VOIR DIRE 2/11/2015 STATE OF TEXAS VS JANE DOE 1. CONVERSATION - ONLY TIME YOU CAN ASK THE LAWYERS QUESTIONS 2. NO RIGHT OR WRONG ANSWER

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1 STATE OF TEXAS VS JANE DOE VOIR DIRE 1. CONVERSATION - ONLY TIME YOU CAN ASK THE LAWYERS QUESTIONS 2. NO RIGHT OR WRONG ANSWER 3. DESELECTION (TO MAKE THE JURY = SIT THERE & BE QUIET) 4. SOME QUESTIONS MAY BE PERSONAL (MAY APPROACH BENCH) Do You Know Any of These People? Myself or anyone in D.A. s office Judge Stephen Hamilton (defense attorney) Jane Doe, or any members of her family K.T. Anguish (LPD) Jim Thomas (DPS Lab) 1

2 JURY S JOB (What do we want you do to?) Most important people in the courtroom FACT FINDERS (you say what happened) How? Decide the credibility of each piece of evidence and each person s testimony Not difficult use your common sense Criminal Law Concepts Right to fair Trial Absolute Right, no matter the evidence Presumption of Innocence The State has to prove the case Defendant doesn t have to testify No bonus points if they do Treated like any other witness (same level) TWO PHASES OF TRIAL Guilt / Innocence: Cold, hard facts ( Just the facts, ma am ) Did a crime occur? Not the time for sympathy or consideration of other factors There is a place for that... Punishment If a crime occurred, what should be done about it. Consider sympathy, prior history, situation in life, everything else The Judge hearing this case will decide Problems with not sitting on punishment? Any religious, moral, personal objections to judging other people? Any medical problems, personal issues, language barriers, or other things that would interfere with your jury service? 2

3 TWO PHASES OF TRIAL Guilt / Innocence: Cold, hard facts ( Just the facts, ma am ) Did a crime occur? Not the time for sympathy or consideration of other factors There is a place for that... Punishment If a crime occurred, what should be done about it. Consider sympathy, prior history, situation in life, everything else The jury hearing this case will decide Problems separating the two stages? Any religious, moral, personal objections to judging other people? Any medical problems, personal issues, language barriers, or other things that would interfere with your jury service? RANGE OF PUNISHMENT For DWI: 3 Days Days Probation? (must be eligible) Minimum? Maximum? Burden of Proof Every criminal case must be proven Beyond A Reasonable Doubt Law says we can t tell you what Reasonable Doubt is It is up to you 3

4 Burden of Proof Reasonable Doubt is NOT: Beyond ALL doubt Beyond THE SHADOW OF A doubt 100% certainty Is this possible? Conflicts in testimony Discrepancies in minor details An impossible burden Applies only to ELEMENTS of the case ELEMENTS OF DWI On or about April 26, 2012 In Lubbock County, Texas Jane Doe Operated a Motor Vehicle In a Public Place While Intoxicated INTOXICATED (a) NOT HAVING THE NORMAL USE OF MENTAL OR PHYSICAL FACULTIES BY REASON OF THE INTRODUCTION OF ALCOHOL, A CONTROLLED SUBSTANCE, A DRUG, A DANGEROUS DRUG, A COMBINATION OF TWO OR MORE OF THOSE SUBTANCES, OR ANY OTHER SUBSTANCE INTO THE BODY OR 4

5 INTOXICATED (b) HAVING AN ALCOHOL CONCENTRATION OF.08 OR MORE WHICH MEANS INTOXICATION CAN BE PROVEN BY: 1. LOSS OF MENTAL FACULTIES, OR 2. LOSS OF PHYSICAL FACULTIES, OR 3. CONCENTRATION OF ALCOHOL Ever see a stranger intoxicated? How did you know? Can t do everyday things (i.e. drive correctly) Smell of alcohol on breath Slurred speech Bloodshot/glassy eyes Not comprehending/not following/forgetting simple instructions Slow reactions Vomiting Angry/belligerent over-friendly How do we fairly measure these things? FIELD SOBRIETY TASKS STANDARDIZED, SCIENTIFICALLY-VALIDATED TASKS (DEVELOPED BY NHTSA) DIVIDED ATTENTION TASKS DRIVING IS A DIVIDED ATTENTION TASK NEAR ACCIDENTS TEACHING A CHILD TO DRIVE 5

