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FAll 2005
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For those of you who don't know, in July I became the new Editor of The Defender. We all owe
big thanks to Oaucie Shefman for her many years of hard work putting together this magazine; grudgingly,
we'll allow her to retire and focus on her own wants and needs for awhi le.
The Defender now will be published on aregular quarterly basis. Expect the Fall issue in
Seplember, Winter in December. Spring in March and Summer in June. This should allow us to establish
acertain degree of reliability wilh regard to limesensitive news and announcements, so please let us
know about your upcoming, lawrelated events.
This issue's articles emphasize various voir dire techniques and includes amotion in limine
we hope you find useful. Part II of Kevin Fine's learned treatise will appear in the December magazine -
his knowledge exceeds the scope of asingle issue. Steve Rubenzer, Ph.D" weighs in on voir dire from a
psychological slandpoint. Joe Varela provides an interesting update on TOCJ statistics and DaVid Kialta
warns parenls against steering their children into the criminal justice system.
We not only welcome your contributions in the form of articles, advertising, letters and
announcements, we DEMAND them. Everyone ofyou has some special knowledge or area of expertise that
we would all like to share. This is your forum for teaching and learning - use ill
We envi Sion aprovocative, intelligentand controversial publication. Not everyone will be happy
with every issue, unless we are doing somethi ng wrong. But remember - if you believe your point of view
is being overlooked, jump right in and offer it. [We may not print it. but feel free to submit it .]
Ilook forward to hearing from you.
Shawnal. Reagin
slreagin@aol.com
The stotementsond YH!wp{lIntselpresSI!d herem ore the IndlYlduol authors' and do notOet:fssol'lly reFlect the pOSition ofHCClA os DO
--
WINNING WARRIORS
WARRIORS WHO HAVE ACHIEVED SUCCESS ON B E H L ~ O ~ THEIR CLIENTS:
Robb Fickman finally prevailed with a grand jury no-bill on an
indecency with a child case he fought for about a year - intelligent
tenacity pays off once again for Robb.
Hats off to Tom Stickler, who got a lO-minute Not Guilty on a
OWl habitual in Brazoria County on July 19,2005.
Dan Cogdell was victorious in one of the first Enron cases to go to
trial, achieving a two-word verdict in United States of America v.
Sheila Kahanek. Shortly thereafter, he gained an acquittal from the
Hon. Caprice Cosper in an Aggravated Assault/ deadly weapon and
Official Oppression trial.
Jim Lavine and Jack Zimmermann likewise bested the government
in a 3-1/2 month-long Enron trial, United States v. Kevin Howard:
The jury hung on all 15 counts of conspiracy to commit securities
fraud, wire fraud and related offenses, and Judge Gilmore of the
Southern District of Texas declared a mistrial on all counts. Despite
over 190 counts and four co-defendants, there were NO guilty
verdicts.
Jack Zimmermann and Kyle Sampson obtained Not Guilty jury
verdicts in the court-martial of an Army surgeon [U.S. v. Granger]
charged with distribution of controlled substances, obstruction of
justice, false official statement, violating orders and general
regulations, dereliction of duty and conduct unbecoming an officer
and a gentleman.
Kyle Sampson also won Not Guilty jury verdicts in a OWl case in
CCCL #6 and a family violence/ assault in CCCL #9, involving a
mother accused of assaulting her 16-year-old honor student child.
In a very rare type of victory, Sean Buckley obtained habeas relief
from the Court of Criminal Appeals on an "actual innocence" claim
out of Tarrant County: Ex parte John Michael Harvey, No. Ar-
74,955, December 8, 2004 [unpublished, of course]. Mr. Harvey
had served 13 years of a 40-year sentence for aggravated sexual
assault of a child.
Raise a glass to Mark Bennett for his Not Guilty on a 15 -years-to-
life possession of cocaine with intent to deliver [2 kilos] in the 338th
District Court.
James Stafford and Sherra Miller obtained a pretrial life sentence
on a death capital in the 183rd District Court, despite some bad
priors, bad facts and no classic mitigation. Jim credits his great legal
team, including Danalynn Recer and Aimee Solway from Gulf
Coast Regional Advocacy Center [GRACE], mitigation expert
Gina Vitale and investigator Waymon Allen. Congratulations on
an excellent result.
Continuing the family tradition, Deborah Keyser scored a Not
Guilty on an aggravated robbery case by using experts to present a
"confabulation" defense to rebut the complainant's claim that the
person who robbed and beat him almost to death was a street kid he
had befriended.
Gulf Coast Regional Advocacy Center [GRACE] has been
instrumental in obtaining favorable results in several death capital
cases: State v. Kelvin Jackson and State v. Melvin Hughes, bOtll with
Mack Arnold, Sherra Miller, JJ Gradoni , Gina Vitale and Aimee
Solway and ending in pretrial life pleas; and State v. Ramon
Gonzales, with James Stafford, Cynthia Henley and Aimee
Solway - case dismissed less than mree months after it was ftled .
Tremendous team work and great la\V)
l
ering!
Congratulations to Scott Pawgan for pulling a manslaughter
conviction out of a murder charge in Trinity County; rumor has it
that his client is the first African-American in decades to be
convicted of a lesser-included on a murder case in that county. The
20-year sentence also beat the State's offer of 40 years.
Rick Detoto won a 5-minute Not Guilty on a OWl in CCCL #3 on
July 26, 2005, even though his client had an open container in me
car and refused SFSTs on video. Rick got the HGN and oral
statements suppressed and received instructed verdicts on twO drug
paragraphs. Way to go, Rick!
Kudos to JJ Paull for his IS-minute Not Guilty on a D\VI in CCCL
#6 - his wicked cross-examination carried the day.
Steve Baxley has been on a roll in federal court, with three recent
victories: Not Guilty on felon in possession of a weapon, Not Guilty
on conspiracy to possess a controlled substance and Not Guilty on
conspiracy totransport stolen articles .
Jim Sullivan saved his client from a possible felony theft conviction
on trial date by convincing the prosecution to reftle the case as a
misdemeanor, to which his client pled "no contest" and received a
one-year deferred adjudication, with no fine and greatly reduced
restitution . One co-defendant had already pled to pen time, and
another one was lined up to testifY against Jim's client, so good call.
Danny Easterling topped off an impressive string of victories by
winning two Not Guilty verdicts in the 174th District Court back in
April, on a sexual assault of a child and indecency \vith a child.
Danny also got a Not Guilty on a no-test OWl in CCCL #6 in
January and a Not Guilty on a no-test OWl in CCCL #3 in March.
Keep up the great work!
The "Give Thanks She's on Our Side Now" award goes to Joanne
Musick: Following about four months of work, she obtained a no-
bill on an arson case by presenting the issue of a coerced confession
to me grand jury; a OWl \vith accident/ FSGI and blood test results
was dismissed on the day of trial in CCCL #8, manks to her diIigent
pn::paration, despite her client's lengtlly criminal history; a juvenile
Robbery case was dismissed after Joanne proved her client was only
a mere presence; and she and Brett Ligon managed to have an
aggravated assault/deadly weapon dismissed on a self-defense claim, two days
before trial in the 17 6th.
Mark Hochglaube and Joanne Musick won an indecency case in the 178th
District Court back in January. The same month, Mark also got an acquittal
on an aggravated sexual assault in the 338th.
In a case with international attention, a winning team of HCCLA members
gained a reversal in the Andrea Yates capital murder conviction by
establishing that perjury by the State's expert impermissibly tainted the trial:
Daucie Shefman wrote the appellate brief, Troy McKinney presented oral
argument and George Parnham and Wendell Odom laid the necessary
groundwork at trial, then continued on the case.
The Amazing Silverman Brothers strike again: Jed Silvennan, along with co-
counsel Steve Gonzalez, defeated an intoxicated manslaughter charge at the
grand jury by engaging in immediate investigation, accident reconstruction
and wi mess interviews; the grand jury returned a misdemeanor OWl, instead.
On the same day, another grand jury no-bil led Nonn Silvennan's client in
an aggravated assault case, based on wimesses Norm brought to the
prosecu tor.
Thomas Berg achieved amazing results for a client charged in federal court
with Kidnapping [mandatory minimum of 20 years], violation of the Mann
Act [mandatory minimum of 5 years] and enticing a minor to travel in
interstate commerce for sexual purposes [57-71 months, per the guidelines],
by convincing the government to agree to a plea for two years on just the
"enticing" charge.
Hooray for Todd Dupont, who got a IS-minute Not Guilty on a OWl in
Judge Karahan's court on August 11, 2005. Todd reportedly delivered a
stellar summation.
