"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Friday, July 18, 2008

Sneaky Prosecutors at it Again in Texas

I have to disagree with Mark Bennett, who complains that it is contrary to the duty to do justice for a prosecutor to ask (as he says they routinely do in Harris County, TX), the following question in jury voir dire:
If we only present one witness, but based on that witness’s testimony you believe beyond a reasonable doubt that the defendant is guilty, can you convict him?
I like it, and will henceforth add it to my stock questions. Mark doesn't like the fact that when a juror answers "no," they can be struck for cause. He thinks that the question is "a sneaky question, it’s unfair to the jurors, and it’s inelegant."

Inelegant? Oh my.

Methinks counsel doth protest too much. It sounds like an effective question to discern which jurors have opinions about the burden of proof that are contrary to law.

The burden of proof is simply: the state must prove each and every element of the offense beyond a reasonable doubt.

Note: the burden is not "beyond any doubt" or "beyond any possibility of mistake." Our system does not, and never has, required absolute certainty to convict. It wisely recognizes that absolute certainty is next to impossible, and therefore entrusts admittedly fallible human beings with looking at the evidence in a case and seeing if they have any reasonable doubt about the defendant's guilt. It's not a perfect system, but it's better (I maintain) than letting criminals go free because we can't have absolute, metaphysical certainty of guilt.

There is nothing about that burden, considered either theoretically or historically and legally, that contains even an implicit caveat, "only upon testimony of more than one witness."

Now there is no doubt that such cases must be strictly scrutinized by prosecutors, and the first question must be, "why do I believe this victim/witness beyond a reasonable doubt?" If that question cannot be answered, the prosecutor would be well advised to find some other resolution of the case. There is also no doubt that a minimally competent defense attorney can make big points in a jury trial about convicting someone based on single-witness testimony.

Nonetheless, many, many cases would never see the light of day if single witness testimony was considered per se insufficient in law to support a conviction. In fact, probably most cases, at least the more routine ones, rely on the testimony of just one witness: a police officer.

But other cases often by their nature are single witness cases. For example, in Virginia, a state tied closely to the common law principles that stretch back hundreds of years, jurors are instructed in rape cases:
You may convict the defendant of rape or sodomy solely upon the testimony of the victim, if you find her testimony credible. There is no requirement of corroboration.
Now a juror who is never going to believe a single witness, no matter how credible, no matter what the surrounding facts and circumstances, is simply not willing to be an impartial arbiter of the evidence in a case, and is adding requirements to the state's burden of proof that do not exist in law.

Why a lawyer would want a juror to act in such a lawless fashion escapes me... well, not really, of course, because defense attorneys hope that jurors have such hidden misconceptions about the law, and resent the fact that the state's attorneys are uncovering those misconceptions, and that the trial judges are, as they must, excluding such jurors from service.


Western Justice said...

I've got to say on this one I use this as a standard question for jury's since I was a law student working in a prosecutor's office, but I have never heard of someone being struck FOR CAUSE because of their answer. Hmmmm...I think it's a 50/50 call, not as clear as either of you make it

Mark Bennett said...

In Texas a lawyer couldn't ask, "would you require the testimony of more than one witness to convict?"; this would be an improper commitment question.

Of course it's unfair for the prosecutor to trick the jurors. He is, after all, their servant. If he can't get a conviction playing things straight down the middle, he shouldn't be in the courtroom.

Anonymous said...

As a devil's advocate observation, I think the objection might be more readily understood if the key question was broken into two questions rather than one:

Q1: If you believe beyond a reasonable doubt that the defendant is guilty, can you convict him?

Q2: If the evidence advanced by the prosecution consists solely of one witness's testimony -- with no other facts or physical evidence to either support or disprove that testimony -- would you consider that evidence sufficient to demonstrate guilt beyond a reasonable doubt?

I do have to admit that, were I a juror, before I would convict any defendant on nothing more than one other person's say-so, the prosecution would have to demonstrate extremely well that the witness was not only personally credible, but credibly correct in his assertions. As you note, Tom, a prosecutor with only one witness, and no supporting physical evidence, who thinks he can't convince a jury of that witness's credibility and correctness had better find another approach to his case if he wants to win it.

I think the dishonesty perceived in the original question comes from the fact that in practice, it seems deliberately designed to elicit emotional rather than dispassionate reactions; the answer isn't based on the juror's assessment of evidence, but on their impulse reaction to the question: "Is one stranger's say-so enough for me to send another stranger to jail?"

What a quick "yes" answer produces is a mindset that is less concerned with the quality of the evidence than with a minimum quantity of it, and almost certainly willing to err in favour of the prosecution where ambiguities exist.