Several weeks ago I blogged about my experience with a jury pool that had several potential jurors who believed it was better to send an innocent man to prison that to set a guilty person free. Shortly after that trial I had another jury panel for another dwi trial that I was trying. In that case I asked the same question: if you only had one option either convict an innocent person or set a guilty person free what would you do? In that case all 20 prospective jurors said they would set the guilty free. I then asked them what they thought reasonable doubt was in their mind and one male prospective juror (who actually made the jury and was the foreman) told me that reasonable doubt meant at the end of the state’s case if he had a question in his mind then it was reasonable doubt.

In Texas we no longer had a legal definition for “reasonable doubt” based on case law but we can ask what a potential juror thinks reasonable doubt is in their mind.

We tried the case for three days. The facts were that my client had a .19 breath test (.08 is the legal limit) and he failed all of his field sobriety tests. Our position was never that he was NOT intoxicated. Rather he was simply not driving at the time the officer stopped the vehicle. The jury watched the video several times during their deliberation and finally said they had a question in their mind as to whom was driving. They found my client not guilty of dwi because they had that question. Here is a clip of the driving, I think anybody who watches it will say they have a question as to who was driving.

In a recent dwi trial I asked a potential jury panel some of my normal questions in my attempt to find a fair and reasonable jury. Jury selection, or de-selection, is usually the first thing that happens as we start a trial. In a first offense, or second offense dwi trial, the jury is six (6) people. When the “trial” starts the judge usually talks to the potential jurors first for a few minutes to give them the background and some basic ideas of how the trial will work. Next the state’s attorney goes and asks questions about various things.
My experience is that most prosecutors simply use the voir dire process as a chance to try and lay out as much of the case as possible to potential jurors. Typically these prosecutors try to do things such as reduce the burden of proof, talk about “use your common sense” and tell prospective jurors that the prosecutors are not saying the citizen accused is a bad person (of course the reason for this is that if the citizen is humanized the prosecutors fear the jury might actually find somebody not guilty.
So in this trial I asked the potential jurors about a hypothetical. What would you do if you only had one option, either convict an innocent person or set a guilty person free? Out of 20 people, 7 or 8 said they would actually convict an innocent person!! I was actually somewhat shocked with the amount of people who said they would send an INNOCENT person to prison. One person said he would do that AND that he hoped he would be the person who was sent to prison to protect society. Pretty scary if you ask me, I mean think about it we want a jury to decide if the government can prove guilt BEYOND A REASONABLE DOUBT but some people really would not care about that in fact they really don’t care if a person is innocent at all. Needless to say those folks DID NOT make my jury, I can only hope that when it is their day of need they have better folks to stand up for them.