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					The Criminal
 Jury Trial

   Tray Payne
 Attorney At Law
  Your view of : The Family Unit

Before                   After
         Your view of : Judges

Before                      After
     Your view of : Bravery

Before                  After
   Your view of : Investigators

Before                    After
  Your view of : Police Officers

Before                   After
 Your view of : Defense Attorneys

Before                   After
  Your view of : The Prosecutors

Before                   After
           Your view of : The Jury

                     Before
                     After
“I do not want to be tried by twelve men who are too
 “Twelve men, good and true.”
           dumb to get out of jury duty.”
                    Mark Twain
               Shakespeare
      You are the referee.
Educate yourself.
Educate the panel.
Give them the road map.
Instruct them on the law.
Take control and stay in control.
Stay fair and impartial.
              SHUFFLE
A motion to shuffle is automatically
granted to the first side that requests a
shuffle.
– Only one shuffle per panel regardless of
  which side makes the first request. Chappell
  v. State, 850 S.W.2d 508 (Tex. Crim. App.
  1993).
– The motion may be either oral or in writing
  and must be made before voir dire
  commences.
                           Voir Dire
                   What are the duties of the jurors?

         Passion                                              Sympathy For
                                     Physical
                                                               Defendant
                                   Evidence

Public Opinion
                       Documents                  Photos          Conjecture



                       Testimony                Audio/Video
                      Of Witnesses                Tapes          Penalty and
Public Feeling
                                                                 Punishment

                                   Credibility
                                Of Witnesses
        Sentiment                                             Prejudice
YOU CAN’T BE ON THIS JURY
  Absolute Disqualifications
     TEXAS GOV’T CODE § 62.102
1.   Younger than 18 years old
2.   Is not a citizen of Texas and the county where
     he/she is to serve as a juror
3.   Is not qualified to vote under the Constitution
     and laws in the county where he/she is to
     serve as a juror
4.   Is not of sound mind and good moral
     character
Absolute Disqualifiers Under the
Gov’t Code (cont.)
 5.   Is not able to read and write
 6.   Has served as a petit juror for six days
      during the prior three months in the County
      Court or prior six months in the District
      Court
 7.   Has been convicted of a felony
 8.   Is under indictment or other legal
      accusation for theft or any felony
     Absolute Disqualifiers Under
        CCP ARTICLE 35.19

1.   Convicted of Theft (any grade)
2.   Convicted of any Felony
3.   Is under Indictment or other legal accusation
     for Theft
4.   Is under Indictment or other legal accusation
     for any Felony
5.   Is Insane
 Jack Krohn Standefer
       59 S.W.3D 177
―An attorney cannot attempt to bind or
commit a prospective juror to a verdict
based on a hypothetical set of facts.‖

Unless, of course………………………
it is a proper commitment question.
STANDEFER (cont.)

―The inquiry for improper commitment
questions has two steps: (1) Is the question
a commitment question, and (2) Does the
question include facts — and only those
facts — that lead to a valid challenge for
cause? If the answer to (1) is ―yes‖ and the
answer to (2) is ―no,‖ then the question is an
improper commitment question, and the trial
court should not allow the question.‖
   WHAT THEY CAN ASK
Commitment questions that establish a
challenge for cause

“Will you require the State to prove all the
elements of the crime?”

“ Will you require the defendant to
testify/present evidence/prove his/her
innocence?”
 WHAT YOU CAN ASK
Prior Jury Service     (Gonzales v. State, 638 S.W. 2d 132)


Explore Bias or Prejudice        (Harrell v. State, 882
S.W. 2d 65)

       Towards the defendant
       For a particular class of witness (i.e.
       Police)
       Against a particular class of witness
       (i.e. Gang Member)

Opinion as to punishment/range of
punishment (Powell v. State, 631 S.W. 2d 169)
 WHAT THEY CAN’T ASK
―If the evidence, in a hypothetical case, showed
that a person was arrested and they had a crack
pipe in their pocket, and they had a residue
amount in it, and it could be measured, and it
could be seen, is there anyone who could not
convict a person, based on that.‖

If, in a hypothetical case, a witness were
called to testify, that the victim in that case
had changed their story since the night of
the crime and that the victim was no longer
being truthful, could you set aside the victim’s in
court testimony, and yet still consider their
statement(s) at the scene?
CHALLENGES FOR CAUSE

Governed by ARTICLE 35.16 CCP.

There is NO limit to the number for
either party.

Batson does not apply     (Staley v. State, 887 S.W. 2d
885).