6 ALCOHOL CONCENTRATION.08 OR MORE Breath or Blood IMPLIED CONSENT LAW Implied Consent (TRC ) If arrested for an offense arising out of acts alleged to have been committed while the person was [DWI] the person is deemed to have consented to submit to the taking of one or more specimens of the person s breath or blood for analysis to determine the alcohol concentration or the presence of a controlled substance, drug, dangerous drug or other substance. ALCOHOL CONCENTRATION Who thinks we can t rely on machine (too much riding on it)? Who could not convict without a breath test? 6

7 QUIZ: Barney vs. Bubba Lightweight No tolerance Exhibits loss of faculties BAC = under.08 Heavy drinker High tolerance Looks good (no loss) BAC =.08 or over Which is intoxicated? BOTH ARE INTOXICATED UNDER TEXAS LAW! Why Two Definitions? Because everyone is different and a loss of faculties may occur for some people with an alcohol level below.08 Conversely, some folks can still demonstrate faculties when they are above.08 But Texas law says everyone at.08 and above is intoxicated BREATH OR BLOOD SAMPLES Although not without consequence, a person can physically refuse to provide a breath sample Should an officer simply give up at this point, because a person has chosen to ignore the law? Do we want our police to use all legal means at their disposal to secure evidence? 7

8 BLOOD SEARCH WARRANTS If a person is arrested for DWI (PC) Officer requests a breath or blood test Defendant refuses (ignores law) Police can draw up a search warrant Judge agrees and signs (court order) Blood can legally be taken without consent BLOOD SEARCH WARRANTS 5 th Amendment violation? United States Supreme Court Texas Court of Criminal Appeals 4 th Amendment (Search & Seizure) nothing special about DWI drugs in a house child pornography on a computer DNA sample in a rape case BLOOD SEARCH WARRANTS Anyone have issue/concern/problem? Name an offense where Defendant is allowed to hide/conceal evidence? If a Defendant doesn t want to provide a sample, should we just let them go (is this safe)? 8

9 BLOOD SEARCH WARRANTS Is there anyone, who because of their personal feelings towards blood search warrants, would refuse to consider evidence of a test that was obtained by one? EXPERIENCE / BIAS Not necessarily a bad thing Based on life experiences can shape our ability to judge things objectively Non-drinkers? For those that drink, how often? MADD? SADD? Have you, a member of your family, or a close personal friend been affected by an intoxicated driver? Know someone charged with DWI? Bad experience with police? DA s office Know anyone else on panel? Any reason you could not be an impartial juror? 9

10 PUNISHMENT #1 To Punish #2 To Protect #3 To Deter #4 To Rehabilitate QUESTIONS FOR ME?????????????????? 10

11 CLOSING Jurors Duty Consider Only What s Inside The Circle Passion Officer s Testimony Sympathy For Defendant Public Opinion Blood Test Traffic Violations and Driving Behavior Conjecture Effect on Defendant s Life Sentiment Admission of Drinking Credibility Of Witnesses Performance on FSTs Penalty and Punishment Prejudice ELEMENTS OF DWI On or about April 26, 2012 In Lubbock County, Texas Jane Doe Operated a Motor Vehicle In a Public Place While Intoxicated 11

12 Intoxication 1) Driving (off road) 2) Can t get story straight 3) Smells like alcohol 4) Glassy bloodshot eyes 5) Slowed mannerisms 6) Admission of drinking 7) HGN & other FSTs 8) Blood test = (more than 2X legal limit) GUILTY 12

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