Criminal

Possession of Marihuana Trial Jury Selection by Defense

By September 1, 2016 No Comments

The purpose of the voir dire or voir dire, however you pronounce it, or the jury selection is primarily to take a look at the prospective jurors and decide whether we have any jury bias. Obviously I don’t want any bias against my client. And defense (sic) as well, they want a fair and balanced jury. So that’s what the purpose of voir dire is. And that’s why we’re asking you guy’s questions today.

All right. So I will just start off, this is a possession of marijuana case. And I know the prosecution has gone over the fact that in other states it may not be illegal to possess marijuana. But like I tell my clients, we have to deal with what the law is here in this state today. Okay.

So just to go over that again, is there anybody that does not understand, that feels like they would not be able to convict somebody if all the elements were proven of possession of marijuana? Anybody here in the first row? And the second row? I believe you said, oh, that is true. Thanks for reminding me.

Mr. Perales, right? You said you would not be able to render a fair and impartial bias (sic) because of how you feel about the law; is that right?

PROSPECTIVE JUROR: (Nods head up and down).
DEFENSE COUNSEL: But everybody else said that — and raise your hand if you disagree – everyone else said that they are okay with the law as it is and they’re able to apply the law to the facts as they are today. Is that correct, first row? Second row besides Mr. Perales? Okay. No problems there.
Okay. Now, is there anyone here that believes because my client is sitting there and she was arrested on this case that she is automatically guilty just because she’s sitting there before any evidence has been shown?
Anybody in this first row? Let’s start with juror number one. What’s your name?
PROSPECTIVE JUROR: Zackary Stephenson.
DEFENSE COUNSEL: What is it? Oh, Stephenson.
PROSPECTIVE JUROR: Yeah.
DEFENSE COUNSEL: So you understand just because she’s sitting there doesn’t mean she’s guilty. They have to prove their case, right? They have to bring out evidence.
PROSPECTIVE JUROR: Yep.
DEFENSE COUNSEL: Now, do you feel that she has to testify?
PROSPECTIVE JUROR: Not if she doesn’t want to.
DEFENSE COUNSEL: You understand the Fifth Amendment right, right?
PROSPECTIVE JUROR: Yeah.
DEFENSE COUNSEL: So she doesn’t have to do anything today. It’s all on the prosecution, right?
PROSPECTIVE JUROR: Yes.
DEFENSE COUNSEL: What was your name, sir?
PROSPECTIVE JUROR: Mr. Bowers.
DEFENSE COUNSEL: Mr. Bowers, how do you feel about that?
PROSPECTIVE JUROR: Impartial.
DEFENSE COUNSEL: You wouldn’t make my client testify today?
PROSPECTIVE JUROR: No.
DEFENSE COUNSEL: If she felt like she wanted to invoke the Fifth Amendment right?
PROSPECTIVE JUROR: She could.
DEFENSE COUNSEL: Okay. And you, sir,
Mr. Brubeck?
PROSPECTIVE JUROR: Yes. I have no problem with it either way. I mean, you know, if she wants to get up there and plead her case or not, I mean, it’s her right.
DEFENSE COUNSEL: Okay. So what was your name, ma’am?
PROSPECTIVE JUROR: Blaise-Shamai.
DEFENSE COUNSEL: Blaise-Shamai. All right. So you would not think that my client has to testify today to prove her innocence or would you think she does have to testify today to prove her innocence?
PROSPECTIVE JUROR: She does not.
DEFENSE COUNSEL: She does not. And everybody understands that principle?
PROSPECTIVE JUROR: Yes.
DEFENSE COUNSEL: All right. Police officers. All right. So everybody here, I’m sure, has had dealings with police officers; is that right?
Has anybody never dealt with a police officer?
Let’s go back to juror number one, Mr. Zack Stephenson. Have you ever had to deal with a police officer?
PROSPECTIVE JUROR: Yeah.
DEFENSE COUNSEL: Did they ever accuse you of anything?
PROSPECTIVE JUROR: Yeah.
DEFENSE COUNSEL: Tell us about it.
PROSPECTIVE JUROR: Last spring I got arrested for falsely — false arrest of stealing a car in
2009.
DEFENSE COUNSEL: And you’re on the jury, so I imagine there was no conviction?
PROSPECTIVE JUROR: No. I stepped one foot in and they figured out it wasn’t me. Same name,
different middle name.
DEFENSE COUNSEL: So you were arrested, but you were actually innocent?
PROSPECTIVE JUROR: Uh-huh.
DEFENSE COUNSEL: So everybody understands that can happen, all right? That’s why we have defense attorneys like me, to make sure that if the police make a mistake, we can get that corrected.
Now, Mr. — is it George Romeo?
PROSPECTIVE JUROR: Just like Shakespeare’s play.
DEFENSE COUNSEL: I didn’t want to say Romeo. We got a guy in the office we always call Romeo. But anyway, have you had an incident with a police officer before?