David Breston provided at least temporary respite for a client with four prior
felonies by hanging the jury in a habitual DWl felony trial in the 300th
District Court of Brazoria County, Visiting Judge Ogden Bass presiding.
David also won a Not Guilty on an assault/family violence in CCCL #14 two
weeks earlier.
Grant Scheiner triumphed in an aggravated sexual assault trial in the 230th
District Court on August 11, 2005, thanks to excellent preparation and
talented cross-examination. Rumor has it the jury was out only 40 minutes,
making the Not Guilty verclict a real shocker [for the State, that is].
Masterful cross-examination also yielded Robert Scardino's client an
acquittal on a breath test DWl in CCCL #12, August 11,2005 .
Overlooked in the last issue was Bo Hopmann's Not Guilty on a felony
injury to a child in the 262nd District Court in October, 2004. The client
rejected 4 months deferred adjudication on a Class A with no fine and
termination after 3 reports on a plea without a recommendation and endured
a harrowing, uphill battle at trial, but his innocence was rewarded in the end.
Good job, Bo.
Winning Warriors salutes Terri Jacobs, who was recently promoted to the rank
of Lieutenant Colonel of the United States Maline Corps. Semper Fi, Terri!
BANNED IN BOSTON!
CITY COUNClfSWORST NIGHTMARE!
DENOUNCED FROM PULPITS COASTTO COAST!
Is it Deep Throat? Tropic of Cancer? Hustler?
NO) irSEVEN BmER:
REASONABLE DOUBT
WITH
ROBB FICKMAN
TUNE IN TO THE CABLE ACCESS CHANNEL THAT HAS
HOUSTOWS GUARDIANS OF PUBLIC DECENCYTOTALLY
A-TWinER TO SEE ROBB) HIS CO-HOSTS AND HIS
GUESTS SPIN CRIMINAL JUSTICE CONTROVERSY.
BE INFORMED AND ENTERTAINED,
CATCH IT WHILE YOU CAN
THURSDAYS AT 8:00 P.M.
CABLEACCESS CHANNEL17
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THEN AND NOW
BY JOSEPH W. VARELA
In the May/ June 1992 issue of"Docket Call,"!
this publication's precedessor, there appeared an
article Iwrote based onTDCJ's 1992 Fiscal Year
Statistical Report. Recently I unearthed my copy
from a box of old files, quite by accident. I
thought a comparison Witll the present situation
at TDCJ might be illuminating, given the
dramatic changes in the scale ofimprisonmentin
Texas. So here are some basic facts aboutTDCJ's
current status. All me recent figures come from
the Fiscal Year 2004Statistical Reportavailable at
TDCJ'swebsite.
2
INMATES ON HAND. The first thing we
notice is that the total number ofprisoners has
almostpreciselytrebled in twelve years. On August 31, 1992 tllere
were 51,592 offenders
3
on hand, housed in 40units .On thatsame
date m2004,mere were atotal of150,709,includingprison,4state
jail, and substance abuse such as SAFPF, housed in 106 units, not
including parole violator incarceration facilities. 132,366 (88%) of
these were prison, 15,089 (10%) were state jail, and 3,254 (2%)
were substance abuse .About 18,800were in any ofseven privately
operated facilities.
NEW RECEIVES. Whereas in 1992TDCJ received 35,720 new
inmates, in 2004 it more than doubled the inmates it received, to
77,315. But the proportion of parole violators has changed. In
1992 19,896were admitted on new sentences, and 15,192 (43%)
were parole ormandator ysupervisionviolators.Ofthe 45 ,060 new
admissions toTDCJ-ID(prison,excludingstatejail, towhich parole
does notapply),33,749(74.9%) were admitted on newcrimes,and
only 11,311 (25 .1%) were parole or mandatory supervision
violators. In other words, me number ofparole revocations as a
proportion ofnewadmissions has declined drastically.
RELEASES. Discharges, which occurwhen aprisonerserves all of
his sentence, have increased substantially from nearly notlling in
1992. 1992 releases totaled 29,860, wim only 196 discharges. In
2004 there were 72,130 releases. Prison released 41,028, with
7,445 discharges (notcountingstate jail).So even backing state jail
outofthe releases, a lot more inmates had to serve aLi theirtime in
2004(18%) compared with 1992(<l %). Notice thatin 2004TDCJ
had a netgain of5,185 inmates, more thandouble the
equivalent ofthe typical 2,200 bed prison unit.
GENDER. Texas is perhaps moving towards gender equality. In
1992 only 4% ofall inmates were women. In 2004 the figure had
risen to 7.8%. Almost twice as many women are imprisoned, as a
proportion ofthe mmate population.
Race or ethnicity. Race breaks down as Pollows:
1992 2004
Black 48% 38.8%
Hispanic 24% 29.1%
Whit:;e 28% 31.6%
Ot:;her <1% < 1%
Blacks still disproportionately fill TDCJ, their percentage ofthe
state's population beingonly 11.5%,but have gonedown nearly ten
percent, whereas whites and llispanics have both mcreased their
shares, Hispanics more tlunwhites. Thepercentage ofHispanics in
the Texas population is about 35.3%, similar to their share of
inmates.
COUNTY OF ORIGIN. Harris County lawyers often think of
ourcourthouseas arelentlessassembly-line single-handedlypacking
TDCJ. This turns out not to be the case. Back in 1992 Harris
County accounted for 24% ofall TDCJ admissions. In 2004 that
proportion had not changed significantly, at 26%. The US Census
Bureau lists the Houston SMSA at 23.1% of the population of
Texas. So much for the complaint that Harris County has become
disproportionately efficient at incarcerating its population in recent
years. The big change was recorded by Dallas County, which
accounted for 22% in 1992 but only 12% in 2004.
5
AGE. The average age of inmates on hand rose from 32.4 years to
36.0, not surprisingly in a time of flat-one-half terms for 3G
offenses 6 and fewer unscheduled releases due to overcrowding.
Excluding state jail, where sentences are short and turnover is high,
the average age of prison inmates is 36.5. This bodes ill for future
imprisonment costs. As of August 31, 2004, 3,437 inmates were
sixty years old or older. The oldest was 88 . A total of 13,413 were
serving life, capital life, or 60+ . I have not seen a curve, but in ten
or twenty years we may be operating the world's largest geriatric
facility for aging, chronically ill inmates with long sentences. The
cost of this will be enormous.
CRIME OF RECORD. In case an inmate is serving several
sentences, "crime of record" is defined by TDCJ as the case with the
longest sentence. Of inmates on hand, drug cases lead the pack with
22,765, edging out robbery's 21,897 and sexual assault's 17,663,
the nearest competitors. Drugs thus account for 19.8% of inmates on
hand now. The length of sentences, of course, skews the on-hand
statistic; "violent" crimes are more likely than drug or property
crimes to garner long and/ or 3G sentences. But the "War on
Drugs" is shO\ving up in the admission statistics; of new admissions
in 2004, 35.1 % are for drugs.
SENTENCE LENGTH. The average sentence length of inmates
on hand is 19.5 years. I don't have the fIgure for average length of
sentence for inmates on hand for 1992, but the average sentence of
a person released in 1992 was 11.1 years. In 2004 the average
sentence of a releasee was only 8.4 years (excluding state jail).
PERCENTAGE OF SENTENCE SERVED. Now we come to a
statistic where the difference is truly dramatic. In 1992 the average
releasee served but 17% of the time assessed. In 2004 the average
releasee had done 59.8% of his time (excluding state jail, where there
is no early release ). These figures include 3G sentences. So whereas
the average releasee in 1992 did about 2 months per year of
sentence, 2004's releasees did about 7.2 months on a year. So the
percentage of actual time served has more than trebled, reflecting
the public's desire for "truth in sentencing.".
3G OFFENSES. In 1992 33% of all inmates were serving a 3G
sentence. In 2004 the figure (excluding state jail) was 54,779, for
41.4%. But if we add in state jail inmates, the proportion of 3G
inmates has held more-or-Iess steady at 36%.
CUSTODY TYPE. There are four basic levels of custody: In order
of onerousness, Administrative Segregation, Close, Medium and
Minimum. In 1992, about 70% of inmates were classified as
minimum security inmates. That hasn't changed, as in 2004 74%
were so classified. The public might flOd this surprising given that
TDCJ classifIed 48% of its inmates as imprisoned for a "violent
offense" (down hardly at all from 51 % in 1992). Administrative
continued on page 20
1 This was the issue with a vcry Dan Cogdell on dlC cover.
2 http://W\\w.tdcj.state.tx.us/ publications/publications-home.htm. This website gives the curious an eye-glazing series of table. but almost no graphic summaries.
