Supreme Court of West Virginia Finds Prosecutor Sought “Improper Commitment” by Asking Whether Prospective Jurors Would Convict the Defendant if They Found the Victim’s Testimony Believable

Courts across the country have held that attorneys cannot ask prospective jurors “improper commitment” questions during jury selection. As the Supreme Court of Appeals of West Virginia put it in its recent opinion in State v. Michael J., 2024 WL 4707028 (W.Va. 2024).

Counsel should not phrase questions in a way to attempt to elicit a commitment from prospective jurors on how they would react to hypothetical facts or seek to predispose them to react a certain way to anticipated evidence. “When the inquiry includes questions phrased or framed in such a manner that they require the one answering to speculate on his own reaction to such an extent that he tends to feel obligated to react in that manner, prejudice can be created.”

So, would a prosecutor ask jurors to make an “improper commitment” by asking the jury if they will find the defendant guilty if they find the victim’s testimony believable?

In Michael J., the prosecutor put it as follows:

So, I want all of you to agree with me that if we get to the end of this trial and after you’ve listen[ed] to all the evidence and you’ve listen[ed] to this young lady, [Z.S.], testify—I want all of you to agree that if you found her testimony believable and she testifies about the allegations in the indictment adequately that you will find the Defendant guilty. Will all of you agree with me?

After the defense objected and the judge overruled the objection

The prosecutor then asked, “Will all of you agree with me that if you find the victim’s testimony believable that you’ll find [Petitioner] guilty? Raise your hands if you’re in agreement with me.” All potential jurors raised their hands.

On appeal, the court concluded that

This request for a pledge to convict Petitioner was improper.

The prosecutor’s line of questioning was not directed at determining, properly, whether the venire could follow the trial court’s instructions, or whether, for some reason, they “could not” or “would not be able to” convict Petitioner based on the victim’s testimony alone (without physical evidence linking him to the crimes) as the State contends. Rather, the record supports Petitioner’s claim that the prosecutor asked an improper commitment question when he sought to bind jurors to convict in view of anticipated evidence.

-CM