Our bookstore is temporarily closed. Please check back soon.
Criminal Law
September-October 2007

Jury selection six years after Standefer

John Gillespie

Assistant District Attorney in Wichita County

How to handle those tricky commitment questions

You try a defendant for aggravated sexual assault. His 7-year-old step-daughter barely manages to make it through her tearful testimony, describing how he repeatedly violated her. The jury believes her and finds him guilty, handing down a 50-year sentence. But a year later, the court of appeals reverses the case and sends it back for a re-trial. The reason: The defense attempted to ask a question at voir dire to which you objected as an improper commitment question, and your judge sustained your objection. The court of appeals found that not only should the defense have been permitted to ask the question, but the denial of the question was also harmful.

Now, the child must testify again, which you don’t know if she can do. And this time, the sadistic defense attorney has the child’s prior transcript to beat her up with on the stand. That’s usually the point in the nightmare where prosecutors wake up screaming.

After the seminal Standefer decision in 2001, jury selection is a minefield of potential error. As prosecutors, we are presented with the dilemma of wanting to get rid of those crazy jurors who will hang the case, but we don’t want to go too far and get the case popped on appeal.

In Standefer v. State, the Court of Criminal Appeals attempted to clarify what constituted an improper commitment question. In many ways, Standefer raised as many questions as it answered. Sure, we have a two-step analytical framework to determine whether a question is proper, but how do you apply those steps?

Let’s take a look at the basics of Standefer and why the case matters. Then, we’ll go over some tips in handling Standefer issues with case citations for your trial notebook.

Background on Standefer

Before Standefer, caselaw was unclear as to when a fact-specific hypothetical in jury selection was permissible. In Standefer (a DWI case), the trial court did not allow defense counsel to ask, “Would you presume someone guilty if he or she refused a breath test on their refusal alone?” The Court of Criminal Appeals determined that this was an improper commitment question because it attempted to bind prospective jurors to a verdict based on a hypothetical set of facts that did not lead to a valid challenge for cause.1

The court articulated a two-step analytical framework for determining whether a question is proper: 1) Is the question a commitment question, and, if so, 2) does the question include facts—and only those facts—that lead to a valid challenge for cause?

First, if the question is not a commitment question, then Standefer doesn’t apply. For example, questions to find about prospective jurors’ personal beliefs to aid in the intelligent exercise of peremptory strikes would not qualify, as long as the questions do not attempt to bind or commit the prospective juror to resolve or to refrain from resolving an issue a certain way after learning a particular fact.

Sounds simple enough, right? Not so fast. The court explained that while commitment questions most often seek a “yes” or “no” answer, open-ended questions can also be commitment questions in disguise if they attempt to get prospective jurors to set the hypothetical parameters of their decision making. Determining when an open-ended question subtly seeks a commitment and when it just seeks information to help in the intelligent exercise of peremptory strikes has been a gray area that the courts and trial attorneys have struggled with since Standefer.

Also, if the question seeks a commitment, then Standefer directs the trial court to determine if it includes facts—and only those facts—that lead to a valid challenge for cause. This presents prosecutors with another tough judgment call: Which operative case facts do you need to mention, and when do you mention too many?

Why Standefer matters

Most prosecutors are too busy with actually trying cases to sit around worrying about the esoteric and metaphysical inquiry of whether a question by nature seeks a commitment, or whether the question contains the right mix of facts, and only those facts, to lead to a challenge for cause. Standefer issues sound more like those types of question that keep philosophy majors up late at night but give the rest of us headaches.

So why is the Standefer analysis important? Two words: harm analysis.