3 There seems also to be an evolution in nomenclature associated wi.th incarceration in Texas. [n days of yore, the institution was caUed the: "'Texas Prison System" and its denizens were
called "'convicts." Then it was renamed the "Texas Dcparonc:nt of Corrections'" and housed "'inmatcs," Now it is me "Texas Dcparollcnt of Criminal Justice Institutional Division"
and contains
" By "prison," both the TDCJ and I mean the TDC/ instinltionai Di,ision, as distinct from the State Jail Division. Because state jail sentences arc day-for-day without parole, they
sometimes should be treated differendy.
5 Oddly enough, Harris acconnted for 6,187 new prison and 9,186 new state jail admissions in 2004. Dallas, in sharp contrast, sent 4,093 to prison and only 3,239 to state jail. Either
Dalla.<i criminals commit rc:markably fewer S[3[e jail offenses, or Hilnis judges and prosecutors redu.ce more prison sentences to state jail. Harris Counry alone accounted for 60% of
all state jail new admissions in 2004. The other 253 counties contributed 40%.
6 Tex. Code Crim. Pro. Art. 42.12, section 3g. Sec Tex. Govt. Code section 508.145, requiring perrons convicted of '3g" offenses to serve one-half of their sentence or two years,
whichever is greater, before becoming eligible for parole. This was raised in 1993 up /Tom one-fourd1. Botor< 1987 it was one-dlird.

"SPEND 11 E WITH YOUR KIDS NOW,
Open Letter to All Parents:
I am writing this letter because some observations I have made, some involving my own children and some
involving children I do not know. I feel compeUed to write not only the parents I know, but also those I don't
know. Not long ago, one of my children was involved in a potentially dangerous situation. Fortunatel y, my child
chose to call a parent for help rather than surrender to peer pressure. My child and I had previously discussed this
possible scenario and I am proud of the deci sion my child made. I know that possible danger looms in every child's
future and I'm uncertain how my child wiU react next time. However, we have discussed nearly every possible event.
As parents, it is our duty to have open and honest communication with our children. It is extremely important that
we discuss uncomfortable topics such as alcohol , drugs and sex. The consequences of not having these discussions
and not giving our children the opportunity to make good decisions are too grave to ignore.
Times have changed since we grew up. Houston now has a very aggressive DWl Task Force that actively seeks
drivers who may be intoxicated. Drugs are cheaper, easier to obtain and more common then ever among today's
youth. Not only are there natural consequences of taking drugs or drinking, such as an overdose or a car wreck,
the criminal and/ or civil liabilities can be severe. As a criminal defense attorney, I can assure you that the criminal
justice system will not educate your child or "teach them a lesson." It is our job as parents to educate and protect
our children.
I have represented children from the most prestigious schools in Houston and children from some of the
poorest areas of town. GeneraUy, one of the things these children have in common is parents who are not engrossed
in their children's Jives. Whether the parents are rich or poor, children who are not educated about dangerous
situations or not close to their parents tend to get into trouble by making poor decisions. However, all children,
including my own and no matter how well raised, are susceptible to making errors in judgment. As humans we will
make mistakes. However, it is important that our children know that we will be with them if they get in trouble.
The relationship between parent and child must be strong enough so that our children will not hesitate to summon
our help when needed .
Another reason for writing this letter is to remind people that the bond between parents and their children
starts early and my experience as a father and an attorney has taught me that children need much more from their
parents than a quick glimpse at bedtime. For example, as a parent who has coached my kids' sports for several years,
too often there are parents who never attend a game or even go out and play catch with their kids. At other times,
I see parents who only occasionally show up for a game, then criticize and berate their child's efforts, but you never
see these parents come out to a practice to work constructively with their child . In these and so many other ways,
parents miss important opportunities to bond with and educate their children. Whether it's your child's sports
activities, recitals, school plays, or just being there at home to give them some one-on-one, undivided attention for
a few minutes, I urge you to take an active role in your children's lives. It is one of the most important aspects of
their emotional well-being.
Recently, one of my children got in some trouble and my initial reaction was to protect my child from any
consequences from his actions. It is a natural reaction for parents to protect their children. There is a fine line
though between protection and overprotection. Children must also have consequences for their actions. I am not
here to tell you what to do in any given situation but without clear, consistent consequences, children rarely learn
from the poor decisions they make. Disciplining our children can be difficult but consequences are essential to
learning. If you do not want tile criminal justice system to attempt to educate or discipline your child then you
must do it now.
We all wantto trustourchildren and have ourchildren feel theycan trustus. It is importantto realize thatfull trustis earned and comes
with ademonstratedability tothinkand act responsibly. We canand should exercise acertain level of"healthymistrust." By this, I mean that
partof ourresponsibilitytoourchildrenis tohold themaccountableto betruthful and takestepstoverifY theirtruthfulness.Thismayinclude
driving by to see they are where they said they would be, spontaneouslyand unexpectedlyshowing up, being in close communication with
otherparentsaboutourchildren'splans, activities, and aboutourexpectations regarclingsupervision, alcohol and drug use, age-appropriate
mixed gender activities, to name just a few.The point, I believe, is that it is important for us to ask questions, verifY facts, and know the
people involved in ourchildren's lives.
The bestway to influenceourchildren is by example. The phrase "doas I say and notas I do" does notwork weU. Probablylike many
ofyou, I have not always been the example I hoped to be for my children. But whether the issue is drinking and driving, excessive use of
alcohol,use oftobaccoorotherdrugs,usingvulgarlanguage,prejudicedviews,tellingthetruth,ordrivingsafely, we can besureourchildren
are watching, learning, remembering, and are much more likely to copy our behaviors than comply with ourlectures ordouble standards.
We need to be aJoving authorityand asafe place to turn for honestanswers.
We musttalktoourchildreninadvanceabouthowtohandleclifficultdecisionsand situations;to provideclear,consistentconsequences;
tospend consistent quality time with them on a reguJar basis and be involved in theirinterests and activities; to exercise "healthy mistrust"
so that they learn that trust is earned through responsible living; and that we provide them a livi.ng example ofthe values we hold and
behaviors we expect.
PLtASt TALK TO YOUR CHILORtN NOW SO THAT NO ONt ASSOCIATto WITH THt CRIMINAL JUSTICt SYSTtM HAS TO lATtR.
Sincerely,
David W. Kiatta
AttorneyatLaw
Parentof FourChildren
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Clinical and Forensic Psychologist
APPLYING JURY RESEARCH AND PSYCHOMETRICS
The primary purpose ofvoir dire is to gather case-relevant
information about prospective jurors (Frederick, 1995). However,
research shows that lawyers spend most of their time uying
collecting demographic data and exhorting jurors on the ideals of
the jurorsystem and the need to be fair. Even assuming that these
pursuits are worthwhile, they are subordinate to identifying which
jurors tosuike.
Psychometrics is an applied area ofstatistics that analyses the
qualities oftests and questionnaires (Nunnally & Bernstein, 1994).
Although questionnaires are not practical in the thirty-minute voir
dire practiced in Harris County non-death penalty cases, a
psychomeuicapproach can guide questiondevelopmentand choice
ofanswer formats.
Questionscan be open-endedorclosed. Open-endedquestions
illow for an infinite variety ofanswers and can be much more
informative than a yes-no answer-if the respondent is willing to
respond and fully articulate his or her thinking. Open-ended
questions are also useful in voir dire through "looping," which
involves asking an open-ended question, getting a response, and
asking what other jurors think. It encourages discussion and gets
people talking. However, open-ended questions take time. Often,
even asuccessful loopingmaneuverwill yield information from only
afraction ofthejurypool. Potential jurorswho are shyortired may
fail to speak up. Looping may also inadvertently identifY defense-
friendly jurors who \.vill then be struck by the prosecution. Lastly,
looping may expose the jury pool to strongsentiments contrary to
the defendant'sinterests.
An alternative approach, often used in civil tria.ls, is to
administer questionnaires. Although impersonal, questionnaires
have manyadvantages.Responses areprivate. Each potentialjuroris
asked thesame questions and, ifthe answer format is standardized,
can be compared on the same basis. Mostimportantly, information
is obtained from ill potential jurors. Given ill these factors, I
estimate aquestionnaire would yield five times the tOtal amount of
information as atypicalloopingsession in thesame amountoftime.
