Yesterday I was fortunate to hear HCCLA member Chris Downey speak for 40 minutes about the use of scaled questions in jury selection in a criminal trial, something that I wrote about here and here. Chris proposed three scaled questions we can use in all criminal cases:
- How would you rate your feelings about whether the client as he sits up here, is guilty?
- How would you rate the weight you would give the testimony of a person wearing a badge keeping in mind that I am asking you to make this determination without regard to training or experience—but solely out of respect for the badge?
- This Court will instruct you that the State has the entire burden of proof in this case and they must prove the allegation beyond all reasonable doubt. The defendant does not have to offer any proof or even testify. The presumption of innocence alone is enough to acquit him. However, how would you feel as a juror if Mr. Client did not testify?
He also suggested one question for DWI cases with breath test results:
The State has correctly informed you that intoxication can be shown by proving beyond all reasonable doubt that a person registered .08 grams/deciliter at the time of driving. However, the State must first show that the machine registering such a result was maintained properly and utilized properly. And if the result was taken at some time other than the actual time of driving, they must also prove beyond a reasonable doubt that the result is relevant to the time of driving. For the purposes of this question, I want to gauge your feelings about results produced by machines. For this question, assume you have heard nothing about how the machine works, how it was maintained, or how it was utilized at the time the test was given. If all you heard was that a result was obtained from a machine owned by the police department that was over the legal limit, how would you treat that knowledge?
as well as one question for child sex assault cases:
The State has the entire burden of proof in this case and they must prove the allegation beyond all reasonable doubt. As defense lawyers we worry that jurors will give unearned credibility to people based solely on their status (nuns, popular celebrities, law enforcement personnel…) But we’ve learned over time that assuming truthfulness based solely on special status can be very dangerous. Once upon a time, we might have included priests. Or Bill Clinton, Or Barry Bonds. But what about children: ( Tawanna Brawley or the Salem Witch Accusers.)
With child complainants, we might be tempted to ask, “why would they lie?” However, this misplaces the burden of proof. We are essentially saying: I’m assuming they’re telling the truth, now give me a reason why they’re lying… The real question should be “Am I convinced beyond all reasonable doubt that this accusation this child is making is true?”
For the purposes of my next question, please assume that you have heard an accusation from a young child. How much weight would you give the accusation of a child solely because of the accuser’s age?
The setups are a little long for my taste, but there’s a lot there that can be adopted and woven into anyone’s voir dire. Chris also explained how he defines a scale of 0-10 for each question, with a question-specific response tagged to 0, 5, and 10.
The CLE program was free, sponsored by the Harris County Criminal Lawyers’ Association. There is video of it, along with a PDF copy of Chris’s handout, in the members-only section of the HCCLA website. HCCLA membership is open to anyone who defends people. A membership application is available here (opens in new window).