The Texas Prosecutor, July-August 2017, Volume 47, No. 4

Getting creative to train on voir dire

With the high stakes of felony trials, inexperienced prosecutors need help with jury selection. Brazos County has discovered a training ground that helps new attorneys and the community.

I believe that voir dire is the most important part of any jury trial. I also believe that the first voir dire of everyone’s career tends to be pretty much a trainwreck. Mine certainly was, and for the last 15 years I’ve used that experience as a cautionary tale of what not to do. Voir dire is a skill best-learned by doing. For the last few years, our office has taken a creative approach to developing voir dire skills in our newest prosecutors by using a resource our community has in abundance: college students. As a result, many of our new prosecutors get an opportunity to make mistakes in a safe environment without jeopardizing the felony cases we handle. At the same time, we help educate students about the criminal justice system and about our roles as prosecutors.
    Many new prosecutors throughout Texas begin their careers handling misdemeanors and spend months, or even years, experimenting with new techniques and finding what works for them. Most importantly, those new misdemeanor prosecutors get to make mistakes and learn from them in a setting where the stakes are relatively low. On the other hand, some offices, like ours, handle only felonies. As a result, our new prosecutors try more serious cases immediately. While prosecuting felony cases right away is exciting and rewarding, it can also be scary.
    All veteran prosecutors know that an ineffective voir dire can sink even a strong case. Usually, that knowledge comes from hard experience. But experience can be difficult to get for brand new prosecutors in offices that try only felonies. Supervisors are understandably reluctant to jeopardize cases by turning voir dire over to a prosecutor who has never done it before. A few years ago, I had a talented (but inexperienced) prosecutor in my court who was preparing to try his first domestic violence case. As in most domestic violence cases, the victim was completely against us and had recanted her statement to police. Such cases are voir dire-intensive, and I wanted to find a way to get our new prosecutor some experience without simply throwing him into what I refer to as the “live-fire” environment of an actual trial.
    To train young prosecutors, our office sometimes conducts “mock voir dires” using other prosecutors and staff members as a jury panel. While these exercises can be useful, they sometimes devolve into many participants wanting to play the “problem juror” and trying to make it as difficult on the trainee as possible. The element of realism is lost and the training becomes less effective. I realized that what we needed was a captive audience comprised of individuals from diverse backgrounds who would be both unfamiliar with the voir dire process and honest in their responses, just as our jurors would be. Living in a college town, the answer was obvious: We needed to hijack a college class and use it as a jury panel.
    I mentioned the idea to several coworkers and one reminded me that Dan German, a retired police officer and former bailiff in my court, was teaching criminal justice classes at Blinn College in Bryan. I contacted Professor German and asked him about the possibility of conducting a voir dire with his students. Dan was all for the idea, and we set up a date for it. We decided that the first half of the class would consist of the voir dire and the second half would be a question-and-answer session for the students, where we would explain what we were doing throughout the jury selection process and why we were doing it.
    Our new prosecutor prepared the voir dire he would use in his upcoming domestic violence case, and we went to Blinn. When we arrived at the school, Professor German had his students seated in order and gave us a seating chart with names filled in. (It helps to have a professor who was a bailiff!) Our new prosecutor went through his voir dire with the students and got valuable practice sharpening challenge-for-cause questions on issues such as the victim being against prosecution and the absence of visible injuries. The day was a success, and when the time came for our new prosecutor to conduct the actual voir dire on that case, it was polished and effective because he had already done it once before. We also heard from Professor German that the students enjoyed seeing a practical demonstration of what happens in the courtroom and getting an explanation of why we did what we did. Professor German asked me if we could come back each semester. I enthusiastically agreed. In the last few years, I have visited Professor German’s class several times, always bringing our least-experienced prosecutors to conduct a voir dire before they had to do one in an actual trial.
