Here’s the application paragraph of the accomplice-witness-as-a-question-of-fact jury instruction from the Harris County jury charge bank.
Therefore, if you believe from the evidence beyond a reasonable doubt that an offense was committed and you further believe from the evidence that the witness, _____ , was an accomplice, or you have a reasonable doubt whether he was or not, as that term is defined in the foregoing instructions, then you cannot convict the defendant upon the testimony of unless you further believe that there is other evidence in the case, outside of the testimony of _____, tending to connect the defendant with the offense charged in the indictment, and then from all the evidence you must believe beyond a reasonable doubt that the defendant is guilty.
The jury given that charge in my most recent trial pointed out afterwards that the topic hadn’t come up in jury selection and wondered why.
It’s a fair question.
Conventional wisdom would have had me voir dire on the accomplice-witness rule, to commit all of the jurors to following that particular law. But I wasn’t certain that I would be able to get the State’s star witness to make himself a potential accomplice until I had actually done so on cross-examination (a team victory with which I am still quite pleased). And I didn’t want to call the State’s attention to its potential proof problem which was obvious to the criminal-defense lawyers I had briefed about the case, but which may not have been so obvious to people thinking like prosecutors. I suspected that they would (and didn’t want them to) woodshed their witness to deny any possible role in the alleged crime.
Conventional wisdom would also have had the State voir dire on the accomplice-witness rule, to try to downplay the amount of evidence required to corroborate an accomplice—”anything tending to connect the defendant with the offense.” Why they didn’t do so, we may never know. My guess, though, is that the accomplice-witness jury instruction was an NLS—a Nasty Little Surprise—that hadn’t appeared to the State as a serious possibility. They may have asked their star heroin-dealer witness questions that satisfied them that he wasn’t an accomplice, but they probably didn’t take the tack that was so fruitful for me.
It was a serious possibility, though, and one that, the jury agreed with me, disposed of the entire case.