(Although a few jurors may reveal more information during a
loopingsession, the vast majority would reveal much less.)
Many ofthe advantages ofquestionnaires can be adapted to
verbal groupquestioningformat. Thesimplestscenariowould be to
askaquestionandaskforashowof handsfor thosethatagree. From
what I have seen, lawyers seem to prefer "yes-no" answers. Al=
thoughgettingaclearly interpretableansweris important,questions
that must be answered yes -no or true-false yield the least possible
information aboutthe potential jurors:Onlyonedistinction can be
made,as the original groupcan only be divided once based on their
answers. Allowing a "neutral" response produces twice as much
information (two distinctions) by dividing the jury pool into three
groups. Psychologists have researched response formats in depth, as
many psychological tests ask the subject to indicate his or herwith
an attitude statement or personality description. Generilly, three
response options provide more reliable data than two options, five
optionsgive more information than three options, and nine options
produce more reliable data than five options. There are Limits ofthe
benefits tobe gained,however,and thevoirdire settingposes some
practical constraints..I recommend usingatleast four options(e.g. ,
strongly disagree, disagree, agree,suongly agree).
Scores on many psychological variables, such as IQ, have no
natural divisions-they are continuous. The normal curve illustrates
thatmostpeoplewiJl fall nearthe average (forIQ,between90-110),
and the moreextreme the score, the more rarely it wilJ be observed.
The normal curve can be useful to illusuate the strategy advocated
here. Assume for the moment that potential jurors can be ordered
on a single dimension of being defense- vs. prosecution-friendly.
Let's assume that these attitudes are distributed in a normal curve,
with more moderates than exuemists at eitherend.The goal ofthe
defense attorney is to identifY potential jurors in the upper third1
(shaded area) ofthe curve, and ifpossible, to rank order tllem in
terms ofundesirability. There are two basic ways to do this. One
could ask ayes ornoquestion,worded in suchaway as togetabout
33 percentofthejurypool toagree with it. Forexample, you could
ask, "How many people here believe that defendants should prove
their innocence?" (Surveys indicate substantial portions of tlle
population agree with this position). Or one could ask the same
question, butask jurorsto respond onaone to fIve scale, where fIve
is strongly agree, four is agree, etc. ("How many people suongJ}r
agree with this statement?: When someone is charged with a crime,
he should take it on himselfto prove his innocence.") Ifusing tlle
latterapproach, theattorneycan first ask how many peoplestrongly
agree, which could be taken as grounds for challenge for cause. A
follow-up question wouJd be "Howmany ofyou just "agree" (not
"suongly agree") that a defendant shouJd prove he is innocent?"
The attorney could ask tllese two questions in either order. Ifyour
question gets just a few hands in the hair, modif)r it to get more.
Conversely, ifyou get twenty hands, make it more suingent . But
record the responses to both, giving one point to the more
moderate response and two to the extreme response. Although one
could ask how many potential jurors agree with your position, this
will tend to identify which jurors are most desirable to you and lead
your opponent to get rid of them. The defense attorney will want to
mine the 20-30% of the population most favorable to the
prosecution (see diagram). Conversely, the prosecutor wil.! want to
focus on the 20-30% of the jury pool most favorable to the defense .
Although the information in the entire upper 50% (and theoretical.!y
the entire curve) is potentially useful, identifying the top fifty
percent implicirly identifies the other fifty percent for your
opponent. The fewer hands that are raised for your questions, the
less information is revealed to the prosecution. Ten to fifteen hands
will maximize the ratio of information you get to that revealed to
other side. However, if you can sing.le out one or two hostile
potential jurors on a challenge for cause, this is weU worth doing.
CHART 1
THE NORMAL CURVE
Because the data obtained depends on the cooperation of the
potential jurors, it is essential to overcome reticence, resentment, or
self-consciousness. Apologize for the impersonal approach.
Emphasize the importance of knowing what everyone thinks or
feels. Ask if anyone is uncomfortable raising their hand or making
their opinions known publicly. Ask to accommodate them (perhaps
by having them write down the question and their answer). Ask a
sample question or two that will allow you to check that everyone is
responding (" How many people here are under 30? Over 30? 30?") .
Make note of anyone who didn't raise their hand and
encourage them.
The attorney should vary rl1e format and direction of the
questions to prevent boredom, self-consciousness, and the onset of
response styles (such as tendency to agree or disagree with
everything) that interfere with getting good data. Begin with less
sensitive topics .. Ask some questions which invite a large portion of
the group to raise their hands. For example, "How many people
think a person should be punished only for their current crime, not
for what they have done in the past?" The defense attorney will be
interested in the minority (hopefuUy) that do not raise their hands,
and again, litrle useful information is leaked to one's opponent. Do
not pose several questions in a row that elicit only a few hands.
A psychometric approach assumes that you will have to ask
multiple questions about a topic to get a reliable measure . However,
the need to do so varies with how complex and multifaceted the
attitude or trait is you are trying to measure . If a particular attitude
or trait is important to you and not easily summed up in one
question, try formulating four to ten questions. Do not make them
too specific. Each should come close to the heart of the subject .
AITITUDES AND TRAITS THAT PREDICT VERDICTS
Studies in the 1970's explored many different personality and
attitudes as possible predictors of criminal verdicts .. Only nvo
variables have shown to have good predictive power in multiple
studies and types of offenses. Authoritarianism is the tendency to
value and respect power and traditional authority. Normally, these
are potential jurors defense attorneys wil.! want to eliminate.
However, there are some types of cases in which authoritarian jurors
are desirable. Because they value order and respect authority, they
are supportive of police officers and high public officials as
defendants. They will tend to favor people similar to them (in terms
of race, background, education, attitudes) at the expense of those
who are not. However, they are relatively less likely to convict for
rape than for murder or other felonies, apparenrly because of
cynicism toward the victim.
Legal authoritarianism is a more specific concept that grew out
of the initial research as it was applied to the legal arena, and it is an
even stronger predictor of verdicts than general authoritarianism.
Legal authoritarianism consists of two correlated sets of beliefs: that
a defendant that is brought to trial is probably guilty, and 2)
"reasonable doubt" means something like "more likely than not. "
(See Table 1 below for some sample items). Scores on legal
authoritarianism have been demonstrated to predict jurors' verdicts
in hypothetical criminal cases. The impact of legal authoritarianism
can be appreciated by two sets of statistics. One study divided its
subjects into low and high scorers (on a legal authoritarianism scale)
and presented them with four sample criminal cases to judge. High
scorers produced a 72% conviction rate, while low scorers returned
a 44% conviction rate. Both groups were also asked to respond to
this item: "A defendant should be found guilty if there is at least a
_ _ % chance that he/ she committed the crime. " High scorers were
wi.lling to return a guilty verdict on the basis of 83% certainty, while
low scorers required a 91.5% certainty. Although these differences
are sizable, they are conservative estimates of the differences
between extreme groups. In this study, the entire group of subjects
was divided in two, so both groups contained many people that
scored near the average. If the top 20% of scorers were compared
with the bottom 20% (which are the people that voir dire might
eliminate), the differences would probably have been considerably
larger. It is quite possible that most prosecution-friendly 20% of the
jury pool would endorse convicting a defendant on a 60 or 70% level
of certainty.
Researchers have created voir dire questionnaires for several
specific legal issues. A measure of attitudes toward the insanity
defense was found to predict mock jurors' verdicts. A similar scale,
developed by one of the same authors, failed to predict outcome in
an eyewitness case. This failure may be because jurors do not have
strong feelings on this issue and because there was no expert
testimony to weigh in the decision. It is likely that an effective voir
dire in an eye\vitness case would examine a potential juror's interest
in hearing about the research in this area and willingness to accept a
new viewpoint.
continued on page 13
MARKYANIS
Appel/ate Lawyer
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withwiPe Evelyn
SIn AlFano, MiIce RamseyIIId Riehli'd'Racehorse"HOIJleS
HonIrees "The Reol" Bob Bennettand CrIigWoshington
Les Coehron chatswithcolumnist Rick Cosey
continued !Tom page 11
TABLE 1
Sample Authoritarianism and Legal Authoritarianism Items from
Questionnaires
CONCEPT
Do you like bossing people around?
Ienjoyand feel good wearinga military uniform.
Presumption ofGuilt
Defense lawyers don'tcare aboutguilt orinnocence, they are just
in business to make money.
Generally, police only make an arrest when they are sure about
who committed the crime.
Relaxed Standard ofProof
Extenuatingcircumstances not be considered-ifaperson commits
acrime thenthatperson should be punished.
