1

In some jurisdictions, e.g., Texas, driving faster than the posted speed limit is only the prima facie evidence of an unreasonable speed, where, if charged with a violation, one could still argue in the court of law, in front of a jury of one's peers, that the speed was nonetheless safe, reasonable and prudent.

Some potential jurors may be too conservative to appreciate the intricacies of the law (especially if such ideas are very new to them), or hold a grunge against people going over the posted speed limit.

What would be the best way to determine such bias during Jury Selection (Voir Dire)?

Can you ask potential jurors simple questions like:

  • "Do you think exceeding the posted speed limit is illegal?"
  • "Do you think that the posted speed limits should never be exceeded?"
  • "Do you think that people exceeding the posted speed limit are guilty, and should pay a fine?"
  • Are you asking about the efficacy of such questions, or the legality (i.e. whether the judge will smack you)? – user6726 Nov 23 '16 at 22:16
  • @user6726, being on the motorist side, obviously, the legality. from an aside, do you have any reason to believe that they wouldn't be efficient to determine the bias? – cnst Nov 23 '16 at 22:18
4

It is the job of the judge to instruct the jury about the law. If Texas had pattern instructions I'd look up what the instruction is for this matter, but you don't, so I don't know what the judge would say. But it is the judge's sole prerogative to instruct the jury in the law.

If the question is a "commitment question", then it is an improper question and should be disallowed, see Stendefer v. State. The question "Would you presume someone guilty if he or she refused a breath test on their refusal alone?" is such a commitment question, and is disallowed. Similarly, "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" (Atkins v. State, 951 S.W.2d 787). An improper commitment question could be of the type "could you refrain...":

Let us assume that you are considering in the penalty phase of any capital murder case, okay?   And some of the evidence that has come in shows that the victim's family was greatly impacted and terribly grieved and greatly harmed by the facts․Can you assure us that the knowledge of those facts would not prevent you or substantially impair you in considering a life sentence in such a case

(Penry v. State, 903 S.W.2d 715).

One way in which a commitment question can be legal is if it asks basically "can you uphold the law?", for example "can you consider probation in a murder case?", or "are you willing to consider mitigating circumstances". The wrong answer to those questions will lead to a for-cause dismissal.

The third question is flagrantly improper, the first is rather improper, and the second probably is. If the question can be framed in terms of a candidate's willingness to follow the law, then it should be legal.

  • Do you have an example of how the questions can be reworded in order to be compliant? Basically, the idea is that it is common knowledge nowadays that you cannot kill another person, unless you're acting in self defence. But due to globalisation and major differences in speed laws across jurisdictions, not everyone may know that it is, in fact, legal to exceed the posted speed limit in Texas (e.g., to drive at the prevailing speed of the road, disregarding an unreasonable speed limit), and the short nature of a traffic trial may not be long enough to alter such view. – cnst Nov 23 '16 at 23:50
  • If you can find a past instruction that describes this part of the law, then the strategy would be to summarize that instruction in a sentence or two, and then ask "could you do that?". I assume the instruction says something like "You may find the defendant not guilty if you find they were driving safely, even if they were going over the limit". I think the key is to frame the question in terms of "what they find" (e.g. "operated the vehicle safely"), and focus on a "if you find... could you do...?" relation, which just restates the law. – user6726 Nov 24 '16 at 0:26
  • ok, I now see why you were asking about efficacy. :-) I am sceptical -- your approach seems to be too conservative, and does not address my underlying concern about the prior knowledge. If someone is from Virginia with an established pre-existing views on the matter, even if they answer affirmative to the question as above, they could probably be swayed by a more articulate prosecutor much more easily than if we're dealing with a native Texan familiar with the freedoms of the land. – cnst Nov 24 '16 at 5:00
  • I accept your point about juror preconceptions, my point is simply that the courts are going to hem you in, and I think the wording of your questions would cross the line. Nobody can disagree with a question about ability to follow the law. The tricky part of alluding to information about what the law actually is, in a legally acceptable way. – user6726 Nov 24 '16 at 5:33
  • I do not dispute that the original questions may not be accepted; all I am looking for are appropriate substitutes. The whole concept of prima facia speed limits appears to be so foreign to so many people that even almost all materials on defence against a citation fail to address the issue. – cnst Nov 24 '16 at 6:46

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