Two child sexual assault (CSA) cases in Texas offer a glimpse into the varied kinds of cases in which juries must determine guilt or innocence and, most often, punishment as well. The different results reached in each case reflect the inherent difficulties a defense attorney faces in these kinds of trials.
This past August 2019, a Waco jury found itself hopelessly deadlocked in an 11-1 vote after eight and one half hours of deliberations. The judge was forced to declare a mistrial in the case of 30-year-old Ivan Musgrove who had been indicted for the sexual assault of a 4-year-old child. Musgrove faced a penalty of 25 years to life had he been convicted. He had earlier rejected a 25-year plea deal.
In March 2017, it took a Bowie County jury just three hours to convict 33-year-old Daniel Moneyham for the sexual assault of the underage daughter of his girlfriend. It took the jury just 10 minutes to assess his punishment at the maximum of 20 years and a maximum $10,000 fine.
Importance of Jury Selection in Child Sex Assault Cases
These cases demonstrate the importance of jury selection in CSA cases. Both defendants were indicted for inappropriate touching of underage children. In the Musgrove case, forensic experts testified that a medical exam produced some evidence of abuse while in the Moneyham case the only evidence of the assault came from the 12-year-old victim who testified that Moneyham had inappropriately touched her when she was seven years old.
It is obvious that the Bowie County jury was prone to convict while the Waco was more deliberative. The Waco jury told the judge it was either “deadlocked” or “undecided” in its 11-1 vote. At least one juror could not find guilt beyond a reasonable doubt. That juror’s decision to keep an open mind about the case was more likely than not shaped during the jury selection process beginning with voir dire.
Identifying Biased Jurors
The purpose of voir dire is to identify biased prospective jurors, those who may have had life experiences that could impact their ability to be fair and impartial. This is especially true in CSA cases. To accomplish this goal, defense attorneys representing defendants in such cases must be prepared and thoroughly aware of the basic facts associated with these kinds of cases, such as:
- It is estimated that only 2 to 9 percent of child sexual assault cases reviewed by prosecutors are taken to trial, with many cases resolved before trial through rejection by the prosecution, dismissal for insufficient evidence, or pretrial plea deals. One study found that less than one in five are charged. Some factors that determine the decision to charge a case or proceed to trial are: a defendant’s confession, whether the victim is under the age of six, medical evidence (less than 5 percent of CSA cases have such evidence), consistency of victim’s allegation statements, severity of the sexual acts, number of victims, duration of the abuse, and the number of incidents of abuse.
- Force also plays a critical role in the prosecutorial decision to go to trial. Studies show that jurors are 9 times more likely to convict in CSA cases when force is involved while jurors are 3 times more likely to acquit in cases where the victim maintains contact with the defendant after the abuse.
- Most CSA cases are resolved through plea bargains. This can be attributed to the fact that 93 percent of the perpetrators in CSA cases are easily identifiably because they are known by the victim—80 percent of whom are related to the child.
- Various studies show that roughly 25 percent of girls and 16 percent of boy are victims of CSA before they reach the age of 18. These same studies show that when the perpetrator is not a family member, the victim is a boy.
- Juror attitudes must be considered before voir dire. For example, studies show that female jurors are more pro-victim in CSA cases and more punitive than men while male jurors are more likely question the truthfulness of the victim and are less likely to have sympathy for them.
Jurors Likely to Have Experience with Child Sexual Assault
Given the fact that roughly 41 percent of the American population has been the victim of a CSA before they turn 18, it is reasonable to assume that a significant number of prospective jurors have been the victims of a CSA and/or know someone close to them who are CSA victims. This information can usually be derived from juror questionnaires, but if the court does not permit a questionnaire, the defense attorney must then approach the subject delicately during voir dire. A direct question to the prospective juror panel framed as “Has anyone here been the victim of a child sexual assault” would require a CSA victim to admit their abuse in front of the entire panel.
