Criminal

Challenging Jurors on Burden of Proof

Burden Of Proof;

I would like to save it for the end of Jury selection and the reason why it is because I know I am absolutely entitled to talk about it. So if I am running out of time I want to make sure that is at the end. Plus i want to end on it because I really want to stress it and I want to make sure that the Juror understands it how important it is going to be.

There are a lot of different ways to do this. Some lawyers like to use charts that kind of goes up, some people want to do power points on it, I just use the walls of courtrooms because that’s what’s comfortable for me. So I start at left wall and that is the zero. The middle where I’m standing during Jury selection and is the preponderance and then the far wall is the 100 % and I actually physically walk down there, as I am explaining the burdens of proof. So, I encourage you when you are talking about the burdens of proof to get rid of the legalese we know what those burdens means, because we’ve been to law schools, we have been hearing it over the years. The Jurors need something tangible to hook on to in order to understand what those burdens really mean.

So on preponderance, you can ask a Juror who’s been on a civil jury. Like – I understand you have been on a civil jury – yes it was — what kind of case was it, Car accident. Ok so in that case, the person was seeking money right. Yes, so in a civil matter when we are just talking about money, the burden is the preponderance of the evidence. Okay! Next step, Clearing convincing, tell the jurors – there is a procedure in this State by which the State of Texas can say, you are a bad parent and take your children from you and never see them every again. And in order to do that, they have to go into court and they have to prove that by clear convincing evidence. Ask your jurors for the young children. How much evidence would you want before the State could take away your children and you could never see them again and you’ll get answers like, “a hell lot of evidence”.

And that’s a good starting point because the next thing you’re going to be talking about is beyond reasonable doubt. So it puts them in context and it gives them something to relate to emotionally, when they are trying to understand what the burdens are. So obviously we all do this. We are going to stress on what the burdens are. But one thing about Texas law – is that we don’t have a legal definition. If we were in Federal Court, the Judge would tell the jurors – this is what beyond reasonable doubt means. But we don’t have that here – which means that every juror should decide for themselves what that means. And they have to be satisfied – it’s that personal decision that whether or not you are satisfied enough to convict this person. Jury uses this great language from the Alan charge – that when you Alan charge the jury – it goes something like – continue to deliberate, listen to your fellow jurors –but do not do violence to your conscience and that’s beautiful language and a number of jurors have caught it.

And we were talking to one jury, after they had acquitted, and one lady said “yeah I just – I didn’t want to do violence to my conscience.” Yes, I had gotten inside her head. And when they are giving back your words, then you know you have connected. So, I like to end my word ire with this question. So is there anything I haven’t asked about that you think I should know about? And sometimes they are tired and they just stare at you with dull eyes, but I have gotten some funny responses. I was trying a harassment case – a class B – with very strange facts. And at the end of the jury selection I asked that question. And a guy on the front row said say something. And I said absolutely – go ahead. And he turns around to the rest of the panel and says “I just want to tell you that I think this is a bad law.

And I think it criminalizes speech that would otherwise would be free speech and if you should be good on this jury – you should find that guy not guilty”. I was like…this is great. I didn’t even have to pay him. You know – and the judge comes out of her chair and says that’s not the law. And so she starts getting into an argument with the juror and I brought along the transcripts because this was so funny. And I found out later that – that juror was the ex-brother-in-law of one of the prosecutors trying the case. So, I don’t know really if he felt that way or he just wanted to take a stab at his ex-in-law but it was fantastic. So umm you never know what you’re going to get and you have to give them a little bit of time. So be prepared to have to stand there for the uncomfortable seconds it takes until somebody is willing to talk.

Francisco Hernandez

Author Francisco Hernandez

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