PROSPECTIVE JUROR: Several traffic tickets, sure.
DEFENSE COUNSEL: Do you feel they were always fair?
PROSPECTIVE JUROR: No.
DEFENSE COUNSEL: Why do you think — and you can give one example if you want.
PROSPECTIVE JUROR: I had a bright yellow shirt on with my seatbelt on and I got a ticket for no seatbelt.
DEFENSE COUNSEL: And they didn’t see the belt?
PROSPECTIVE JUROR: Huh-uh. He claimed he didn’t see it.
DEFENSE COUNSEL: So police officers can be wrong, right?
PROSPECTIVE JUROR: Yes, everyone makes mistakes.
DEFENSE COUNSEL: So it’s a good time to bring up police officer testimony. If a police officer testimonies (sic) to his training and experience, you are to give more credit to his training and experience because he’s considered a professional, right?
PROSPECTIVE JUROR: Absolutely.
DEFENSE COUNSEL: However, when you are looking at police officers as an eyewitness, his eyewitness testimony as to what he saw is the same as anyone else’s eyewitness testimony as to what he saw.
PROSPECTIVE JUROR: True.
DEFENSE COUNSEL: All right. Now, what is your name, sir?
PROSPECTIVE JUROR: Juarez.
DEFENSE COUNSEL: Juarez. Mr. Juarez, do you understand that?
PROSPECTIVE JUROR: Yes.
DEFENSE COUNSEL: Do you feel that you could be impartial and unbiased and look at police officer testimony the same as anyone else’s testimony in an eyewitness situation?
PROSPECTIVE JUROR: Yes.
DEFENSE COUNSEL: You wouldn’t favor police officer testimony simply because he is a police officer?
PROSPECTIVE JUROR: No.
DEFENSE COUNSEL: And, of course, we’re not talking about something involving training and experience, but just eyewitness testimony.
What was your name, ma’am?
PROSPECTIVE JUROR: Martha Dickey.
DEFENSE COUNSEL: Ms. Dickey, how do you feel about that?
PROSPECTIVE JUROR: Oh, I think everybody makes mistakes and I could be fair with that.
DEFENSE COUNSEL: So everybody understands we’re not accusing a police officer of lying, but maybe there would be a situation where he wouldn’t see something.
What was your name, ma’am?
PROSPECTIVE JUROR: Garrett.
DEFENSE COUNSEL: Ms. Garrett. Can you think of a situation where an officer might perceive something wrong, but not be lying?
PROSPECTIVE JUROR: Like what do you mean?
DEFENSE COUNSEL: I was hoping you would ask. Does anyone else have an example that they could bring up?
Ms. — what was your name?
PROSPECTIVE JUROR: Parks.
DEFENSE COUNSEL: Ms. Parks, have you ever had a situation where you perceived something that was not, in fact, true?
PROSPECTIVE JUROR: Where I did?
DEFENSE COUNSEL: Where you thought you saw something maybe?
PROSPECTIVE JUROR: I’m sure there is. I can’t think of it right now.
DEFENSE COUNSEL: Does anyone else have an example? No. All right. Who else has had tickets in here? A lot of people. What was your name, sir?
PROSPECTIVE JUROR: Richard Miller.
DEFENSE COUNSEL: Mr. Miller, do you feel that that ticket was fair?
PROSPECTIVE JUROR: No.
DEFENSE COUNSEL: And why is that?
PROSPECTIVE JUROR: It was for — from one of the red light cameras saying that I didn’t stop.
DEFENSE COUNSEL: Oh, it was a camera. Okay. Right.
PROSPECTIVE JUROR: And the video showed that I did.
DEFENSE COUNSEL: But somebody signed off on it?
PROSPECTIVE JUROR: Uh-huh.
DEFENSE COUNSEL: Anyone else has a ticket situation that they want to speak to me about?
What was your name?
PROSPECTIVE JUROR: Bosquez.
DEFENSE COUNSEL: Bosquez. Do you have a ticket situation where you felt it wasn’t fair?
PROSPECTIVE JUROR: Not that it wasn’t fair, no.
DEFENSE COUNSEL: So the whole point of that is simply because it’s a police officer, no one here is going to be biased automatically for the police officer or against the police officer.
Is that true, Mr. Hill?
PROSPECTIVE JUROR: Yes.
DEFENSE COUNSEL: So you wouldn’t be partial or impartial? I mean, you could be impartial? You wouldn’t be partial towards a police officer or against him simply because he’s a police officer?
PROSPECTIVE JUROR: No.
DEFENSE COUNSEL: Okay. Now let’s talk about the burden of proof. So this is a criminal case and we have the highest burden of proof in the criminal cases.
Now, the lower burdens of proof are down here. Down here we have reasonable suspicion burden of proof and probable cause burden of proof. That’s enough proof to stop somebody or enough proof to arrest somebody way down here at this end, right.
Now, towards the middle we have civil court situations, family law type things, right. And that is preponderance of evidence or more likely than not. More than 50 percent, 51 percent something like that. But in a criminal case we have beyond a reasonable doubt. We’re all the way up here. So I’m going to ask you guys not to — to use the correct standard of proof. Don’t go down to here, preponderance of evidence, more likely than not. Go all the way up here to beyond a reasonable doubt.
