Integrity of Justice

Fighting for Truth, Justice and the American Way

Jury selection in State v Motta

Jury selection plays a vital role in obtaining a fair trial for the accused citizen !  We were able to select a fair jury to hear the government’s case against Nick Motta.
As a young lawyer my understanding of what was essential to accomplish in jury selection (a.k.a. Voir Dire) left a lot to be desired. As with many things, experience is the best teacher and examples help others improve their own jury selection process.

 

  • VOIR DIRE EXAMINATION BY DEFENDANT (A.K.A. JURY SELECTION)

    • WYSE: Ladies and gentlemen of the jury, I want to thank you for your openness and your willingness to get into
    • some intimate details of your life that take a lot of courage to share that in this This is the system
    • that our founders envisioned because of the value that our founders placed upon liberty, and placing the jury as the
    • surest protection of our rights and our So we don’t mean to get into the intimate aspects of your life for
    • We are doing this because we are trying to protect the integrity of the system, and to make sure that
    • our system of government works as it’s intended, and in that regard there’s no higher duty or honor than serving on a
    • So I appreciate, and I want you to know, and I’m sure Thompson does as well, the openness and honesty that you
    • answered his questions, and I’ll try to not pry unnecessarily in my Frankly,

      JOHN ADAMS

      Drafting the Declaration of Independence

      Drafting the Declaration of Independence

      I always like to quote John Adams, our second president and founding father, said that it’s more
      important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this
      world that they cannot be punished, but if innocence itself is brought to the bar and condemned, perhaps die, then a
      citizen will say whether I do good or I do evil is immaterial for innocence itself is no protection, and if
      such an idea as that were to take hold in the mind of the citizen, that would be the end of security

      PRESUMPTION OF INNOCENCE ESTABLISHED DURING JURY SELECTION

      Now, maybe that’s just something that inspires me as a lawyer, but I think it’s important that juries act as a
      safeguard on our liberty, and in that regard, raise your hand if you’ve heard of citizens who have been wrongly
      convicted and later exonerated by DNA Have you ever heard of a citizen who’s done that?

      [Hands were raised.]
      WYSE: Has anyone ever heard of the ten Missourians, any of the ten Missourians who were wrongly
      convicted and later exonerated by DNA evidence if you [Hands were raised.]
      WYSE: Number 66, I’m sorry, what was your name?
      VENIREPERSON JOHNSTON: Erin
      WYSE: I’m sorry, we’ve got to send the mike back. Do you remember the specific name of the person who was exonerated by
      DNA evidence?
      VENIREPERSON JOHNSTON: I don’t.  My husband and I are very involved with The Innocence Project, and so I know some
      of those stories have been in
      WYSE: Okay.  As someone who’s involved with The Innocence Project will you be able to listen to the
      government’s evidence and judge it fairly?
      VENIREPERSON JOHNSTON: WYSE: And will you accord Mr. Motta the presumptions he’s entitled to?
      VENIREPERSON JOHNSTON: WYSE: I appreciate your answering that question.
      Now, one of the issues that we’re going to deal with in this case is self-defense. If you believe that people have the
      right to defend themselves and use force in defending themselves, can you please raise your hand?
      [Hands were raised.]
      WYSE: Okay.  You can put your hand down.  I’m going to ask it the other If you didn’t raise your
      hand for my last question, could you raise your hand If you don’t believe people have the right to self-defense,
      raise your hand
      [No response.]
      WYSE: I see no hands.  One of the other issues
      here is going to be an attempted Is there anything about the issue of suicide which causes anyone in the panel
      any undue concern, that they don’t think that, once they hear about an attempted suicide, that they won’t be
      able to listen to the rest of the evidence fairly? If you think
      that the issue of an attempted suicide will cause you emotional distress, that you won’t be able to listen to the
      evidence fairly, could you please raise your hand?
      [No response.] WYSE: I see no hands.  Mr. Thompson talked about
      Armed Criminal Action being a minimum of three years, but he didn’t say that the maximum for Armed Criminal Action
      was Would you be able to consider a life sentence when no one was hurt more than when the person for whom the Armed
      Criminal Action charge was related to, the victim of that allegation was not hurt? Please raise your hand if you
      would be able to consider a life sentence when the person related to the Armed Criminal Action was not hurt, no
      physical
      UNKNOWN VENIREPERSON: Did you say wouldn’t? VENIREPERSON SIMMONS: I don’t understand the
      WYSE: Let me rephrase it.
      THOMPSON: Judge, may we approach?
      THE COURT:[Counsel approached the bench and the following proceedings were had:]
      THOMPSON: I don’t have any problem with Mr. Wyse
      talking about the sentencing range on I would just request that he use the language of a term of years not less
      than three years up to I’m not so sure the life 1  language is in the range of punishment for ACA.

