By Angela Kao & Jason Bennyhoff
Assistant District Attorneys, and
Ashley Jackson
former Assistant District Attorney, all in Fort Bend County
French artist Jean Cocteau once said, “Art is science made clear.” We contend that voir dire is very much a melding of art and science. A prosecutor who is an expert at voir dire can bring out veniremembers’ innermost feelings and biases to determine whether a particular person will be a good juror for the State, or whether that panelist should be struck—that is the art of jury selection.
But there is a science to jury selection as well; that is understanding the law governing it—in particular, when a veniremember may be struck for cause and by whom. Further, understanding when the law allows a veniremember to be struck peremptorily, where a challenge for cause is not applicable (or not granted), and ensuring that the prosecution’s strikes do not create appellate error. This article will give a primer on the rules governing voir dire to assist prosecutors in directing their questions toward statutorily permitted grounds for striking veniremembers for cause.
Jury selection in general
Both the Texas and U.S. Constitutions guarantee criminal defendants a fair trial by an impartial jury.[1] Jury selection plays an essential role in upholding a criminal defendant’s right to a fair trial by an impartial jury.[2] While it’s called jury selection, the process in practice is that of jury de-selection, as it serves as a mechanism for both the court and the parties to examine prospective jurors and exclude those who may be unable to impartially follow the court’s instructions and assess the evidence.[3]
In Texas, the rules governing jury selection can be found in Chapter 35 of the Code of Criminal Procedure. Jury selection begins once the trial judge calls a criminal case for trial and the parties announce they are ready.[4] The court qualifies the veniremembers[5] after determining whether any panelists should be dismissed based on an exemption or excuse or by consent.[6] Both the prosecution and defense are entitled to examine the veniremembers, focusing on biases and beliefs that may affect impartiality.[7] Veniremembers may be excluded from the petit jury through peremptory challenges[8] or for cause.[9]
Trial courts have considerable discretion over the voir dire process.[10] A judge may impose reasonable restrictions on the process, such as limits on the amount of time each party can question veniremembers and restrictions on the topics that may be addressed.[11]
Rules governing challenges for cause
“A challenge for cause is an objection made to a particular juror, alleging some fact which renders the juror incapable or unfit to serve on the jury.”[12] The rules governing challenges for cause appear in Art. 35.16 of the Code of Criminal Procedure, which prescribe not only what a challenge for cause is, but also what facts would render a juror incapable or unfit to serve on the jury and which party may make a challenge for cause based on those facts.
Either party may challenge a juror for cause for any of the following reasons:[13]
• the juror is not a qualified voter in the state and county (though the failure of registering to vote is not a disqualification);
• the juror has been convicted of misdemeanor theft, a felony, or a crime of moral turpitude;
• the juror is under indictment or other legal accusation for misdemeanor theft, a felony, or a crime of moral turpitude;
• the juror is insane;
• the juror is physically unfit to serve and the court in its discretion is not satisfied that the juror is fit for jury service in that particular case;
• the juror is a witness in the case;
• the juror served on the grand jury that found the indictment;
• the juror served on a petit jury in a former trial of the same case;
• the juror has a bias or prejudice in favor of or against the defendant;
• the juror has formed an opinion about the defendant’s guilt or innocence that would influence the juror’s verdict; or
• the juror cannot read or write.
Though all the above grounds may be asserted by either party, several of them may not be waived, even if both parties consent.[14] A veniremember who has been convicted of a misdemeanor theft or a felony, who is charged with misdemeanor theft, a felony, or a crime of moral turpitude, or who is insane may not be seated on the petit jury, even if the parties consent.[15]
In an ideal world, the clerk’s office screens the veniremembers for any obvious disqualifications such as non-residency, lack of U.S. citizenship, or illiteracy, prior to their appearance at jury selection. However, the reality is that attorneys will likely need to spend at least a small portion of their time in jury selection examining the panel on these grounds.
