or counsel table unless required to do so by the Judge or local rule.

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33.

Don’t flirt with jurors. The other jurors will notice it and punish you and your client for it.

34.

Studies suggest that most people tend to favor (speak to) one side of a room over the other. During voir dire, be sure to speak to jurors on both the left and right sides of the courtroom. This also applies to Opening Statements and Closing Arguments.

35.

Jurors will remember the first and last things they hear and see. This is known as primacy and recency. Therefore, it is critically important that you start and end your voir dire on strong points. This concept also applies to Opening Statements, cross and direct examination of witnesses and Closing Arguments.

BEGINNING YOUR VOIR DIRE 36.

Don’t talk like an attorney, talk like a person.

37.

Begin your voir dire with your trial theme.

38.

Concisely explain your theory of the case in the beginning of voir dire. The theory of the case tells a jury, in a nutshell, why you should win. Reinforce your theory in Opening Statements, examination of witnesses and Closing Arguments.

39.

Before you begin questioning the panel, explain to the jurors that when lawyers refer to bias or prejudice, they mean pre-judgment or strong opinions. Tell the jurors that if they have any pre-judgment or strong opinions about any of the issues, to please let you know.

40.

Let the jury know that many times jurors want to talk privately about an answer to a question. Tell them if any juror would feel more comfortable sharing an answer in private, that person should simply let you know.

41.

Tell the jurors there are no right or wrong answers. All that you are asking is that the jurors be honest and forthright. Never tell the jurors that you are looking for 12 (or 6), “...fair and impartial jurors.” This will condition the jurors to give the fair and impartial response rather than the honest response.

42.

Tell your panel that, “Being a good juror and a good citizen means that if this case is not the right one for you to serve on, just let the lawyers and Judge know.”

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43.

Tell the jurors that it’s been your experience that many jurors believe that if they don’t talk, they won’t be selected. Then tell the jurors that the quickest way to be selected is not to say anything. In other words, jurors who talk, walk. Jurors who have nothing to say, stay!

44.

At some point during the beginning of voir dire, a lawyer should employ an effective communication technique called self-disclosure. If a lawyer wants (and expects) to learn about his/her jurors, those jurors will feel more comfortable if the lawyer reveals something about herself/himself.

THE BODY OF VOIR DIRE 45.

If a lawyer has a habit, trait or any other characteristic that is obvious or noticeable (i.e. stuttering, nervousness, sweating, stumbling over words, loud voice, soft voice, object often, bald, overweight, ponytail, etc.), share that up front with the jury. Ask one or two jurors if this habit, etc., will affect them or cause them any discomfort if they serve on the jury in this case. This will eliminate the distraction and allow the juror to focus on the issues.

46.

Never be condescending or dismissive to a juror.

47.

Your voir dire questions should be short, simple and to the point.

48.

Don’t ask the same question in voir dire that you ask on the questionnaire.

For example, do not ask a juror, “Where do you work?” or “How many children do you have?”, when the juror has shared this information on his/her questionnaire.

49.

Follow up in voir dire on information you obtain from the questionnaire.

50.

Listening is an active skill, not a passive skill. You should focus on the jurors’ answers and not worry about your next question.

If your defense is reasonable doubt, never end your voir dire by talking about the State’s burden of proving their case beyond a reasonable doubt.

Jurors will think you are more interested in winning on a technicality than justice.

51.

52.

Use this as a measuring stick: One open-ended question for every 15 minutes of voir dire. Pick 4 to 6 people to specifically answer the openended question, then go row by row and find out who agrees and who disagrees.

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53.

Another type of question that can be asked very quickly of each juror is called a “scaled question”. An example would be as follows: “I want to ask everyone on the jury panel the following question: in general how reliable do you think eyewitness testimony is- very reliable, reliable, unreliable or very unreliable?” Another example would be: “how likely is it that the police would arrest and charge an innocent person: very likely, likely, unlikely or very unlikely?” Still another example would be, “When you hear that a person is accused of [insert the type of crime], how likely is it that the person is guilty, very likely, likely, unlikely or very unlikely.”

The purpose of the scaled question is that you can ask ever juror to give their answer to the question and it will take very little time. If fact, we would encourage lawyers to write the answers on a flip chart and then ask the potential jurors to tell you which answer reflects their opinion or feeling on the issue. Explain to the jurors that you only have a limited amount of time and as much as you’d like to know the reason for their opinion, you simply don’t have the time, so if the jurors would please tell you which answer, you can quickly find out everyone’s opinion on this issue.

54.

Rather than asking people to raise their hands when posing a general question to your panel, pick one juror to get the ball rolling. After that juror answers your question, go row by row and find out, by a show of hands, who agrees and who disagrees. Jurors who often end up serving on a jury are the ones who don’t raise their hands...yea or nay. Those are the ones to whom you should go back and talk. Have the person who is helping you give you a list of the jurors who didn’t raise their hands.

55.

Resist the temptation to stereotype jurors. Jurors will make decisions based on their value system and life experiences. Ask yourself, “What kind of life experiences or value system must a juror have in order to be open to the issues in my case?”

56.

Never ask a juror more than 3 questions on one topic. If you don’t reach the point you want to get to, thank the juror and say that you may have some more questions for him/her later.

57.

Listen and learn. Let your jurors educate each other.

58.

Some jurors constantly volunteer their answers preventing you from visiting with other jurors. Thank the talkative juror and tell him/her you want to hear what he/she has to say, but that you need to visit with a few others on the panel. This will acknowledge that person’s interest while allowing you to move on. If the juror has previously said something that would subject him/her to a challenge for cause, tell the juror, “If you don’t 7

mind, we are going to visit later so we can talk at that time about this issue as well. Is that all right with you?”

59.

Be sure to raise with the jurors potential problems with your case (client’s “confession”, client not testifying, client’s prior criminal record if that will come into evidence, flight, etc). Refer to these “problem” areas as concerns that you have about the case. Also do the problem areas in the middle of your voir dire, and not at the beginning or the end.

60.

Try to rehabilitate the cause jurors identified by the Prosecution by explaining the applicable law and find out if the juror’s view would prevent him/her from following the law in your case.

61.

If a juror gives an answer that is unfavorable or could subject him/her to a challenge for cause, thank the juror for being honest, reinforce that everyone is entitled to an opinion and ask the juror if he/she would mind talking about the issue in more detail a little bit later. This approach allows you to bring closure to the issue with that particular juror and it signals to the other jurors that you really do want to know the feelings and opinions of the jurors.

62.

Looping is another tool that is critical to effective communication. Looping is when a juror has said something that is extremely helpful to your case.

You then want to go to another juror and say, “[Juror’s name], you just heard Mrs. Jones say that the police often jump to conclusions. What is your reaction to what Mrs. Jones just said?”

There are two key components to looping. First, use the name of the juror who gave the answer. The reason you use the name is because it makes the juror feel important or special. Second, repeat the juror’s exact words. This will condition the other jurors to this concept. The more times a jury hears something, the more likely they are going to believe it.

63.

If in the process of looping, a juror gives an answer you don’t like, you can go to the juror who gave the good answer and ask him/her for a response or, you can 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. Jones say that police often jump to conclusions, but Mr. Green said that he believes the police would never arrest an innocent person. I want to see who agrees with Mrs. Jones and who agrees with Mr. Green. Mr. Rodriguez, let me start with you. Who do you agree with, Mrs. Jones or Mr. Green?”

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ENDING YOUR Voir dire 64.

Consistent with the primacy / recency notion, you want to end your voir dire strongly.

65.

Another question we like to end with is to ask each and every juror a question such as, “[Juror’s name], can you look [client’s name] in the eye and say, Charlie, I will give you a fair trial.” It is simply amazing how jurors will react to such a question. Some jurors will look to the Judge or the prosecutor before answering, other jurors will give an equivocating response. Some jurors will simply say, “Yes”, and still other jurors will look your client right in the eye and say, “Charlie, I will give you a fair trial.”

66.

We have dubbed the final questions in voir dire the, “Oyster” questions.

By that we mean, you have to shuck a bunch of oysters before you find a pearl. The same holds true with these concluding questions: “Is there anything else you want to tell us or you feel we should know?’; “Is there any other reason why you might not be a totally fair and impartial juror in a case like this?”; “Now that you have had a few hours (or overnight) to think about the issues in this case, is there anyone on the panel who feels they might be starting out this case favoring the prosecution, or who feels for whatever reason that they would not be totally fair, please raise your hand and let me know.”; or, “ Is there anyone who is sitting and thinking, ‘You know, if the lawyer had only asked me this question, he really would have found out something important about me’.”

CHALLENGE FOR CAUSE 67.

When a juror gives an answer that could well be a challenge for cause, thank the juror for his/her honesty and then say, “[Juror’s name], is it okay with you if we visit (talk) some more about this later?”

68.

When a juror has expressed a strong opinion that gives rise to a challenge for cause, ask the juror: 1) “[Juror’s name], would it be fair to say that this is a strong opinion you have about this issue?” and, 2) “You’d agree with me that you have had this opinion or feeling for quite some time?”

69.

When doing your challenges for cause, start by repeating the juror’s answer and then ask why he/she feels this way. This should be the only time you ask an open-ended question in a challenge for cause.

70.

When doing your challenge for cause, always ask closed-ended questions.

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71.

Do an analogy such as this: “[Juror’s name], given the opinions you’ve shared with us, would it be fair to say that if this were a race, we would not be starting off even with the other side, that we would be starting a little behind?”

72.

Conclude the challenge for cause questioning by asking the juror the following final question: “Given what you have just shared with us, do you mind if I ask the judge to excuse you from serving as a juror in this case?”

73.

Always remember you are questioning a juror and not a witness. You never want a juror to feel as if he/she is being cross-examined, since the jury has the final say in the case. Some of your challenges for cause will be denied and if you don’t have enough peremptory strikes, that juror could very well end up serving on the case.

MISCELLANEOUS TIPS 74.

75.

Resist the temptation of saying to the jury: “I take it from your silence. . .”; “Can every member of the jury panel promise me that . . . “ ; “ Does anyone have a problem with . . .” and, “Does anyone on the panel have any feelings about . . .”.

Humanize your client, even if you represent a corporation. Never refer to your client as “...the Defendant” or, “...my client.” Use your client’s name when talking about him or her.

76.

Listen for jurors who use equivocating phrases such as “I think”, “I’ll try”, “I hope”, “I believe”, etc. While some jurors simply talk in this manner, many other jurors will be expressing actual hesitation about the case when they use such equivocating words. When you hear a juror express hesitation, be certain to follow-up on the words used by the juror.

77.

Do not argue with a juror. It will send a very negative message to the other jurors. Thus, while you can use a challenge for cause or peremptory strike to get rid of that juror, other jurors will remember and resent you for arguing with the juror, especially if the juror’s position seemed somewhat reasonable.

78.

In cases involving allegations of violence, do not have your client reading juror questionnaires in front of the jury panel. During voir dire the potential jurors have only heard horrible things about the crime and your client.

Many jurors are initially apprehensive or frightened.

Their fear is exacerbated if they feel your client knows their address, phone number or place of employment.

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79.

When exercising your peremptory strikes, you should also analyze which jurors the prosecution is likely to strike. Some jurors are potential strikes by both sides and therefore, you should use your last one or two strikes on those jurors.

80.

In some cases, a hung jury is your best shot at winning. Therefore, you may want to consider leaving on the jury an otherwise unacceptable juror if you feel that person will alienate or denigrate other jurors.

81.

Unless prohibited by local rule, you should arrive at the courtroom early enough to claim the counsel table closest to the jury. This is particularly important in cases where your client will not be testifying. Prosecutors understand the tactical advantage to being next to the jury, that is why the jealously guard this sacred ground. When “first come, first serve” was not sufficient to convince the Judge that we should be allowed to sit next to the jury, consider arguing that for the past 1000 trials, the prosecution has had the privilege of sitting at that table, we would like that privilege for this trial.

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The Good, the Bad, and the Ugly of an Effective 30-Minute Voir Dire in a Criminal Case By: Robert B. Hirschhorn & Alexandra C. Figari

Often, the process of jury selection is akin to making sausage – the process is ugly but the finished product is a thing of beauty. Witness a recent aggravated assault with a deadly weapon prosecution: An argument in a bar escalated into a serious confrontation involving deadly weapons outside. A jury was left to sort out criminal culpability or lack thereof.

Prior to trial, the defense, lead by the legendary criminal defense attorney Dick DeGuerin, was under the impression from the lead counsel that the judge only gave the parties in a felony criminal case an hour for voir dire, and that the judge only used jury questionnaires in capital murder cases. The defense wanted to use a questionnaire because jurors are hesitant to convey their true thoughts, feelings, and opinions in the courtroom.1 The defense enlisted the assistance of the authors, who prepared a specialized one-page questionnaire2 on triplicate carbonless paper with a cardboard backing.3 This methodology was employed for its efficiency.4 It takes a prospective juror 15 minutes or less to fill out the one-page questionnaire, and the triplicate carbonless paper eliminates the need for copies to be made.

Before presenting the questionnaire to the judge, Mr. DeGeurin sent a copy to the prosecutor. After negotiating with the prosecutor, changes were made and the questionnaire was sent to a copier service.5 The judge liked the concept and efficiency of the one-page, triplicate carbonless questionnaire and approved its use. The jurors were brought into the courtroom and told by the judge that there were pre-trial matters that needed to be addressed. Rather than having the jurors wait around all day, he told the

1

The authors believe there are several reasons that motivate jurors not to disclose their true beliefs: (a) the fear of public speaking; (b) an unwillingness to publicly express private thoughts; (c) the desire not to be judged by their peer group; (d) their discomfort that they would not want to disclose such thoughts to people on the panel that they might know from their neighborhood, work, school, civic organizations, church, etc.; and, (e) jurors have the mistaken belief that if they speak up they are likely to be chosen to serve on the jury.

2

A copy of the actual questionnaire used in this case is attached as Appendix A.

3

The purpose of the cardboard backing is to provide the jurors with a hard surface for filling out their questionnaire. Thus, the need for a clipboard is eliminated.

4

Time is spent filling out the questionnaire, copying the instrument, and then giving the lawyers a reasonable amount of time to review the completed questionnaires.

5

The triplicate carbonless form with a cardboard backing costs approximately 50 cents per questionnaire.

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panel to please take their time in filling out the questionnaire and then asked them to return at 9 a.m. the following day for jury selection. He also admonished the panel not to discuss the case nor do any internet research. We believe that giving the attorneys the night to review the completed questionnaires has benefits that far outweigh the detriments.

The detriments are immediate but limited: The start of trial is delayed and the entire jury panel is required to return the following day. However, the benefits maximize efficiency: (1) the lawyers have the opportunity to review the information contained in the questionnaire; (2) the lawyers have the time to carefully prepare the substance of their voir dire and prepare relevant and meaningful follow-up questions to individual panel members; (3) the lawyers may reach an agreement on jurors that should be excused based on their questionnaire answers because of a hardship or clear cause; (4) the parties may review the questionnaires and decide to settle the case, thereby saving valuable judicial time and resources; (5) the additional time allows the court to hear and resolve any outstanding pre-trial matters relating to the case; and (6) the court can utilize the time to deal with other matters on the docket.

In this case, Dick DeGeurin mirrored what each juror did: He filled out the questionnaire and showed it to the jury on the Elmo document display system. At the very least, he demonstrated he was willing to go public on what a juror might believe to be intrusive questions.6 In addition to personalizing Mr. DeGeurin, this approach also proved to be helpful because it provided some relief to the jurors since he didn’t immediately start off his voir dire by posing questions to the panel members.

During voir dire, Dick DeGuerin focused on a series of specific, non-commitment questions,7 the answers to which he would either “loop”8 to other jurors or use to find out who on the panel had a different point of view. The different point of view approach was used when a juror gave an answer that was favorable to the defense. Finding out who had a different point of view would yield important information with respect to potential 6

Caveat: Be careful of controversial answers. One of the questions on the questionnaire asked the jurors to name three people they do not admire, and one of the people on Dick DeGuerin’s list was former Vice President Dick Cheney. This case was tried in McLennan County, the county where former President George W. Bush had his ranch, and many of the jurors admired George W. Bush and did not share this negative opinion of Cheney.

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A copy of the voir dire questions prepared by Author Hirschhorn and used by Dick DeGuerin is attached as Appendix B. 8

This is a term coined by one of the authors whereby a lawyer asks an open-ended question to one of the jurors and then “loops,” or repeats, that answer to another juror and asks for their response. This technique of looping is remarkably effective at stimulating a discussion among the jurors, but it is also extremely time consuming and can only be effectively used when the lawyer has an hour or more to conduct voir dire.

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challenges for cause or peremptory strikes.

The key to an effective voir dire is to minimize your expectations and maximize your time. To accomplish this, it is essential that you know what your judge will expect, tolerate, and allow. Before the start of trial, you need to look into a number of key considerations: How your judge conducts voir dire; how much time will be given for voir dire; will the judge allow a questionnaire; how the judge handles challenges for cause (that is, does the judge take up cause issues as they arise or will the judge take up cause at the end of voir dire); does the judge want challenges for cause fully developed during voir dire or will the jurors be brought back at the conclusion of voir dire for further questioning; does the judge conduct the questioning of the cause jurors or does the judge allow the lawyers to ask the additional questions; and does the judge handle hardship, if at all, at the beginning of voir dire or at the end. To conduct an effective voir dire, it is imperative that the lawyer learns how the judge handles voir dire and what the judge will allow and will not allow.

Once you have this critical information, there is a very simple five-step method for effectively using the time allotted: (1) break the ice; (2) primacy – starting strong; (3) elimination questions – designed to identify unfavorable jurors; (4) catch-all questions; and (5) recency– ending strong.

BREAKING THE ICE By the time the jury panel arrives in the courtroom, they have been inconvenienced, herded like cattle, and feel frustrated at the apparent inefficiencies of the criminal justice system. Many members of the panel are mad and frustrated. You can’t really blame them.

In this day and age of fast food, the internet, Google, and Twitter, people expect things to happen at light speed, not at snail’s place. By the time you stand up to start the voir dire process, the range of emotions felt by the panel range from disinterest to outright contempt. Your job is to disarm and bond with this hostile group of strangers in a matter of seconds. Before launching into your remarks, we recommend you break the ice by saying “Good morning/afternoon, ladies and gentlemen.” A simple “hello” works well, too.

When there is virtually no response, you should say, “I really need your help. When I said hello, not many folks responded. I didn’t do a good job so let me try this again.” This time say the same ice breaking words slower and a little louder. Your panel will respond and the ice will be broken.

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PRIMACY – START STRONG Research has shown that jurors will remember the first thing and the last thing you talk to them about.9 Therefore, start strong with your power statement. Your power statement is a simple one-sentence reason for why the jury should find in your favor. From the prosecutor’s perspective, the power statement can be as simple as, “This is a case about a man who intentionally chose to... .” The power statement for the defense is often a reflection on the theory of defense. If you have an affirmative defense, the power statement must reflect that – e.g., “When [name of client] believed his life was threatened, he did what the law allows of him and what his instincts told him: Fire the gun to protect yourself.” In many criminal cases, the trial is about “reasonable doubt” and not an affirmative defense. In that situation, the lawyer needs to frame “reasonable doubt” in terms of “could, would, and should.” That is, the power statement needs to be along the lines of what the police could have done, would have done, or should have done.10 This type of power statement gives the jury food for thought and reasons to look for reasonable doubt.