      THE COURT:  Well, Mr. Wyse?
      WYSE: I have no objection to rephrasing it that
      THOMPSON: A number of years.
      THE COURT:  Yes, I think you should because I don’t
      think that the term, life imprisonment, is used in the It is really any number of years.  I think we knew
      that it may be tantamount to life, but I think if you phrased it along the lines of there’s no upper range on
      that, something along those WYSE: Okay.
      [The proceedings returned to open ]
      THE COURT: Go ahead, Mr. WYSE: The range of punishment for Armed Criminal Action is a minimum of three years, and there is
      no upper limit in the possible So it could be infinity.
      Would you be able to consider an infinity where there was no
      permanent injury resulting related to the Armed Criminal
      Action? If you would — actually, I want to withdraw that
      Would you be able to consider the full range of punishment appropriate for the injuries in this matter? If
      you think you would be able to consider the full range of
      punishment appropriate to the injuries, please raise your  hand. [Hands were raised.]
      WYSE: Please put your hands down now. If you didn’t raise your hand for this last question, raise your
      hand Number 47, you are?
      VENIREPERSON SIMMONS: Peggy
      WYSE: Ms. Simmons
      THE COURT: Wyse, I’m sorry.  Ladies and gentlemen,
      the numbers you are wearing are basically your check-in They’re not the numbers for your seating chart.
      So if we’re going to use numbers now, we need to refer to the seating chart number, but it’s better to
      use their WYSE: Yes, Your Honor.
      THE COURT: Go
      WYSE: I’m going to do some introductions which will explain why I’m not familiar with the process
      in the Clay County

      INTRODUCTION OF THE DEFENDANT AS A PERSON DURING JURY SELECTION


      First of all, let’s introduce Nicholas
      Nicholas grew up in Liberty.  He went to Liberty High He later went to Truman College, and then he
      worked at Western Missouri Correctional Center as a corrections officer, and he has worked in the
      restaurant industry in the Information Technology industry since
      Does anyone know Nicholas Motta from the additional information they’ve been provided here?
      Please raise your hand if you
      [No response.]
      WYSE: Nicholas is the grandson of Angelo Motta,
      who was a Clay County deputy and worked as a bailiff at this
      Does anyone know his grandfather, Angelo Motta?
      [No response.]
      WYSE: I see no hands.  Does anyone know his grandmother, Margaret Motta? Worked in Catholic Charities
      here Does anyone know her?
      [No response.]
      WYSE: Does anyone know his sister, Natalie Motta
      Flora, who’s a teacher in Liberty? Raise your hand if you [No response.]
      WYSE: I see no hands.  Does anyone know his grandparents, Leland Patterson or Alice Patterson who now
      live in town?
      [No response.]
      WYSE: I see no hands.  Does anyone know Dakota
      Flora, his brother-in-law?
      [No response.]
      WYSE: I see no hands.  How about Sheila Motta, his mother?[No response.]
      WYSE: How about Joseph Motta, his father?
      [No response.]
      WYSE: Okay.  I am from — my name’s Stephen Wyse. I am from Richmond, Missouri, Ray After there I
      went into the Army in the Military Police, worked as an investigator, Fort Benning, Honduras, Germany,
      Italy, and then came back to the United States, attended the University of Missouri, worked in politics,
      worked as an investigator for the State of Missouri, worked as a State Senator’s aide,
      and then went to law school at the University of Missouri,
      and my practice is in Columbia, Does anyone know me, please raise your hand?
      [No response.]
      WYSE: I see no hands.  My paralegal here is Blaine Wyse, also from Richmond, If you notice
      familiarity in the name, he’s my He attends the University of Does anyone know Blaine Wyse?
      [No response.]