Most prospective jurors would not be comfortable answering such a direct question is front of 60 to 80 other people. A more delicate approach is to frame the question of whether any member of the panel, or any family member or any close friend has ever been the victim of, or has witnessed, or ever been accused of a crime against a child. An affirmative answer would open the door for defense counsel to request that the judge, either with or without the presence of defense counsel and the prosecutor, have a private discussion with the prospective juror(s). The court could then decide whether the juror’s victimization would prevent them from being a fair and impartial juror.
Other sample questions that can be posed to prospective jurors about CSA are:
- Do you think the defendant is guilty even though you know nothing about the case?
- Do you believe you can be fair and impartial to the defendant if you have been or know someone who has been a CSA victim?
- How many of you are desperate not to serve on the jury in this case because of personal, medical or biased reasons?
- Would you expect to see any injuries in a CSA case?
- Have you ever been employed or had any training, experience or education in any of the following areas: child advocacy, social services; counseling/psychology; law enforcement; criminology; education/teaching; youth supervisor; medical; babysitting; or Sunday school teaching etc.?
- Have you, or someone else close to you, ever been involved in a children’s advocacy group or any other group dealing with child safety, child abuse, or children’s rights?
- Are there any particular crimes that you have a special distaste for?
- Do you believe a child can make up a detailed story about an adult sexually abusing them?
- Are you, or anyone close to you, a member of any organization dealing with CSA?
- Have you read any articles, materials, or studies, or heard any information from others about any of the following topics: delayed disclosure of molestation, false memory syndrome, multiple victims of sexual abuse, Child Abuse Accommodation Syndrome, forensic interviewing of children, cycles of abuse, truthfulness of children, reliability of children as witnesses, or pedophiles (sex offenders) rehabilitation of sex offenders, or sex offender treatment programs?
- If so, please describe the extent and nature of the information you have about these topics?
- Can you accept that roughly 80,000 child sexual abuse cases are reported each year and anywhere from 6 to 35 percent of them are based on false allegations by the victim?
This line of questioning will not only elicit factual responses but expose belief systems of bias, even hostility, in certain kinds of cases.
Determining Bias of Potential Jurors
News headlines and social media posts have infected potential jury pools across the country with significant amounts of prejudice in all sorts of criminal cases, especially sexual assault cases and those involving minors or young children. A defense attorney’s primary job in voir dire is to weed out and identify specific biases in prospective jurors that, more likely than not, will prevent them from being fair and impartial to the evidence presented.
It is the duty of a juror to judge the weight of the evidence during the guilt/innocence phase of a trial, not simply exercise their biases or predjudices. Jurors will have the opportunity to judge the defendant, and the sum of their lives, in the punishment phase of the trial.
Juries Provide Real-World Psychological Laboratory
Writing in a 2011 edition of the Association of Psychological Science, psychologists Brian H. Bornstein and Edie Greene made these observations:
“Juries also interest psychologists who examine how individuals perceive, interpret, and remember evidence and the ways they reach consensus with others. Juries provide a real-world laboratory for examining theoretical concepts related to reasoning, memory, judgment and decision making, attribution, stereotyping, persuasion, and group behavior. Conversely, psychological research can inform trial procedures. Thus, jury decision making has implications for psychological research and vice versa.”
Roughly 41 percent of white Californians and 88 percent African American Californians agreed with the 1995 not guilty verdict in the O.J. Simpson murder case at the time it was rendered. Twenty years after the verdict 83 percent of white Americans disagreed with the verdict while 57 percent of black Americans agreed with the verdict. The O.J. Simpson murder case was, remains, and always will be as much about our country’s struggle with race as it is legitimacy and weight of the evidence and the resulting jury verdict.
Preconceived Beliefs and Biases
Many prospective jurors summoned to serve in child sexual assault cases have the same preconceived notion of guilt against the defendant without having heard one word of testimony or seen one shred of evidence—just as the overwhelming majority of Americans still believe that Simpson was guilty and “got away with murder.”
The defense attorney must identify jurors with these insurmountable biases and make every effort to keep them off the jury.