Too many people are wrongfullyimprisoned. (R)
Once legal authoritarianism and case specific attitudes are
gauged,the defenseattorneymaywanttoconsiderotherpersonality
characteristics that wiU increase the probability a juror will resist
grouppressure to vote guilty. Such people are likelyto be stubborn,
independent thinkers who care more about being right than being
popular. Some might just be contrary. Although
leadership/assertiveness is desirable ifthe person subscribes to your
position, it cutstheotherway ifhe does not .Therefore,thedefense
attorney should identify people who are agreeable, conventional,
concerned with consensus, and defer to others in making their
decisions-and considerstriking them.. Since the law requires jurors
make theirowndecisions,and someonewhois highlydependenton
others is unlikely to be able to change their personality in the
pressure cooker ofjury deliberations, a dismissal for cause might
be pursued.
SAMPLING
The bestpredictorof aperson'sperformanceis to have themdo
a sample test. In other words, a prospective typist will be given a
typing test, a prospective pro football player a try-out. The best
predictor ofjuror's voting tendencies will be verdicts for other
similarcases. Invoirdire,onemightbrieflyposeseveral hypothetical
cases and ask how many would vote for guilt. Research has shown
that initial polls among jurors are highly predictive offinal verdict.
Thecases should beas similarto theactualcase as will be permitted,
but should also produce about a 1:2 split among jurors (as with
otherquestions),always concealingthejurorsmostfavorable toyou
within a larger group. Again, identify hard core prosecution jurors
by asking who would be absolutelysure oftheir guilty verdict. One
or more hypothetical cases might incorporate judge's instructions
and constitutional principles. It might be possible to pose a
challenge for cause if the juror repeatedly votes in a way that
suggests he did not follow the law oroperate undera presumption
ofinnocence.
PERSUASION
The above method allows for advocacy by the potential jurors
that the prosecution has identified as least desirable for its case.
These are the defense's temporary spokespeop\e-"temporary"
because they are likely to be struck at the end ofthe voir dire..
Defense-friendly potential jurors can relate their experiences and
explain why they are skeptical ofthe police, DA's office, etc. This
allows moderate jurors, who have not had similar experiences, to
hear fresh, first-person accounts of possible official misbehavior.
Allow these jurors to justif)r their perceptions and sound reasonable
so they will be credible and to prevent them from being struck for
cause. Beforequestioningapotentialjuror\vith apassionatedistrust
ofthe police,you mightacknowledge the emotion attached to their
perception ("I can see thatthis issue createsstrongfeelings for you.
Can you help me understand why?). Ifyou can't get the juror to
agree to putaside his orherbias, then paraphrase the position using
your most powerful rhetoric for the benefit ofthe other potential
jurors. ("So you believe so strongly, based onyourexperiences \vith
your uncle and brother, that the policewill plant evidence that you
would tend to assume thatwas thecase in asimilarcase?"). If you're
going to lose the juror, get his message out first.
It is vital that you confine this sort ofquestioning to those
jurors the prosecution has already identified as defense-friendly.
Unlike looping, you do NOT want previously unidentified jurors
withsimilarattitudestojumpin and make themselves known.Those
that would do so are likely to be the best remaining jurors for the
defense. However, you could ask ifanyone disagrees strongly with
what the defense jurors say and again ask for a showofhands.
CONCLUSION
Athirty-minutevoirdireconstrainsthe type of questioningthat
may be done, but should not discourage information gathering. A
tremendous amount ofdata can be gathered from ten or fifteen
thoughtful, well-constructed questions addressed to all members of
the panel, butanswered by only a portion.
REFERENCES
Frederick, R. (1995) Mastering voir dire and jury selection.
American BarAssociation.
Nunnally, J. C. & Bernstein, 1. H. (1994). Psychometric theory.
McGraw-Hill.
STEVE RUBENZER, PH.D., ABPP
BOARD CERTIFIED FORENSIC PSYCHOLOCIST
Competency& sanityassessment; DWT
(SFSTInstructor); eyewitness factors; risk!
dangerousness; voirdire; malingering;
personal injury; child custody
[[914Astoria Blvd., Suite490, Houston, TX 77089
Ph: '28J-481- 5715 www.SteveRubenzerPhD.com
Fax: '28J-9'2'2- 5903 steverubenzer@sbcglobal.net
CAUSE NO. ____
STATE OFTEXAS }{ IN THE DISTRICTCOURT
v. }{ HARRIS COUNTY, TEXAS
JANE DOE }{ JUDICIALDISTRICT
MOTION IN LIMINE: PROHIBITPROSECUTOR
FROM ADVISING VENIRE SIHE REPRESENTSCOMPLAINANTANDIOR "VICTIM{S)"
TOTHE HOI\JORABLEJUDGE OF SAID COURT:
COMES NOW JANE DOE, Defendant in the above-styled and numbered cause, and files this Motion to
Prohibit the Prosecutor from Advising Venire s/he Represents the Complainant and/or "Victim(s)", and in support
thereof she would showthe following:
I.
Prosecutors'commentsthattheyrepresentedthe "StateofTexasandthe familyof[complainant]" in acapital
murder trial constituted clear error, and the trial judge "clearly erred in overruling appellant's . ..objections to the
statements." Rougeauv. State, 738S.W.2d 651, 656-657(Tex.Crim.App. 1987). Although the Courtfound that, on
the facts of that particulardeath penaltycase, the remarks were not egregious enough errorto require a reversal ,it
described the statements as "extremely improper," and commanded: "...remarks that the prosecuting attorney
represents the family of the deceased in the prosecution of the accused should never again be uttered by any
prosecuting attomeyofthis State in a court oflaw ofthis State . .. ". Id. at658. [Emphasisadded]. Even if thecase
does not involve murder, the prohibition can be logically extended to includeall criminal prosecutions.
II .
Defendant further contends that the State's attorney should refrain from use of the word "victim" when
referring to the complaining witness alleged in the indictment. The term "victim" is notproperlegal terminology, and
itsprejudicialeffectiscomparableto use of the objectionablephrase "rape kit" in asexual assaultprosecution. Also,
"victim" connotes one who has been criminally acted upon, which is a matter of proof at trial, and therefore not
properlyassumed as amatteroffact during thevoirdire examination. Defendantassertsthatto permitthe State to
utilize this term during voirdire will deprive him of due process and a fair trial as guaranteed underthe Texas and
United States Constitutions.
WHEREFORE, PREMISES CONSIDERED, Defendant prays this Motion be GRANTED and that the Court
issue its orderaccordingly.
Respectfully submitted,
SHAWNAL. REAGIN
1305 Prairie, Suite 300
Houston,Texas 77002
(713) 224-1641
TBN 16634900
ATTORNEY FOR DEFENDANT
CERTIFICATE OFSERVICE
I hereby certify that a true and correct copy of the foregoing Motion was hand-delivered to an Assistant
DistrictAttorneyassignedto thiscase on thisthe _ dayof ,20_.
SHAWNAL. REAGIN
CAUSE NO. _ _ _
STATE OFTEXAS }{ IN THE DISTRICTCOURT
v. }{ HARRISCOUNTY, TEXAS
JANE DOE }{ JUDICIALDISTRICT
ORDER
On thisthe__dayof _ _______,20_,came on to be heard Defendant's Motion in
Limine to Prohibit the Prosecutor from Advising the Venire S/He Represents Complainant and/or
"Victim(s)" , and having dulyconsidered same, thisCourtisof the opinion said Motion should be:
__GRANTED
__DENIED
SIGNEDand ENTERED this___dayof_ ______,20_.
JUDGE PRESIDING

A. VOIR DIRE IS ACONSTITUTIONAL RIGHT
The Sixth Amendment guarantees the assistance of counsel and
a trial before an impartial jury. U.S. CONST. amend. V1. Part of
this constitutional guarantee is an adequate voir dire to identify
unqualified jurors. Morgan v. Illinois, 504 U .S. 719, 112 S.Ct.
2222, 119 L.Ed.2d 492 (1992); Raby v. State, 970 S.w.2d 1, 10
(Tex. Crim. App. 1998). It is essential to the Sixth Amendment's
guarantee to the right to counsel that the defendant have the right
to question prospective jurors in order to intelligently exercise
peremptory challenges and challenges for cause. Raby, 970 S.W.2d
at 10; Linnell v. State, 935 S.W.2d 426, 428 (Tex. Crim. App.
1996); Dinkins v. State, 894 S.w.2d 330,344- 45 (Tex. Crim. App.