      CASE ISSUES DISCUSSED DURING JURY SELECTION


      WYSE: All right.  Do we have any cat lovers in this jury? If you’re a cat lover, raise your
      [Hands were raised.]
      WYSE: Okay.  Mindy Andrews?  Would being a cat lover cause you to place undue weight for somebody
      who acted in an effort to retrieve or rescue their cat? Would that
      cause you not to be able to consider the evidence fairly?
      VENIREPERSON ANDREWS:
      WYSE: Okay.  For any of the other cat lovers,
      would being an effort to retrieve or rescue a cat cause you
      not to be able to listen to the evidence in this matter? Raise your hand if it
      VENIREPERSON SIMMONS: It would depend on what  happened
      to the WYSE: Okay.  Well, as far as we know, the cat is still fine, but if, would you be able to
      consider the facts involving the cat in evaluating this case?
      VENIREPERSON SIMMONS:
      WYSE: Would the fact that you’re a cat lover cause
      you to place any undue advantage to a fellow cat lover, or would you just judge the facts?
      VENIREPERSON SIMMONS: Just the
      WYSE: Okay, thank you.  Any other cat lover who has a different opinion about that, who thinks
      a fellow cat lover deserves more benefit than someone who is not a cat lover? Raise your hand
      if that’s
      [No response.]
      WYSE: I see no hands.  Now, Mr. Thompson talked a lot about family members who are victims of
      crimes and others related to victims of I don’t remember him
      ever asking if anyone in the jury panel was themselves a victim of a If you personally have
      been a victim of a crime, could you please raise your hand?
      UNKNOWN VENIREPERSON: Violent crime or any crime?
      WYSE: Well, let’s do any crime right now.  Eighty-nine?
      VENIREPERSON BASU: Cem   My wife was a victim of a crime where her car was broken in and
      several items The accused jumped state lines, so it’s been a challenging
      WYSE: Anything about your involvement with you and your wife being a victim of this crime that
      would cause you to have hard feelings towards the State in this matter?
      VENIREPERSON BASU:
      WYSE: Anything that would cause you to have hard
      feelings or would cause you to evaluate evidence differently towards Mr. Motta in this matter?
      VENIREPERSON BASU: I don’t believe so,
      WYSE: Thank you.
      VENIREPERSON WALTERS: William   My house was It’s been many years ago, probably 40 years ago,
      and basically it was just a teenager across the street, stole some albums, and that’s all I
      WYSE: Okay.  Anything about that experience which
      would cause you to be biased towards either the government or Mr. Motta?
      VENIREPERSON WALTERS: No,
      WYSE: Thank you.
      VENIREPERSON GAUDIN: Theft, child’s bicycles, my
      husband’s tools, attempted break-in.
      WYSE: Okay.  Anything about those experiences>which would cause you to favor either the government or
      Motta?
      VENIREPERSON GAUDIN:>
      WYSE: Okay, thank you.
      VENIREPERSON LIVESAY: Denise Livesay, theft three My home has been broken into in 1999.  I’ve had my
      wallet stolen from my purse and I’ve had my car broken
      WYSE: Okay.  Anything about having been the victim of several crimes which would cause you to have any sort of
      resentment or favoritism towards the government?
      VENIREPERSON LIVESAY:
      WYSE: Anything that would cause you to have any sort or resentment or favoritism towards the accused in this
    • matter, Nick Motta?

    • VENIREPERSON LIVESAY: I don’t believe
    • WYSE: So you’re going to be able to listen to the
    • evidence fairly and set aside your personal experience?
    • VENIREPERSON LIVESAY:
    • WYSE: Thank you.
    • VENIREPERSON SPALL: Leonard Spall.  Early 2000s I had
    • my house broken into and a truck
    • WYSE: Okay.  Anything about your experience with
    • that which would cause you to lean one way or the other in
    • this matter?
    • VENIREPERSON SPALL: No,