In Sanchez v. State, the Court of Criminal Appeals determined that TRAP 44.2(b) harm analysis applies to determining whether improper commitment questions constitute reversible error. The court stated that reviewing courts should “assess the potential harm of the State’s improper commitment questioning by focusing upon whether a biased juror—one who had explicitly or implicitly promised to prejudge some aspect of the case because of the State’s improper questioning—actually sat on the jury.”2 The court further explained, “The ultimate harm question is:  [W]as the defendant tried by an impartial jury, or, conversely, was the jury or any specific juror ‘poisoned’ by the State’s improper commitment questions on a legal issue or fact that was important to the determination of the verdict or sentence?”3

The court in Sanchez articulated seven non-exhaustive factors to consider if an improper commitment question was harmful:
1) whether the questions were unambiguously improper and attempted to commit one or more veniremen to a specific verdict or course of action;
2) how many, if any, veniremen agreed to commit themselves to a specific verdict or course of action if the State produced certain evidence;
3) whether the veniremen who agreed to commit themselves actually served on the jury;
4) whether the defendant used peremptory challenges to eliminate any or all of those veniremen who committed themselves;
5) whether the defendant exhausted all of his peremptory challenges upon those veniremen and requested additional peremptory challenges to compensate for their use on improperly committed veniremen;
6) whether the defendant timely asserted that a named objectionable venirement actually served on the jury because he had to waste strikes on the improperly committed jurors; and
7) whether there is a reasonable likelihood that the jury’s verdict or course of action in reaching a verdict or sentence was substantially affected by the State’s improper commitment questioning during voir dire.4

Now, while the Court of Criminal Appeals’ application of the less-stringent Rule 44.2(b) harm analysis and its articulation of these seven factors suggest that the State’s improper commitment questioning may often be found harmless, closer examination demonstrates how dangerous these Standefer issues can be.

First, think about the nature of commitment questions. As a prosecutor, you’re not going to waste your limited time with the panel on commitment questions that are not important to your theory of the case. Thus, under Sanchez, if your commitment question is found to be improper, it will frequently be found to “poison” a member of the jury on a legal issue or fact that was important to the determination of the verdict or sentence.

Also, the second factor in Sanchez will almost always weigh toward a harm finding. If you are attempting to commit a panel, then you will either commit every member of the panel, and thus, the second factor in Sanchez will weigh against you, or the court will excuse the panel members who refuse to commit. If the defense attorney is seeking a proper commitment, you object, and the judge sustains your objection, then the court of appeals will likely presume that some objectionable jurors made the panel.

As prosecutors, we often have to make split-second judgment calls without having hours to brief the issue. The problems are compounded, however, when the issues are as esoteric as those raised by Standefer that can easily build reversible error into the case. Here are some quick guidelines, based on the post-Standefer opinions, with case cites to help you handle those Standefer issues.
1Hypotheticals to explain the law or the punishment range are not commitment questions. Courts have approved the use of fact-based hypotheticals to help jury panels understand the law and illustrate circumstances where the minimum or maximum sentence would be appropriate. Because you are not seeking a commitment but rather just explaining the law, Standefer doesn’t apply.5

When you use a hypothetical to explain the law, be sure that you are not attempting to bind a juror to a course of action based on that set of facts. For example, giving a set of facts to illustrate why some people could consider giving the maximum would be fine. But if you ask the panelist to commit to give the maximum under a set of facts, then you’ve crossed the line into an objectionable commitment question.

Also, in constructing the hypothetical to explain the law, make sure you are not just using the same facts from your case.

2

Questions of prospective jurors about their general beliefs in an area will usually be OK. Courts have usually found general questions about a panel member’s beliefs permissible. The Court of Criminal Appeals has explained that in cases with “victimless” or “morals” crimes, the trial judge has discretion to permit the State to ask prospective jurors whether they agree that the commission of such a crime is wrong;6 these are not commitment questions. These types of questions would be helpful in cases involving a small quantity of drugs for personal use, welfare fraud cases, and even driving while intoxicated cases.

Also, in McDonald v. State, the prosecution asked panel members, “Do you feel that children likely will make up sexual abuse or unlikely?”7 The First District Court of Appeals found that this question did not ask the panel members to resolve or refrain from resolving an issue a certain way; “rather, the question merely asks the prospective jurors whether they think it is likely or unlikely that children generally will fabricate allegations of sexual abuse.”8 Thus, the appeals court found that this was not a commitment question.

