The Loop

How a prosecutor used Martin Kaymer’s U.S. Open victory to explain reasonable doubt to potential jurors

November 10, 2016

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A man convicted in Kansas on five drug-related charges appealed his verdict, citing among other reasons, “that the prosecutor committed error during voir dire,” Judge Gunnar A. Sundby noted in his Opinion.

The alleged error came in a voir dire exchange in which the prosecutor referenced Martin Kaymer’s eight-stroke victory in the 2014 U.S. Open at Pinehurst No. 2. (Voir dire is the questioning of potential jurors to see whether there is a bias or other cause not to allow a juror to serve).

Here is the prosecutor’s exchange with one of the prospective jurors:

PROSECUTOR: We give another example of, you know, what's possible versus what’s reasonable. I mean, you know, I could go out to the golf course today, and it’s me, and I would say Tiger Woods, but—you know, he’s hurt right now. But does anybody here play golf? Nobody? Okay.

Juror 16. All right. So Martin Kaymer won the U.S. Open, right? I mean, just blew out the field, you know, last weekend, the whole time.


PROSECUTOR: Yes. Boring U.S. Open. So I could go out and play Martin Kaymer today. The odds may be, you know, one in a billion that I'd beat him, but, you know, it's possible I could beat him in 18 holes. Is that reasonable to think that I'm going to step up and beat Martin Kaymer in 18 holes of golf?


PROSECUTOR: It’s possible. Is it reasonable to think that you're going to step up and beat him?


PROSECUTOR: Anything is possible, but is it reasonable to think that?

PROSPECTIVE JUROR NO. 16: Anything is possible; but in that situation, no.

PROSECUTOR: That’s an example we use. And that’s what you have to think is, anything's possible, but what you have to decide is, is something reasonable? Is that a reasonable doubt in this case?”

Bush’s conviction was not overturned by Judge Sundby. Though he cautioned against using such analogies (“We do not endorse…the prosecutors golf analogy and would discourage its use”), the judge noted that it was used "only during the voir dire stage of the proceedings" and ruled that it did not contribute "to the verdict or affected Bush’s right to a fair trial."