After the power statement, you should ask your first question.11 As a general rule, this question should be an open-ended education question.12 The purpose of an education question is to make the jury aware of some important aspect of your case. For example, in a case where the basis of the charge is the conduct of the defendant, you might start out by asking the jurors to tell you about a time when their conduct was misunderstood or misinterpreted. If the juror you ask can’t think of a time, or if you don’t like the answer he or she gives, ask another juror the same question. If you like the answer the second juror gives, you will want to ask the remaining panel members to raise their hands or number cards13 if they agree with the answer that the juror just gave (Note: You should repeat the

9

This concept is referred to as primacy and recency.

10

You will notice that this power statement contains a trilogy. The power of trilogies is well established: “friends, Romans, countrymen,” “red, white, and blue,” “the good, the bad, and the ugly,” “they came, they saw, they conquered,” and our favorite, “If the glove, doesn’t fit, you must acquit.”

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In most courts, the judge will introduce the prosecutors and defense attorneys. If that does not occur, then at this point, you should make the introductions before starting with your first question.

12

Voir dire questions are designed to either educate or eliminate prospective jurors.

13

We strongly believe in using numbered cards. In fact, many district courts now provide them. The numbered cards correspond to each juror’s number, and are put on laminated, letter-size-paper. These cards are extremely helpful to the court, the court reporter, and the parties to determine who is responding to a question.

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exact answer just given by the juror).14 You should then ask the jurors who disagree to please raise their cards. In a truncated voir dire, you will not have the time to find out why the juror disagrees – just note the fact that they disagree.

ELIMINATION QUESTIONS The bulk of your time in a 30- or 45-minute voir dire should be spent asking questions designed to identify unfavorable jurors. We refer to these types of questions as “elimination questions.” The purpose of asking elimination questions is to make sure a person’s belief system is not in conflict with your theory of the case. For example, from the prosecution’s perspective, there are some jurors whose value system does not allow them to pass judgment upon others. Another example is that there are some jurors who believe that if a defendant raises self-defense, it must have merit. From the defense perspective, an example is the belief that if a person has been charged with a crime, they are most likely guilty. Additionally, some jurors have a strong belief or value system that the only people who should carry guns are police.

The effective use of elimination questions is the true art of a 30-minute voir dire.

This is where time management is crucial for the lawyer. As we said earlier, you need to limit your expectations. By that we mean it is unrealistic to expect that you can cover 10 or 15 topics in a 30-minute voir dire. We believe that you can effectively cover four to six topics and that you should allot approximately five minutes per topic. Your job is to determine what the most important topics are for you to cover. In advance of trial, you need to list your voir dire topics and rank them in order of importance.

In most criminal cases, when deciding what questions to ask, you should consider questions that relate to publicity, nature of the charge, prior record for same or similar crime, any affirmative defense, reasonable doubt, and the defendant not testifying. Because of the limitations placed on attorneys by virtue of cases such as Standefer v. State, 59 S.W.3d 177, 179 (Tex. Crim. App. 2001), it is improper in many jurisdictions for lawyers to ask commitment questions. Therefore, you must think in terms of global issues and not case-specific facts. Ask yourself, “What will cause me to lose this case?” Think conceptually, not factually. By sticking to this agenda, you will have the time to ask proper and important questions. How you ask these questions is equally important.

Open-ended questions are the best vehicle for quality information, but a 30-minute 14

This is the concept known as “looping.”

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voir dire does not afford you the luxury of time you need when asking this type of question. Our rule of thumb is for every 15 minutes of voir dire, you can ask one openended question. Thus, you typically only have time to ask a couple of open-ended questions. With this limitation, you need to think carefully about the two areas that you really need to hear jurors express their views about. When you ask an open-ended question, follow the same protocol that we outlined earlier. Pick a juror and ask the openended question. If the juror does not have an opinion or if you do not like the answer, pick another juror and ask the same question. If you do not like that answer either, pick a third juror and try the question one last time. If this juror does not give a favorable answer, then you should give the answer you are looking for, and ask a fourth juror what their reaction or opinion is. Once the favorable answer is out there, you should “loop” the answer and ask the jurors to raise their cards if they agree. Finish this topic by requesting that the jurors raise their cards if they disagree.15 Close-ended questions are most often used by trial lawyers, but this type of question does not give you the crucial information needed to exercise cause challenges and peremptory strikes. This type of question is typically asked in a “yes” or “no” format. There is value in asking close-ended questions, but we suggest making a few changes. First, when you ask a close-ended question, ask the jurors to raise their cards if their answer to the question would be “yes.” Then ask the jurors to raise their card if their answer is “no.”

Keep track of this information to find out which jurors did not raise their hand at all. These are usually the jurors who end up serving on the jury, and yet you know virtually nothing about them. We suggest that you find out which jurors did not raise their hands and ask them whether they would answer the question “yes,” “no,” or “I just don’t know.” Second, we suggest that the question should be framed as one in which the juror has to agree or disagree (as opposed to a yes or no answer). Finally, ask the jurors if they have “ever had an experience with ... ” or “ever felt or believed that ... .” No more than one-third of your time and questions should be of the close-ended variety.

Finally, we come to what the authors call “scaled” questions. We believe that these are the most efficient and helpful questions in a short voir dire. The premise behind the

15

You need to keep track of the jurors who disagree. What works best is if you have someone keep track of the numbers of the jurors who have raised their cards. Even if you do not have someone that can assist you with this task (and in cases of violent crimes, it is never a good idea to have your client keep track of this information – it will scare some of the jurors), you should always slowly and loudly call out the numbers. This way, there is no confusion on your team as to whether a certain juror raised their card. It will also assist the court reporter and the trial judge. This will be important if the question goes to the issue of a potential challenge for cause.

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scaled question is that on any given topic there are a variety of opinions that will be harbored by the jury pool, and your job is to ask each of the jurors their opinion. An example of a scaled question is, “On a scale of 0 (very negative) to 10 (very positive), what is your opinion of the police?” You should plan on using two or three scaled questions during your voir dire.

Here are a few words of advice regarding scaled questions. First, sprinkle them throughout the voir dire. Do not ask them in succession because there is a tendency for the jurors to give the same answer each time without giving much thought to the question or their answers. Second, ask the panel to please tell you the number that reflects their honest and true beliefs and to not worry about how the other jurors answered the same question. Third, we would recommend putting your scaled questions in a PowerPoint presentation.16 In the past we used either poster board or flip charts to display scaled questions, but we found that the jurors in the back rows couldn’t read the question or the scaled answers. We have also found that verbally stating the scaled question is counterproductive because the jurors will ask you to repeat the question or the scaled options and that takes away from the efficiency and flow. Fourth, repeat the answer given by each juror. This will serve the purpose of making sure you have written down the correct information given by the juror. Fifth, if a juror asks if he or she can explain their answer, you need to politely tell them that you would love to hear their reasons, but the judge has only given you a limited amount of time, and you have a few more matters that you need to cover before your time is up. Assure the juror that if you have any time left over, you will come back to them and give them the opportunity to tell you their reason.

Finally, if you have substantially more jurors than you realistically expect to reach, tell the panel that you are not going to visit with the remaining jurors because it is unlikely you will reach them. In a typical felony case, you will be exercising your strikes to the first 32 qualified jurors. Add to that number any alternates that will be empaneled. Many judges will empanel one or two alternates. Therefore, your qualified pool will be 35 or 36 members of the panel.17 We would recommend obtaining the scaled answers to 36 jurors, plus the number of jurors you expect to lose for hardship or cause.

16

A sample PowerPoint presentation is attached as Appendix C. In addition to using a PowerPoint to display your scaled questions, it can also be used to introduce other topics such as a visual depiction of burden of proof.

17

The Texas Government Code states that each side is entitled to one peremptory strike if one or two alternates will be empaneled. Texas Govt. Code Section 62.02.

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CATCH-ALL The last substantive area of your voir dire requires you to end with a “catch-all question” that is designed to find out if there is any other important information for the jurors to share with you, and if there are any other reasons why a juror could not be fair and impartial. We recommend asking the following questions: “Is there anyone sitting out there saying to themselves, if only the lawyer had asked me this question, he would have learned something very important about me?” and “Other than those jurors who have already told us that they would have a problem serving as a juror in this case, is there anyone else on the jury panel, for whatever reason, who feels they cannot be a completely fair and impartial juror?” Your goal is to give the jury every possible opportunity to inform the lawyers and the court that this is not the right case for them.

RECENCY – END STRONG Finally, you always want to end strong. In most instances, this means you should either repeat the power statement that you used to start voir dire, or, if a juror has said something profoundly helpful during voir dire, you should consider reminding the panel of what their fellow juror has said. The power that a jury possesses is enormous. You may want to consider leaving the jury with this thought: Juries in this country have a profound power and responsibility, and in this case, you will have the power and responsibility to decide if [name of client] had the right to defend himself or herself.

CONCLUSION The foundation for an effective, time-limited voir dire largely depends on your level of preparedness. If you enter voir dire with an understanding of the judge’s expectations, the issues most central to your case, and the best way to approach those issues in voir dire, then you’ve already won half the battle of jury selection. Employing the techniques discussed in this article, such as the use of a juror questionnaire, the concept of primacy and recency, and an approach focused on elimination questions, will allow you to keep the jury engaged and get valuable feedback on the most important issues in your case.

Streamlining your time with the panel using these methods is the most effective way to approach a 30-minute voir dire, and will lead to a successful jury selection that will likely translate into a successful outcome at the end of trial.

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TO PROSPECTIVE JURORS This questionnaire is designed to obtain information from you with respect to your qualifications to sit as a juror in this case. By the use of the questionnaire, the process of jury selection will be shortened. Please respond to the following questions as completely as possible. The information contained within the questionnaire will become part of the Court's permanent record, but it will not be distributed to anyone except the attorneys in the case and the judge. During the questioning by the attorneys, you w ill be given an opportunity to explain or expand any answers, if necessary. If for any reason you do not want to answer any of the questions asked, please write the word 'PRIVATE' next to the question and we will take this matter up with you in private.

This questionnaire is part of the jury selection process. The questions must be answered by you under penalty of perjury and you should fill out this questionnaire by yourself without consulting any other person.

If you do not understand a question, please write "I DO NOT UNDERSTAND" and the question will be explained to you in Court.

PLEASE REALIZE THERE ARE NO

RIGHT OR WRONG ANSWERS -- JUST HONEST ONES .

CONFIDENTIAL

20

JUROR NAME:

Age:

1. How far did you go in school (If college, please tell us all degrees you received)?

Juror #

2. Marital Status:

3. List the sex, age & occupation of your children and step-children:

What is the occupation of your spouse?

What jobs have you held in the past?

What jobs has your spouse held in the past?

4. Circle any of the following in which you have had training or education: Child development

Law

Criminal justice

Law enforcement

Family counseling

Psychology

Human sexuality

Religion

7. Have you ever contributed time or money to any crisis center, child abuse agency or any other organization dedicated to helping victims of crime? YES NO If YES, please explain:

10. What are your thoughts or opinions about people from India?

5. Have you ever served as a juror in a: Criminal case Grand Jury Civil case

6. Have you or any family members ever worked for any law enforcement agency?

YES NO If YES, who and at what law enforcement agency?

Never served

What kind(s) of criminal case(s): What was the verdict?

Were you the foreperson? YES NO 8. Have you or anyone you know ever been the victim of sexual assault, or any other unwanted sexual contact? YES NO If YES, please explain:

9. Have you or anyone you know ever been accused of sexual assault, sexual abuse, or any other unwanted sexual contact?

YES NO If YES, please explain:

11. The defendant in this case, Swami Ji, is a Hindu religious leader. Circle the number below that best describes your opinion of:

12. Do you recall reading or hearing about this case? YES NO IF YES, what do you recall reading or hearing?

People who follow the Hindu religion Have you or anyone you know ever had a bad experience with someone from India?

YES NO IF YES, PLEASE EXPLAIN:

1

2

Very negative

3

4

Neutral

5 Very positive

Have you formed any opinions on whether the defendant is guilty of the charges?

YES NO If YES, please explain:

Hindu Religious leaders 1 Very negative

2

3 Neutral

4

5 Very positive

13. Have you heard or read about cases where a person was falsely accused of inappropriately touching someone?

YES NO If YES, please explain:

14. In a situation where a man is accused of inappropriate sexual contact, would you always start out believing the accuser?

YES MAYBE NO Please explain your answer:

15. Have you ever been indicted or convicted of any crime other than a traffic ticket?

YES NO If YES, please explain:

16. Which of the following describes you

17. Name 3 people that you admire or respect:

18. The Defendant is accused of inappropriately touching two young women.

Is there anything about the nature of these charges that would prevent you from being a fair and impartial juror? YES NO If YES, please explain:

[check all that apply]: 1.

Analytical

Opinionated

Careful

Perceptive

2.

Child Advocate

Religious

3.

Emotional

Sensitive

Family oriented

Skeptical

Name 3 people that you do not admire or respect:

Feminist

Snap decisions

1.

Law and Order

Visual

Other:

2.

3.

The answers contained in this questionnaire are true and correct to the best of my knowledge and ability.

Juror’s Name

Date

CONFIDENTIAL

21

TO PROSPECTIVE JURORS This questionnaire is designed to obtain information from you with respect to your qualifications to sit as a juror in this case. By the use of the questionnaire, the process of jury selection will be shortened. Please respond to the following questions as completely as possible. The information contained within the questionnaire will become part of the Court's permanent record, but it will not be distributed to anyone except the attorneys in the case and the judge. During the questioning by the attorneys, you will be given an opportunity to explain or expand any answers, if necessary. If for any reason you do not want to answer any of the questions asked, please write the word, 'PRIVATE', next to the question and we will take this matter up with you in private.

This questionnaire is part of the jury selection process. The questions must be answered by you under penalty of perjury. You should fill out this questionnaire by yourself without consulting any other person. If you wish to make further comments regarding any of your answers, please use the back of the page to do so. Remember to indicate the number of the question you are answering.

If you do not understand a question, please write, “I DO NOT UNDERSTAND", and the question will be explained to you in Court. PLEASE REALIZE THERE ARE NO RIGHT OR WRONG ANSWERS

-- JUST HONEST ONES. You are instructed not to seek out, read or research about the Defendant in this case. Specifically, you must not do any research using any internet search engine (e.g., Google, Yahoo!, Bing, YouTube etc.), message boards, chat rooms, blogs, social media (e.g., Facebook, Twitter, Google+, Foursquare, etc.).

Do not read any articles in the newspaper or online, and do not listen to any news reports on the radio or on television.

If any juror does such research, this would be jury misconduct, all of our time and effort will be wasted and it will be necessary to start this process all over. Furthermore, if a juror violates this Order from the Court, the juror may be subjected to Contempt of Court charges, punishable by a fine and/or jail time.

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JUROR QUESTIONNAIRE The information you provide in this questionnaire will be confidential and w ill only be used during jury selection.

Full Name:__________________________________

Age: ______

1. How long have you lived in the Santa Barbara area?

2.

Your c u rrent em ployer [if retired/unem ployed, what & where was your last job]:

Highest grade you com pleted in school (if college, please list any degree(s) received):

W hat is your job title/duties:

4. Spouse/partner’s job and where em ployed [if retired/unem ployed, what & where was last job]:

Years em ployed: 5. List the sex, age & occupation of your children and step-children:

W hat is this person’s job title & duties:

Years em ployed: 7. Do you know any Santa Barbara police officers or anyone in law enforcem ent? YES NO If YES, whom do you know and how do you know this person?

3. W hat jobs have you held in the past?

Have you ever been responsible for hiring, firing or supervising em ployees?

YES NO 6. Have you ever served as a juror in a: Crim inal case Grand Jury Civil case Never served W hat kind of crim inal case(s): W hat was the verdict:?

8. Have you ever had a good or bad experience with a police officer?

YES NO If YES, please explain:

Circle the num ber that best describes your opinion of Santa Barbara police officers: 1 2 3 4 5 Very Positive

10. How often do you have one or m ore alcoholic drinks: Daily Once a week Occasionally Rarely Never

Juror # _________

Very Negative

11. Have you ever had one or two alcoholic drinks and then driven a vehicle?

YES NO If YES, please tell us why you felt it was safe to drive:

W ere you the foreperson? YES NO 9. W hat would you consider to be excessive force used by a police officer?

How strongly do you agree or disagree with the following statem ent: It is wrong for the police to use excessive force on a person they have pulled over.

1 2 3 4 5 Strongly Disagree

Strongly Agree

12. Do you know anyone who was accused, charged or convicted of D.U.I.? YES NO Do you know anyone who has been falsely accused of D.U.I.? YES NO If YES, please explain:

W hat are som e signs that a person is intoxicated?

13. Have you or anyone you know ever had a bad experience with som eone you believed was intoxicated? YES NO If YES, please explain:

14. Have you or anyone you know ever belonged to M.A.D.D. (Mothers Against Drunk Driving) or any other group which supports stricter laws against driving under the influence? YES NO If YES, please explain:

15. Do you feel the D.U.I. laws in our state are: Not Strict Enough Too Strict Fair W HY DO YOU FEEL THIS W AY?

16. Have you heard or read about the D.U.I. charges filed against Tony DeNunzio? YES NO If YES, what have you heard or read about this case:

17. W hat three (3) words or adjectives woul you use to describe yourself?

18. Is there any reason why you would be unwilling/unable to serve as a juror in this Driving Under the Influence case?

YES NO If YES, please explain:

TO PROSPECTIVE JURORS This questionnaire is designed to obtain information from you with respect to your qualifications to sit as a juror in this case. By the use of the questionnaire, the process of jury selection will be shortened. Please answer the questions as completely as possible.

The information contained within the questionnaire will become part of the Court's permanent record, but it will not be distributed to anyone except the attorneys in the case and the judge. During the questioning by the Court or the attorneys, you will be given an opportunity to explain or expand any answers, if necessary. If for any reason you do not want to answer any of the questions asked, please write the word 'PRIVATE' next to the question and we will take this matter up with you in private.

This questionnaire is part of the jury selection process. The questions must be answered by you under penalty of perjury and you should fill out this questionnaire by yourself without consulting any other person.

If you do not understand a question, please write "I DO NOT UNDERSTAND" and the question will be explained to you in Court.

PLEASE REALIZE THERE ARE NO

RIGHT OR WRONG ANSWERS -- JUST HONEST ONES .

C O N FID EN TIAL

24

The inform ation you provide in this questionnaire will be confidential and will only be used for this trial.

JUROR NAM E:

Juror #

1. W here do you live?

2. Marital Status:

Highest grade you com pleted in school: If college, please list any degrees received:

If m arried, for how long?

W hat jobs have you held in the past?

W hat jobs has your spouse/partner held in the past?

4. Circle any of the following in which you have had training, education or experience: Alcohol abuse Guns

5. Have you ever served as a juror in a: Crim inal case Grand Jury

Cocaine abuse

Law enforcem ent

Crim inal law

Marijuana abuse

Fear Responses

Self Defense

3. List the sex, age & occupation of your children and step-children:

If m arried, how m any tim es?