    • WYSE: Thank you.
    • VENIREPERSON KELLEY: Barbara   A few years ago
    • my house was broke into and my son’s car was It was
    • WYSE: Okay.  Anything about your experience with
    • that which would cause you to have any sort of lasting,
    • either —
    • VENIREPERSON KELLEY:
    • WYSE: Thank you.
    • VENIREPERSON THORP: Dorothy Thorp, and I had my car
    • broken into, windows busted
    • WYSE: Anything about your experience with that
    • which would cause you to have any sort of —
    • VENIREPERSON THORP:
    • WYSE: — bias towards the government or with
    • regard to Mr. Motta as well?
    • VENIREPERSON THORP:
    • WYSE: Okay.  So you’ll be able to listen fairly
    • and impartially to the evidence presented here?
    • VENIREPERSON THORP:
    • WYSE: All right, thank you.
    • VENIREPERSON HAYS: Tricia   My car’s been broken
    • into
    • WYSE: Anything about the experience of being a
    • victim of property damage, property theft, which would cause
    • you to have any sort of bias towards the government?
    • VENIREPERSON HAYS:
    • WYSE: Any sort of bias that you might transfer to
    • Motta as the accused in this matter?
    • VENIREPERSON HAYS:
    • WYSE: So you’ll be able to listen to the evidence
    • fairly and impartially?
    • VENIREPERSON HAYS:
    • WYSE: Thank you.
    • VENIREPERSON HAYS: Thank
    • VENIREPERSON JOHNSTON: Erin Johnston, and, as I stated
    • earlier, I was a victim of robbery and assault in
    • WYSE: Okay.  Anything about that experience which
    • would cause you to be unfavorably inclined towards the
    • government?
    • VENIREPERSON JOHNSTON:
    • WYSE: Anything which would cause you to evaluate
    • the evidence harshly towards Mr. Motta in this matter?
    • VENIREPERSON JOHNSTON:
    • WYSE: So you could be fair and impartial?
    • VENIREPERSON JOHNSTON:
    • WYSE: Thank you.
    • VENIREPERSON WHITSITT: Landon   I’ve had my
    • house broken into and my car broken into and property
    • WYSE: Mr. Whitsitt, anything about your experience
    • with the victim of these crimes which would cause you to
    • have any sort of bias towards the government?
    • VENIREPERSON WHITSITT:
    • WYSE: Any sort of bias towards Mr. Motta?
    • VENIREPERSON WHITSITT:
    • WYSE: So you’ll be able to listen fairly and
    • impartially to the evidence presented here today?
    • VENIREPERSON WHITSITT:
    • WYSE: Thank you.
    • VENIREPERSON HANSKA: Mike   I’ve had my car
    • broken
    • WYSE: Anything about your experience with that
    • which would have any sort of bias towards the government?
    • VENIREPERSON HANSKA:
    • WYSE: Anything about that that would have any sort
    • of bias towards Mr. Motta?
    • VENIREPERSON HANSKA:
    • WYSE: So you’re going to be able to listen to
    • everything fairly and impartially?
    • VENIREPERSON HANSKA:
    • WYSE: Thank you.
    • VENIREPERSON LOWMAN: Thomas   I’ve been
    • WYSE: Sir, anything about your experience with
    • that which would cause you to have any sort of bias with
    • regard to the government?
    • VENIREPERSON LOWMAN: [Shakes ]
    • WYSE: Any sort of bias with regard to Mr. Motta?
    • VENIREPERSON LOWMAN:
    • WYSE: So you’re going to be able to listen to the
    • evidence here fairly and impartially?
    • VENIREPERSON LOWMAN:
    • WYSE: Okay, thank you.
    • VENIREPERSON DUNCAN: James   Petty theft for my
    • car, and my car I can remain fair and impartial.
    • WYSE: Thank you.
    • VENIREPERSON KIMBERLIN: Megan   Car broken
    • into in ’99, and complete identity stolen at that
    • WYSE: Okay.  Ms. Kimberlin, anything about your
    • experience which would have any sort of bias towards the
    • government?
    • VENIREPERSON KIMBERLIN:
    • WYSE: Anything about that which would have any
    • sort of bias towards Mr. Motta?
    • VENIREPERSON KIMBERLIN:
    • WYSE: Okay.  So you’re going to be able to listen
    • to the evidence fairly and impartially?
    • VENIREPERSON KIMBERLIN:
    • WYSE: Okay.  Thank you.  Now, the Court’s going to
    • instruct you, and I think the burden is on the government to
    • produce evidence, and that Mr. Motta’s entitled to the
    • presumption of innocence as we start this Is there
    • anything about that that seems unfair to you, that the
    • government has the burden to come forward with evidence and
    • to overcome his presumption of innocence? If anything about
    • that seems unfair to you, could you please raise your hand?
    • [No response.]
    • WYSE: I see no hands.  Has anyone ever been