Either party may challenge for cause for if they
believe a party has a bias or prejudice.
   PEREMPTORY CHALLENGES
                             STATE DEFENSE
    Non-Capital Felony           10      10

    Misdemeanors In District Court 5     5

    Misdemeanors in County Court 3       3

    Capital Cases                 15     15


* Assumes Single Defendant Case
   PEREMPTORY CHALLENGES
                             STATE DEFENSE
Non-Capital Felony              6            6*

Misd. In District Court         3            3*

Misd. in County Court           3            3*

Capital Cases                   8            8*
* Per Defendant in Multiple Defendant Case
      BATSON v. KENTUCKY
          476 U.S. 79
Striking members of the panel with
peremptory challenges on the basis of
race violates the Equal Protection Clause
of the United States Constitution
BATSON APPLIES TO…………
  RACE

  GENDER (J.E.B. V. ALABAMA, 511 U.S. 127)

  DEFENSE CHALLENGES(Georgia v.
        McCollum, 505 U.S. 42)



  MEMBERS OF ALL RACES
        (Powers v. Ohio, 499 U.S. 400)


  ETHNICITY AND NATIONALITY
        (Hernandez v. State, 347 U.S. 475)
BATSON DOES NOT APPLY
TO...
  RELIGION             (Ramos v. State, 934 S.W. 2d 358;
  Casarez v. State, 913 S.W.2d 468)


  AGE

  HOMOSEXUALITY/SEXUAL
  ORIENTATION (Johnson v. Campbell, 92 F.3d.
  951 [9th Cir.])


  CHALLENGES FOR CAUSE
  (Staley v. State, 887 S.W. 2d 885)
Texas Trial System = Bifurcated
Two Phases
1. Guilt/Innocence
  –   Opening Statement
  –   Evidence
  –   Closing
2. Punishment
  –   Opening Statement
  –   Evidence
  –   Closing


         Let the Show Begin
Provided by the State Bar of Texas
            Oath to Jury
CCP – 35.22
– When the jury has been selected, the jury
  oath shall be given.
– Failure to and/or untimely swearing of a jury
  DOES NOT render a verdict void. However,
  the judge must re-introduce and re-admit
  evidence and re-charge the jury before end of
  deliberations.
       OPENING STATEMENT
• Should be the parties anticipation of what the evidence will
  show.
• Argument typically not allowed.
• Demonstrative evidence may be admitted in opening
  statements.
• Typical objections may include -
   • Argumentative
   • Anticipation of a defense
   • Relevance
   • Misstatement of the law or instructing the jury on the law
   • Assertion of a personal belief
   Presentation of Evidence
The Meat and Potatoes of the Trial.
See Montgomery v. State, 810 S.W.2d
372 (Tex. Crim. App. 1990) and Rankin v.
State, 974 S.W.2d 707 (Tex. Crim. Ap.
1996) for good information regarding
relevancy and the presentation of relevant
evidence.
                Rules of Evidence
   Rule 102. Purpose and Construction.
These rules shall be construed to secure fairness in administration, elimination of
unjustifiable expense and delay, and promotion of growth and development of the
  law of evidence to the end that the truth may be ascertained and proceedings
                                justly determined.
          Rules of Evidence
     Rule 401. Definition of ―Relevant
                Evidence‖
  ―Relevant Evidence‖ means evidence having any
tendency to make the existence of any fact that is of
consequence to the determination of the action more
 probable or less probable than it would be without
                                     the evidence.
             Rules of Evidence
 Rule 402. Relevant evidence generally
    admissible; irrelevant evidence
             inadmissible.
      All relevant evidence is admissible, except as otherwise
 provided by the Constitution, by statute, by these rules, or by
         other rules prescribed pursuant to statutory authority.
Evidence which is not relevant is inadmissible. (Unless it’s not
                                                   objected to.)
           Evidence
Circumstantial        Direct
    Criminal Law Concepts
Presumption of Innocence
– Means that the State has to prove the
  ELEMENTS of the case
– Does not mean the Defendant is in fact not
  guilty, but is only a presumption that applies
  until the State presents evidence proving guilt.
– Often times stated as innocent UNLESS
  proven guilty.
                MURDER
On or about October 13th, 2005;
In Lubbock County, Texas;
Jonathan Beard;
Did intentionally or knowingly cause the death
of an individual, Sharron Beard;
By stabbing Sharron Beard;
With a knife.
      5TH AMENDMENT
THE RIGHT TO REMAIN SILENT

