Dallas DWI lawyer Robert Guest recently asked a question on the Texas DWI Defenders listserv:
Dearest Brain Trust,
I've been using the same DWI voir dire for a few years and I'm looking for some fresh questions for the jury.
If you wouldn't mind send me your favorite DWI voir dire question or idea. I'm open to anything, just something you think is creative, or has gotten results in the past.
Thanks in advance,
Here was my response:
My new favorite is on the difference between probable cause and BRD:
“Mr. Smith, I want you to imagine that you are a police officer. It’s 2 o’clock in the morning. The person you just stopped for a traffic violation has admitted drinking, and you smell the odor of alcohol. You have 2 choices: eventually to put him back in his vehicle and to let him drive on down the road, or to arrest him and take him to jail.
“Mr. Smith, how sure would you want to be that that person was not intoxicated before you put him back in the car to drive off?”
“Did everyone hear those answers? That’s similar to the standard that the police officer is using: if there’s any chance that person is intoxicated, they are probably going to jail. If you (Juror #1) are lucky enough to be on this jury, the judge is going to be asking you the exact opposite question…
“The judge will be telling you in her instructions that if there’s any reasonable chance that person was NOT intoxicated, then you must acquit…”
Discussion of difference between arrest/conviction standards follows.
The question doesn’t actually get much info from the juror about their positions/feelings/etc., but it doesn’t take much time and I am trying to let them know we aren’t playing “blame the cop”… and also that they shouldn’t feel like they have to validate the officers arrest.
It also plays into the standard prosecutor VD about “Do you want cops to only arrest[people who are passed out/falling down drunk/etc.?”
Follow up questions to that scenario can actually elicit more useful info about jurors.
I also use “the chart”… the stair step chart, which is probably a crutch, but, it accomplishes what crutches are supposed to do: it makes me feel better as I point at PC (low) and BRD (high). And it helps me illustrate the “exact opposite question” part.
Results? 3-3 in my last 6 DWIs. But I’m ok with that because the state thought all 6 were slam dunk guilty verdicts. (Not that I can actually know that question made any difference.)
I’m glad you asked the question Robert. I’m looking forward to other answers.