    • accused of doing something that they didn’t do? In any part
    • of your life, from a little kid to — sir, number
    • VENIREPERSON WALTERS: I would say   William
    • I don’t know of an instance, but I would say
    • probably
    • WYSE: So you recognize that there’s a power in
    • accusation, that when someone’s accused of something that
    • people want to believe it?
    • VENIREPERSON WALTERS: I can see
    • WYSE: Okay.  Do you read a newspaper?
    • VENIREPERSON WALTERS:
    • WYSE: Do you ever read stories about people being
    • arrested for crimes?
    • VENIREPERSON WALTERS: No, not
    • WYSE: Have you ever read a story like that?
    • VENIREPERSON WALTERS: I probably   I don’t read
    • much of It’s mostly informational stuff I read.
    • WYSE: Okay.  If you read a story where someone was
    • arrested for a crime, would you probably think they were
    • probably guilty?
    • VENIREPERSON WALTERS:
    • WYSE: Okay.  Frankly, as a reader of a newspaper,
    • if you want to think that, that’s fine, but you wouldn’t do
    • that?
    • VENIREPERSON WALTERS: I wouldn’t think much of it at
    • all if I read it,
    • WYSE: Okay.  But you understand that if you’re
    • selected for this jury, you are required under your oath to
    • give Mr. Motta the presumption of innocence?
    • VENIREPERSON WALTERS:
    • WYSE: Will you be able to do that?
    • VENIREPERSON WALTERS: Yes,
    • WYSE: Will you require the government to prove, to
    • produce evidence to prove beyond a reasonable doubt of his
    • guilt before that presumption is overcome?
    • VENIREPERSON WALTERS:
    • WYSE: Thank you, sir.  Let me just tell a brief
    • When I was a little kid my big sister was accused of
    • scratching up our parents’ Her name was written on the
    • fender of the car, scratched into the She was
    • proclaiming her innocence, and my parents didn’t
    • Your name, you’re Of course, no one other ever
    • asked her little She claimed, well, my name’s
    • misspelled, I know how to spell my name, and no one asked
    • her little brother, who was sheepishly looking around
    • wandering away, if he had any involvement because the
    • accusation came based upon her name in the fender of the
    • Do you agree, please raise your hand that there’s power
    • in the Raise your hand if you think there’s
    • power in the
    • [Hands were raised.]
    • WYSE: Okay, thank you.  If you didn’t raise your
    • hand, could you raise your hand now? Simmons, so you
    • don’t believe when an accusation’s been made, when someone’s
    • been accused of doing something wrong, that the accusation
    • has any persuasive ability?
    • VENIREPERSON SIMMONS: Well, I would like to see the
    • evidence, hard I mean, I’m more black and white, I
    • guess, than the gray
    • WYSE: And I appreciate that, and if you’re on this
    • jury, I will definitely appreciate that, but I’m just
    • talking in your normal Have you ever read a newspaper
    • where someone’s been arrested of a crime?
    • VENIREPERSON SIMMONS:
    • WYSE: Did you think they were probably guilty of
    • the crime?
    • VENIREPERSON JOHNSTON: I only believe a small part of
    • what I read in today’s
    • WYSE: Okay.
    • VENIREPERSON SIMMONS: That’s sad, but
    • WYSE: And frankly, in our regular life if you read
    • a story about someone being arrested, there’s nothing wrong
    • with presuming they’re probably guilty because you’re not
    • judging as a You’re just a newspaper reader, but you
    • don’t think that the accusation made either in the media or
    • by the government carries any weight?
    • VENIREPERSON SIMMONS: Well, yes, it does, but it
    • shouldn’t.
    • WYSE: And if you’re a juror, that’s what I want to
    • hear, that you’re going to not let the power of the
    • government’s accusation persuade you one way or the other,
    • that you’re going to listen to the
    • VENIREPERSON SIMMONS: If it’s all presented,
    • WYSE: Well, that’s what we’re going to try to do.
    • All right, thank Does anyone else want to speak on
    • this one subject or want me to clarify anything because I
    • can be confusing sometimes? I don’t mean to be, but that is
    • one of my gifts is to confuse people, including myself from
    • time to
    • There are several different types of evidence, and
    • Thompson talked about proof beyond a reasonable Now,
    • the government recognizes three different levels of
    • One is preponderance, and that’s the level of
