Sunday, June 21, 2009

Getting a Jury in a Sexual Assault Accusation Case

A quick blogspot about the jury trial I am currently in. I will blogspot about the prosecutor's behavior when the trial is done. I do not have time to get "my panties in a ruffle" about that crap right now, and my guess is that he is not finished pulling BS.

Three panels of 65 jurors each of 3 days in a row - ended up getting 12 to 13 qaulified folks per panel because people answered truthfully - they cannot consider probation in an accusation that someone sexually assaulted a child. Moreover, most people want to hear both sides of the story. It is true. The judge was perturbed that even the lawyers on the panel were saying they could not give the accused the benefit of the 5th Amendment right to remain silent. I understand completely.

If you have the classic broken cookie jar, and two children - you are not going to just get the explanation from #1who is accusing #2; you are going to give #2 the opportunity to explain. Right? And if #2 says, "I exercise my right under the 5th amendment to remain silent" what is the result? #2 gets the punishment. Be real. You know that is how it is.

I read some of the connections the Jury Vox suggests on twitter. I find some of them quite insightful & I have to admit, I used a couple of the suggestions or incorporated some of the thoughts into my voir dire.

I also watched a great video of a guy who asked jurors where they were going to put their feelings if they were "setting them aside". Typically the judge gets the panelists to agree that if they have feelings, that they will "set them aside" & "follow the law." Well HELL YEAH - they aren't going to tell this judge in the black robe sitting beside them that THEY aren't going to follow the law - heck, they don't want to end up in that seat beside me, for goodness sake.

So I asked - where are you going to set those feelings? On the floor? On a table? I got them to agree they have had those feelings a very long time and that their reaction, not considered answer, is that they want to hear both sides.

My client IS going to testify, but that discussion got people talking & it lead to answers on other questions where "follow the law" is generally the hammer used to get people to be dishonest about their feelings.

Got to run - trial to continue preparing for. Lawyers who read - think about asking where the jurors are going to put their feelings when they "set them aside". Get them thinking. I reminded them several times that while they sit out there as a panel, they are sworn only to tell the truth, and that they have constitutional rights including freedom of speech. But once they make it onto the jury, they will be sworn to follow the law so voir dire is the time to let their REAL feelings be known & considered. You might be the very best juror in another case - say a theft - but this in this type of case your feelings are such that you are not the best [& then we have to find the legal reason that can get them struck for cause.]

Regardless of what happens in the finality of this case, I feel that I did the best voir dire I've ever done (especially 1 & 3). [In great part because I did not take notes - I left that completely to Matthew Darby who volunteered in HCCLA's #2 chair program to give his time in exchange for me teaching him. I definitely think he is getting his time's worth. I share it all with him & I listen to his feedback. He is insightful.]

P.S. I know that many of you will think I got stuck with the liars who are still going to be against certain things. This is possible - but I feel that since my client is going to testify, and we are going for broke [not guilty] because I do NOT think he is guilty - that we have a good jury. Hard cases these are, but not absolutely impossible. I pray that I am guided to do that handle the balance of the case in such a way that this man walks. THAT would the rightest thing to happen yet in this case.


  1. Great insights provided here Cybthia. I will have to check out JuryVox. I will have to recommend using the "Where to youzet your feelings" to my students at SMU Law. Seems itgets straight to the heart of the matter. I'll be following your trial from a distance.

  2. Thanks, Vince! Wish I could remember the name of the video I watched on youtube. The guy was so entertaining. My first & third voir dires felt so good - had the jurors laughing with me many times - like when someone would say something bad I'd stage whisper "you got number 55, right, Matt?!" & they'd bust out. But we always got back to agreeing that it was a very serious allegation, and required all their attention.

    There are so many sources out there & Jury Vox does little one-liners on twitter (that's where I follow) that allow you to get the jest of the story so you can read on your own. It is better than actually following each of the writers.

    Keep my client in your thoughts & prayers. This is going to be rough, no matter what. He loves his granddaughter & what I am going to do to her makes him cry (as well as his wife) every time we talk. (In fact, when they first spoke to me & I explained my part - especially when it came to the c/w & how I am - which client has seen my aggression towards the prosecutor (another story) & in voir dire - they were reluctant - thinking she would recant & all would be well with the world again. Here we more than a year later . . . I think he is glad that I am going to take care of business - just like I already explained to the panels (which will hear beginning tomorrow.)

    These cases are tough for everyone. I just wish this girl would tell the truth.

  3. Worked on a case a number of years ago in which our female client was charged with sexual assault of a mentally challenged individual that was in her care. He was ableto answer the State's questions on direct rather eloquently, such as "Did Ms. Wilson have sex with you?" Answer: "Yes" The case came apart when, on cross, counsel asked the following series of questions" You said the Ms. Wilson had sex with you, is that right?" Answer: "Yes" "Do you know what sex is?" Answer: "No". We were all shocked, since in every statement the "victim's" allegatns seemed quite plausible. The jury acquited and, on thenews that night, the foreman was quoted as saying " He said shedid it, she said she didn't and the State had an obligatin to prove it, which ey didn't, so despite what we believe happened, we had to acquit her." Sometimes things just fall into place. My thoughts and prayers re with you and all involved.


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