Civil case

6. Do you own any guns? YES If YES, what type:

NO

Never served

W hat kind(s) of crim inal case(s):

Have you ever had a concealed gun perm it? YES NO

W hat was the verdict?

Have you ever had a bad experience with a gun? YES NO W ere you the foreperson? YES NO

7. Have you or anyone close to you ever worked for any law enforcem ent agency?

YES NO If YES, who and at what law enforcem ent agency?

8. Do you know anyone who has been injured or died in a fight? YES NO If YES, please explain:

9. Have you ever felt in fear for your life?

YES NO If YES, please explain:

10. If you were in fear for your life and you had a gun, would you defend yourself or would you try to run away?

Defend m yself Try to run away

11. How strongly do you agree or disagree with the following statem ent of the law: A person is justified in using deadly force w hen and to the extent he reasonably believes such force is immediately necessary to protect himself or another against the other person’s use or attempted use of unlaw ful deadly force.

1 2 3 4 5

12. Have you heard or read about this case? YES NO If Yes, please explain:

Have you ever been a m em ber of N.R.A.? YES NO Have you or any m em ber of your fam ily ever been a m em ber of a group that supports gun control? YES NO

Strongly disagree

Strongly Agree

W hich of the following describes your opinion of the defendant, Christopher Deedy: 1 2 3 4 5 Very Negative

13. Nam e 3 people that you adm ire:

14. W hat 3 words or adjectives would you use to describe yourself?

1.

2.

3.

Nam e 3 people that you do not adm ire:

Very Positive

15. Christopher Deedy is accused of second degree m urder.

Mr. Deedy asserts that he was acting in self-defense.

Is there anything about the nature of this charge that would prevent you from being a fair and im partial juror? YES NO If YES, please explain:

1.

2.

3.

The answers contained in this questionnaire are true and correct to the best of my ability.

Juror’s Name C O N FID EN TIAL

Date

JUROR QUESTIONNAIRE

Juror #:

FULL NAME:

1.

You have been selected to serve as a potential juror in a criminal case.

This trial is expected to last three to four (3 - 4) weeks. The court realizes that a trial of this length will cause an inconvenience or hardship for virtually every single juror. Will you be able to perform your civic duty and assist the court by serving as a juror? ❒ YES

2.

If you are chosen to serve on this jury will you continue to be paid by

your employer?

3.

❒ NO, and the reason is because:

❒ YES

❒ NO

Is there any other reason why you would be unwilling or unable to

serve as a juror in this case? ❒NO

❒ YES If YES please explain:

SAMPLE SEXUAL ASSAULT VOI R DI R E QUESTIONS ASSOCIATIONS 1.

Have you, any family members or friends ever worked for, volunteered time or donated money to any rape crisis center, children’s shelter, battered women’s shelter or any similar organization? If yes: a.

Who? b.

What organization? c.

What was the affiliation? d.

Why did you (or this person) affiliated with the organization? e.

How will that affect your ability to be a fair juror in this case?

2.

Do you, any family members or friends belong to any groups or organizations that support the rights of victims?

CREDIBILITY 3.

Have you ever known a person who made up a story about what happened to him or her? If yes: a.

What did the person say happened? b.

What really happened? c.

Why did this person make up a story?

4.

The victim involved in this case claims that she was sexually assaulted by a young man who she met on the Internet. The young man says that this did not happen.

What would be important to you in deciding who is telling the truth?

5.

In a he said/she said situation, what would be important to you in deciding who was telling the truth?

EMOTIONAL REACTIONS 6.

What do you believe are important qualities for jurors to have?

7.

In a situation where you or someone you love was falsely accused of sexual assault, what kind of juror would you want to sit on that case? Why?

8.

It is easy to listen to a criminal case and make a decision based on an emotional reaction. It is more difficult to listen to all of the evidence, weigh it and make a decision based on whether the State proved or did not prove its case. Give me an example of a time when you took a more difficult path because you felt it was the best course?

9.

There are some crimes which so upset people that just knowing that someone is accused of that crime is enough to make people believe that the person is guilty.

What is your reaction to that?

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10.

Give me an example of crimes which would have that effect on you.

11.

Some people believe that if a man is accused of sexual assault, the charge is so awful that the man who is accused of the crime must be guilty. What is your reaction to that?

FALSE ALLEGATIONS 12.

What would you imagine the most difficult part would be in defending yourself against false charges?

13.

How would false charges of sexual assault affect a person?

14.

How do you prove something did not happen? For example, if you were in a room with a person and that person claimed you sexually assaulted them, how would you prove you didn’t?

15.

Some people feel that a woman would never falsely accuse anyone of sexual assault. Other people feel that a woman would falsely accuse someone of sexual assault. What is your opinion on this?

16.

What are some reasons why a woman would falsely accuse someone of sexual assault?

17.

Some people think that a woman would not make up a story about being sexually assaulted. Other people believe that a woman could make up such a story. What do you think?

18.

There has also been a great deal of publicity about false allegations of rape or sexual assault. What have you heard or read about those cases and what was your reaction?

19.

Have you heard or read of any cases where a person was falsely accused of sexual assault? If yes: a.

What did you read or hear? b.

Why did you follow the case? c.

What was the outcome? d.

What was your reaction to the outcome?

FALSE STATEMENT TO THE POLICE 20.

Have you or anyone you know ever been questioned or interrogated by the police?

If yes: a. What were the circumstances? b. What were your feelings at the time? c. Did you make any mistakes? d. Did the police misinterpret what you said?

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21.

How would you feel if someone accused you of lying?

22.

How can a person prove something is the truth and not a lie?

INTEREST/STUDIES 23.

Have you, any family member or close friend ever studied any of the following areas: Domestic violence, women’s studies, rape, molestation, sexual disorders, sex education, or psychology?

24.

Have you, any family member or close friend ever worked as a social worker, welfare worker, family service worker, child psychologist, parapsychologist, psychiatrist, counselor, or similar occupation?

25.

Have you, any family member or close friend ever wanted to go into social work or in the mental health profession?

JURY DUTY 26.

Being a good citizen means voting, paying taxes and serving on jury duty. Being a good citizen does not mean that you must vote for a certain candidate, that you must pay the same amount of taxes each year, or that you must be a juror on a certain case. A good juror is the one who says, "This case makes me feel uncomfortable and is the not right case for me." How many jurors feel this way about this case?

27.

How would your friends and family members react if you sat on this jury and returned a verdict of not guilty?

28.

Given what you know to this point about this case, why would you be a good juror?

29.

If you were the one on trial instead of [NAME OF DEFENDANT], would you want someone such as yourself as a juror in this case? Why?

30.

What qualities do you possess that you feel will make you a good juror in this case?

MICHAEL IRVIN 31.

Did you hear about rape charges being brought against Michael Irvin of the Dallas Cowboys?

32.

What was your reaction when the woman admitted the charges were false?

NOT TESTIFYING 33.

Some people think that when someone is tried for sexual assault, they should testify and others think it is okay if they do not. What do you think about that?

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34.

[Juror’s Name], would you agree that if [NAME OF DEFENDANT] testifies, that some people think he will say anything to save his skin. Others may believe that if he does not testify, he has something to hide. I am between a rock and a hard place here. What do you think I should do?

35.

What might be some reasons why an innocent person would not testify?

36.

What are some reasons why a person falsely accused of sexual assault would not testify?

37.

Do you believe a truthful witness could be made to look like he was not telling the truth? Why?

38.

Have you ever said something to someone and they turned what you said around so that it meant something completely different? How did this make you feel?

39.

Some people feel that attorneys can take an innocent person’s statement and twist it around until it appears to be an admission of guilt. How do you feel about this?

40.

If a prosecutor could make you look like a bad witness even though you were telling the truth, would you testify? Why?

41.

If you were on trial, and you had a choice of testifying and possibly having your words turned against you, or not testifying, what would you do? Why?

42.

If you were on trial and you had the choice of testifying and running the risk that some jurors would not believe you even though you are telling the truth, or not testifying, what would you do?

43.

Why do you think one of our Constitutional rights that our Founding Fathers fought for was the right not to testify?

44.

I am afraid that some jurors are going to think that if [NAME OF DEFENDANT] is innocent, he would testify. However, other jurors have said that an innocent person could do himself more harm that good if he does testify. How do you feel this situation should be handled?

OPINIONS/ATTITUDES 45.

What can we do to stop or reduce the number of molestations or sexual assaults?

46.

What can we do to stop or reduce the number of false allegations of sexual assault or molestation?

47.

Tell me about a situation where someone took your conduct out of context? How did that make you feel? Why do people do that sometimes? How would you feel if they accused you of committing a crime?

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48.

How would you feel if someone misinterpreted and misrepresented your conduct in a particular situation?

49.

How do you think [NAME OF DEFENDANT] must feel being accused of a crime he did not commit?

POLICE 50.

Have you ever worked in the field of law enforcement? For whom did you work and for how long?

51.

Do you have any family or friends who work now, or have worked in the past, in law enforcement?

52.

When the police are investigating a charge, do you think they are fair to both sides?

53.

Have you ever heard of a situation where the police jumped to a conclusion and it turned out they were wrong? Tell us about that?

54.

Under what circumstances do you feel it is appropriate for a lawyer to aggressively cross-examine a police officer?

55.

Have any jurors, family members or friends ever had any business with or know any police officers or have you/they ever worked for, or applied for a job with, the Police Department?

56.

Do you think there would be a public outcry if it was learned that the police arrested someone on false charges?

PUBLICITY 57.

Have you heard about this case from the radio, television, newspaper, magazines or word of mouth? a. How did you hear about this case? b. What do you recall hearing, seeing or reading about this case? c. What was your reaction? d. Have you formed any opinion? e. What opinion did you form? f. Do you honestly believe that you could still be fair and impartial if you were selected as a juror in this case?

58.

Have friends, co-workers, neighbors, or family members talked about this case? If yes: a.

Who? b.

How long ago? c.

How often has this case been discussed? d.

What was said? e.

What was your reaction to what was said?

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59.

Have a. b. c. d.

you heard or read about the charges against [NAME OF DEFENDANT]?

When did you read or hear about him?

What was the source of your information?

What did you read or hear?

What was your reaction?

60.

How many articles or stories have you read or seen about this case?

61.

What is the first thing you remember reading or hearing about this case?

62.

How many times have you discussed this case? a.

When? b.

With whom? c.

What did the other people say about this case? d.

What did you have to say about this case?

63.

Of all the things you have read or heard about this case, what stands out in your mind the most?

64.

Why does that [fact, event] stand out?

65.

Have a. b. c. d.

66.

Have you ever overheard any discussion or conversation about [NAME OF DEFENDANT] or this case? a.

When? b.

Who participated? c.

What was said? d.

What was your reaction?

67.

Do you have any family members or friends who work for the media (newspaper, radio, television, magazine, etc.)? a.

Who? b.

What is this person’s job? c.

What is your relationship with this person? d.

Has this person expressed any opinion about this case? e.

What was the opinion? f.

What was your reaction?

68.

Do you feel the media fairly presents both sides when they report on a criminal case? Why?

69.

Do you feel it would be easy or difficult for a person accused of a crime to receive a fair trial when there has been publicity? Why?

you ever participated in a discussion or conversation involving this case?

When?

With whom?

What did the other people say about this case?

What did you have to say about this case?

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70.

Sexual assault has received a great deal of publicity in the last few years. Some people think it is not as widespread as the media makes it, other people feel that it is even more widespread than the media suggests. What is your opinion?

SEXUAL ASSAULT 71.

Have you or anyone you know ever been the victim of any unwanted sexual contact? If it is not too personal, would you mind telling us about that?

72.

Some people believe that there is so much publicity about sexual abuse of young girls because the incidents have increased and the public needs to know. Other people believe that the reason there is so much publicity is that there aren’t more cases, it’s just that sensationalism sells. What is your opinion?

Many people have strong feelings about sexual assault. What are yours?

73.

74.

Given the strong feelings many people have about sexual assault, how can [NAME OF DEFENDANT] get a fair trial?

75.

Have a. b. c. d.

76.

Has anyone ever told you about an experience involving sexual assault, abuse or molestation? If yes, was the person: a. an adult or child; b. male or female; c. victim or molester. d.

What were you told? e.

What was your reaction? f.

What was your advice? g.

What was the outcome?

77.

Has there ever been an accusation of sexual assault directed at someone you knew?

If yes, a.

What was the allegation? b.

What was the outcome? c.

What could have been done, if anything, to have prevented that allegation?

78.

The statistics show that one out of every three females, and one out of every five males, experience an unwanted sexual contact by the time they reach the age of eighteen. To many people this is a shocking fact. What is your reaction to this statistic?

79.

Because of these statistics, do you feel that every time someone brings these charges the charges are true? Why or why not?

you followed any cases of alleged sexual assault or abuse in the media?

What case did you follow?

What was the outcome of that case?

Why did you follow that case?

What was your reaction?

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80.

Are you, any family member or close friends associated in any way with any group or association that wants to change the law as it relates to sexual assault, abuse or molestation?

81.

What would you do if you were falsely accused of sexual assaulting a woman?

82.

Prior to today, what was your opinion on the issue of sexual assault, abuse or molestation? a.

What is your opinion now? b.

If you were sitting in [NAME OF DEFENDANT]'s shoes, what would you do to make sure you got a fair trial?

SEXUAL ABUSE/SEXUAL ASSAULT/RAPE 83.

Have you, any family member or friend ever experienced unwanted sexual contact? a.

Who? b.

When? c.

What happened? d.

What did you or this person do? e.

Were criminal charges filed? f.

What was the outcome? g.

How did you or this person feel about the outcome?

84.

It would be unusual not to know someone who has at some time in their life been molested, had some kind of unwanted sexual contact or was raped. I know it is embarrassing to talk about what has happened to this person and if you want to talk about this privately, please tell me. It is important that we know what kind of experiences you have had or someone that you know has had along those lines. It is my concern that if someone has had some kind of unwanted sexual experience that these feelings would affect their ability to be a fair juror in this case. Please raise your hand if you, a family member or any friend has ever been molested, had some kind of unwanted sexual contact or was raped. If yes, please raise your hand so we can talk about it in private.

85.

Have you, any family member or any friends ever had a bad experience of a sexual nature with a family member, religious leader, babysitter, doctor, teacher, acquaintance, or anyone else?

86.

The following question is very personal and sensitive. Many people, including myself, would answer the following question "yes" and would want to talk about in private. If anyone feels uncomfortable with answering the following question, I can assure you we can talk in private. With that assurance, let me ask you this: Have you, any family member or close friend ever had a bad experience of a sexual nature with anyone?

87.

I am concerned that if a juror has had an unwanted sexual experience they will have strong feelings and will hold it against [NAME OF DEFENDANT] Is my concern a valid one? Why? ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES

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88.

Do you know anyone who has ever been accused of sexual assault or molestation?

If yes, a.

Was there an arrest? b.

When did this occur? c.

What was the outcome? d.

What were your feelings at the time? e.

How do you feel about the incident now? f.

In light of that experience, how would you feel about serving as a juror in this case?

89.

Has anyone ever told you about an experience involving sexual assault, abuse or molestation? If yes, a.

Was that person an adult or child? b.

Male or female? c.

Victim or molester? d.

Was anyone arrested? e.

What was the outcome? f.

How did you feel about the outcome?

90.

Has there ever been an accusation of sexual assault or molestation directed at someone you knew? If yes, a.

What was the allegation? b.

What was the outcome? c.

What could have been done, if anything, to have prevented that allegation? d.

What was your reaction at the time? e.

In light of that experience, how would you feel about serving as a juror in this case?

91.

Have you, a family member or close friend ever been sexually propositioned? If yes, please tell us about that, or we can talk about it in private.

92.

THE FOLLOWING QUESTION IS EXTREMELY IMPORTANT AND EXTREMELY SENSITIVE. IF ANYONE WANTS TO TALK ABOUT IT IN PRIVATE, JUST RAISE YOUR HAND AND I KNOW HIS HONOR WILL LET US TALK PRIVATELY. Have you, any family members or friends ever been sexually abused or had any type of unwanted sexual contact?

93.

Do you know anyone who has been raped or had any unwanted sexual contact?

What happened, what was the outcome and how did you feel about the outcome?

TESTIFYING 94.

Every citizen accused of a crime has a right not testify. This is because the law says the prosecution has the burden of proving a person guilty and a Defendant does not have to prove he is innocent. How do you feel about this law?

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95.

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

96.

What if the State did not prove their case. Do you still feel the person should testify? Why?

97.

If you were accused of a crime like this, would you testify? Why?

98.

What if the jurors didn’t believe you?

99.

I want to be the first one to tell you that [NAME OF DEFENDANT] is going to testify.

What is your reaction to that?

100.

I have a concern that some jurors may feel that [NAME OF DEFENDANT] will not be truthful because there is so much at stake. What do you think about my concerns?

101.

How difficult do you think it would be for anyone accused of a crime like this to testify?

102.

Why do you believe that the Constitution guarantees each person the right not to testify in their own behalf? How do you feel about that guarantee?

103.

Some people think that when someone is charged with a crime that they should testify and others think its okay if they do not. What do you think about that?

104.

Some people would feel that a person has something to hide if he chooses not to testify. Other people would feel that a person would say just about anything to save his own neck. If you were in [NAME OF DEFENDANT]’s shoes, what would you do?

105.

What might be some reasons that a person accused of sexual assault would not testify?

106.

Do you believe that a truthful witness could be made to look like a liar? Why or why not?

107.

If you were given a choice of whether or not to testify on your own behalf and you knew that the prosecutors would do their best to make it look like you were not telling the truth, what would you do?

108.

We will be the first to tell you that [NAME OF DEFENDANT] will not hide behind the 5th Amendment, and that he will testify. What is your reaction to that?

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PUNISHMENT 109.

In a trial involving criminal charges there are two phases: One phase is for deciding guilty or not guilty; The other phase is known as the punishment phase. We do not expect to ever get to the second phase of this trial, however, it is necessary that we explore your feelings about the various punishment options. What are your feelings about discussing this issue even though we believe the jury will find [NAME OF DEFENDANT] not guilty?

110.

If a person is found guilty of sexual assault, what would you consider to be the appropriate punishment? Why?

111.

What factors would you want to consider in determining an appropriate punishment?

112.

People have many different reasons for wanting to impose a sentence on a person convicted of sexual assault. Some reasons are for rehabilitation, punishment or retribution. Which would be your reason for imposing a sentence?

113.

Some people could never consider probation for a person convicted of sexual assault. Other people feel the offender should be placed on probation and receive treatment. What do you feel?

REASONABLE DOUBT 114.

What does reasonable doubt mean to you?

115.

Do you think it is fair that a person can only be found guilty if the prosecution has proven it’s case “beyond a reasonable doubt”?

116.

Give me an example of a time when you had reasonable doubt about something.

MISCELLANEOUS 117.

What qualities do you possess that would make you a good juror in this case?

118.

Would you like to be a juror in this case? Why?

119.

[TO WOMEN JURORS] Would you describe yourself as a feminist, traditionalist or humanist?

120.

Is there any questions I should have asked but haven’t?

121.

Is there anything else I should know about you that would be important in deciding if you should be a juror in this case?

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Challenge For Cause

PUBLICITY 1.

[Juror's Name], you told us earlier that you had heard or read about this case?

2.

