Trick Questions

 Posted on July 02, 2010 in Uncategorized

It doesn't matter who asks them-defense lawyers, prosecutors, cops-or whom they are asked-witnesses, the jurors themselves, defendants-jurors don't like trick questions. Getting caught asking a trick question lessens the questioner's credibility.

Here's a trick question that cops sometimes ask people suspected of DWI: "On a scale of zero to ten, how intoxicated would you say you are?" They think they're being clever-anyone who says anything other than zero has admitted intoxication-but jurors don't like the question, and unless the answer is a big number they're unimpressed.

Defense lawyers sometimes, in desperation, ask witnesses trick questions. Because if-as occasionally happens-there is no way the facts support any truth that helps the accused, we have to do something to stir up doubt. (I don't think I'm giving away any trade secrets here.) Jurors don't like trick questions, and when they catch you asking one (which they usually do) they're unimpressed.

Prosecutors almost always ask potential jurors trick questions.One example is the "one-witness rule" trick question, which I've noted here and here. There are several common questions in the same vein: "If I prove my case to you beyond a reasonable doubt, will you have problems convicting if there is no X?" where X is direct evidence, or corroboration of a single witness, or scientific evidence.

This is a trick question in the same vein as "have you stopped beating your wife?" It contains a premise that is untrue for many people, and doesn't leave room for the answerer to challenge the premise.

The premise is that the potential juror could find guilt beyond a reasonable doubt without X. Just as there are many witnesses who have never beaten their wives, there are many jurors who could not find (or could not, in voir dire, imagine themselves finding) guilt beyond a reasonable doubt based on circumstantial evidence only.

The law does not require jurors to be able to find guilt beyond a reasonable doubt based on circumstantial evidence only. A juror who can't is not challengeable for cause. The question, "can you find guilt beyond a reasonable doubt based on circumstantial evidence alone" would be an improper commitment question.

The question as it is actually asked is probably not improper. But the question and the format ("I'm sorry, Mr. Blanco, we need a yes-or-no answer") don't leave room for the potential juror to explain that he can't answer the question "yes" because he rejects the premise. The quickest option is to reject the whole execrable question with a simple "no" and get the prosecutor to move on to his next victim.

The problem is heightened by the way a prosecutor often asks the question: state it once, then ask each juror to answer it. By the time the prosecutor gets to the third row, there's no telling whether the potential jurors are answering the actual question or some other question involving the words "beyond a reasonable doubt" and "circumstantial evidence only."

(I raised this issue in my current trial. The prosecutor wanted us to agree on challenges for cause to jurors who answered the circumstantial-evidence trick question negatively. I demurred, pointing out that I had no idea what question the jurors at the back of the room were, in their minds, answering. The prosecutor was upset-he saw no difference between his question and my question about considering probation for the offense-but I was proven correct when we requestioned the potential jurors at the bench, and one of them answered the clarified question differently.)

Do jurors recognize this as a trick question? I don't think they usually do. And I haven't yet figured out a good way to easily show them that it's a trick question just like "have you stopped beating your wife yet?"

But I will.

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