1995). The Court in Raby stated that "the light to propound
questions on voir dire, in order to intelligently exercise peremptory
challenges, is of the greatest importance" in consideration of the
Sixth Amendment's right to counsel. (quoting Hernandez v. State,
508 S.w.2d 853, 854 (Tex. Crim. App. 1974)) .
B.IHE JURY SHUffiE
The jury shuffle is designed to ensure randomness in the list of
jurors. Jones v. State, 833 S.W2d 146, 148 (Tex. Crim. App.
1992); TEX. CODE CRlM. PROC. art. 35.11 (Vernon 1991).
Either party can ask for a shuffle and only one shuffie is required,
regardless of which party makes tl1e request. Id. at 149. Although a
jury shuffle may sometimes be used as a strategic tool, the actual
purpose of the statute is merely to ensure that the members of the
venire are listed in random order.
C. TIME LIMITATIONS
The trial judge may impose reasonable restrictions on the
exercise of voir dire examination. Boyd v. State, 811 S.W.2d 105,
ll5 (Tex. Clim. App. 1991). However, the judge cannot restrict
proper questions that seek to discover a juror's views on relevant
issues. McCarter v. State, 837 S.W.2d 117, 121-22 (Tex. Crim.
App. 1992); Rios v. State, 4 S.w.3d 400, 401 (Tex. App. --
Houston [1 Dist.],1999) pet. dism'd, improvidently granted, 122
S.W.3d 146 (Tex. Crim. App. 2003) (where defense counsel
responded to the court's termination of voir dire as follows: ".. . I
have to question on jobs that involve entry into homes . .... Also,
I have to ask the following question: Anti-crime organizations ..
. And I also need some more time so that I could touch on tile
punishment issue. . . . And I would be asking people about
punishment and individual jurors as to what they would consider for
punishment, what tl1ey could, and then get their opinions, more
specific opinions than they have expressed about punishment. For
that reason I would request more time"); cf. Rios v. State, 122
S.w.3d 194, 195-202 (Tex. Crim. App . 2003) (Price, J., and
Cochran, J., dissenting from denial of State's p.d.r. as improvidently
granted, each finding error was nOt preserved because defense
counsel's offer of proof was not sufficiently specific). Defense
counsel would be wise to state for the record the specific questions
he wishes to ask the venire, rather than simply stating tl1e general
topics he wishes to discuss.
D. PROPER AND IMPROPER COMMITMENT VOIR DIRE QUESTIONS
The scope of voir dire is broad and an accused is generally
entitled to question the panel on any matter that will be an issue at
trial. Dinkins, 894 S.W.2d at 344. As discussed above, error in the
denial of a proper question, which prevents the intelligent exercise
of peremptory challenges, is an abuse of discretion. Atkins v. State,
951 S.W2d 787, 790 (Tex. Crim. App. 1997); Allridge v. State,
762 S.W.2d 146, 163 (Tex. Crim. App. 1988). The right to
propound questions during voir dire is not unfettered, however. It
is the propriety of tl1e question propounded that is determinative of
the issue. Green v. State, 934 S.W.2d 92, 106 (Tex. Crim. App.
1996). Permissible questions include, for example, tl10se that probe
into bias and prejudice against the applicable law, Hogue v. State,
711 S.w.2d 9, 27 (Tex. Crim. App. 1986), bias and prejudice
against the defendant, Hernandez v. State, 563 S.W.2d 947 (Tex.
Crim. App. 1979), and opinions formed regarding the facts of the
case, Cannady v. State, 11 S.W.3d 205,209 (Tex. Crim. App.), cert.
denied, 531 U.S. 850, 121 S.Ct. 125, 148 L.Ed.2d 80 (2000)
(citing Curry v. State, 910 S.W2d 490, 493 (Tex. Crim. App.
1995)).
A litigant cannot, however, commit tl1e panel to their view of
some specified testimony or the conclusion they would reach under
a given set of facts ... Standefer v. State, 59 S.W3d 177, 179 (Tex.
Crim. App. 2001). The test as to whether a certain question is
proper was set forth in Standefer as follows: (1) does the question
ask the prospective juror to commit to a resolution of an issue in the
case?; and (2) does the question include only those facts necessary
to lead to a valid challenge for cause? If the answer is no to either
question, then the question is proper.
Examples of improper commitment questions include asking
the panel or a prospective juror:
(1) whetller they would have an automatic predisposition to find
a person guilty because he refused to take a breath test.
Standefer supra.
[A proper way to ask this question is to
phrase in terms regarding the State's
burden of proof. For example, could you
foUow the law and hold the State to its
burden if you the only evidence you heard
was that the accused refused to take a
breath test?]
(2) whether, if the evidence showed that a
person was arrested and they had a crack
pipe in their pocket, and they had a residue
amount in it, and it could be measured, and
it could be seen, they could not convict a
defendant. Standefer supra; Atkins v. State,
951 SW.2d 787, 789 (Tex. Crim. App.
1997).
(3) whether "assum[ing] ... some of the
evidence ... shows that the victim's family
was gready impacted and terribly grieved
and gready harmed by the facts, .. would
not prevent or substantiaUy impair [them]
in considering a life sentence. Penry v. State,
903 SW.2d 715, 739-740 (Tex. Crim.
App.) , cert. denied, 516 U.S. 977, 116
S.Ct. 480, 133 L.Ed.2d 408 (1995).
(4) whether they would give mitigating
affect to evidence of youth in punishment.
Moore v. State, 999 S.W2d 385, 406-407
(Tex. Crim. App. 1999).
(5) whether they would give mitigating
affect to evidence of drug use in
punishment. Rhoades v. State, 934 S.W.2d
113, 122-123 (Tex. Crim. App.
1996)(pluralityopinion).
(6) whether they wouId give mltlga ting
affect to evidence of alcoholism, troubled
family background, intoxication, and good
jail record in punishment. Garcia v. State,
919 S.w.2d 370 (Tex. Crim. App. 1994) .
(7) whether ~ c t i r n impact evidence would
affect their resolution in punishment. Stadnefer
supra; Penry, 903 S.W2d at 739-740.
(8) whether evidence of potential
rehabilitation would affect their resolution
in punishment. Stadnefer supra.
(9) whether they could find someone guilty
on the testimony of one witness. Stadnefer
supra; CastiUo v. State, 913 S.W2d 529
(Tex. Crim. App. 1995).
(10) whedler they could fmd someone
guilty on circumstantial evidence alone ...
Stadnefer supra; Garrett v. State, 851
S.w.2d 853, 859- 60 (Tex. Crim. App.
1993) (venireman not subject to chaUenge
for cause merely because he would require
more evidence than the legal minimum).
(11) whether a given set of circumstances
would warrant the imposition of the death
penalty or what circumstances, in their
opinion, would warrant the imposition of
the deadl penalty. Stadnefer supra; Allridge
v. State, 850 S.W2d 471,480 (Tex. Crim.
App. 1991), cert. denied, 510 U .S. 831,
114 S.Ct. 101 , 126 L.Ed.2d 68 (1993) .
(12) whedler they could consider probation in
a case where the victim is a nun. Stadnefer supra.
(13) whether they could be fair and
impartial in a case in which the victim was
nine years old. Barajas v. State, 93 S.W.3d
36 (Tex. Crim. App. 2002).
(14) whether the fact the victim was a two
week old child would affect their verd ict or
what effect that might have on their verdict.
Freeman v. State, 74 S.W3d 913 (Tex. App.
-- Amarillo 2002, pet. rerd).
Conversely, examples of proper
questions include asking the panel or a
prospective juror:
(1) whether the victim's status as a nun would
affect dleir ability to be fair. Stadnefer supra.
(2) whether they believe a child, in a child
molestation case, could or would lie about a
sexual assault . Stadnefer supra.
(3) whedler they would presume someone
guilty if he or she refused to make a
statement to the police. Stadnefer supra.
(4) whether they "feel as though [they]
could evaluate a witness and his testimony
and decide if he's being trudlful \vithout
automatically dismissing his testimony
because of some criminal history." Lydia v.
State, 117 SW.3d 902, 904 (Tex. App.
Fort Worth 2003, pet. rerd).
(5) whether it would make a difference if
the crime committed by the \vitness was
against the defendant. Td.
(6) whether they believe a police officer
would ever lie on the witness stand.
Hernandez v. State, 563 S.W.2d 947, 950
(Tex. Crim. App. 1978) (op. on reh'g).
(7) whether they would automatically
disbelieve the testimony of a \vitness who
was shown to lie in the past. Edwards v.
State, 882 S.W2d 493, 495 (Tex. App.