    • evidence you need if you’re in a traffic accident and you’re
    • seeking damages and the payment of money for You
    • need to prove by a preponderance, or more likely than not
    • that you were harmed by somebody else’s
    • The next level is clear and convincing If
    • the government’s trying to take someone’s children away,
    • they need to establish by clear and convincing evidence that
    • it’s in the best interests of the child to take the child
    • away from the The highest, the absolute highest
    • level is proof beyond a reasonable That is our
    • highest level, and that’s the level we grant to protect our
    • If there is a reasonable doubt, if you think it’s
    • possible that the other version happened, the burden is on
    • the jury to find not If you think you’ll be able to
    • follow that burden as a jury, please raise your
    • Did I confuse people?
    • VENIREPERSONS:
    • WYSE: All right.  I apologize.  So let’s go back
    • to proof beyond a reasonable Does everyone
    • understand when I’m talking about proof beyond a reasonable
    • doubt? Does everyone understand that the government has the
    • burden of producing evidence? Does everyone understand that
    • as the accused in this matter, that Mr. Motta’s entitled to
    • the presumption of innocence?
    • So to overcome that presumption, the government has to
    • prove beyond a reasonable So if there are two
    • possible, one could be more likely than not, and one is less
    • likely but reasonable —
    • THOMPSON: May we approach, Your Honor?
    • THE COURT:
    • [Counsel approached the bench and the following proceedings
    • were had:]
    • THOMPSON: Judge, I would just say if he’s going to
    • be defining reasonable doubt, he gives the jury instruction
    • because it seems like —
    • THE COURT: I think he’s trying to, Mr. Wyse is trying
    • to ask the jury if they will listen to the defendant’s case,
    • is that right? You could maybe try to rephrase it a little
    • bit and see if you can be a little bit more
    • WYSE: I’ll try.
    • THE COURT: Thank
    • [The proceedings returned to open ]
    • THE COURT: Go ahead, Mr.
    • WYSE: Thank you, Your Honor.  So let me give you
    • an example of what’s not a reasonable If your only
    • explanation is that it’s something that could have happened
    • in the matrix could explain it, that’s not a reasonable
    • But if people are giving you two different versions
    • of what happened and there is a level of plausibility to
    • either version, those doubts are
    • The Court’s going to instruct you as to what is
    • reasonable Will you be able to follow the Court’s
    • instruction with regard to reasonable If you believe
    • so, please raise your
    • [Hands were raised.]
    • WYSE: Thank you.  If you didn’t raise your hand at
    • the last question, could you raise your hand now?
    • [No response.]
    • WYSE: I see no hands.  Thank you.  All right.  One
    • of the rights we enjoy in this country is the right for the
    • accused not to testify, and the Court, if we ask him, will
    • give you an instruction that Mr. Motta has the absolute
    • right not to testify, and that can’t be used against
    • If you think you would be able to listen to this evidence
    • and not hold, and Mr. Motta chose not to testify, and not
    • hold that against him, please raise your
    • [Hands were raised.]
    • WYSE: Please place your hand down.  If you didn’t
    • raise your hand for that last question and you would be
    • bothered by him not testifying, please raise your hand
    • Number, Mr. Dominiak?
    • VENIREPERSON DOMINIAK:
    • WYSE: Please tell me why it would bother you.
    • VENIREPERSON DOMINIAK: I just believe that a man
    • should speak up and defend himself if he’s
    • WYSE: Okay, and even if the Court instructed you
    • that as an American he has the absolute right to not
    • testify, that he has answered the charges when he pled not
    • guilty, you still wouldn’t be able to follow the Court’s
    • instruction in that matter?
    • VENIREPERSON DOMINIAK: It would absolutely bother
    • WYSE: So you don’t think if he didn’t testify that
    • you could be fair and impartial to the rest of the evidence
    • and hold the government to their burden?
    • VENIREPERSON DOMINIAK: I don’t.
    • WYSE: Okay, thank you.
    • VENIREPERSON LIVESAY: Denise
    • WYSE: I’m sorry?
    • VENIREPERSON LIVESAY: Denise
    • WYSE: Denise, Ms. Livesay, so if Mr. Motta
    • >