    From a prosecution perspective, these mock voir dires have paid off. New prosecutors have made mistakes that would’ve been disastrous in a real courtroom, and they’ve gotten to see how these mistakes can impact a case, as well as how to avoid them. One example occurred last year. Our newest prosecutor at that time was conducting a voir dire on a theft of less than $1,500 with priors to the class. He covered the elements well and made sure everyone understood the law. What he did not do is protect the panel on the issue of the prior convictions. Normally in the classroom, I do not conduct a defense voir dire after our prosecutors finish their presentations. On this occasion, though, I knew it wouldn’t take long to make the point I wanted to make. After our new prosecutor finished, I got up as the defense lawyer and said:
    “We obviously wouldn’t be here in a felony court if my client hadn’t been convicted of theft twice before. So, how many people here already believe my client is probably guilty?”
    Every hand in the room went up. Then I asked:
    “And if you hear evidence that my client has been convicted twice before of theft, there’s no way you can disregard that in deciding whether my client is guilty of this charge—is that right?”
    Again, every person in the room agreed, and our “panel” was busted.
    Our new prosecutor was a bit deflated initially but learned a valuable lesson about what can happen if we don’t protect a jury panel on issues like jurisdictional priors. And he learned that lesson in a setting that didn’t result in an actual mistrial.
    Anyone who has been through TDCAA’s Train the Trainer Course knows that people retain far more information if they can see it, in addition to hearing about it. Practicing voir dire with the college students provides an opportunity for the senior prosecutor to demonstrate certain things with an actual panel for trainees to see, instead of simply describing to trainees what they should do.
    In April of this year, I went to Professor German’s class with a young prosecutor who had never picked a jury before. She conducted a domestic violence voir dire and was comfortable and confident in front of the panel. However, she structured most of her questions as, “The law is [fill in the blank]. The law is that way because [fill in the blank]. Does anyone have any problems or concerns about that?” Panel members sat quietly and did not respond to her questions. As a result, she was doing almost all of the talking and thus, she wasn’t learning anything about who the prospective jurors were or how they really felt about the issues discussed. After she finished, I got up and approached one of the panel members and the following exchange occurred:
    “Ma’am, should we prosecute family violence cases even if the victim doesn’t want us to?”
    “Yes,” she replied.
    “Why?”
    “Because family violence might get worse if nobody intervenes, and that can get people killed. It also can have an effect on other people like children who have to see it.”
    I repeated that process with several individual jurors and looped each one’s responses around to others on the panel. I also pointed out that many people feel that what goes on in a relationship is not the government’s business, and I then asked individual jurors to respond to that idea. Soon, a lively discussion began among the panel members.
    After we left the class, our new prosecutor and I discussed why the panel did not answer her questions but did answer mine. She realized that asking direct but open-ended questions to individual jurors forces them to respond. She also learned that following up by asking “why?” forces panel members to think about their positions and justify them, thus allowing us to see who jurors really are. That lesson resonated far better through the process of trial, error, and demonstration than it would have if I simply told her to ask individuals specific questions because it’s more effective.  
    Practicing voir dire with college students provides benefits well beyond valuable training for our prosecutors. As I wrote this article, Professor Dan German happened to stop by my office to visit and told me that our voir dire demonstrations are his students’ favorite part of the class. They enjoy going through the process and come away with a better understanding of the criminal justice system than they had before we came. Helping the public see and understand what we do as prosecutors is more important today than perhaps it has ever been. I heard a colleague say recently that “as prosecutors we must define ourselves, lest we be defined by others.” Going into classrooms and engaging with students gives us not only an opportunity to train, but also a chance to explain our ethical responsibilities, and it allows students to see us doing the right thing for the right reasons. Because there are universities and community colleges throughout our state, this is an activity that is potentially open to most Texas prosecutors.
    Professor German always thanks us for coming to the college and teaching his students. I hope he realizes that they are teaching us far more than we are teaching them. And, in helping prosecutors learn to be more effective trial lawyers, those students are, themselves, helping to do justice. For that, we are grateful, and we look forward to many more visits.