When we read or hear about a case we all tend to form some kind of opinion. Isn't that just human nature?

3.

For example, when you heard about the O.J. Simpson case, didn't you and millions of other people form some opinion on whether he was guilty or not guilty?

4.

There is nothing wrong with that. And when you heard or read about this case, it would have been only natural to form an opinion about this case. Wouldn’t you agree?

5.

I sense that the opinion you formed was that [NAME OF DEFENDANT] was probably guilty.

6.

You would agree with me that once a person forms an opinion, it is difficult, if not impossible, to set that opinion aside?

7.

And if a person said they could set that opinion aside, in reality, they might not be able to?

8.

I know that if I were a juror who had formed an opinion, I would not be able to set my opinion aside. So, wouldn't you agree that you might not be able to set your opinion aside?

9.

Wouldn't it be fair to say that in your mind [NAME OF DEFENDANT] starts out with one strike against him?

10.

You agree with me that in a case as serious as this that it wouldn't be fair if there were jurors who felt the Defendant had a strike against him?

11.

I honestly believe that if you had not heard or read about this case, you could be totally and completely fair. Wouldn't you agree?

12.

[Juror's Name], I appreciate how honest and candid you have been. Would you mind if I ask the judge to excuse you from being a juror in this particular case?

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Challenge For Cause

VICTIM OF SEXUAL ASSAULT 1.

Being a good citizen means a person should vote, pay taxes and serve on a jury.

A good citizen does not have to vote for a particular candidate, pay the same amount of taxes each year or serve on a particular case. Would you agree or disagree with that?

2.

A good citizen is the one who says, “I do not feel I could be a fair and impartial juror in a case like this.” Do you agree that if a person feels that way, he/she should say that?

3.

It is human nature for people to make decisions based on things that have happened in their own life. Wouldn't you agree that this is human nature?

4.

Wouldn't you agree that in order for us to have the fairest possible jury, people who have been the victim of sexual assault probably could not be totally, completely and absolutely impartial in view of their own experiences?

5.

I have the feeling that if this was a burglary case or a theft case, you would be totally and completely impartial. Don't you agree with me?

6.

But because of your own experiences, it is only human nature that you could not be totally, completely and absolutely impartial in this case.

7.

And if I, the prosecutor or the judge asked you to set your own experiences aside, as human beings it is really impossible to do that?

8.

Would it be okay with you if I ask the judge to excuse you from being a juror in this particular case?

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VOIR DIRE QUESTIONS - DWI ELIMINATION QUESTIONS (BIAS OR PREJUDICE) 1.

Have you, any family members or close friends ever had a bad experience with a drunk driver? W ould you mind telling us about that? a.) b.)

W as there an accident?

W as anyone injured?

c.) d.)

W hat happened to the drunk driver?

W ould that experience cause you to start the trial believing that [client’s name] was guilty?

2.

There are people who have very negative feelings about drunk drivers. [Juror’s name], do you have very negative opinions about people who are accused of drunk driving?

3.

W ho else on the first row please raise your hand if you agree with [Juror’s name] that you also have very negative feelings about drunk drivers. [go row by row on this question].

4.

[Go back to the first juror who admitted having very negative feelings about drunk drivers] [Juror’s name], so would it be fair to say that given your very negative feelings about drunk drivers, that since the charge in this case is DW I, you would have a leaning or prejudgement, what lawyers call a bias or prejudice, against a person charged with drunk driving?

5.

[Go to all the other jurors who raised their hands to question #12] It would be fair to say that you would also have a bias or prejudice against a defendant in this kind of case?

6.

W hen you heard that the charge in this case was DW I, how many of you were thinking that the Defendant [DO NOT use your client’s name in this question. Humanizing your client will reduce the number of people who will answer this question]

7.

If the police arrest someone for D.W .I., how likely or unlikely is it that the person is guilty: Very likely Likely Somewhat Likely Very Unlikely

8.

Please tell me how strongly you agree or disagree with the following statements: A. If the police arrest someone for DW I, that person is probably guilty.

1 2 3 4 5 6 7 8 9 10 Strongly Agree Somewhat Agree Strongly Disagree Page 1 of 9 41

B. It should be against the law for a person to have 1 drink or more and then drive.

1 2 3 4 5 6 7 8 9 Strongly Agree

Somewhat Agree

10

Strongly Disagree

9.

On a scale of 1 to 10, how strongly do you support or oppose the law that says you can drink and drive? [1 = you strongly support it to 10 = you oppose it.]

10.

Have you had any experience with alcohol or intoxicated people that would have a bearing on (or influence you) your serving as a juror in a DW I case?

11.

Some people believe that certain types (races) of people have a more difficult time handling liquor. Do you agree or disagree with this statement?

12.

If you agree, what types (races) of people have a more difficult time handling liquor?

13.

If a person accused of DW I refused to take a breath test, would you believe that he was guilty?

EDUCATION QUESTIONS 14.

W hat would you consider to be too much to drink and drive?

15.

Do you agree or disagree with the following statement: a person can have 1 or 2 drinks and still have the normal use of their mental and physical faculties?

16.

Have you ever had one or two drinks at a friend’s house and then driven home?

17.

Did you have the normal use of your mental and physical faculties?

18.

If you were stopped by a police officer, would you be guilty, of DW I?

19.

W hat can we do to make sure that a person who has been accused of driving while intoxicated get a fair trial?

20.

W hy would you be a good juror in a DW I case?

21.

If a person is a diabetic and forgets to take their insulin, gets in their car, goes into insulin shock, and causes an accident, has that person committed a crime? W hy?

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JUMPING TO CONCLUSIONS 22.

How likely is it that the officer would jump to a conclusion if he learned that the person he stopped had previously plead guilty to DW I?

23.

All of us have had a situation where we jumped to a conclusion and it turned out we were wrong. [Juror’s name], can you give me an example of a time when this happened to you?

24.

How likely or unlikely is it that a police officer could jump to a conclusion and be wrong: Very Likely Likely Somewhat Likely Unlikely Very Unlikely

25.

How likely or unlikely is it that a police officer could jump to a conclusion about a person being intoxicated and the officer is wrong: Very Likely Likely Somewhat Likely Unlikely

Very Unlikely

OUT ON YOUR FEET 26.

W hat does the term, “out on your feet” mean to you?

27.

Have you or any family members ever had an experience where you were out on your feet?

LEAVING THE SCENE OF AN ACCIDENT 28.

Do you know anyone who ever continued to drive after having an accident?

29.

W hat are some reasons why a person would continue to drive after getting into a minor accident?

CHARACTERISTICS ASSOCIATED WITH DRUNK DRIVERS 30.

W hat are some reasons other than alcohol that would cause someone to weave while driving?

31.

W hat are some reasons, other than alcohol, for why a person’s eyes would be bloodshot?

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32.

W hat are some reasons, other than alcohol, for why a person would stagger when they walk?

33.

W hat are some reasons, other than alcohol, for why a person would be unsteady on their feet?

34.

W hat are some signs that a person is exhausted, tired or sleepy?

35.

W hat are some signs that a person has high blood sugar?

36.

W hat are some signs that a person has had a stroke?

TESTS 37.

Have you ever known anyone who had to take any type of test that the police call field sobriety tests, but are actually coordination tests? W ould you tell us about that?

38.

W hat are your feelings about coordination tests, in general?

39.

W hat are your feelings about breath tests (where a person is asked to blow into a device designed to measure the amount of alcohol a person has consumed)?

40.

W hat are some reasons why an innocent person would refuse to take a breath test?

41.

Do you think it would be easy or difficult to prove that a breath test machine did not work properly?

42.

How reliable or unreliable do you believe breath test machines are: 1 2 3 4 5 6 7 Very Reliable

43.

Somewhat Reliable

8

9

10

Very Unreliable

W hy would a person, who is accused of driving while intoxicated, request a blood/alcohol test?

44.

How would you feel if you knew that [Client’s Name] requested a blood/alcohol test but the police refused?

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45.

How do you feel you might perform on coordination tests if you were upset about being stopped by the police?

46.

How well would you perform on coordination tests when you are very nervous?

47.

How likely is it that a lab would make a mistake or mix up test results: Very Likely

48.

Likely

Very Unlikely

How reliable or unreliable are police administered coordination tests for determining if a person is intoxicated?

Extremely Reliable

49.

Somewhat Likely

Reliable

Somewhat Reliable

Not Reliable

Please tell me how strongly you agree or disagree with the following statements: A. Police should use coordination tests that are so easy to pass, only an intoxicated

50.

person would fail them.

1 2 3 4 5 6 Strongly Agree Somewhat Agree Have you ever heard of a HGN?

51.

W hat is your understanding of how the HGN works?

52.

How reliable or unreliable do you believe such a test to be for determining intoxication: Very Reliable

Reliable

Somewhat Reliable Unreliable

7

8

9 10 Strongly Disagree

Very Unreliable?

DRINKING AND DRIVING 53.

On a scale of 1 to 10, how careful a driver are you?

[1 = very careful to 10 = not very careful at all.]

54.

55.

Have you ever had a beer, a glass of wine or a cocktail and then later driven your car? a.)

W ould you tell us about that? b.)

How long after you had a beer, glass of wine or a cocktail would you feel it was safe to drive?

c.)

W e want to be the first to tell you that [Client’s Name] did have two or three beers several hours before he was stopped by the police. W hat is your reaction to that?

How many times in the past 5 years have you had 1 or 2 drinks and driven your car?

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56.

Have you ever been driving and saw another driver that you thought was under the influence? W hat did you do in that situation?

57.

Have you ever stopped someone from driving because they had too much to drink?

58.

Has anyone ever stopped you from driving because you had too much to drink?

ADDICTION 59.

Do you feel alcoholism is an illness, addiction or weakness?

W hy?

60.

I am addicted to [smoking, caffeine, chocolate]. Bubba will tell you [or you will learn] that he is addicted to alcohol. If it is not too personal, will you share with Bubba and me something to which you are addicted?

OR: W hat are some examples of addictions you have heard of and believe are true.

61.

W ITHOUT MENTIONING ANY NAMES, do you know anyone who is addicted to alcohol?

62.

How do you break the cycle of addiction?

SPECIAL INTEREST GROUPS 63.

Have you or any family members ever contributed time or money to MADD or DADD or SADD?

64.

W hat is your opinion of MADD?

65.

Tell us how strongly you agree or disagree with the views of groups such as MADD: Strongly agree

Agree

Somewhat Agree

Disagree

Strongly Disagree

POLICE OFFICERS 66.

Some people believe that police officers who have been assigned to a DW I task force believe every driver they stop is intoxicated. Other people feel that a task force officer would be more qualified than the average police officer to determine if a person is intoxicated. W hat is your view or opinion?

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67.

How often do you believe the police charge an innocent person with DW I: Always

Very Often

Occasionally

Rarely

Never

68.

If your closest friend was stopped by the police and charged with DW I, would you assume he or she was guilty?

69.

W hat if you saw the police stop and charge someone you did not know with DW I, would you assume that person was guilty?

ALCOHOL 70.

How many times a month do you have some type of alcoholic drink?

71.

W hen you drink, do you usually have beer, wine or liquor?

72.

Do you or any family members own a business that sells alcohol or alcoholic drinks?

73.

Do you have any family members or close friends that you feel drinks too much or is an alcoholic?

74.

If that person was stopped by the police and charged with DW I, would you assume that person was guilty?

IMPAIRMENT 75.

After how many (beers, glasses of wine or drinks) would your driving been impaired?

76.

After how many (beers, glasses of wine or drinks) would the average person’s driving be impaired?

77.

It is not against the law to drink and then drive. W hat is against the law is if a person is mentally or physically impaired when driving. Do you agree or disagree with this law?

78.

W hat does, “mental impairment” mean to you?

79.

W hat are some characteristics of mental impairment?

80.

W hat does, “physical impairment” mean to you?

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81.

W hat are some characteristics of physical impairment?

82.

Do you think that anybody who has 1 or 2 drinks and drives, is going to be mentally impaired?

83.

Do you think that anybody who has 1 or 2 drinks and drives, is going to be physically impaired?

PRIOR DWI CONVICTIONS 84.

W e will be the first to tell you that [client’s name] has previously plead guilty to three prior DW I charges. W ould you start the trial believing that if a person had previously plead guilty to DW I charges that he must be guilty in this case?

85.

If a police officer learned that a person he had stopped had been previously been convicted of a DW I offense, how would that fact affect or influence the officer?

86.

If a person has previously plead guilty to a charge, if that person is charged with another crime, in your mind, would that person start the trial out with a strike against him or with a clean slate?

PUNISHMENT (TEXAS) 87.

W ho would agree with and who would disagree with, a law which says that a person who is convicted of DW I for a third time shall be sent to prison as punishment? W hy?

88.

[Depends upon the case / I’d have to hear the facts.] Give me an example of a situation where a person had been convicted three (3) or more times of DW I, but deserves probation and not prison.

89.

If a person had been convicted of DW I three (3) or more times, some people could never consider sending that person to prison. Other people could never consider probation.

W hich of these two (2) categories do you fall into?

90.

W hat kinds of conditions of probation would you feel would be appropriate for a person who had been convicted of DW I three (3) or more times?

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91.

There have been a number of studies which have shown that education, family support and medical treatments are far more effective and less costly when a person is suffering from alcohol addiction. Do you agree or disagree with these studies? W hy?

92.

Studies have shown that people who complete treatment programs are much less likely to commit another crime than people who complete a prison sentence. Do you agree or disagree with these studies? W hy?

93.

How many times would a person have to be convicted of DW I before you would say that you could not even consider giving them probation? W hy?

94.

Fill in the blank for us: If a person was convicted of DW I for prison time. W hy do you feel this way?

times, I would always vote

95.

W hat would be some of the benefits of giving a person probation as opposed to sending them to prison?

MISCELLANEOUS 96.

Have you ever served on a jury or grand jury where alcohol was an issue in the case?

97.

Do you have any moral, religious or personal views that disapprove of drinking alcohol?

98.

Is there any question that I should have asked you that would have given me an insight as to your serving as a juror in a DW I case?

99.

As you sit there right now, are you thinking to yourself that [your client’s name] is probably guilty of the charge?

100. Is there anyone who is sitting there right now thinking to yourself that you are already leaning in favor of the prosecution?

101. W hat was your initial reaction when you heard the charges in this case?

102. W hen you heard the charges and looked at [your client’s name], what went through your mind?

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Voir Dire - State v. George Zimmerman State Attorney’s Office Does anyone on the jury panel know anyone who works in the State Attorney’s Office?

Already Formed Opinion Is there anyone on the panel that is sitting there saying to yourself, I think the Defendant is guilty of the charge? It ok if you feel that way, we just need to know. Anyone feel this way?

Mark O’Mara and Don West As the Judge told you, my name is Mark O’Mara and I have practiced law in the Orlando area for more than 30 years. No, I am not related to the great golfer, Mark O’Meara and you would know that if you ever saw me swing a golf club (Mark - poking a little humor at yourself is always a good thing). With me is my friend and co-counsel, Don West. We are criminal defense lawyers. Does anyone on the panel have a negative opinion of criminal defense lawyers in general?

George Zimmerman We stand here today with my client and my friend, George Zimmerman.

Is there anyone on the panel that knows or has met George?

Voir Dire - George Zim m erm an

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Publicity What is your main source of news (newspaper, tv, radio, internet, friends, etc.)?

And what specific newspaper, tv or radio station, website do you listen to most often?

This case, as you know, has received a great deal of publicity. If you have heard of Trayvon Martin, George Zimmerman or this case, please raise your hand.

How many times have you heard, read or talked about this case?

Of all the things you have heard or read about this case, what stands out the most in your mind?

What else do you recall reading or hearing?

Do you recall reading or hearing anything about the injuries to George that night?

What opinions or feelings have you formed about George or this case?

Based on what you have heard or read, have you formed any opinions on whether George is guilty of the charge in this case?

On a scale of 0 to 10, how strongly held are those opinions?

Some people can set opinions aside and other people can not. Are you the type of person who can set an opinion aside?

Voir Dire - George Zim m erm an

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Holding George to the Same Standard The prosecutor asked if anyone would hold George to a lower standard because of the publicity surrounding this case. I want to ask you the reverse of this question. Because of the publicity in this case, is there anyone that would hold George to a higher standard?

Let me ask this question this way. On a scale of 0 - 10, how strongly do you agree or disagree with the following statement: In a high profile case, I would hold George to the same standard and not a higher standard than anyone else. 0 means strongly disagree and 10 means strongly agree.

People Who Start Fights Has anyone ever known a person that liked to start fights? If Yes, can you give me an example of a time when this person started a fight?

Fights I want to ask the following question regarding you, your spouse and your kids: Have you, your spouse or any of your kids ever been in a fist fight?

Let me ask this question a little differently - have you, your spouse and your kids NEVER been in any type of fist fight?

On a scale of 0 - 10 how strongly do you agree or disagree with this statement - People who start fights deserve what happens to them.

Has anyone on the panel ever heard or read of a situation where a person punched someone and killed them?

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Attorney-Client and W ork Product Privileges

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Military Service Has anyone on the panel or your spouse ever served in the military?

(First and foremost, thank them for their service to our country.) If yes, who, highest rank attained and did you (this person) ever serve in a combat situation?

Law Enforcement Has anyone on the panel or your spouse ever worked for any law enforcement agency? If yes, who, what law enforcement agency an for how many years?

Split Second Decision Ever been in a situation where you had to make a split second decision?

Would you agree with me that you did what you thought you had to do at the time?

In retrospect, there was probably something else you could have done but at the time you made the best decision that you could. Please raise you hand if you agree with me?

Anyone disagree?

Voir Dire - George Zim m erm an

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Gun Ownership Please raise your hand if you currently own a handgun, rifle or shotgun?

Why do you own a handgun?

On a scale of 0 - 10 (0 being strongly disagree and 10 being strongly agree) how strongly do you agree or disagree with the 2 nd Amendment Right to Bear Arms?

Do you currently favor or oppose gun control?

Have you ever favored gun control?

Do you or any family members belong to any group or organization that favors or advocates gun control?

Have you or any family member ever had a bad experience involving any type of gun, rifle or shotgun?

If Yes, would that experience affect your ability to be a fair and impartial juror in this case?

Voir Dire - George Zim m erm an

Attorney-Client and W ork Product Privileges

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Self Defense Speaking of split second decisions, I now want to ask you some questions about your views and opinions on self defense. Has anyone on the panel ever heard or read of a situation where a person was acting in self defense to protect themselves or someone else?

Has anyone ever been in any situation from a school ground fight to a bar fight to even defending our country where you hit someone to defend yourself?

Show of hands: Has anyone ever been in a situation where you feared that someone was going to hit you or physically hurt you?

Anyone on the panel feel it is just wrong to defend yourself if you honestly believe you are about to be seriously hurt?

I want to ask each person on the panel this question - If you honestly believed that someone was about to seriously hurt you and you could not get away, would you defend yourself?

[If anyone says they would not defend themselves, ask the following question] Can you think of any situation or circumstance where you would defend yourself in a fight? (If there is an objection, simply ask, Can you think of any situation or circumstance where you would defend yourself) [To those jurors who do NOT raise their hands] So are the rest of the members of the panel telling us that each of you are the type of juror that is open to the idea that a person has that right to defend himself if they honestly believe that someone was about to seriously hurt or harm them.