Now, of course, these days because of a Supreme Court decision we can’t give you a definition of reasonable doubt. But it’s not beyond all doubt. But it’s beyond doubt that is reasonable.
And when we — when the State puts on their case today, I’m going to ask you guys if you could please take a look at it and if you find that there is reasonable doubt, then I need you to go ahead and acquit. Thank you. Look forward to working with you.
PROSPECTIVE JUROR: Thank you.
THE COURT: All right. Ladies and gentlemen, we are going to take another break to give the attorneys an opportunity to exercise their strikes. So we’re going to break until 11:50, which will be ten minutes until 12. And remember the instructions that I have previously given you and we are in recess.
(Venire panel exits courtroom)
THE COURT: All right. We’ll start with the State. Did y’all have any challenges for cause?
MS. MENS: Pedro Perales. Sorry, number 13.
THE COURT: All right.
MS. MENS: And number nine; number 18.
THE COURT: Hang on just a second. So tell me what is the basis for striking number nine?
MS. MENS: Number nine, he said that he couldn’t be fair and impartial due to his relative’s experience with a marijuana charge and he felt law enforcement wasn’t fair in that situation.
THE COURT: That was a custody case.
MS. MENS: But he said that it was all based on a possession of marijuana charge.
DEFENSE COUNSEL: And I think later he was asked —
THE COURT: Hang on just a second. We’re going to get to them first. Who else do y’all have besides nine and 13?
MS. MENS: Eighteen.
THE COURT: All right. What’s the basis of 18?
MS. MENS: She said that she wouldn’t be able to find defendant guilty even if I proved every element of the offense. Mansour. She was the very last one.
THE COURT: I don’t remember her saying that. Did she say it? Okay. All right. Who else?
MS. MENS: Cousin, 17, number 17.
THE COURT: And what was the basis of 17?
MS. MENS: He said that he wouldn’t be able to convict because it’s just a small amount of marijuana.
THE COURT: All right. Who else?
MS. MENS: Same for 16.
THE COURT: All right. Who else?
MS. MENS: That’s it.
THE COURT: All right. Defense Counsel.
DEFENSE COUNSEL: Okay. Number nine — well, first of all, we have no objections to 13 and 18 because I do believe they said that they couldn’t be fair and impartial. The other three, I believe, all said when she asked at the end could you find the client, the defendant guilty if she proved the case, every one of them said yes except for the two we mentioned already, 18 and 13. So I think they’ve all been rehabilitated, Your Honor.
THE COURT: All right. Do you have any challenges for cause?
DEFENSE COUNSEL: Oh, I have none.
THE COURT: All right. Well, I need to see number nine, Reynaldo Bosquez.
(Prospective Juror 9 enters courtroom)
THE COURT: Mr. Bosquez, you understand that this case involves a possession of marijuana.
PROSPECTIVE JUROR: Uh-huh, yes.
THE COURT: Is that a yes?
PROSPECTIVE JUROR: Yes.
THE COURT: And the only question that if you are selected and are going to sit on this jury panel is to whether or not Ms. Asante is guilty or not guilty of intentionally or knowingly possessing a useable quantity of marijuana of two ounces or less. Do you understand that?
PROSPECTIVE JUROR: Yes.
THE COURT: Are you telling me that you can’t follow the law and if the State proved the case beyond a reasonable doubt, that you would not be able to find the defendant guilty?
PROSPECTIVE JUROR: If not reasonable doubt?
THE COURT: No. If the State proved to you beyond a reasonable doubt —
PROSPECTIVE JUROR: Uh-huh.
THE COURT: — are you saying that you could not follow the law?
PROSPECTIVE JUROR: Yes, I can follow the law.
THE COURT: Okay. All right.
PROSECUTOR: May I ask a question, Your Honor?
THE COURT: Yes.
PROSECUTOR: Just to clear something up. You said, I think early on in Jade’s voir dire, you said
You had like a prejudice or something about marijuana due to what happened in the family law forum. And I don’t know if you said that or not.
PROSPECTIVE JUROR: No, I did not say that.
PROSECUTOR: Do you have any prejudice or bias about marijuana?
PROSPECTIVE JUROR: No.
PROSECUTOR: Okay. Thanks.
THE COURT: Defense Counsel.
DEFENSE COUNSEL: I have no questions, Your Honor.
THE COURT: All right. Thank you, sir. You can go back out in the hall.
(Prospective Juror 9 exits courtroom)
THE COURT: All right. I’m going to deny your challenge for cause on number nine. I’m going to grant it on 13, 16, 17 and 18. So that looks like we’ve got one through nine, ten, 11, 12, 14 and 15 that are still available.

Francisco Hernandez

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