Although these grounds may seem relatively straightforward at first glance, in practice, the little nuances may surprise you. For example, John Doe has lived in Fort Bend County his whole life. He recently moved to Bexar County for a new job. John Doe still receives his mail at a residential address in Fort Bend County. Is John Doe a resident of and a qualified voter in Fort Bend County?[16] The answer is: It depends, and only John Doe can tell us where he considers his permanent residency to be.[17]
Thus, although attorneys are eager to get to the heart of the case, the best approach is to address the above grounds during jury selection (and also make sure you have alternate jurors). It is a punch to the gut when you realize that a juror on the panel is disqualified due to an avoidable error, especially when there are no alternate jurors and you’re eager to get to opening statements.
If the parties are pressed for time due to a complicated case necessitating a longer voir dire, consider making a joint request to the presiding judge. If the presiding judge is amenable, the parties may address at least some of the above grounds with the panel during their welcoming remarks and introductions, thereby saving the State and defendant time in their respective voir dires. For example, quick questions to identify potential strikes may be posed as: “Raise your juror number card if you:
• are not a resident of this county;
• are unable to read or write English;
• served on a grand jury pertaining to this case;
• have a mental or physical disability that may preclude you from jury service in this case; or
• recognize the defendant, his defense attorneys, the prosecutors, or the presiding judge.”
Follow-up questions are usually necessary. For instance, a veniremember may indicate that he is hearing impaired. However, if upon further discussion, it is discovered that the issue can be resolved by allowing the veniremember to sit closer to the witness stand or wear a hearing aid, so the veniremember may not necessarily be disqualified as “physically unfit to serve.”[18] Ultimately, it is within the trial court’s discretion whether the juror is “fit for jury service” in that particular case.[19]
Of course, some veniremembers may feel uncomfortable answering sensitive questions in a group, so always inform the panel that they have the option of approaching the judge individually after the State’s and the defendant’s respective voir dires to address any concerns they may have. Moreover, rarely does one own up to a felony conviction in front of a group of strangers. The better way to handle this is to have your investigator run a criminal history check of each venireperson.
Ordinarily, during voir dire, a party establishes a challenge for cause by examining the veniremember, with the jurors’ responses serving as the foundation for the challenge for cause. Granted, a veniremember must undergo examination before being struck for cause, but a party
is not restricted to the veniremember’s responses in establishing a challenge for cause; the party may rely on extrinsic evidence alongside the responses.[20] As an example, a veniremember’s questionnaire answered outside of voir dire is extrinsic evidence that may be used alongside his responses during voir dire to establish a challenge for cause.[21] But a questionnaire answered outside of voir dire, standing alone, is insufficient to establish a challenge for cause.[22]
State’s challenges
The State may challenge a juror for cause (but the defense may not) on the following grounds:[23]
• the juror has conscientious scruples in regard to the death penalty (in a death penalty case);
• the juror is related within the third degree of consanguinity or affinity to the defendant; or
• the juror has a bias or prejudice against any phase of the law upon which the State is entitled to rely for a conviction or punishment.
Defense challenges
The defense may challenge a juror for cause (but the State may not) on the following grounds:[24]
• the juror is related within the third degree of consanguinity or affinity to the victim or a prosecutor on the case; or
• the juror has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to the offense or as mitigation or of punishment.
Bias or prejudice
The effectiveness of the prosecution’s voir dire depends on how the prosecutor presents and paints the question of whether a juror has bias or prejudice against any phase of the law upon which the State or defense is entitled to rely. In general, the goal for prosecutors in voir dire is to protect the “State-friendly” jurors and to identify those jurors who are “bad” for the case. A skilled artist recognizes that a layperson, uneducated and unarmed with the law, may fall into the defense’s bias trap. Thus, he uses his time in voir dire to identify State-friendly jurors to educate and arm them with the law. This is because a veniremember may not be excused for cause until the challenging party first explains the law to the panel and then ask if they can follow the law, regardless of their personal views.[25]
Commonly, defense attorneys breeze through the presumption of innocence and then ask the veniremember to “raise your hand if you think my client is guilty just because we’re here today.” The reality is that in a room of 30 or more people, some hands will go up. In fact, someone on the panel usually cleverly quips: “Well, we wouldn’t be here if he hadn’t been arrested!”