The law in Florida says that when deciding if a person was acting in self defense, you have to decide that question by looking at the situation from the defendant’s standpoint.

Voir Dire - George Zim m erm an

Attorney-Client and W ork Product Privileges

Page 6 of 7

55

Can everyone promise the Judge that you will follow the law and decide the issue of self defense from the defendant’s perspective?

Can each you assure the prosecutor that you will follow the law as it relates to self defense?

And finally, can each of you promise George that you will follow the law of self defense and consider what happened as if you were standing in his shoes?

Miscellaneous Is there any question I should have asked but haven’t that would tell us something very important about you being a juror in this case?

Is there anything else that we should know about you that would be important in deciding if you should or should not be a juror in this case?

What 3 words or adjectives would you use to describe yourself?

Name 3 people you admire or respect?

Name 3 people you do not admire or respect?

Why would you be a good juror for this case?

If at the end of the case, you have a reasonable doubt, do you have the courage to find George Not Guilty?

Voir Dire - George Zim m erm an

Attorney-Client and W ork Product Privileges

Page 7 of 7

Voir Dire - State of Texas v. John Doe Hardship - Cause 1.

2.

3.

4.

5.

6.

You feel that you have a genuine hardship?

Do you believe that your hardship would distract you from paying 100% attention?

You are likely to be thinking about [insert the hardship] during the trial?

Agree that you would be willing and able to serve if you did not have this hardship?

If the prosecutor or judge asked you these same questions, would your answers be the same?

Do you have any objection if I ask the Judge to excuse you from being a juror in this case?

Hardship - Rehabilitation 1.

Would you agree that a trial of this length is a hardship on virtually every single juror.

2.

Do you agree that it is important to have a cross section of the community to serve on our juries?

3.

That is why we are needing to qualify 50 people and of that number only 14 will end up serving on the jury. Are you with me?

4.

Do you agree that serving on a jury is both an honor and a privilege?

5.

If a loved one of your was on trial for a very serious matter, wouldn’t you want people such as yourself to make the sacrifice and serve on the jury?

6.

I understand it is a hardship but would you be willing to make the sacrifice and serve as a juror if you end up being selected.

Page 1 of 1

Voir Dire - State of Colorado v. John Doe

Publicity - Cause 1.

Have you heard about this case or the Defendant from the radio, television, newspaper, magazines, Internet or any other media source? If Yes, a. How did you hear about this case? b. How many times have you heard or read about this case? c. Generally, what do you recall hearing or reading about this case? d. What was the first thing you read or heard about this case? e. What was the last thing you heard or read about this case?

2.

Did you tend to believe the publicity in this case? Why?

3.

Based on what you heard, read or saw, what opinions have you formed about the Defendant or this case?

4.

My sense is, given the publicity, you start out thinking that my client is guilty of the charge. Would you agree with me (or, “Is my sense right?”)

5.

Would you agree that you feel strongly about this?

6.

A person should not serve as a juror if they start out believing, as you do, that the person on trial is guilty, fair to say?

7.

If the prosecutor or judge asked you these same questions, would your answers be the same?

8.

Do you have any objection if I ask the Judge to excuse you from serving as a juror in this case?

Page 1 of 1

Texas Criminal Defense Lawyers Association

Voir Dire March 10-11, 2022

Topic: Sexual Assault Speaker:

Heather Barbieri 7000 Preston Rd Ste 700 Plano, TX 75024-2573 (972) 424-1902 Phone (972) 208-2100 Fax hbarbieri@barbierilawfirm.com email www. barbierilawfirm.com website

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

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS SHERMAN DIVISION UNITED STATES OF AMERICA, versus JOHN T. DOE, Defendant.

* * * * * * *

Crim. Action No. 4:**-***

District Judge Marcia A. Crone

DEFENDANT JOHN T. DOE’S REQUEST FOR SPECIFIC VOIR DIRE QUESTIONS TO JURY PANEL

TO THE HONORABLE MARCIA A. CRONE, DISTRICT JUDGE: COMES NOW, Defendant, JOHN T. DOE, by and through his counsel of record, Heather J. Barbieri, and respectfully requests the following specific questions to the jury panel: (1)

Does any member of the jury panel know any of the witnesses who may be called to testify during this case?

(2)

The attorneys in this case are (i) Marisa J. Miller and Bradley Visosky on behalf of the Government and (ii) Heather J. Barbieri, who is acting on Mr. DOE’s behalf. Does any member of the jury panel know these 1 |Page

attorneys, either personally or professionally?

(3)

Does any member of the jury panel know any other attorney, staff member, or employee of Barbieri Law Firm, P.C., either personally or socially?

(4)

Does any member of the jury panel know an attorney, staff member, or employee of the Government’s Attorney’s office, either personally or socially?

(5)

Does any member of the jury panel know or recognize any other member of the jury panel?

(6)

Has any member of the jury panel served as a juror in a case, which was prosecuted or defended by any of the attorneys in this case?

(7)

Has any member of the jury panel ever attended law school or practiced law?

(8)

Do any members of the panel have a negative opinion of criminal defense lawyers in general?

(9)

Are there any members on the panel who have ever been the victim of a crime? If so, would that experience make you unable to fairly and impartially serve as a juror on this case?

2 |Page

(10)

Have any members on the panel ever been a witness in a criminal case, regardless of whether it went to trial?

(11)

Have any members on the panel ever testified in any court proceeding?

(12)

The Government will call witnesses, and the defense will call witnesses.

Does any member of the jury panel feel they would give more weight to the testimony offered by the Government’s witnesses than they would to the testimony offered by the defense’s witnesses?

(13)

Has any member of the jury panel, or any member’s immediate family now, ever been, or is currently, an employee of the police department, any other law enforcement agency, or the Government’s Attorney’s Office?

(14)

Has any member of the jury panel, or their immediate family, participated in any way in the investigation of criminal cases?

(15)

As a general proposition, are there any members on the panel who think that a law enforcement officer is more likely to tell the truth than a witness who is not a police officer?

(16)

Are there any members on the panel who would give greater or lesser weight to the testimony of a law enforcement officer merely because of his or her status as a law enforcement officer?

3 |Page

(17)

Are there any members on the panel who have ever been accused of committing an offense other than a minor motor vehicle offense?

(18)

Are there any members on the panel with friends or family members who have ever been accused of committing an offense other than a minor motor vehicle offense?

(19)

Does any member of the jury panel have any philosophical, moral, ethical, or religious beliefs with the criminal justice system or the rights afforded to an accused under the Constitution?

(20)

Is there anyone on the panel who believes if someone has been charged with a federal crime, then they are probably guilty?

(21)

The Government has the burden of proving this case to you beyond a reasonable doubt, and because of that burden, presents evidence first. Is there any member of the jury panel who feels they might form an opinion before they have heard the entire case?

(22)

Mr. DOE has the presumption of innocence throughout this entire proceeding. Is there any member of the jury panel who perceives him in any way other than innocent due to the fact that he has been charged or due to the nature of the allegations?

(23)

The Government must prove each and every element of these charges 4 |Page

beyond a reasonable doubt. Is there any member of the jury panel who would decide the issues in this case by any lesser standard?

(24)

If Mr. DOE takes the stand to testify on his own behalf, would anyone tend to give his testimony less credibility simply because he has been charged?

(25)

Mr. DOE has a constitutional right not to testify if he so chooses. If Mr. DOE elects not to take the stand and testify on his own behalf, would anyone tend to believe he is guilty because of his refusal to testify?

(26)

Are there any members on the panel who feel that if a person chooses to exercise their right to remain silent and not to testify there is an “indication” that they are, in fact, guilty?

(27)

The court has just addressed the constitutional rights afforded to Mr. DOE. Does any member of the jury panel feel that an individual charged with a crime has too many constitutional rights?

(28)

Are there any members of the panel who have seen the television program called, “To Catch A Predator?” If so, what is your opinion of that television program?

(29)

Are there any members on the panel who have personal or religious beliefs against alternative sexual lifestyles?

5 |Page

(30)

Are there any members on the panel who have social media profiles on sites such as Facebook or Twitter?

(31)

Are there any members on the panel who have ever placed a personal dating ad either in the newspaper or on the internet and/or have responded to such an ad?

(32)

Are there any members on the panel who have children? If so, how many children do you have and what are their ages?

(33)

Are there any members on the panel who have special rules regarding social media websites or internet access in general for their children?

(34)

Are there any members on the panel who have religious beliefs that would prohibit them from sitting in judgment of another person in a criminal trial?

(35)

The jury process contemplates deliberation and the exercise of individual judgment in deciding any criminal case. Is there any member of the jury panel who would be unable to exercise individual judgment, or who would vote simply to satisfy other members of the panel?

(36)

Are there any members on the panel who believe that law enforcement can induce or encourage someone to commit a crime that they ordinarily would not have committed?

6 |Page

(37)

If you were my client, would you be completely comfortable having you as a juror on this case?

(38)

Can you think of anything in your own life that reminds you of this case? What and how?

(39)

Is there anything that you have seen or heard that would make it hard for you to guarantee to judge my client the same as the other side?

(40)

Does any member of the jury panel wish to be excused from serving in this case for any personal or health-related reason?

(41)

Is there any member of the jury panel who is not a United States citizen or who is not a resident of Eastern District of Texas?

(42)

Is there anything you’d prefer to discuss in private?

(43)

Is there anything we haven’t asked you that you think we should know?

WHEREFORE, PREMISES CONSIDERED, the Defendant prays that this Honorable Court will, in all things, GRANT this specific request, and incorporate and propound the above questions to the jury panel during its voir dire, and that the Court further GRANT any additional relief to which the Defendant may be legally and justly entitled.

A proposed order is attached for the convenience of the Court.

Dated this 5th day of July, 2017.

7 |Page

Respectfully Submitted,

/s/ Heather J. Barbieri Heather J. Barbieri Barbieri Law Firm, P.C. Texas Bar No. 24007298 7000 Preston Road, Suite 700 Plano, Texas 75024 Tel. (972) 424-1902 Fax (972) 208-2100 hbarbieri@barbierilawfirm.com

COUNSEL OF RECORD FOR THE DEFENDANT JOHN T. DOE

8 |Page

CERTIFICATE OF SERVICE I do hereby certify that on this 5th day of ______, I electronically filed the above and foregoing pleading with the Clerk of the Court for the United States District Court, Eastern District of Texas, Sherman Division, using the electronic case filing system of the Court. The electronic case filing system sent a “Notice of Electronic Filing” to the following attorneys of record who have consented in writing to accept this Notice as service of this document by electronic means:

Marisa J Miller, Esq. Assistant United States Attorney Email: marisa.miller@usdoj.gov Bradley Visosky, Esq. Assistant United States Attorney Email: bradley.visosky@usdoj.gov United States Attorney's Office - Plano 101 E. Park Blvd.

Plano, TX 75074 PH: (972) 509-1201 FAX: (972) 509-1209

/s/ Heather J. Barbieri Heather J. Barbieri Barbieri Law Firm, P.C. Texas Bar No. 24007298

COUNSEL OF RECORD FOR THE DEFENDANT JOHN T. DOE 9 |Page

VOIR DIRE – CHILD SEX CASE (HB’s ANCHOR QUESTIONS) CHARGES FILED • Guilty to start with versus presumption of innocence; are we finished?

• Prosecutor has BOP, they go first.

• Any member feel might form an opinion before hearing the entire case?

First impressions stick?

• P/I whole time, • Does any member perceive him in any way other than innocent due to the nature of the charges?

VICTIMS OF SEXUAL ABUSE • Have you, family member or close friend been the victim of SA? NATURE OF CHARGES • Are the charges so reprehensible that you feel you cannot be a fair juror?

CHILDREN/TEENS DON’T LIE • Sometimes children/teenagers say things for many reasons even if they’re not true? o Has anyone experienced that?

PROFESSIONS IN FIELD INVOLVING PROTECTION OF SA VICTIMS (CPS, CASA, Teachers, social workers, etc.)

• Anyone work in field that deals with the protection of children?

• Anyone work in field that deals with protection of adult victims of abuse?

LAW ENFORCEMENT, ETC. • Have you, a family member or close friend now or ever been employed in law enforcement?

• D.A.’s office?

• Staff in any of those arenas?

• Have you, a family member or close friend ever participated in an investigation of a case?

• Witness or CrimeStoppers situation?

• Prior service as a grand juror?

JURORS KNOW ANYONE • Anyone know one another?

• Anyone know lawyers?

• Anyone know witnesses?

FALSELY ACCUSED • Can that happen?

• 2 adult rule BURDENS • RS (make stop; seize you, stop & ask questions; temporarily detain you), • PC (make arrest) • P/E (sue doctor for malpractice) • C&C (terminate parental rights) • PBRD (highest burden at law; must no longer be even a RD) INNOCENT-GUILTY-DON’T KNOW • If innocent, what must verdict be G/NG? • If guilty, what must verdict be G/NG? • What if you don’t know? o You presume John Doe innocent as sworn to do throughout entire case, then at the end of the case, you don’t know?

5th AMENDMENT • Court will tell you cannot consider for any purpose at all, but some feel they need to hear from someone accused?

• Maybe even more so in a case like this?

• Also, if John Doe does testify or members of his family testify, tend to give his testimony less credibility because he is charged?

NEED TO OBJECT • Part of our job NEED TO ASK TOUGH QUESTIONS • Part of our job JURY PROCESS INDIVIDUAL JUDGMENT • The jury process requires deliberation and exercising individual judgment in deciding.

• Any member who would struggle with exercising their individual judgment or who would vote simply to satisfy other jurors?

TOO MANY CONSTITUTIONAL RIGHTS? SEVERE CONSEQUENCES EMOTION V. FACTS • If crying, set aside?

PERSONAL OR HEALTH REASONS • Wish to be excused?

FROM THE HEART • Deep down, can’t in good conscience sit on a case like this?

SEX ASSAULT MOTIONS CHECKLIST

#

MOTIONS TO BE PREPARED

1

Notice of Appearance/Letter of Representation/Motion to Substitute Counsel Request for Discovery Pursuant to § 39.14 Defendant’s Request for Notice of Intent to Introduce 404b (TRE) Notice guilt/innocence phase Formal TPIA Records Request Formal Request for Probable Cause Affidavit (to clerk of judge that signed arrest warrant) Pursuant to Article 15.26 of the Texas Code of Criminal Procedure Defendant’s Request for Notice of Intent to Introduce Extraneous Offenses by the Defendant in Sentencing § 37.07, TCCP Defendant’s Request for Notice of Intent to Introduce Evidence of Prior Convictions Pursuant to § 609 TRE Motion to Quash Indictment Application for Subpoena Duces Tecum– School Records (returnable on a hearing date) Application for Subpoena Duces Tecum – Medical/Psychological Records (returnable on a hearing date) Application for Subpoena Duces Tecum – Family Court Records (returnable on a hearing date) Application for Subpoena Duces Tecum – Phone Records (returnable on a hearing date) Application for Subpoena Duces Tecum – Business Records (returnable on a hearing date) Subpoena for Social Media Records (Snapchat, Facebook, Twitter, Instagram, etc.)

Motion for Forensic Download & Analysis of Accuser’s Phone Motion to Exclude/Suppress Outcry Statements/Testimony of Outcry Witness Due to Lack of Reliability/Vagueness --The first adult (18 or older) that the child (UNDER 14) tells how, when & where Motion to Exclude/Suppress Outcry Statements/Testimony of Outcry Witness for Failure to Comply with 38.072 (Notice to

2 3 4 5

6

7 8 9 10 11 12 13 14 15 16

17

Check=yes

18 19 20

21 22

23 24 25 26 27 28 29 30 31

32 33 34 35 36 37 38

defense (1) 14 days before trial (2) inform of intent to use (3) name of outcry witness (4) written summary of the statement) Motion for Disclosure of DFPS (CPS) Records Pursuant to § 261.201 Family Code & Hearing Requested (Protective Order) Application for Subpoena to Custodian of Records for DFPS Region (returnable on a hearing date) Application for Subpoena -- All Records Regarding Accuser, and Allegations in This Matter: to Custodian of Records for Child Advocacy Center. Request CV & employee records for: all employees who participated in this case: (1) law enforcement, CPS worker, victim advocates, forensic interviewer, etc.) (returnable on a hearing date) Subpoena SOP’s of Law Enforcement Agency Subpoena SOP’s of Child Advocacy Center (general, day to day), list of members of Board, salaries of directors, managers for preceding 5 years Defense Request for State to Disclose Expert Witnesses in Its Case in Chief and Rebuttal Motion for Investigation and Disclosure of Brady/Exculpatory Evidence Motion for 702 (Daubert)Hearing Motion to Submit Jury Questionnaire Election for Jury to Assess Punishment Motion for Deposition of State’s Witness Defendant’s Motion to Require State to Elect Which Specific Sexual Act Intends to Use to Prove Elements of the Indictment Application for Subpoena Witness (lay witness appearance – not documents) Motion for Independent Examination of Physical Evidence & Independent Testing & Analysis (DNA, serology, fingerprint, etc.)

Motion for State to Disclose Witness List Motion for Duplicate of Forensic Interview with Protective Order Motion in Limine/Objections to Exclude Extraneous Offenses Motion to Suppress Statements of Defendant Motion in Limine –Use of Word “Victim” Motion in Limine—Use of “Sexual Abuse” Motion in Limine Regarding Opinion as to Defendant’s Guilt

39 Motion in Limine Regarding Information Acted Upon 40 Motion in Limine Regarding Opinion as to Truthfulness of Allegations 41 Motion in Limine Regarding Previous Sexual Assault Acts 41 Defendant’s Disclosure to State of Experts (Due 20 days before trial) 43 Defendant’s Ex Parte Request for Funds for Defense Expert 44 Defendant’s Notice of Filing of Business Records (Records filed & notice to opposing counsel due 14 days before trial) 45 Ex Parte Motion for Appointment of Expert (Under Seal)

Texas Criminal Defense Lawyers Association

Voir Dire March 10-11, 2022

Topic: Violent Crimes Speaker:

Angela Weltin 212 Stratford St Houston, TX 77006-3220 (832) 244-7633 Phone angelaweltin@gmail.com email

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

Victory in Voir Dire VIOLENT CRIME DEFENSE

Texas Criminal Defense Lawyers Association Houston, Texas March 2022

ANGELA WELTIN angelaweltin@gmail.com  832.244.7633

Victory in Voir Dire  Violent Crime Defense

Victory in Voir Dire VIOLENT CRIME DEFENSE A voir dire for a violent offense demands different preparations, considerations and execution from the defense. Violent crimes are generally investigated by more seasoned officers and handled by more experienced prosecutors. Jurors also respond to these cases differently. Defense attorneys need to be primed with this awareness and begin looking for the necessary opportunities to weaken the State’s case and win-over jurors.

Built-in Challenges with Violent Felonies How are serious offenses different than other types of cases?

Most jurors have never been in a room with someone accused of brutalizing another person. The thought of brutality, blood, and violence can send a juror into a fearful state just by hearing the charge. That intrinsic fear and worry can lower the State’s burden because the stakes for the juror become too high.

