Mark Bennett did a post on the "One Witness Rule" last week, describing the prosecutorial question to a jury as "sneaky", "unfair", "inelegant", and "gamesmanship".
Here's how the "One Witness Rule" question generally poses itself in voir dire in it's raw form:
"Assuming that one witness and one witness only testifies, and they cover all of the elements of the offense, and that witness proves the elements to you beyond a reasonable doubt, the law says that you can convict. Can you follow that portion of the law?"
One of Mark's descriptors is that the question is inelegant. Boy, he got that part right. It is a tough question for a juror to wrap their mind around. And dammit, us Texans are known for our freaking elegance, if nothing else.
But I disagree with him that the question is "sneaky", "unfair", or "gamesmanship".
The question is, very often, an important one to a case, and, contrary to his post, it is often applicable, even if the case has 58 witnesses.
Because, often times, there is only one witness on the case that makes it. One of Mark's posters points out that the Aggravated Sexual Assault of a Child case is a prime example of where the One Witness Rule comes into play. Sure, you can bring in a police officer, maybe even a Sexual Assault Nurse Examiner (if you're lucky), and perhaps an outcry witness.
But the crux of the case is going to be that one witness: the child.
I've had cases where I've put children on the stand, and they've been amazing in both their courage and their descriptiveness.
And I've had those juries hang. And those jurors that wanted to acquit have told me "Yeah, we believed her, but we really wanted some DNA evidence."
No kidding. I would have loved some too, but as any lawyer who practices criminal law will tell you, we don't make the facts.
Prosecutors do have to identify those jurors who won't convict without the scientific evidence or a corroborating witness, because that's often times all we've got. That makes the question important, and there's nothing unfair about asking it.
What Mark doesn't mention is that most prosecutors will give a hypothetical or two that illustrate what the One Witness Rule means. Often times, it goes something like this:
Let's say that after jury selection, you go back out to your car, and there's the Court Reporter with a gun. She robs you of your purse and takes off. The cops show up and you tell him everything. Here you were in Harris County. A person you know came up with a gun and robbed you of your purse. You were in fear for your life. You know it was the court reporter, because you've been looking at her for the last three hours. You've covered all the elements, but the cop tells you, "Well, without another witness, a fingerprint, or a video tape of the offense, we can't file charges." Do you see how the "One Witness Rule" works? So, making the assumption, that you believe the witness beyond a reasonable doubt as to all the evidence, can you convict? Or are you going to require something even more than that?
Mark is right that it can become difficult for a juror to understand, but that's why prosecutors spend so much time on it, if the case necessitates.
It can many times be the most critical question that a prosecutor can ask on a given trial.
I will give you an example of what was, without a doubt, the most difficult case I ever took to trial, and it involved one witness.
A lady was walking to the bus station from a parade in Midtown and got lost. A man fell in beside her as she walked and began talking to her, under the guise of helping her find the bus station.
"Come this way," he kept telling her. "It's just a little bit further."
Ultimately, he shoved her into a vacant lot, where he violated her at knife-point in pretty much every way a woman can be violated. She remembered the paw print tattoos across his chest, but she never saw his face. He fled, with her purse and check book.
No DNA was recovered.
The investigating officer tracked down the checks which were almost immediately being used in forgeries across town. He busted his butt working on the case and linking it up to a suspect. He finally identified a person, whom he tied to the victim's checks. That person was put in a live line up, and the second the victim saw him, she collapsed in her recollection.
The case was beyond brutal, and about two weeks before trial, the police officer who filled in all the gaps on the case died. All the work he had done to provide the link ups died with him, too. They couldn't be proven up without him.
So I was left with my One Witness.
The Defendant had offered to plead to 25 years TDCJ and never asserted actual innocence during the negotiation phase. But he was a true habitual, and the facts were horrific. I gave the option to the victim, telling her that the case would be difficult and nothing was guaranteed. I let her guide me, and she wanted him to go to trial.
I spent the vast vast vast vast vast majority of my voir dire on One Witness. I had plenty of knowledge that left me no doubt whatsoever that I was trying the right person for the case, but what I had in the way of admissible evidence was just one extremely brave woman.
In the end, the voice recognition and the tattoos on his chest were enough for the jury, and it was one of those days where it felt really damn good to be a prosecutor.
The point of the story (other than reliving a Glory Day moment in trial) is that the One Witness Rule is important.
Really damn important.
Sure, you can call it "inelegant", but "sneaky", "unfair", and "gamesmanship"?
I don't think so.