Houston [1st Dist.] 1994, no pet.).
(8) whether they would disbelieve a witness
simply because there was a delay in the
reporting of the crime. Harris v. State, 122
S.W3d 871 (Tex. App. -- Fort Worth,
2003, no pet.) (defendant charged widl
falsely reporting a sexual assault to police).
(9) whether they would not be able to find
somebody guilty of a criminal offense
\vithout having medical evidence. Id ..
(10) whether they could not find somebody
guilty based upon the testimony of just one
\vi tness , even if they believed that one
\vitness beyond a reasonable doubt. Td.
(11) whether they would disbelieve a
defendant in a murder prosecution. Rivera
v. State, 82 S.W.3d 64 (Tex. App. -- San
Antonio 2002, pet. rerd) .
E. Absolute Disqualification is Not
Absolute
Absolute disqualification, under TEX.
CODE CRIM. PROC. art. 35.19, does not
mean absolute reversal on appeal. Tn order
to perfect the record, the defendant must
object prior to verdict. If there is no
objection, the defendant must demonstrate
"significant harm." Nelson v. State, 129
S.W3d 108 (Tex. Crim. App. 2004). In
Nelson the court conducted a bench
conference on the parties ' strikes for calise.
During the conference, the court and the
lawyers discussed a theft conviction of one
of the prospective jurors. The venireman
was called up and he related that he paid a
fine on a Class C misdemeanor theft years
before. Although the cOllrt and the parties
reviewed the law together and discussed
whether the venireman was qualified to
serve, it was ultimately determined that he
would be allowed to serve. The defense
counsel acquiesced and never lodged an
objection to the disqualified juror. After
raising the issue for the first time on appeal,
the Seventh Court of Appeals reversed. On
the State's petition for discretionary review,
the Court of Criminal Appeals reversed the
court of appeals.
First, dle Court addressed whedler the
defendant waived the issue for appeal by
failing to object to the venireman's service
on the jury. It found that the conference at
the bench evidenced the trial COllrt'S
awareness of the disqualification and, thus,
the issue was preserved. The Court then
addressed whether, notwithstanding the
mandatory language of Article 35.19, a
harm analysis was required. The Court held
that where there is no objection prior to the
verdict, the defendant is required to show
significant harm from the service of dle
disqualified juror. On the other hand, if the
defendant raises the issue before dle verdict
is entered, no sho\ving significant harm is
necessary. The Court reasoned that,
although the trial court was aware of the
issue and the venireman should have been
excused, the defendant, by failing to object,
failed to raise the issue before the verdict
was rendered and, hence, had to
demonstrate the requisite harm.
F. Batson Challenges
Under the Equal Protection Clause of
the Fourteenth Amendment, a litigant may
not exercise a peremptory challenge based on
the juror's gender (J.E.B ... v. Alabama ex. reI.
T.B., 511 u.s. 127, 114 S.Ct. 1419, 128
L.Ed.2d 89 (1994)), ethrUcity (Hernandez v.
New York, 500 U.s. 352, 111 S.Ct. 1859, 114
L.Ed.2d 395 (1991 )), or race (Batson v.
Kentucky, 476 U.S. 79, 106 S.Ct. 1712,90
L.Ed.2d 69 (1986) ) See also Fritz v. Texas, 946
S.W.2d 844 (Tex. Crim. App. 1997) (gender);
Wamget v. State, 67 S.W3d 851 (Tex. Crim.
App. 2001) (ethrUcity); TEX.CODE CRIM.
PROC. art. 35.261 (race).
There are three prongs to a Batson
challenge. First, defense counsel must
establish a prima facie case of
discrimination. Second, the burden of
production then shifts to the proponent of
the strike to offer a neutral explanation for
that strike. Third, if the proponent offers a
neutral explanation, the trial court must
then decide whether the opponent has
proved purposeful discrimination. The
burden of proof in a Batson challenge is by
a preponderance-of-the-evidence. Williams
v. State, 767 SW.2d 872, 874 (Tex. App. -
- Dallas 1989, pet. ref'd) (en banc).
When the motives behind the
prosecutor's chaUenge is mixed, that is, the
reasons for the strike are both permissible
(neutral ) and impermissible
(discriminatory), then the Equal Protection
Clause is violated only when the
prosecution is unable to satisfy the court
that the juror would have been struck based
solely on the neutral reason. Guzman v.
State, 85 SW.3d 242 (Tex ... Crim. App.
2002) . As an aside, it is interesting to note
that Guzman was a five (5) to four (4)
decision and that Judge Womack wrote the
dissent. His dissent is worth reading.
Obviously, it is not difficult for a
prosecutor to proffer a neutral reason for
the strike. Defense counsel, therefore, must
be prepared to rebut the neutral basis
offered. For example, in Gibson v. State,
117 SW.3d 567 (Tex. App. -- Corpus
Christi 2003), defense counsel pointed out
that other (white) panelists gave the same
answers to questions as did the (black)
panelist who was struck. The court of
appeals held that "where the prosecutor
offers only one reason for a challenged
peremptory strike, the accused may
discharge the burden of persuasion on a
claim of disparate treatment under Batson
on the basis of race to rebut the state's
facially neutral explanation by showing that
the state struck a panelist of one race but
did not strike a panelist of a different race
who presented the same reason. Gibson,
117 S.W3d at 571. Counsel should also be
leery even when the prosecutor accepts a
juror who is of the same race as the panelist
struck. Simply because the prosecutor
allowed one black person on the jury, does
not mean that his strike on another is not
race-motivated . Defense counsel should
also be able to point out to the court that
allowing a minority on the juror is not alone
sufficient to demonstrate the strike was not
racially motivated.
The standard of review on appeal is
"clearly erroneous." Hill v. State, 827
S.W2d 860, 865- 66 (Tex. Crim. App.
1992) (plurality op.). A ruling is clearly
erroneous when, after examining the
record, the appellate court has the "defmite
and firm convi ction that a mistake has been
committed. " United States v. Fernandez,
887 F.2d 564, 567 ( 5th Cir. 1989) (citing
and quoting Anderson v. City of Bessemer
City, N.C., 470 U.S. 564, 573, 105 S. Ct.
1504, 84 L.Ed.2d 518 (1985 )); Id. In
reviewing the trial court ' s ruling, the
appellate court does not determine whether
the prosecutor's explanations were credible ,
but rather whether the trial court's ruling
was supported by the record. Purkett v.
Elem, 514 U.S. 765, 767-68, 115 S. Ct .
1769, 131 L.Ed.2d 834 (1995); Guzman,
85 S.W3d at 254. If supported by the
record, the trial court's decision was not
clearly erroneous. Id.
G.IHE "ONE WITNESS" RULE
A panelist who" categorically refuses to
render a guilty verdict on the basis of only
one wimess is not challengeable for cause
on that basis so along as his refusal is
predicated on his reasonable understanding
of what constitutes proof beyond a
reasonable doubt." Zinger v. State, 932
SW.2d 511,514 (Tex. Crim. App. 1996);
see also Castillo v. State, 913 S.W2d 529,
534 (Tex. Crim. App. 1995 ). In other
words, if the panelist relates that the State
could not meet its burden with only one
wimess, then he is not challengeable for
cause . On the other hand , if the prospective
juror refuses to return a guilty verdict, even
if he found the defendant guilty beyond a
reasonable doubt, then such a challenge
would be valid. Note also that, altllough the
State can make inquiry as to the latter, it is
an improper commitment question to
inquire into the former.
H. SECURING STRIKES FOR CAUSE
When a prospective juror is equivocal
as to their ability to follow the law or set
aside any bias or prejudi ce against one side
or tile other, the appellate court is required
to defer to the trial court's judgment.
Brown v. State, 913 S.W2d 577, 580 (Tex.
Crim. App. 1996). In Brown, Judge
Maloney stated for the court:
[NJoiliing is left to the discretion of
the trial court when the venireperson is
unequivocal as to their ability to follow the
law. If they testif)1 unequivocally that tlley
can follow the law despite personal
prejudices, the trial court abuses its
discretion in allo\ving a challenge for cause
on that basis. Likewise, if they testify
unequivocally that they cannot tallow the
law due to their personal biases, the trial
court abuses its discretion in fai.ling to grant
a challenge for cause on that basis.
However, when the venireperson vaci.llates
or equivocates on their ability to foLlow the
law, the reviewing court must defer to the
trial court's judgment.