Typically, there is more scientific and direct evidence produced in violent felony cases by teams of investigators and experts. Prosecutors spend time working up the cases and being prepared for voir dire using PowerPoint or visual aid with the jury panel. The prosecutor likely has resources to help them such as co-counsel, investigators, paralegals, and interns. Resources are spent preparing for trial, developing evidence and ensuring witnesses appear to court. It likely comes as no surprise that rates of conviction are higher for serious felony cases.

Answer to the Challenges Be more polished, more likeable, more honest, more prepared and more conversational than opposing counsel. Yes, be more. Don’t let the prosecutor come across as more invested in the outcome than the defense.

First impressions start with dress and demeanor. A clean and pressed but also comfortable look can set a good tone. Being polite to opposing counsel, client, jurors, court staff and judge establishes a respectful demeanor for the jury. Make an effort to set the scene at defense table. The client should be dressed in clean button-down shirt and slacks and seated near their attorney, actively working on his case with a pen and pad of paper. Jurors notice when an attorney interacts with the client and doing so throughout the process portrays a good client/attorney relationship. If a defense attorney does not demonstrate a connection to the client, the jury may assume the client is unlikeable or, even worse, dangerous.

Prepare a visual aid or PowerPoint even if only a very basic one. In most cases the State will have some presentation, and the defense attorney needs to appear equally polished. It demonstrates their preparation and consideration for the process. A few brief but tailored slides can be more effective than a wordy PowerPoint. Spend time going over it and make sure it is specific to your case issues.

Page 2 of 19

Victory in Voir Dire  Violent Crime Defense

Prior to Voir Dire Review Indictment and Jury Charge Read the indictment. It is amazing how many errors can be found in an indictment. How many of those errors can be used to the defense’s advantage? After learning exactly what the prosecutor must prove, get potential jury charges online. Using the exact language of the law from the jury instruction in the attorney’s voir dire will help jury understand the instructions better when time come for deliberation. If your Judge will conduct the hearing, try to get rulings on pre-trial motions prior to voir dire. If all pre-trial motions are resolved and the jury issues are well-defined, the defense can better prioritize the issues that need to be covered in voir dire.

Flip the Bad To fully grasp the complexities of the case, it is important to understand all the dangers to the attorney’s case. Start by writing down all the scary/bad parts of the case and consider specifically how to address each of them in voir dire.

What are the bad facts in the case that put the client in unfavorable light? Is it prior offenses, bloody photographs, seriously injured victim, or volatile arrest?

What is in the police reports, scientific reports, body camera recordings or witness statements that will make your jurors queasy?

Whatever bad facts your case has, you can assume that the Prosecution will try to use those facts against you. Just as importantly, the defense needs to take each of those potentially serious problems and discuss them during voir dire. The discussion diffuses the Prosecution’s ability to leverage the bad fact and might even convince a juror to reconsider some preconceptions or impressions.

Here are specific types of issues and tools to address them in voir dire. 

GANG MEMBERSHIP o Anyone known someone who has been pulled into gang? What was the effect on that person? o Juror 1, what are your immediate feelings when hear the word ‘gang’? Would those strong feelings lead you to be unfair toward a person accused because of an understandable bias against gang affiliation? o Being in a gang does not mean guilty of this crime, but some may feel differently; and that is okay. It is important to be honest.

When we confront the issue of gang affiliation instead of burying our heads in the sand, we put the jury on notice not to use gang affiliation as all evidence necessary to show guilt while also setting up mitigation surrounding gang influence.

Page 3 of 19

Victory in Voir Dire  Violent Crime Defense 

FLEEING THE SCENE o After an altercation, should you always stay and wait for police? If you don’t stay, does that mean you have forfeited the right to self-defense? Because staying and talking to police is something you would do, is a person automatically guilty just because he didn’t stay? o Does leaving scene always mean that you are guilty? What else can it mean? o Has anyone been in situation that was so overwhelming that fight or flight sensation kicked in? What can trigger automatic flight response? I was in a car accident before and hit my head pretty hard. I found it very difficult to think and left scene with a stranger because I was thinking I needed to get away. It wasn’t very logical, but it was my automatic response to a frightening situation. Have you had a similar experience?

Craft a Good Defensive Strategy An attorney should take note of all the good points, defenses and mitigation in the case.

Is this a guilt/innocence case or a mitigation case? If this is a strong State’s case with an admissible confession by your client, the defense might be that the client deserves a reduced sentence or that the case is overcharged. If the case is a guilt/innocence issue, then most of the time should be spent on those topics rather than punishment/mitigation topics. If the case is primarily a punishment issue, then concentrating on getting good defense jurors for mitigation will be helpful. There is always a defensive strategy.

Crafting it ahead of voir dire is the challenge.

Punishment Decision Are you going to the judge or jury for punishment?

Obviously, that is a layered question having much to do with your jurisdiction, your jury pool and the presiding Judge. But there are tactical considerations for voir dire.

If going to the jury instead of the judge for punishment, the defense can gain an advantage by discussing mitigation. Additionally, it offers an opportunity to eliminate pro-State’s jurors who could not give a minimum sentence on violent cases.

If going to the Judge for punishment, it allows an attorney to focus voir dire time on other issues. Additionally, it may offer the benefit of a jury untainted by the knowledge of the range of punishment or prior convictions.

Identify Dream Juror Who is the best juror for the Defense case?

An attorney should think about and note the attitudes and characteristics of a juror who would likely decide in favor of the client.

Ask friends, family, and neighbors about the casebut keeping your perspective as neutral as possible. Listen and take note of what is important to them. Use these faux jurors to establish an idea of who may be sympathetic to the cause.

Page 4 of 19

Victory in Voir Dire  Violent Crime Defense

Because it is not possible to know everything about all jurors, massive assumptions and broad generalizations are used in jury selection process. Consider what type of people the attorney connects to. Also consider what type of people would identify or sympathize the most with the client.

Pandemic Issues Currently, we have additional pandemic issues to consider while selecting a jury. Issues such as difficulty reading facial expressions because of masks, problems connecting to jurors with spaced distances, or technology malfunctioning. However, continue to look for visual cues such as body movement, body orientation, body posture, shrugs, and eye contact. Also look for auditory cues, including voice pitch, tone, vocal hesitancy, and word choice. This is easier to do when someone else is talking, but it is even more important how jurors are responding to you. Listen carefully to how jurors respond, and observe body language of the potential jurors. Get your head out of your notes- look and listen! Have your client or an assisting attorney look for a juror’s reactions as well and have your client let you know what he or she may have observed about the juror when you were not looking.

Extra Credit Work Think about filing a motion to submit jury questionnaire. If the parties agree, it is more likely to occur. To convince the Judge, anticipate and then solve the logistical problems of copying and disseminating paperwork; bring pens. Keep questionnaires as short as possible. Consider that you may need assistance to review the questionnaires in a timely manner.

Have your paralegal or intern conduct internet searches on potential jurors. There is a lot to be gained from such searches, and it is becoming more common practice in civil trials. Facebook, twitter or Instagram might give a glimpse into a potential juror’s political ideology, values, and community.

Page 5 of 19

Victory in Voir Dire  Violent Crime Defense

Voir Dire Five Keys to a Victorious Voir Dire I.

Be Likeable and Trustworthy A. Introduction B. Theme Begins Here C. Getting Jurors to Express Feelings

II.

Identify State and Defense-Oriented Jurors D. Categorize Jurors E. Hurtful v Friendly Jurors

III.

Object to Prevent Defense-Leaning Jurors from Being Struck for Cause F. Objections

IV.

Engage State’s-Oriented Jurors in Conversation, Coax Bias, and Strike for Cause G. Coaxing Bias from Jurors H. Challenges for Cause

V.

Groom Jurors to the Defensive Theory by Sharing Stories in Hypotheticals I. Groom Jury about Defenses J. Answering the WHY Question K. Empower Jurors

A. Introduction The purpose of introduction phase is to set the tone and mood for the trial as well as voir dire. It is critical to connect attorney to jurors which can lead to jurors connecting with client. 

IMPERFECT INTRODUCTION: Good morning, ladies and gentlemen. My name is Angela Weltin, 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. o I am the attorney who represents the Defendant: Is this sentence warm? Does it connect you, the attorney, to the client or client to the jury? No. The client Joe Smith has been reduced to an object defendant. The attorney’s first sentence should grip the jury with the importance of the case. o The words ‘voir dire’, are French and mean, to speak the truth: Does the translation matter? Has it been said already? Jurors are more interested in how Page 6 of 19

Victory in Voir Dire  Violent Crime Defense

do you represent someone who you know is guilty. Avoid being showy and use words with which jurors are not familiar. Resist teaching and focus on critical areas/issues by asking open-ended questions that will get out opinions and feelings. o During this process I will be asking you questions so we can find twelve fair and impartial jurors: This sentence could be seen as labeling jurors who do not agree with the law, and condition jurors to give responses that are perceived as fair and impartial. Such a statement provokes the jurors to give responses that create the impression of fairness and impartiality and are not necessarily truthful. The goal is to get an honest, if sometimes painful, response. 

BETTER INTRODUCTION: Good morning, ladies and gentlemen. I stand proudly and strongly with Joe Smith as twelve of you decide whether Mr. Smith was lawfully defending himself against the actions of Mr. Jones. In this part of the trial, we won’t talk about the specifics of the case, but we will ask questions concerning issues of law in this case in order to find out your feelings, impressions or opinions. 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.

Note the more open tone with emphasis is on honesty? An attorney has the right to give a brief overview of the case to the jurors without going into the facts of the case. o In the vein of disclosure and honesty, I am Angela Weltin, an attorney, a Houstonian, a single mother of two mostly sweet, always active soccer playing boys and live in Garden Oaks which is about 15 minutes north of downtown. I have attorneyed for over 20 years, I’ve been a prosecutor and defense attorney. I represent those that hire me and those who can’t afford to hire any attorney. Yes, I have represented clients who have committed crimes and represented clients who were wrongly accused of crimes. Often times, my role is talk to a person who is in crisis and determine what caused that and how prevent it from happening again. Mental illness, drug-addiction and self-sabotage often intertwined with the criminal activity.

Sometimes my role is more akin to social worker helping stop the decline and get client on better path. Sometimes it is to negotiate best prison sentence possible for the situation and guide client through the process. Sometimes there is a disagreement about what happened in the case. That is why we are here today. I do not agree with the prosecutor’s assertions and your help to resolve case. I believe in checks and balances of the criminal justice system. I believe in the goodness and rightness of juries.

Attorneys should own their truth and the truth in the case. Inauthenticity can be sniffed out a mile away.

B. Theme Begins Here It is imperative that the theme of the case be woven seamlessly throughout the trial beginning in jury selection. Whether it’s a false allegation, a revenge allegation, or a bad investigation, the theme of your case should be apparent in jury selection through your statements and questions. This is where we first frame the issue for the jury.

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For instance, the first question to reframe the issue after an hour of the State’s presentation could be: How does an innocent man get accused of sexual assault? There may be silence for a few seconds. Do not be afraid of the silence. In a room of 70, someone will speak. Someone will come up with a real answer to that question. Then, loop that answer until the steam runs out. After all, our client is the innocent man. Then, in discussing the Fifth Amendment, perhaps ask: Why might an innocent person decide not to testify? Consider also asking: How would an innocent person respond to an allegation of sexual assault? Make the theme clear and carry it throughout jury selection.

C. Getting Jurors to Express Feelings In order to get jurors to express their feelings, create an open environment by being transparent, self-depreciating, and real. Approach voir dire questioning as a conversation, not a job interview. Be confident, reinforce juror participation and listen to jurors to get the best results. Explain the process, stressing honesty and candor and helping jurors acknowledge the filters and biases we all possess. Successful voir dire requires that jurors talk—not just listen to the attorneys talk at them.

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 mindset 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. Valuable time should 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.

A wise and skillful attorney 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.

Using techniques such as the Initial Background Summary (where all jurors answer three to five basic background questions) and having all jurors raise their hands will increase participation by jurors at the start of voir dire. Open-Ended Questions (e.g., WHY? and WHAT are your views on…?) provide more information than closed-ended questions (e.g., agree/disagree or yes/no questions).

When a juror shares about being a victim of crime, be sympathetic, be real. When juror says he hates your client, be respectful, appreciative of tough info. “I hear you.” Have the courage to commend a juror who has given a painfully honest, yet negative answer.

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.

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D. Categorize Jurors Often jurisdictions provide juror information cards with some basic age, address, employment, and marital status. Review and rank jurors in some type of system.

Perhaps use of grade letters A+ being most favored and F being the worst juror for defense’s case. 

Career/Job: What a person does for a living tells a story about them. Engineers are analytical thinkers, like logical argument and precise law enforcement work, not swayed by emotional pleas. Teachers are often emotional feelers, believe children, and sensitive to mitigation evidence and rehabilitation. Insurance adjusters and managers often used to make decisions decisively and without reservation. Often jobs can be divided between technical and people related.

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Steadiness of Employment: The amount of time spent in one job is also important.

More than twenty years at one company is a strong indicator of stable, loyal, reliable, and pro-State juror. An unemployed individual may indicate an outlier or person less likely to follow the mainstream.

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Home: Where a juror lives might indicate their conservative or progressive ideology.

Knowing the communities the jurors come from may provide information about their politics. Conservatives tend to be more State’s oriented.

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Juror Experience: Previous jury experience makes them a contender for being foreman and sets a base of expectation for the evidence.

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Education: The juror’s level of education may equate to different life experiences.

The difference in “have and have nots” is telling. Lower education often equates to lower socioeconomic status and more run-ins with police. A high school diploma juror might relate to a client in a similar education status.

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Criminal History: Any run-ins with the police or criminal history, including traffic tickets, establish a juror who has gone against the mainstream. Typically, these make for good defense jurors.

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Law Enforcement: Those with law enforcement jobs tend to believe officers and prosecutors. Asking follow up questions may be useful to get them struck for cause.

E. Hurtful v Friendly Jurors Consider which jurors in the jury pool might be helpful or hurtful to the client and mark them accordingly. Spent time talking to the ones that will likely be against the client in an attempt to strike the juror for cause. 

Rule Followers v Bucks Authority: Rule Followers tent to be long time married with kids, live in house in suburbs, been in same job for more than 10 years. Jurors who question authority may have traffic tickets or some criminal history, perhaps are single or divorced or do not have children, have been in their job for less than 2 years. Look for a juror who questions authority. That juror is more likely to have his/her own opinion and stand up to other jurors.

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Life Experience v Youth: A 20-year-old person may think that twenty years in prison is a lifetime, while a more mature person might gauge time differently and sentence a person to a higher term of years.

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Higher Education v Manual Laborers: Find jurors who share experiences or backgrounds with client.

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Conservative v Liberal: State’s leaning jurors tend to be more conservative.

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Trust Cops v Distrust Cops: Jurors who have a natural distrust of cops, may not automatically believe everything the prosecutor and law enforcement say about the circumstance.

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Thinkers v Feelers: Feelers tend to empathize with client but also with the complainant. Feelers may take more time to come to a decision.

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Outliers: Jurors who seem to swing to the extremes for both sides are wild cards.

Tread carefully.

F. Objections How do you prevent Defense Jurors from being easily struck by the Prosecution?

Objections may be utilized in voir dire to prevent defense-inclined jurors to be struck for cause. There are only a few legal objections in voir dire. An attorney should not be afraid to object. Consider asking to review visual aids before the Prosecutor shows them to jury, in order to make objections ahead of time. 

COMMITMENT QUESTION o An attorney cannot attempt to bind or commit a prospective juror to a verdict based on a hypothetical set of facts. Commitment questions are those that commit prospective juror to resolve or refrain from resolving an issue in a certain way after learning a particular fact. Often the questions ask for a “yes” or “no” answer. It is impermissible to ask a commitment question unless the answer gives rise to a valid challenge for cause, and it does not have more facts than necessary to determine if the juror would follow the law. o Two-Step Process: (1) Is the question a commitment question? If yes, then go to second step. (2) Does the question include facts and only those facts that lead to a valid challenge for cause? If no, then OBJECT to improper commitment question. Example of proper commitment question: Can you consider probation in a felony case? Example of improper commitment question: Can you consider probation in a felony case in which a nun is the victim? This question uses more facts than necessary to establish valid challenge for cause. o Beware of Law of Parties questions by the State that are convoluted and have multiple factors. Likely, these questions have more information than necessary to lead to a challenge for cause that could confuse jury and lead to losing defense oriented jurors. Also watch for scenarios that too closely reflect the facts of the case.

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MISSTATEMENT OF THE LAW: A misstatement of the law is an inaccuracy as to the code of criminal procedure or case law. Although it is rare that a seasoned prosecutor makes this type of error, when it does happen, an objection needs to be made. This establishes that the prosecutor can make errors. This mistake is also common when dealing with apparent danger and self-defense issues.

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IMPROPER ARGUMENT: If the prosecutor goes into the facts and tries to be persuasive, an objection can be lodged as to improper argument. An attack on attorney or client or opinion from prosecutor about the case can also be improper.

Objecting politely but firmly signals to the jurors that the prosecutor may be overzealous and overreaching.

G. Coaxing Bias from Jurors How can you help jurors discuss their biases?

In order to help jurors open up about bias, focus on their difficulty rather than their ability. Jurors are more willing to acknowledge difficulties in doing something than in their ability to do it. Using questions that focus on difficulties and not abilities give jurors an opportunity to admit where they would have problems. Jurors have difficulty recognizing and admitting their biases.

Focus on the behavioral manifestations of bias (gives less weight or need more evidence) to provide an alternate and more useful route for uncovering bias.

Using questions that ask jurors to reflect on how certain factors might affect their decisions are more likely to uncover bias than questions that simply ask if certain factors would affect their decision.

Once the proper question is asked, a prospective juror is not automatically disqualified simply because the prospective juror responds affirmatively to the strong feelings voir dire question. Rather, after the prospective juror is individually questioned by the attorneys, the trial court must determine whether or not that prospective juror’s strong feelings about the crime with which the defendant is charged constitute specific cause for disqualification. The requirement that there be the follow-up inquiry as to the effect of the strong feelings affirmative answer provides the necessary opportunity to obtain the basis for the strong feelings so that the court has a proper basis for determining whether or not to excuse the juror for cause. 

5th AMENDMENT RIGHT: Why do we all have a constitutional right not to testify? Why did our forefathers fight for the right to not have to testify? What are some reasons why a person on trial would not want to testify? How would you feel if someone twisted your words and made it look like you were not telling the truth? Some people think if my client testifies he will say anything to beat the case. Other people feel if he does not testify, he must be guilty of the crime. I am between a rock and a hard place. What do you think I should do?

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PRESUMPTION OF INNOCENCE: Anyone honest enough to admit that they presume my client guilty because we are this far in the process? Although, I respect prosecutor, we are at a major disagreement about how this matter occurred. Would you hold open Page 11 of 19

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the possibility that he is wrongly accused? Each of you promise to wait to judge my client until you hear all the evidence? Can you promise to wait to make up your mind until the end of the case? (This won’t get the juror for Cause, it’s purpose is to reduce the automatic bias against defendant or at least speak about the elephant in the room.) 

LAW ENFORCEMENT BIAS: A defendant is entitled to know whether a prospective juror has worked in the law enforcement field if all of the State’s witnesses and/or the witnesses whose testimony is reasonably likely to be the basis for a conviction are members of the law enforcement community.