    • exercised his right not to testify and the Court instructed
    • that you could not use his decision not to testify against
    • him, you think you’d have difficulty following that Court’s
    • instruction?
    • VENIREPERSON LIVESAY: I wouldn’t have difficulty
    • following the instruction, but I’d like to talk to the
    • WYSE: You’d like to talk to the bench.  All right,
    • thank
    • VENIREPERSON GENTRY: I believe somebody, you can tell
    • a lot about them by the way they talk and answer
    • You should stick up for
    • WYSE: Okay, and you’re Mr. Gentry?
    • VENIREPERSON GENTRY:   Sorry.  Go ahead.
    • WYSE: I’m sorry.  So you would hold it against Mr.
    • Motta if he exercised that right not to testify?
    • VENIREPERSON GENTRY: I believe I
    • WYSE: Even if the Court gave you the instruction
    • that you can’t do that?
    • VENIREPERSON GENTRY: I’d still think you need to stick
    • up for
    • WYSE: I appreciate your honesty and your answer
    • So you don’t think that you could follow the Court’s
    • instruction and be fair and impartial if he didn’t testify?
    • VENIREPERSON GENTRY: Not as much,
    • WYSE: Thank you.
    • VENIREPERSON CRABTREE: Ed Crabtree and like a lot of
    • them have said, I think he should defend It would
    • be kind of hard to not take that into consideration, so I’m
    • not sure if I could or
    • WYSE: Okay.  So you’re unsure whether you could
    • follow the Court’s instruction?
    • VENIREPERSON CRABTREE: Yes, I’m
    • WYSE: All right, thank you.
    • VENIREPERSON BASU: Cem   For the record, I would
    • hold it against Mr. Much like everyone else here,
    • evidence is Everything’s got to be presented.  He
    • can’t hold
    • WYSE: Okay, thank you.  All right.  There are
    • different types of There is testimonial evidence
    • where witnesses testify, and then there is circumstantial
    • evidence, and there is physical evidence such as knives or
    • guns or blood splatter, but circumstantial evidence where
    • the circumstances suggest certain I’m going to give
    • you an example and see whether you can follow me — if I
    • don’t confuse you, and I’ll try not
    • Is any one here familiar with the game hangman?
    • In that game I’m going to say there’s a four-letter word
    • and, you know how to get If you guess wrong you
    • get the scaffolding drawn, the person on the scaffolding
    • So if there’s a four-letter word and the last letter
    • is Kand the first letter is F, and the prosecution is
    • arguing, and it’s been clearly established beyond a
    • reasonable doubt what the first letter is and what the last
    • letter is, and the prosecution is arguing the word that’s in
    • your mind, but they haven’t proven what the other two

    • letters are beyond a reasonable
    • Would you be willing to assume the prosecutor’s
    • argument with regard to the other two letters? Say for
    • instance if the prosecutor was arguing the four-letter word
    • with F and K was fork, would you, even if they hadn’t proven
    • the O or the R, would you be willing to make — let me
    • withdraw
    • Circumstantial evidence is sometimes referred to as
    • reasonable assumptions, and as jurors it’s your duty to
    • require that each element is proven beyond a reasonable
    • doubt, that each letter in the hangman’s four-letter word is
    • proven because that four-letter word could be fink, it could
    • be funk, it could be fork, it could be It could be
    • something else, but the power of the prosecutor’s argument,
    • would you require the prosecutor to prove to you each and
    • every letter of the four-letter word before you found beyond
    • a reasonable doubt that the word had been spelled? If you
    • would, please raise your
    • [Hands were raised.]
    • WYSE: Thank you.  Any hands not raised there?
    • [No response.]
    • WYSE: Ladies and gentlemen, I appreciate your
    • candor and appreciate your time, and I hope I didn’t confuse
    • you too It wasn’t my goal, but sometimes I accomplish
    • 1  it anyway.  Thank you.

    • [The following proceedings were heard in the courtroom in
    • the presence of the jury:]
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