Commitment Issues

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Is the Fifth Circuit trying to change the way prosecutors talk to jurors?

A few weeks ago I shocked the world — okay, surprised a few people — by pointing out United States v. Gracia, in which the Fifth Circuit reversed a drug conviction, finding that the prosecutor had improperly "vouched" for the credibility of federal agents who testified. I thought, and some commenters (even defense lawyers) agreed, that what the Fifth Circuit had called vouching in Gracia was actually fairly routine argument.

"Please raise your hand"

Last week the Fifth Circuit decided United States v. Fambro, and came close to reversing another conviction, this time because it didn't like the prosecutor's voir dire questions. As in Gracia, when you look at what the prosecutor actually said, you might find the questions familiar:

Let’s say that law enforcement finds a box of grenades and they’re trying to determine whether I possessed those grenades. My first question, would it be important to you whether the grenades were found in my house or not? Would that be an important factor, do you think, in determining whether I possessed the grenades? How many think it would be important? If you do, please raise your hand.

Let me add another piece of evidence onto it. Let’s say the grenades are found in my house and that they are found in a box, and with the grenades in the box are some adult T-shirts that happen to fit my size, that are the size of shirt I wear. Do you think that would be important in determining whether I possessed the grenades or not? Okay. If you do think it’s important, please raise your hand.

Let me add one more twist to our little fact scenario. Let’s say that during an interview with law enforcement, I’m talking with the officer and I say, yes, the grenades were bought in Arizona. I was there and I brought them back to Lubbock. How many people think that would be important? Okay. Is there anyone here who thinks it wouldn’t be important?

If you had heard all of that and you were asked to decide, did [I] possess the grenades found in [my] house, how many people think I did possess those grenades? How many people think that I did not possess those grenades?

Can't I wait for the evidence?

These are called "commitment questions," and lawyers use them often, at least in my part of the world. Frankly I don't know why they're so common. I think they confuse jurors at best, and much more commonly really irritate them. I've seen jurors resist one question after another like this, shifting uncomfortably while they tried to explain they'd really prefer to hear all the evidence, until they were finally beaten into saying that yes, this or that factor would be important.

The Fifth Circuit doesn't like these questions either, and cites other courts to the same effect (I'm omitting the citations here):

A defendant’s right to due process under the Fifth Amendment requires an impartial jury at least to the same extent required by the Sixth Amendment. As the Eighth Circuit has explained, “although there are no constitutional provisions directly addressing the use of hypothetical questions during voir dire, there may be circumstances where a party’s manner of conducting voir dire renders a jury [non-]impartial and thereby triggers a Sixth Amendment violation.” We have stated that a voir dire question that “in effect asked the jury how it would weigh evidence it had not heard” would “not be a proper line of inquiry.” A majority of states appear to prohibit hypothetical questions to prospective jurors on voir dire to determine how they would decide fact issues in a case.

Conviction affirmed

Fambro's counsel didn't object to the commitment questions, though, so the Fifth Circuit needed plain error to reverse, and didn't find it:

Nevertheless, we are unaware of any decision by the Supreme Court or any federal appellate court that has reversed a district court because it allowed commitment questions on voir dire in violation of the due process clause or the Sixth Amendment. Moreover, there was considerable evidence from which the jury could reasonably conclude that Fambro possessed the firearm. We therefore cannot say that the error, if any, was plain.

If your opponent starts asking commitment questions in voir dire, you have a valid objection. With luck, you'll also have a jury panel that's tired of being badgered. That's a good start.