O SCALED QUESTIONS: Use a scaled question to get more honest response to get strong State’s jurors identified. For example, on a scale from 1 to 10 (1=Don’t Believe to 10=Absolutely Believe), how do you rate this question: Law Enforcement never makes mistakes, never wrong. Police are doing a good job in my community. Use a scaled question to get a more honest response.

o OPEN-ENDED QUESTIONS: How reliable do you think a police officer's judgments and observations are compared to yours? What would you think or feel if you saw a police officer avoid directly answering a question? How often do you think police officers testify? Well, if I told you that not only do they testify constantly, but that they also take courses in testifying in court, what would you think? How do you think this will affect how a police officer appears in the court and while testifying? Have you or any of your relatives or friends applied for a job with or worked for any law enforcement agencies, such as the FBI, police force, sheriff's department, etc.? What is your relationship with that person? How often do you see him and do you ever discuss his job with him? What causes disagreements, if any, between the two of you when you discuss his job? A police officer is not particularly uncomfortable in court because he is here frequently. Does this fact make you more or less prone to value and believe a police officer's testimony over that of the John (the Defendant)? Why? What are some reasons why the police jump to conclusions and arrest an innocent person?

CHALLENGE QUESTION Would any member of the jury panel be inclined to give more weight to the testimony of a police officer than to any other witness in the case, merely because the witness is a police officer?

H. Challenges for Cause How do you get a juror struck for cause?

Attorneys should target jurors categorized as State’s leaning jurors (those ranked below grade level B). An attorney may ease the juror into disagreeing with law by using coaxing techniques such as empowering jurors to have strong opinions and praising them for speaking out. Providing jurors a question they feel good about saying “yes” to often does the trick. Then use that juror to get others struck for the same reason.

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5th AMENDMENT RIGHT: When a juror says a person on trial should testify, instead of responding with, Do you understand that every citizen has the right to not testify, and that the State bears the burden of proving a defendant guilty, say to the juror, Ms. Jones, 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.

Then go in for the challenge: Now holding that opinion, do you consider a person who doesn’t testify on their own behalf evidence of some guilt? Would client’s silence weigh in your decision? Who else feels as Ms. Jones does?

Everyone wants to be seen as fair and impartial person. I do too; but sometimes I prejudge people because they bring back experiences that I have gone through and people that I have known. It is my hope that you will dig deep and be honest about feelings about case like this. What none of us wants is to not hear from you, you get on jury, then asked to follow rule or law that goes against your grain. This may not be the trial for you and that is okay. I am not looking for the right answer. I’m looking for real nitty gritty.

You have come down here as good Houstonians / Texas citizens to serve your community. Sitting on jury is one of those obligations but not sitting on a jury may also be just as serving to the community and take even more guts. For example, my son’s car was broken into and his book-bag and homework and computer taken.

As a mama bear, I am still in heat of battle with those who prey on teenagers in Burglary of Motor Vehicle. I wouldn’t be a fair juror on BMV case right now. What kind of case would you not be good on?

CHALLENGE QUESTION Mr. Jackson, you say you wouldn’t be good on a robbery case. Based on your recent experience with robbery, fair to say that you couldn’t be fair in this type of case right now?

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PRIOR BAD EXPERIENCE: Have you or someone close to you had violence done to you? Did that experience lead to strong feelings? Be honest with yourself and me, would you be able to set that experience and those strong feelings completely aside, never letting them influence you? I ask because as human beings we make assumptions of guilt based on specific incident. Being on a jury in which it brings back terrible feelings and past experiences can be painful and not fair to ask of someone. That is okay. You will serve in another case or another way.

CHALLENGE QUESTION Ms. Adams, fair to say that your experience with violence would influence you in some way on this case? You could not clear your mind of the past and judge my client, Mr. Jones, solely on the facts of this case?

CHALLENGE QUESTION So, I ask each of you, have you or someone close to you been a victim of violence?

Will that experience cause you to be unfair and prejudge the case or the person or the punishment in this matter?

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CHALLENGE QUESTION Can you promise that your strong feelings from your violent experience will not affect you in this matter? As victim of violence or abuse would it affect your ability to be a fair and impartial juror in this kind of case? Because of that experience would you be unfair in this case? 

BEYOND REASONABLE DOUBT: Could each of you find the defendant ‘not guilty’ if the State failed to the prove case beyond reasonable doubt? Should the State fail to prove one element of offense will you find defendant not guilty? Why isn’t that enough to say guilty and go home? My concern is that because most cases brought to trial are guilty, and therefore, you will assume it of my client as well.

CHALLENGE QUESTION Can you promise to hold the State to their burden of proving the case Beyond a Reasonable Doubt to each and every element of the offense?

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PRESUMPTION OF INNOCENCE: Have you ever heard or read about person falsely accused of crime? How is it possible that an innocent person be brought to trial for an offense that he didn’t commit? Can witnesses be mistaken? Ms. Diaz, what did you think when you heard my client accused of rape? When you look at him, what’s the first thing that comes into your mind? It is fair to have a reaction to a serious crime. It is fair to wonder how he did it. It is human nature to judge. To come this far, to be at trial, having been arrested, charged by district attorney’s office, and probable cause found by a grand jury on the facts of case, I believe he is guilty of something.

CHALLENGE QUESTION As he sits here, do you believe he is guilty just because it has gotten this far in the process? If up to you would person have to prove his innocence as opposed to Sate proving person guilty?

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FEELINGS ON PUNISHMENT: Who here knows the law allows for probation in this type of case but disagrees with that? Thinks that is too light a result for an aggravated case? This is the time to let us know. Otherwise, when you are on the jury and asked to do something that goes against your beliefs, it will be a problem. Mr. Evans, you disagree with probation as a possible result? Thank you for your honesty. Is that a strong belief on your part based on what you’ve seen, been through and wish to protect your community?

CHALLENGE QUESTION Will your strong belief prevent you from considering the full range of punishment, including probation, in an aggravated assault case? Who else is brave enough to say you agree with Mr. Evans?

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SPANISH SPEAKING: How does an attorney discover if a prospective juror has a bias against a defendant’s race, ethnicity, or cultural heritage? A prospective juror with bias against a criminal defendant’s race, ethnicity, or cultural heritage is not qualified to sit on that defendant’s jury.

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Is there any member of the panel who would be prejudiced against a defendant because of the defendant’s race, color, religion, sexual orientation, appearance, or sex?

If Luis testifies, you'll notice he has a heavy accent. When you hear such an accent, what impressions come into your mind? See he is using an interpreter. What do you think of that? Should rules of court and law be same for someone who can’t speak English language or not born in US? Who hold it against him that he using interpreter?

CHALLENGE QUESTION Would you treat Luis differently or be unfair in a case in which interpreter is used?

Have you ever been prejudged or labeled because of your ethnicity, culture, religion, or color? How did that make you feel? How can we be sure that isn’t happening today?

Anyone just raise their hand if they can’t be fair. I won’t ask particulars. I’ll just thank you for being honest and affording my client the best jury possible to judge this case.

I. Groom Jury about Defenses The legal rule of law is typically boring and hard to understand. Using hypotheticals or real scenarios to explain the law is a useful tool for determining if a juror can follow that law. Sharing rules in the form of stories is not only more fun to hear but also will help juror better remember the lesson later when deliberating the case. Be warned that using “too silly” examples may be taken in poor taste by the juror. An attorney should be respectful of the serious nature of the crime. However, some humor can make an attorney likeable and easier to listen to. Using hypotheticals when dealing with your defense helps paint a picture of your case. The law allows hypos to establish if the jury can correctly apply the law. 

GENERAL DEFENSE OF NOT BEYOND REASONABLE DOUBLE: Arguing that the State failed to prove the case Beyond a Reasonable Double is the least effective defense because jurors do not want to give the tie to the defendant in serious cases.

However, instead of arguing the State didn’t do enough, consider arguing that it was a bad investigation/improper law enforcement that led to poor charging decision. For instance, when the State uses the CSI example (trials aren’t like CSI; we don’t have the capabilities they have on CSI) to water down jury expectations, respond to that in jury selection and throughout trial about a real discussion about what evidence is available or would be available if the accusation were true. Other defenses under the umbrella of not beyond a reasonable doubt are misidentification based on improper police procedure; involuntary statement wrongly taken by law enforcement; or secondary suspect not properly investigated. Talking to the jury about the consequences when proper police procedure is not followed should be addressed if this is part of the defense. Explaining how law enforcement is held to high standard because of Constitutional Rights may enforce the defensive theory. Identifying jurors

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who have a difficult time disregarding evidence when police fail to give Miranda Warnings before questioning suspect in custody can be important. o Voluntary statement hypothetical: Police arrest a suspect for Burglary of a Building after finding suspect found near burglarized gas station with white sheet rock like substance on hands and clothes, out of breath, and sweating when police make contact. While in the back of the patrol car on the way to the station’s interrogation room where he is to be given his Miranda rights (right to remain silent and get attorney and statement be used against you), the police decide to start scaring him. They tell him he needs to start apologizing for damage to the store or he will be charged to the fullest extent of the law. They say he can make this hard or easy for himself. Telling him he won’t see the light of day from jail cell if he doesn’t tell them exactly where all the property it right now. Suspect starts crying, “Please don’t put me in prison forever, and I’ll tell you everything.”

The police didn’t follow law. If you jury find statement not voluntarily given because no Miranda rights were given or involuntary because police improperly made promise to persuade confession, then the jury will be directed to disregard that inadmissible statement.

CHALLENGE QUESTION If you the jury find the statement was taken illegally, can you disregard the confession heard and base the verdict on only the lawfully obtained evidence? If there isn’t enough evidence to support verdict beyond a reasonable doubt will find suspect not guilty?

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SELF-DEFENSE/APPARENT DANGER: If a person finds themselves in a selfdefense/apparent danger trial, it can be because the self-defense theory is not believed by the State or is imperfect defense. For example, the complainant did not have a gun but the defendant believed his life was endanger. If this is the case, first state the law of apparent danger then use a hypothetical to highlight the application of law to real world. Because the reasonableness of the actor’s belief, that force or deadly force was immediately necessary, is judged from the standpoint of an ordinary person in the same circumstances as the actor, a person has a right to defend from apparent danger to the same extent as he would had the danger been real; provided he acted upon a reasonable apprehension of danger as it appeared to him at the time. See, e.g., Broussard v. State, 809 S.W.2d 556, 559 (Tex.App.Dallas 1991, pet. ref’d).

In a proper case, the defendant is entitled to a charge on self-defense based upon apparent danger. Jones v. State, 544 S.W.2d 139 (Tex.Crim.App. 1976); Hamel v.

State, 916 S.W.2d 491 (Tex.Crim.App. 1996). This could be charged in more than one way. See, e.g., Valentine v. State, 587 S.W.2d 399 (Tex.Crim.App. 1979) (instruction defining reasonable belief as requiring only that a “reasonable apprehension of danger, whether it be actual or apparent” exist to trigger legal use of self-defense and an appropriate instruction). Courtney v. State, 908 S.W.2d 48

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(Tex.App.-Houston [1st Dist.] 1995, pet. ref’d) (court erred in failing to instruct on “apparent danger”). o Bully Hypothetical: Bully has a beef with Casanova. Bully has been sending threatening texts to Casanova about putting him in the hospital because Casanova disrespected him by talking to Bully’s girl. Bully is known to carry a gun and shows up one evening to the parking lot at Casanova’s apartment complex. Bully starts running toward Casanova yelling and pointing at Casanova.

Bully has a cell phone in his hand. Casanova believes it to be a gun and pulls his gun and shoots Bully.

CHALLENGE QUESTION If you the juror believe that Casanova used reasonable self-defense, can you find him not guilty of murder?

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LESSER/SPECIFIC INTENT: Lack of mens rea of the actor to conduct the crime can be a very successful defensive theory to reduce the punishment level downward.

The argument that the client lacked the specific intent to kill the complainant can result in a jury finding client guilty of a lesser crime such as murder, robbery or injury to a child. All of which would allow for a punishment range less that life without parole or death penalty. In some cases, getting a guilty on the lesser crime is the victory. o Specific Intent Hypothetical: Robby the Robber tries to take Victor’s wallet by threatening him with a gun. When Victor tries to run away, Robby shoots Victor three times in the chest, grabs his wallet and runs. Robby charged with Capital Murder. Do you agree that Robby had specific intent to kill Victor? Yes. Change the facts and instead, Robby pointed the gun at Victor’s foot and pulls the trigger.

This caused Victor to go to the hospital where he later died of infection from the injury. Was Robby’s specific intent to kill Victor? If no, then Robby is guilty of Robbery and Murder or Manslaughter but not Capital Murder. o Egg Hypothetical: What is the difference between intentionally, knowingly, recklessly? Let’s say you take an egg out of the carton in the grocery store and smash it into wall. Was that intentional? Yes. Take same egg and squeeze it to see how hard the shell was until it breaks. You squeezed egg knowing that it will break if you apply enough pressure. Now you take the carton of eggs and throw it roughly into the cart and later sees that egg has cracked. That could be considered reckless conduct.

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MERE PRESENCE/NOT A PARTY: Law of parties in one of the most difficult concepts for a layperson to grasp. Mere presence is not enough to be held responsible for the conduct of another. o Driver Hypothetical: Denise Driver picked up Passenger and drove him to a gas station where she was told to wait for him. Passenger went into the store and robbed the clerk and got back into the car with Denise Driver. Denise Driver drove him to another location and dropped him off not knowing about the robbery. Why isn’t she guilty of robbery as a party? She was the get-a-way Page 17 of 19

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driver. No knowledge or agreement to the plan. She was unaware so even though she was the driver, she not guilty of the theft. o Gang Hypothetical: Newbie gang member agrees to go with Homeboy to scare rival gang member into giving information. Newbie holds rival’s arms and Homeboy punches him in the stomach. Asking him questions, rival spits in homeboy’s face and homeboy pulls gun from his backpack and shoots him without saying a word. If you believe Newbie didn’t believe the plan was to kill, then he is a party to assault but not party to murder. 

FALSE ALLEGATION: No one is for sexual assault or any criminal offense. It seems such an obvious thing that it shouldn’t even have to be said, but it’s worth saying and it’s worth saying in almost every kind of case – especially sexual assault cases. We are living in the #MeToo Movement. First thing, let the jury panel know that no one at the defense table – not me, not co-counsel, not our client – no one is supportive of, or okay with, sexual assault. It’s an obvious thing but the jury must be reminded and told especially after the State’s voir dire. Tell the potential jurors that sexual assault allegations should always be taken seriously and investigated thoroughly. However, when the evidence just isn’t there, or when it’s clear a sexual assault did not occur, the case should stop, and the accused should be cleared. That’s why we are here --because client didn’t sexually assault the complainant. How can we always know what is in another person’s mind? We look to their words and actions. In order for a person to be guilty of sexual assault, he must intentionally and knowing do the conduct. o Date Hypothetical: Jack and Jill are on a blind date. Jack thinks it is going well, Jill is pretty and laughs at jokes. Jill lets Jack walk her to the door. Jill gives Jack her phone number. When Jill smiles and says goodnight, Jack leans down and gives Jill a kiss. Meanwhile, Jill is thinking differently. She thinks Jack talks about himself too much and doesn’t find him attractive. She smiles and laughs to be polite. He leans down to kiss. She doesn’t pull away or say no but, in her head, she is thinking “no, thank you”. Can two people have different mindsets and intentions? How can Jack know what Jill is thinking?

J. Answering the WHY Question In any sexual assault case—particularly child sexual assault cases—answering the why question is always an issue even though it’s a question that will never appear in the court’s charge to the jury. Why would a complainant make up an allegation of sexual assault against the client? It must be answered satisfactorily to win in a sexual assault case. Sometimes that’s an easy question to answer based on the evidence; sometimes it’s not quite so easy. However, it is always a good idea to ask the jury panel why a complainant—child or adult—would make an allegation of sexual assault that wasn’t true.

Sometimes, the panel will give you something you hadn’t thought of before. Most often, though, the panel will hit on your theme. When it’s an idea from another juror rather than the Defense lawyer, it’s more readily accepted. And, if the juror uses wording that’s a

Page 18 of 19

Victory in Voir Dire  Violent Crime Defense

little different than what you have prepared in opening or questioning, rephrase to parrot the juror’s words back. Even if the potential juror doesn’t end up serving on the jury, the other jurors will recall that another of their own had come up with that reason therefore it must be reasonable. Make sure you ask the panel the “why” question.

K. Empower Jurors An attorney’s final words to jurors should be to empower them to do what they believe is right and just. 

I ask that you wait to hear all the information before making up your mind. To put aside best you can your assumptions about violent crimes and those accused of doing it. To listen critically to the evidence. And to stand your ground in your beliefs. You the jury are the last line of defense for the wrongly accused. Bullying is not allowed in this process or in the deliberations. Be respectful of each other’s thoughts and conscious. With that I know you will make good decisions.

Conclusion During voir dire, attorneys have an incredible opportunity to engage directly with panelists and can systematically improve the quality of the jurors selected and advance the defensive theory by utilizing the five keys to victory. Coaxing jurors to express themselves will aid in as to identifying jurors who are unfavorable to the Defendant. Once identified, the pro-State jurors can be led into getting struck for cause. Having a strong defensive theory is vital to a great defense. Grooming the jury to be open to the defensive theory will lead to better trial result. Jurors more readily follow an attorney’s lead with they are likeable and authentic. During the voir dire of violent cases, using each of these techniques to flip problem issues on their heads and striking pro-State’s jurors will lead you to victory!

Page 19 of 19

Texas Criminal Defense Lawyers Association

Voir Dire March 10-11, 2022

Topic: Burden of Proof Speaker:

Frank Sellers 1701 River Run Ste 801 Fort Worth, TX 76107-6498 (817) 928-4222 Phone (817)385-6715 Fax frank@westfallsellers.com email www.westfallsellers.com website

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

Blinks to David Ball on Criminal Defense1 Frank Sellers & Weston Mumme I. INTRODUCTION In David Ball on Criminal Defense, David Ball, Don Keenan, and their team seek to reshape the way criminal defense attorneys approach trial. They begin by addressing some of the common problems with defense attorneys’ methodologies.

Next, they outline a better approach: the “Rule Out” principle.

Lastly, they suggests ways to implement the Rule Out principle at each phase of trial. The following seeks to summarize David Ball’s principles in hopes that you might incorporate them into your trial strategies.

II. PRINCIPLES TO AVOID The initial pages of Ball’s book diagnose some flaws in the ways we currently approach trial. The book focuses on two main issues: undertaking unnecessary burdens and engaging in tug-of-war battles with the prosecution.

A. Avoid the “Fatal Defense Error” of Undertaking a Burden The fatal defense error is appearing to jurors as though you have a burden. Jurors will generally assume you are trying to prove something, and telling them you are not accomplishes nothing. Nevertheless, we confirm their suspicions all the time and lead them to believe we have to prove our theory is more viable than the prosecution’s.

Full text available for purchase for $35 at https://reptilekeenanball.com/David-Ball-on-CriminalDefense_p_43.html (last visited Feb. 9, 2018).

1

1

We say things like “… however, we’ll show you the defendant was not in New York on the evening in question.”

Statements like this suggest to the jury you are going to prove something, even though your only job is to create reasonable doubt as to whether the defendant was in New York. Worse, if you fail to prove the defendant was not in New York, you’ve deceived the jury and lost credibility.