Brown, 913 S.W2d at 580 (emphasis
in original) . It is, therefore, imperative tllat
defense counsel tie down those prospective
jurors who are objectionable by forcing
(politely) a "yes" or "no" answer to the
question. Usually it is best to do so by using
leading questions. Counsel's questions
should accurately state the law, the
prospective juror's bias and prejudice
against the law, and the fact that the
venireperson cannot tallow the law. If the
prospective juror vacillates, a su bsequent
motion to strike is subject to being
overruled.
I. PRESERVING VOIR DIRE ERROR
Voir dire error can amount to
constitutional error. When the error
deprives an accused of his Sixth
Amendment right to counsel, the error is of
constitutional dimension. U.S. CONST.
amend. VI; TEXAS CONST. Art . 1, 10;
Rios, 4 S.W3d at 402-03 (Trial court's
error in limiting defense counsel to 45
minutes to conduct voir dire at aggravated
robbery trial was not harmless, but
amounted to constitutional error requiring
reversal, where counsel still had proper voir
dire questions to ask venire after allotted 45
minutes had passed).
Regarding strikes for cause, a trial
court 's error amounts to constitutional
error "[0 ]nly in very limited
circumstances ." Jones v. State, 982 S.W.2d
386,391 (Tex. Crim. App. 1998). InJones,
the Courtidentified the following as errors
ofconstitutional dimension: "when a juror
is erroneously excused because ofgeneral
oppositiontodle death penalty;" and when
a juror is excluded for an "impermissible"
reason "such as race, sex, orethnicity. " Id.
To show error when a trial court
erroneously grants the State' schallenge for
cause, a defendant "must demonstrate one
oftwo things:(1)the trial judgeapplied the
wrong legal standard in sustaining the
challenge,or(2)the trial judgeabused [his]
discretion in applying the correct legal
standard." Jonesat 388-89(citingVuongv.
State, 830 SW.2d 929, 943
(Tex.Crim.App.), cw. denied, 506 U.S.
997, 113 S.Ct. 595, 121 L.Ed.2d 533
(1992). The Courtalso adopted apre-rules
harm analysis to the non-constitutional voir
dire error ofgranting the State's improper
challenge for cause. Id. at 392-94
(overruling Payton v. State, 572 S.W2d
677 (Tex. Crim. App.1978), which had
held that an erroneous grant ofthe State's
challenge for cause was tantamount to
aUowing the State an extra peremptory
strike). "The erroneous excusing of a
veniremember will call for reversal only if
the recordshows thattheerrordeprived the
defendantofalawfullyconstituted jury."Id.
To preserve error based on a trial
court 'sdenial ofadefendant's challenge for
cause, the defendantmust:(1)assertaclear
and specific challenge for cause; (2) use a
peremptory strike on the complained-of
veniremember; (3) exhaust his peremptory
strikes; (4) request additional peremptory
strikes; (5) identify an objectionable juror;
and (6) show thathewould have struck the
objectionable juror. Nelson v. State, 848
S.W2d 126, 134 (Tex. Crim. App. 1992),
cert. denied, 510 U.S. 830, 114S.Ct .100,
126 L.Ed .2d 66 (1993). This hoop-
jumping must take place before the jury is
sworn. Credille v. State, 925 S.W.2d 112,
115 (Tex. App. -- Houston [14th Dist.]
1996, pet. refd). Although a defendant
need not specify why a particular juror is
objectionable, his must at least state which
particular juror is objectionable. Allen v.
State, 108S.W3d281,282-83(Tex. Crim.
App. 2003); Fuller v. State, 827 SW.2d
919, 924-25 (Tex. Crim. App. 1992). A
mere statement that certain jurors, without
designation, are objectionable is not
enough.Moreno v.State, 587S.W.2d 405,
408 (Tex.Crim. App. 1979).
Following all the steps discussed above
will not preserve error in all cases. In
Loredo v.State, _ SW.3d _ 2004 WL
743833 (Tex. Crim. App. April 7, 2004),
the Court of Criminal Appeals held that
failing tocorrectthetrial court'smemoryof
a prospective juror's statement, regarding
whether she could consider probation,
waived error even though the defendant
had followed all the necessarystepssetforth
in Nelson. The trial courtgranted three out
offour challenges made by the defense for
the veniremembers' inability to consider
probation. The court, however, denied a
fifth challenge, without further discussion.
After defense counsel requested an
additional peremptory, naming the
problematic juror, the court responded by
stating:My recollectionofMrs.Bandis dlat
while she did tell you at one time that
probation would not be a possible
punishment in her mind that when I asked
her a question she recanted and said that
she could. Does anybody disagree with
that? Or have I screwed the numbers
upagain?
Loredo, 2004 WL 743833, slip op. at
2. The record on appeal clearly showed the
venireperson in question was unequivocal
about her inability to consider probation.
However, the Court found that the
defendant "did not express doubt or
disagreement with dle court's statement of
the facts on which the court was basing
its decision to deny the additional
peremptorystrike."Id. The Courtheld that
"[p]reservation of error is not merely a
technical procedural matter by which
appellate courts seek to overrule points of
error in a cursory manner. Fairness to all
parties requires a party to advance his
complaints at a time when there is an
opportunity to respond or cure them."
Loredo, 2004 WL 743833, slip op. at 3
(citing Young v. State, 826 SW.2d 141,
149(Tex.Crim. App. 1991) (Campbell, J.,
dissenting)).
AI'PEi\lDIX
TEXAS CODE OF CRIMINAL
PROCEDURE
Art. 35.01. Jurors called
Art. 35.02. Sworn toanswerquestions
Art. 35.03. Excuses
Art. 35.05. Excused by consent
Art. 35.10. Courtto tryqualifications
Art. 35.11. Preparation oflisr
Art. 35.12. Modeoftesting
Art. 35.13. Passingjurorfor challenge
Art. 35.14. Aperemptorychallenge
Art. 35.15. Numberofchallenges
Art .35.16.Reasons for challenge for cause
Art. 35.17.Voir dire examination
Art. 35.18. Otherevidence on challenge
Art. 35.19. Absolute disqualification
Art. 35.20. Names caIJed in order
Art. 35.21. Judge to decide qualifications
Art. 35.25. Making peremptory challenge
Art. 35.26. Lists returned toclerk
Art .35.261. Peremptorychallenges based
on race prohibited
KARIN SCALISE
EOREN.8IC DNA
CONSIlLIANI
9 YEARS
EXPERIENCE AS A
FORMER FORENSIC
DNA ANALYST WITH
THETEXAS
DEPARTMENT OF
PUBLIC SAFETY
AUSTIN CRIME
LABORATORY
Phone 512-302-4274
Fax 512-323-2855
E-mail
karinscalise@shcglnbal,nej
Austin, Texas
available
internationally
I
conrinued from page 7
THE
DEFENDER
segregation is single-cell lock-down incarceration for gang members
and especially violent inmates. It has held steady at about 7%.
DEATH ROW. There were 344 inmates on Death Row back in
1992. In 2004 there were 454, of whom eight were women This
represents an increase of 30% in 12 years. Too much should not be
read into this figure, however; more people going to Death Row are
offset by more frequent executions of sentence (12 in 1992 vs. 23
in 2004), making this statistic misleading.
EDUCATION. In 1992 TDCJ published a hard figure for the
educationa.llevel of inmates on hand. The average grade completed
was 10.1, and about 85% cLid not finish high school. This figur e is
now replaced with an Average Educational Achievement figure, not
defined.
THE BOTTOM LINE. The ultimate figures for the Texas criminal
justice system are truly astounding. TDC] spent, in flsca.l year 2004,
$1,936,793,366 on incarceration of felons out of a total TDC]
budget of almost $2.5 billion. Incarceration accounts for about 77%
ofTDC],s budget. This works out to $12,851.21 per inmate. There
were a.lmost 32,000 TDC] empl oyees working in incarceration in
2004.
7
There were in Texas, as of August 31, 2004, 235,975
persons on felony probation and 76,577 on parole supervision, in
adcLition to the 150,709 incarcerated .s In alJ, 463,261 people in
Texas alone are either on felony probation, parole, or serving time
for a felony.9 And this figure does not include pretrial confmement,
misdemeanor probation or county jail sentences. The Census
Bureau estimates the population of Texas in 2003 at some 22
million. This means that about two percent, or one out of fifty, of
aU Texans are on some kind of felony imprisonment or supervision.
7 I seem toremember that dus was about the total population ofTDC when I starred practicing
in 1983 .
8 12,736 are as abswnders.
9 ComJY.lre this figure to the Qnsus Bureau's population for the City of El Paso, at 563,662.
lillill JII iI

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