voir dire (2011 dwi college)

8/4/2019 Voir Dire (2011 DWI College)

1/28

Another One Bites The Dust

Voir Dire In a DWI Case


2/28

Another One Bites The Dust:

Fall to the ground, dead or

wounded.


3/28

Biting the Dust


4/28

Preparing, Perhaps, to Bite The Dust


5/28

Bit The Dust


6/28

Also, Bit the Dust

GUILTY


7/28

The Right to A Jury Trialand to the Effective Assistance of

Counsel
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Sixth Amendment, U.S. Constitution

In all criminal prosecutions, the accused shallenjoy the right to a speedy and public trial by

an impartial jury and to have the assistanceof counsel for his defense.
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Art. I, Texas Constitution

Sec. 10. RIGHTS OF ACCUSED INCRIMINAL PROSECUTIONS.

In all criminal prosecutions the accusedshall have a speedy public trial by animpartial jury and shall have the right ofbeing heard by himself or counsel, orboth .
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De La Rosa v. State,414 SW2nd 668 (Tx.Cr.App. 1967)

The right to be represented by counsel carries with it the right of counsel tointerrogate the members of the jury panel to the end that he may form hisown conclusion, after his personal contact with the juror, as to whether incounsel's judgment he would be acceptable to him or whether, on the otherhand, he should exercise a peremptory challenge to keep him off the jury.

He has such right also when his questions are framed with the view ofchallenging for cause.

In each instance, it is within the province of the presiding judge to limit andcontrol the examination; and, in so doing, his discretion is broad, but doesnot embrace the right to deny the privilege of having counsel examine theveniremen. When the effort is to lay a predicate for challenge for cause, therelevancy and materiality of the question propounded and the answersought is important, in order that the trial court may intelligently rule, andthe appellate court review. In ascertaining whether a peremptory challengeis to be used, the inquiry is intended to elicit information upon which theaccused or his counsel may determine whether the privilege of arbitrarily

excusing the juror shall be exercised.
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To explore challenges forcause;

To intelligently exercisepreemptory challenges; and

To indoctrinate thejury.

Sanchez v. State, 165 SW3d 707 (Tex.Cr.App. 2005)

Counsels Reasons for Voir Dire
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12/28

Jury Trials

A very enthusiastic juror thata lawyer might want to use a

preemptory challenge on in acomplicated DWI case
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14/28

The trial court mayimpose reasonablevoir dire time limits

The amount of time allotted, alone, is

not conclusive as to reasonableness

Time limits are reviewed under anabuse of discretion standard

Wappler v. State, 183 SW3d 765 (Tx.App.-Houston, 2005

The Role of the Judge
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15/28

Why Do Some Trial JudgesImpose Voir Dire Time Limits?

Viewing a DWI case as a whole, there areno time limits with respect to:

The police officers investigation;

Lab reports, if any;

The D.A.s review of the case;

Time until the case is reached for trial; Jury deliberations; and

Appeals
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16/28

One Trial Judges Perspective onVoir Dire Time Limits

Collin County is the sixth most populouscounty in Texas

Historically, Collin Countys six CountyCourts at Law tried more jury trials percourt than any other Texas county;

In County Court, I averagedapproximately 70 jury trials per year

I have never imposed voir dire time limits

If Y M t Wh t i A R bl
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If You Must, What is A ReasonableVoir Dire Time Limit In a DWI

Case? 10 minutes is insufficient, Saucedo v.

State, 2001 Tex. Lexis 1398 (op.

unpublished)

15 minutes might be sufficient, Dhillon v.State, 138 S.W.3d 583 (Tx.App. Houston

[14th Dist. 2004). 30 minutes is sufficient, Munoz v. State,

2009 Tex. Lexis 7475 (op. unpublished)
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Voir Dire Time Limit May BeReversible Error

(Two Prong Test)

Did counsel attempt to prolong the voir dire?

Was the question a proper question? That is,did the question seek to discover a jurorsviews on an issue applicable to the case?

McCarter v. State, 837 S.W.2nd 117 (Tex.Cr.App. 1992).


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Traps to Avoid

Defense counsel may not be precludedfrom asking voir dire questions solelybecause the trial judge or the prosecutor

has already covered the issue. Mathis v. State, 576S.W.2nd 835 (Tex.Cr.App. 1979)

If your time limit is reached and counselrequests to do so, let counsel state what

questions she still needs to ask the panel. If the questions are proper, grant more

time.

Wappler v. State, 183 S.W.3d 765 (Tx.App.-Houston [1st

Dist.] 2005)
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Techniques To Shorten Voir Direand Not Be Reversed

Ask the atttorney on the record how much timeshe will need for voir dire. If an attorney saysshe needs 30 minutes, give her 45, but tell herthat studies show that jurors stop listening after

20 minutes. Tell the jury panel that the defense usually does

not take as long as the State because a lot ofthe material will have been covered by theState. (The defense attorney will subconsciouslytake less time.)

Expert Witnessing, Explaining and Understanding Scienceby Carl Meyer
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Commitment Questions

Commitment questions are those questionsthat commit a prospective juror to resolve, orrefrain from resolving, an issue a certain wayafter learning a particular fact. Standefer v.State, 59 S.W.3d 177 (Tx. Cr. App. 2001).
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Commitment Questions

Question? Why are commitmentquestions so baaaad?

Answer: Because studies show that

jurors, usually being honest people whowant to do the right thing, subconsciouslybelieve that if they made a promise to alawyer, they must uphold that promise.

New Techniques for Winning Jury Trials, by Dr. JamesRasicot


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Proper and Improper Commitment Questions

A commitment question is proper if it tests aprospective jurors ability to follow various legal

requirements.

A commitment question is improper if if the law

does not require a commitment by the juror.
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Examples of Proper CommitmentQuestions in a DWI Case
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Judge Ray Wheless

366th Judicial District Court2100 Bloomdale, Suite 30146

McKinney, Texas 75071

(972)[email protected]
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