There’s a better way, however, to avoid this pitfall entirely.

Instead of resolving to prove certain facts, say, “The prosecution cannot rule out the possibility the defendant might have been elsewhere.”2 This is the Rule Out principle.

B. Avoid Tug-of-War with Prosecutors: You Don’t Have to Prove Anything Another mistake defense attorneys frequently make is engaging in tug-of-war with the prosecution: “Trial is not a tug of war between who’s right and who’s wrong. It’s only about whether the Prosecutor can logically rule out every possible reasonable doubt, even the smallest.” 3 Despite widespread use, statements like, “My client did not do it” quickly create “an indelible tug-of-war, instantly and needlessly plummeting your chances of winning down to the pathetic current national averages.”4 Your chances of success will skyrocket if you avoid statements that encourage tug-ofwar. Consider the following example: [Y]ou say, “Two witnesses will say he was not in New York but Boston.” So jurors think you’re trying (and thus required) to prove he was in 2

DAVID BALL ET AL, DAVID BALL ON CRIMINAL DEFENSE 3 (2016).

3

Id. at 8.

4

Id. at 3.

2

Boston—when you only need show that the state can’t logically rule out the possibility he was somewhere other than New York. So instead say, “Two witnesses say he was in Boston. The Prosecutor cannot rule out that possibility.”5

III.

PRINCIPLES TO ADOPT

Instead of engaging in tug-of-war and taking on unnecessary burdens of proof, Ball suggests defense attorneys stick to their only job: “to show that the Prosecutor cannot rule out reasonable doubt(s).”6 A. First, Explain the History of Reasonable Doubt Like many states, since the turn of the millennium, Texas has prohibited explicit definitions of reasonable doubt. 7 Jurors don’t like it, but by examining the historical origin of reasonable doubt, not having a definition works as much for us as it does against us. Historically, reasonable doubt was a demanding burden: “Reasonable doubt” was instituted in the Middle Ages and firmly established by the 18th century to provide the highest possible barrier to wrongful convictions. It initially arose because any trier-of-fact (all of whom were church clerics) who wrongfully convicted— even inadvertently—was going to hell. So 5

Id.

6

Id.

Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000) (“We specifically overrule that portion of Geesa which requires trial courts to instruct juries on the definition of “beyond a reasonable doubt.”).

7

3

“reasonable doubt” obviously did not mean “moderate”; the clerics needed far greater than moderate protection. Further, the primary meaning of “reasonable” back then was “using reason,” not “moderate.” Today, “using reason” remains the first or second definition in almost all dictionaries.8 Our standard is “the highest standard known to any judicial system in the world,” and a historical analysis helps jurors understand that it was designed that was on purpose.9 B. Next, Put Reasonable Doubt into Practical Terms What does reasonable doubt mean? According to Ball, “A reasonable doubt means: (1) that a juror using reason (logic) (2) could believe (3) the doubt might be true.”10 Therefore, a doubt is a reasonable one as long as it is based on reason or logic, and is not vain or fanciful.11 A usable reasonable doubt, however, must also be case determinative: “If the state can convict whether the crime happened at 1 p.m. or at 2 p.m., reasonable doubt that it was at 1 p.m. is irrelevant.”12 Referring to non-case-determinative reasonable doubts as reasonable doubts has the devastating DAVID BALL, supra note 2, at 5 (citing James Q. Whitman, The Origins of “Reasonable Doubt”, FACULTY SCHOLARSHIP SERIES, Mar. 1, 2005, http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1000&co ntext=fss_papers).

8

9

Id. at 54.

10

Id. at 4.

See Williams v. State, 804 S.W.2d (Tex. Crim. App. 1991); See also Mathis v. State, 576 S.W.2d 835 (Tex. Crim. App. 1979); See also Wappler v. State, 183 S.W.3d 765 (Tex. App. Houston [1st Dist.] 2005, pet. ref’d).

11

12

DAVID BALL, supra note 2, at 4.

4

effect of misleading “jurors into thinking they can have reasonable doubts and still convict.” 13 However, as the Tylenol analogy explains below, the size of the reasonable doubt is irrelevant.

From opening to closing, your entire goal should be suggesting reasonable doubts and explaining that the prosecutor cannot rule them out. Never let the jurors focus on anything else. Reasonable doubts can come from the evidence itself, an insufficiency of evidence, or from the minds of the jurors themselves. It’s the Prosecutor’s job to rule out every such doubt. Consider the following example: For all we know, the assailant could have been the bartender or anyone else in the bar, or the valet parking attendant from outside, or a passing pedestrian or motorist, or anyone else you can think of who could possibly have been in that neighborhood that night. The assailant might be who the Prosecutor says, but the Prosecutor does not win by showing just one version—when other possibilities favor the defendant.

Folks, whenever you can say, “For all we know it could—maybe—have been different from what the Prosecutor says,” it’s a reasonable doubt. The Prosecutor has to rule out every possible “for all we know.”14 So every time there is a legitimate reasonable doubt either because of an insufficiency of evidence or due to the evidence 13

Id.

14

Id. at 5.

5

itself, say, “’for all we know …’ and plug ‘em all in. And encourage jurors to add more of their own.” 15 Practice Tip: When you know of a reasonable doubt the state has not dealt with, consider saying nothing about it until closing, when it’s too late for the state to rule it out.16 C. Tylenol: It’s Not the Size that Matters Even the smallest reasonable doubt can win a trial because “reasonable doubt is about logic, not weight.”17 Regardless of size, jurors must accept all reasonable doubts until the Prosecutor proves there is “no logical way for the reasonable doubt to exist.”18 Consider Ball’s Tylenol analogy: If a bottle of one thousand Tylenol capsules might—just maybe—contain one arsenic capsule, you don’t put that bottle in your family’s medicine cabinet, because the one capsule they take could, logically, be arsenic. No way based on reason to rule it out. Would any odds make the danger small enough? One in 10,000 capsules? Or 25,000? Or does it stay a reasonable doubt no matter how many capsules the bottle holds? The arsenic capsule (the reasonable doubt about whether the next capsule you take is safe) does not disappear just

15

Id. at 4.

16

Id. at 8.

17

Id. at 5.

18

Id.

6

because the chance of randomly picking it is tiny.19 The Tylenol analogy illustrates why size does not matter in an approachable way that helps jurors grasp the concept of reasonable doubt.

D. Affirmative Defenses The Rule Out principle can be used in place of affirmative defenses as well. The mere mentioning of affirmative defenses can elicit biases from jurors. When they hear “’defense by reason of insanity’ or ‘intoxication’ or even ‘self-defense,’ they mainly hear its negative connotations.”20 Instead of allowing the burden to shift to you to prove self-defense, use the evidence to show reasonable doubt about an element of the offense such as intent. Explain to the jurors, “There’s reasonable doubt in two places: first, that he did it, and second, that whoever did it had any wrongful intent.”21 E. Definitions of Burdens Sometimes you cannot avoid taking the burden. In such cases, “you need an accurate and plain-language definition for the jury of whichever burden you have.”22 If your burden is preponderance, try the following: Explain that it means, “More likely right than wrong,” or whatever similar wording the court allows. “More likely right than wrong” has been thoroughly tested and shown to be the most 19

Id. at 5-6.

20

Id. at 10.

21

Id.

22

Id. at 11.

7

effective possible description, so don’t mess with it unless you have to. … every time throughout trial you mention “more likely right than wrong” (it will be often), place your hands side by side palms up, one hand just a bit higher than the other.23 In the alternative, if your burden is clear and convincing, “[e]xplain that it means, ‘Probable but with reasonable doubts.’ The court should allow this explanation because it accurately differentiates clear and convincing from beyond reasonable doubt.”24 Having a solid, plain-language definition of your burden, however, is only half the battle. You must also mention your burden frequently “or jurors will default to beyond reasonable doubt.”25 Regardless of your burden, the goal is to keep the defining phrase at the forefront of the jurors’ minds throughout the trial.

IV.

IMPLEMENTING THE RULE OUT PRINCIPLE

Implementing the Rule Out principle may be difficult at various stages of trial as judges often resist new principles and methods. They will likely continue to resist “until enough lawyers generate well-researched motions and other arguments to diminish judge resistance.”26 In addition to the critical parts above, try using the following, additional principles and methods when allowed.

23

Id.

24

Id.

25

Id. at 12.

26

Id. at 13.

8

They have been condensed down into bulleted lists for each stage of trial.

A. Voir Dire •

Tug-of-war. Be certain the wording of your questions never implies you’re required to prove anything.27

•

Follow-up questions. The all-purpose and best followup question is, “Please tell me about that.” And then, “Please tell me more about that.” You rarely learn much about the nature and strength of any juror attitude until the juror answers at least your second follow-up about it.

•

Never express approval of a juror’s opinion. Doing so makes other jurors with opposing opinions hide them.

•

Never disagree with any voir dire answer. It can make that juror and others feel less forthcoming.

•

Never interrupt a juror.

•

Never reword a juror’s answer. It’s okay to repeat a juror’s answer to make sure you’ve gotten it right and to show that you’ve listened carefully, but do not reword it even slightly.28

•

Pay close attention. Zero in on the juror you’re listening to and don’t be distracted by anything.

•

Never take notes, and don’t watch other jurors to see their reactions. That’s for someone at your table to do.

Pay narrow, strict attention to whichever specific juror you’re listening to.29

27

Id. at 16.

28

Id.

29

Id.

9

•

“Not Prying.” Don’t tell jurors you’re not going to pry.

You’re going to pry.30

•

Ask three types of questions. Keep voir dire questions to three categories: 1) attitude questions, 2) personal experience questions (“Golden Rule” questions), and 3) “which way do you lean?” questions. 31 Here are a couple that should never be left out:

•

Attitude questions. “Ladies and gentlemen, it’s 2 a.m., and you’re going home a little later than you want to be, and you get lost. And you’re not drunk, you’re not doing drugs, you’re just lost. You weren’t paying attention and you’re in a strange neighborhood and all of a sudden the blue lights of a police cruiser come on behind you. Well, some people have an immediate reaction of fear and some people have an immediate reaction of protection. Talk to me a little bit about the first thing that comes to your mind under those circumstances.” It’s a good attitude question. It tells you what’s on the juror’s blackboard, and how each juror views the government and law enforcement.32

•

“Which way do you lean” questions. “Some people believe that Constitutional protections of our rights are absolute and guaranteed, and if police violate those protections then an innocent defendant might be convicted and the guy who actually did it will get off.

Other people believe that sometimes Constitutional protections have to give way to keep a guilty defendant from going free. Which way do you lean?”33

30

Id. at 17.

31

Id. at 51.

32

Id. at 52.

33

Id. at 53.

10

B. Opening Statements •

Tug-of-war. [N]ever say—at any point, much less in opening—“John Riley is innocent” or, “We’re here for truth and justice.” Such thoughts zap jurors right into tug-of-war mode.34

•

Use easel, not PowerPoint. PowerPoint goes away, easels do not. “Use Velcro or a magnetic board so you can attach each new point. Or have the entire chart in front of the jury and reveal each new part as you go.”35

•

Start of opening: no blather. Cut to the chase. Except for “good morning,” say no words of introduction. 36

•

“Mr. Prosecutor and I agree.” Start your opening with by saying, “Good morning. Let’s look at some reasonable doubts Mr. Prosecutor and I agree he must rule out as logical possibilities.” “Jurors accept without question what you both agree on. It also gets juror attention (it’s a “grabber”) because jurors don’t expect agreement.”37

•

List reasonable doubts. Cut to the chase. Start listing reasonable doubts. Keep them as short as possible.

“Don’t yet discuss these reasonable doubts. Just create the list. Jurors pay more attention and learn and remember better when you provide one layer at a time.”38

34

Id. at 27.

35

Id.

36

Id. at 26.

37

Id. at 27.

38

Id. at 28.

11

•

Discuss reasonable doubts. With the completed chart in place, start discussing each doubt. If the first reasonable doubt is “Maybe taxi driver saw someone else,” say the following: “Now let’s look at reasonable doubt number one. The taxi driver will say he saw John take the money. You’ll hear four reasonable doubts about whether he’s right. First, he’d never seen John before. Second, he saw whoever it was for just a few seconds. Third, the taxi driver hesitated saying it was John in the lineup. Fourth, the lighting was bad.”39

•

“The evidence will show.” Don’t say things like, “The evidence will show reasonable doubts.” Use “the evidence will show” only when followed by a specific: “The evidence will show it was dark.” Better yet, omit “The evidence will show” altogether. It’s pointless.

Instead, tell us where the evidence comes from: “The bus driver says it was dark.”40

•

Remind jurors that reasonable doubt remains unless the juror must abandon reason to think it could maybe be true.41

•

When allowed, end with, “As you hear and see each piece of the Prosecutor’s evidence during trial, your job will be to view it with skepticism. None of it is true until the Prosecutor rules out every reasonable doubt that it is true. As you hear each piece of evidence we show you on behalf of the defendant, your job is to take it as true. None of it is false unless the Prosecutor rules out every reasonable doubt that it is false. In other words, you have to interpret every piece of evidence in the defendant’s favor as long as it is logically possible

39

Id. at 29.

40

Id. at 27.

41

Id. at 30.

12

to do so. If you apply that simple test, your verdict will be easy.”42 C. Testimony •

Tug-of-war. By default, jurors think you’re required to prove your witnesses right and the state’s wrong.

That’s a tug-of-war: Don’t go there. Nor is there need to show that the state’s witnesses are wrong. It’s enough to show they could be wrong. Maybe wrong.43

•

Bottom line. Make sure the jury understands that the verdict must be not guilty when 1) there’s reasonable doubt about anything a state’s witness says that is in itself case- or count-determinative, or 2) when there’s reasonable doubt about anything count- or casedeterminative that a defense witness says. In other words, when a defense witness says something that, if true, would mean innocence, and there’s reasonable doubt that he’s wrong, the jury must take the statement in the best light for the defendant. That means a not-guilty verdict.44

•

Expert Witnesses. Regarding experts, the rules of evidence require “(b) The testimony is based on sufficient facts or data; (c) The testimony is the product of reliable principles and methods; and (d) The expert has reliably applied the principles and methods to the facts of the case.” The state must rule out all reasonable doubt about each phrase as it applies to their experts.

42

Id.

43

Id. at 31.

44

Id.

13

Otherwise their experts automatically have reasonable doubt.45 •

Defense Experts. As with all our witnesses, when the state cannot prove beyond reasonable doubt that our expert is wrong, then maybe our expert might be right.

Make sure the jury understands this is all we need.46

•

Neutral frame of mind. The expert must place himself in a neutral frame of mind. This is neither option nor minor. And alone, this makes it pretty much impossible for state-employed forensics experts to come to reliable conclusions. Make sure your expert has a good answer to your question: “What did you do to ensure your neutrality?” and “How can we trust your neutrality?” Use the same questions on the state’s experts when you can show flaws, because each flaw creates a reasonable doubt.47

•

Creating expectation. The police and D.A. often create scientifically impermissible expectations on the expert’s part by telling her in advance what they want her to find: “See if this is heroin.” “See if this is the defendant’s blood.” These statements tell the expert what to expect (introducing expectation bias).48

•

Reproducibility. Reproducibility of research or analytic result is a hallmark of science and among its most important requirements. Without it, there’s no science and the state should not be allowed to claim it’s science. Scientifically speaking, until the state’s expert’s result is reproduced by an outside analyst,

45

Id. at 32.

46

Id.

47

Id. at 33.

48

Id. at 34.

14

there’s reasonable doubt. Make sure the judge understands that the defendant must not be disadvantaged just because the state won’t spend the money for scientifically required reproducibility by an outside analyst.49 •

Proprietary software. Some courts have refused defense requests to see and analyze the software to be sure it is reliable. Not being able to examine the software creates an automatic reasonable doubt: By a wide margin, the market for these devices is the police.

So the manufacturers are motivated to please their potential buyers—the police—by cheating in their favor. It’s basic science: a conclusion reached without transparent methodology and technology is never reliable.50

D. Closing •

Say, “Your work is done the minute you decide a reasonable doubt might exist.”51

•

Listening in closing. Research confirms that during closing, jurors rarely move in either direction. They almost all think they’ve made up their minds. So they tend not to listen. So at the start of closing, get them listening. “Good morning. During deliberation, you’ll have three jobs.” This makes jurors listen, because they think they have only one job.52

49

Id. at 35.

50

Id. at 36-37.

51

Id. at 37.

52

Id. at 38.

15

•

Job one. “Make decision(s) about the case.”53

•

Job two. “Make sure everyone follows the law the judge gives you. No other juror has the right to ask you to go home having been on a jury that stepped outside that law in making its decisions.”54

•

Job three. “Explain to each other why you feel the way you do about how to decide the case. I’d like to suggest some ways to help you do that.”55

•

Assigning their task. Let the jurors know that it all comes down to one question: “Did the Prosecution logically rule out all the reasonable doubts—the possibilities based on reason—that favor John on Count 1? The Prosecutor either did or did not rule them all out, and that is all you need to decide.” Repeat for each additional count. 56

•

Arming your jurors. After trial, jurors who were left unarmed often say, “I knew your side was right but I didn’t know how to say why. So I had to go along with the others.” Build a running display chart of your arming points. Try to limit each arming point to 20 words, fewer when possible. Cut to the chase: “If someone says New York, remind them the Prosecutor never ruled out John might have been elsewhere.

Never ruled out elsewhere.”57

53

Id.

54

Id.

55

Id.

56

Id.

57

Id. at 38-39.

16

•

Marshalling. Never marshal the evidence. Jurors already know the evidence—or they think they do—so when you marshal they stop listening.58

•

Explaining (i.e., massaging) the instructions. Do not rely on the judge’s reading of the instructions. They’re usually unclear and always too many … For each instruction that you need jurors to understand, do the following to “massage” it: 1. Select the crucial part of the instruction.

2. Put each selection on its own slide or board.

3. With each instruction, do all of the following before going on to the next one: a. Read it aloud. b. Explain it in plain English. c. Apply the facts to it. Jurors are told to “apply the facts to the law,” but they’re rarely told what that means. So instead of explaining it, show them how the facts apply to each instruction to reveal reasonable doubt.

•

Display a blow-up of the verdict form. As you “massage” to the point of showing reasonable doubt, place an X in the not-guilty box. Add an X to that box for each additional reasonable doubt.59

•

“Presumption of innocence.” The meaning of the word presumption is paper thin. Instead, drop presumption and say, “Under the law, my client is innocent unless …”60

58

Id. at 40.

59

Id.

60

Id. at 55.

17

“Alleged.” Try to use the word claim instead of allege.

“They claim to have been hit.” “They claim there was a rape.” “So on cross we ask, ‘Is that what you’re claiming?’

Claim is a bad word for Prosecutors and a good word for the defense.”61

•

61

Id.

18

# A B C D # 1.

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REASON FOR CAUSE

CAUSE

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CAUSE

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REASON FOR CAUSE

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CAUSE

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CAUSE

SCALED QUESTION CHART SCALED QUESTIONS A. B. C. # 1.

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D. E. A

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A

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D

E

Drinking Habit: A=Regularly; B=Occasionally; C=Rarely; D=Never; E=Not Anymore

T