The defense attorney will then attempt to strike the veniremembers who raised their hands, arguing that those people are biased or prejudiced against his client, who has a right to the presumption of innocence. But not so fast! Just because a person holds bias or prejudice does not automatically make him subject to a challenge for cause. The proponent of a challenge for cause does not meet the burden until he shows that the veniremember understood the requirements of the law and could not overcome his prejudice well enough to follow the law.[26]
Thus, if a prosecutor took the time to educate the venire panelists on: 1) the presumption of innocence; 2) the State’s burden to prove each element beyond a reasonable doubt; and 3) a juror’s oath to follow the law, then generally speaking, fewer hands go up when the defense attorney asks the aforementioned question. This is because the veniremembers, fully equipped with the law and the lay of the land, understand that they have not heard or seen any evidence in this case yet, and the State’s got to prove it.
Commitment questions
Commitment questions are those that commit a prospective juror to resolve, or to refrain from resolving, an issue a certain way after learning a particular fact.[27] Commitment questions are commonly phrased to elicit a “yes” or “no” response, although an open-ended question can be a commitment question if the question asks the prospective juror to set the hypothetical parameters for his decision-making.[28] A proper commitment question can reveal which panelists are challengeable for cause.
The inquiry for determining an improper commitment question involves two steps: 1) whether the question is indeed a commitment question; and 2) whether the question includes facts—and only those facts—that lead to a valid challenge for cause.[29]
The Court of Criminal Appeals in Standefer v. State illustrated the above legal concepts with the following:
“For example, the question, ‘[I]f the victim is a nun, could [the prospective juror] be fair and impartial?’ does not ask the prospective juror to resolve or refrain from resolving any issue. A juror could be ‘fair’ and still take into account the victim’s status as a nun where that status is logically relevant to the issues at trial or fail to do so if the juror perceived that the victim’s status as a nun should not be controlling. If, however, the defendant had asked, ‘Could you consider probation in a case where the victim is a nun?’ then he would indeed have asked a commitment question. In that situation, the juror is asked to say whether he would refrain from resolving an issue in the case (probation) based upon a fact in the case (the victim is a nun). And as that example illustrates, the word ‘consider’ does not prevent a question from being a commitment question. To the contrary, the word ‘consider’ often marks a commitment question in which the prospective juror is asked to refrain from resolving an issue after learning a fact that could be used to resolve that issue.”[30]
For more information on commitment questions, see this article from a past issue of the journal, www.tdcaa.com/journal/jury-selection- six-years-after-standefer, and TDCAA’s book Jury Selection by Ryan Calvert (TDCAA © 2020), available for sale at www.tdcaa.com/product/jury-selection-2020.
Rules governing peremptory challenges
A peremptory challenge allows a party to exclude a veniremember from the petit jury without providing a specific reason.[31] Although parties are not required to provide a reason for a peremptory challenge as a matter of course, that does not mean there are no rules restricting how parties may employ peremptory challenges. For instance, a party may not use a peremptory challenge to exclude panelists based on their race, ethnicity, or sex.[32]
Importantly, any attorney who has been on the receiving end of a Batson challenge appreciates the importance of having taken good notes during voir dire. The notes don’t have to be complicated, but we should always have a legitimate reason for striking someone. The reason can be as simple as, “I saw her sleeping during defense’s voir dire.” Perhaps the veniremember is wearing a shirt that says “F**k the Police,” and even though the veniremember promised to remain impartial, treat all witnesses the same, and wait to hear the evidence before reaching a conclusion, your gut says not to trust him. Alternatively, you may not want a nurse on your panel because you know the blood draw in the case is problematic. Maybe a panelist’s mannerisms remind you of your mother-in-law and you think they might be distracting during trial or as the jury deliberates. Whatever the reason (except if your reason is based on unauthorized reasons of race, ethnicity, or sex), always have one, and be prepared to explain why you exercised a peremptory challenge.