  If the accused does decide to testify, they may be
admonished in front of the jury or outside the
presence of the jury.
         Burden of Proof
Every criminal case must be proven
―Beyond A Reasonable Doubt‖
– No specific definition will be given
– Applies to the ELEMENTS of the case
– IS NOT:
    Beyond ALL DOUBT – Matlock standard
    Beyond a SHADOW OF A DOUBT – Perry Mason
    standard
    How long can this go on?
Recross-examination is generally limited to the subject
matter of the redirect.
This is true even in jurisdictions like Texas that adhere to
the wide-open cross-examination rule.
Many attorney’s will perform a recross simply as a knee-
jerk reaction to the fact that the opposing counsel did a
redirect.
The judge may end this back and forth by simply asking
the poignant question, ―Who is your next witness?‖
State Rests your
     Honor!

It’s not yet time to
     celebrate!
         Directed Verdicts
After the State rests on their case in chief,
the defense may move for a directed
verdict. The defense is asking the judge to
find the defendant not guilty because as a
matter of law the State has failed to
produce any evidence on an element of
the case.
These are typically denied, but be
prepared. They sometimes have merit.
Defense Rests!
It’s almost over!
Once both parties have rested and closed
     we get to the dreaded………
                     CHARGE




   See Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984
      The Charge Cont……
Nothing says reverse and remand like the jury
charge.
Tread lightly and get it right. Sometimes less is
not more.
The jury is the judge of the facts, but they must
receive the law from the court. CCP 36.13
Article 36.14 of the CCP states that the Judge,
SHALL, before argument begins, deliver to the
jury a written charge.
This charge should contain two parts: the
abstract portion (the law) and the application
portion (applies law to facts).
         Closing Arguments
CCP 36.07 – State shall have the right to make the
concluding address.
There is no set time that must be allowed and trial
judges have BROAD discretion in determining length of
arguments.
Dang v. State, 154 S.W.3d 616 (Tex. Crim. App. 2005)
discusses how to determine a reasonable amount of
time.
Should be reflective of the true state of the evidence,
founded in reason and logic.
Persuasion and drama typically prevail.
The closing argument often brings forth a trial's most
dramatic speech, marked by criticism, appeals to
emotion and reason, and florid rhetoric.
Not Guilty? You go home!
Guilty?
      Post Verdict Issues
CCP 37.05 – Polling the Jury – call
separately each name of the jury to ask
them if the verdict is his/hers.
CCP 37.03 – In county court, the verdict
must be concurred in by each juror.
In a misdemeanor case, a verdict may be
received and read in the absence of the
defendant.
Texas Trial System = Bifurcated
Two Phases
1. Guilt/Innocence
  –   Opening Statement
  –   Evidence
  –   Closing
2. Punishment
  –   Opening Statement
  –   Evidence
  –   Closing
           Judge or Jury
CCP 37.07 states that the same jury may
assess punishment unless chosen
otherwise prior to the commencement of
the voir dire. Ie….Elect prior to voir dire.
The defendant MAY change his election if
the State’s attorney agrees.
Punishment is another separate trial.
     RANGE OF PUNISHMENT
Q:   WHY DO WE HAVE SUCH BIG RANGES OF
     PUNISHMENT?

A:   TO MAKE THE TIME FIT THE CRIME.

                 GOOD, THE
PUNISHMENT TIME IS THE
BAD, AND THE UGLY
BECAUSE IF THE DEFENDANT HAS DONE
ANYTHING GOOD, BAD, OR UGLY----- THAT IS WHEN
YOU ARE GOING TO HEAR ABOUT IT
PROVING ENHANCEMENTS
MUST give notice
– If the prior(s) are not in the indictment, state must
  either re-indict or file it’s notice of intent to use
  enhancements.
Must be a final conviction.
State must prove they were committed before
the primary offense
On probation or discharged from probation
doesn’t count.
State must prove the final conviction BRD!!!!!!
 Proving Enhancements cont…
1. 4 ways to prove up enhancements at trial
2. Pen packets and fingerprints (most
   common method we use)
3. Stipulation (best way if you can get the
   Defense attorney to agree).
4. Testimony of witnesses. i.e. probation
   officers.
5. Handwriting exemplar (note: They must
   be certified by DPS as an expert).
       EDUCATE YOURSELF
       Why men don’t ask directions.
Know where you’re going so this doesn’t happen
           Tray Payne- Attorney At Law
               Freitag & Payne, PC

The End       401 50th Street, Ste. A
               Lubbock, TX 79401
             Phone: (806) 368-8712
          Email: Tpayne@fp-lawfirm.com

				
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posted:8/29/2011
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