Additionally, one mistake new attorneys often make during voir dire is spending time trying to convince veniremembers to “side” with them. The reality is that you are not going to help anyone have any earth-shattering revelations about
the law or change anyone’s fundamental beliefs within the course of what little time you are given for voir dire. The best approach for prosecutors is to: 1) identify who is “against you” and commit them to their bias or prejudice, and 2) figure out who is “with you” and arm them with the law so that they don’t fall into a bias trap.
Conclusion
Like science and art, voir dire is fun. It is both a learning experience and an experiment of your creation. This article has gone into the “science” of voir dire, now it is up to you to pick up the brush and paint. Good luck with your masterpieces and remember—beauty is in the eye of the beholder.
[1] U.S. Const. Amend. VI; Tex. Const. Art. I, §10.
[2] Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981).
[3] Id.
[4] Tex. Code Crim. Proc. Art. 35.01.
[5] Throughout this article, persons who appear in jury selection are referred to as “veniremembers” so as to distinguish them from those who actually ultimately make their way onto the petit jury, though the relevant Code of Criminal Procedure articles use the term “juror” throughout; hence, where Code provisions are quoted or referred to directly, the term “juror” is used so as to be consistent with the usage in the CCP. See, e.g., Tex. Code Crim. Proc. Art. 35.14 mandating that a “juror” may be struck peremptorily.
[6] Tex. Code Crim. Proc. Arts. 35.03, 35.04, 35.05, 35.10, 35.12.
[7] Abron v. State, 523 S.W.2d 405, 407 (Tex. Crim. App. 1975).
[8] Tex. Code Crim. Proc. Art. 35.14.
[9] Tex. Code Crim. Proc. Art. 35.16.
[10] Jacobs v. State, 560 S.W.3d 205, 210 (Tex. Crim. App. 2018).
[11] Id.
[12] Tex. Code Crim. Proc. Art. 35.16(a).
[13] Tex. Code Crim. Proc. Art. 35.16(a)(1)–(11).
[14] Tex. Code Crim. Proc. Arts. 35.16(a) and 35.19.
[15] Id.
[16] “A person is disqualified to serve as a petit juror unless the person is a resident of this state and of the county in which the person is to serve as a juror.” Tex. Gov’t Code §62.102.
[17] See Heiselbetz v. State, 906 S.W.2d 500, 509 (Tex. Crim. App. 1995) (upholding trial court’s denial of a challenge for cause where prospective juror testified he maintained permanent residence in the county where he was a registered voter); Hutson v. State, 291 S.W. 903 (Tex. Crim. App.1927) (concluding that juror living out of county for four months was qualified as a resident because he had no intention of abandoning former residence).
[18] Chappell v. State, 519 S.W.2d 453, 457 (Tex. Crim. App. 1975).
[19] Tex. Code Crim. Proc. Art. 35.16(a)(5); see also Nobles v. State, 843 S.W.2d 503, 515 (Tex. Crim. App. 1992).
[20] Tex. Code Crim. Proc. Art. 35.18.
[21] Spielbauer v. State, 622 S.W.3d 314, 321 (Tex. Crim. App. 2021).
[22] Id.
[23] Tex. Code Crim. Proc. Art. 35.16(b)(1)–(3).
[24] Tex. Code Crim. Proc. Art. 35.16(c)(1)–(2).
[25] Waller v. State, 353 S.W.3d 257, 265 (Tex. App.—Fort Worth 2011, pet. ref’d).
[26] Id.
[27] Standefer v. State, 59 S.W.3d 177, 180 (Tex. Crim. App. 2001).
[28] Id.
[29] Id. at 182; see also Mason v. State, 116 S.W.3d 248, 253 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d).
[30] Id. at 180.
[31] Tex. Code Crim. Proc. Art. 35.14.
[32] Batson v. Kentucky, 476 U.S. 79, 87 (1986); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994); Tex. Code Crim. Proc. art. 35.261; see also Georgia v. McCollum, 505 U.S. 42 (1992) (the prosecution in a criminal trial also has a right to make a Batson challenge to the defendant exercising peremptory challenges based on a juror’s race).