Similarly, in a DWI trial, asking “What are some signs that somebody is intoxicated?” and “Who thinks that the process of being arrested would be something that might sober you up a little bit?” are not commitment questions.9 In Vrba, the court of appeals also approved of the questions: “Why do you think someone should be punished?” and “Which one of these four theories of punishment is most important to you in trying to determine how someone should be punished?”10 The court stated that these were permissible inquiries into a juror’s ‘general philosophical outlook on the justice system’ and did not seek to commit prospective jurors.11

3

Questions that attempt to establish the parameters of a prospective juror’s decision-making are improper commitment questions. These questions may not sound like commitment questions because they are open-ended. Examples include: What circumstances justify the imposition of the death penalty? What factors would justify the imposition of the maximum or minimum or probation?

In a capital case, a defense attorney wanted to ask whether the 40-year-minimum parole law would be something the panel would want to know in answering the special issues. The defense attorney also wanted to ask on which special issues this would be important, how the 40-year-minimum would be important in answering the special issues, and whether prospective jurors would be more or less likely to view a defendant as a continuing threat to society if they knew he could not be paroled for a minimum of 40 years. The Court of Criminal Appeals found that these were improper commitment questions because they attempted to establish the parameters for decision-making that the prospective jurors would use.12

4

Defense questions about how the victim’s age or status will impact punishment are usually improper commitment questions. Listen for questions where the defense attorney asks how the victim’s status would impact a prospective juror’s decision, as these inquiries are prohibited. Because a juror may consider a victim’s age or status in assessing punishment, asking what impact that would have in advance is improper.

Along these lines, a defense attorney’s question in a murder case of whether the fact that the victim was a two-week-old baby would have any effect on the jury’s verdict at guilt/innocence or punishment was an improper commitment question.13 The Court of Criminal Appeals has also explained that it is improper for the defense to attempt to commit prospective jurors on how the victim’s age will impact their punishment decision.14

5

Questions whether a victim’s age or status would impact her credibility or would impact the juror’s decision at guilt/innocence are usually proper. While a victim’s age or status is an appropriate punishment consideration, it would be improper for a juror to automatically assign credibility to a witness based on age or status, and it would be equally inappropriate for a juror to return a guilty verdict based on the victim’s age or status (except to the extent that a victim’s age is an element of the offense).15

Thus, the defense is on solid footing in asking whether a juror would automatically start a child witness off with greater credibility, or whether a juror would be inclined to return a verdict just because a child testified, even if she didn’t quite believe the State had proven all the elements beyond a reasonable doubt.

6

Remember that not all commitment questions are improper. Just because a question explicitly or implicitly seeks a commitment does not make it improper. If the commitment question would lead to a valid challenge for cause and contains the facts necessary for the challenge, then it is proper under Standefer.

Proper questions seek to commit a prospective juror to follow the law applying to the case. For example, committing the panel to consider the full range of punishment, impartially evaluate the credibility of each witness after he testifies, follow the judge’s instructions about the defendant’s right not to testify, and return a guilty verdict if they find each of the elements beyond a reasonable doubt are all proper questions under Standefer’s second prong.

In one recent murder case with a female defendant, an appeals court found that the State’s question whether prospective jurors would be more likely to consider self-defense when the defendant is a female was a proper commitment question. The court explained that prospective jurors who had an automatic predisposition for the self-defense theory when the defendant was a female exhibited a bias or prejudice in favor of the defense.16

7

Asking whether a prospective juror could convict based on the testimony of a single eyewitness if the juror believed the witness’s testimony proved the elements beyond a reasonable doubt is a proper commitment question. In an indecency with a child case, the trial court permitted the State to ask, over defense objection, if the panel members could return a guilty verdict based on the testimony of a single witness if they believed that witness beyond a reasonable doubt and that witness proved each of the elements of the offense. The Court of Criminal Appeals held that this was a proper commitment question because it led to a challenge for cause, as any juror who would refuse to convict after being convicted beyond a reasonable doubt was holding the State to a higher standard of evidence than required by law.17

The court explained that the question leads to a challenge for cause as long as it is framed with the magic language of:  if you heard from one witness and you believed that witnesses’ testimony proved each of the elements beyond a reasonable doubt.18

This case offers an important tool for prosecutors in child abuse cases or sexual assaults to eliminate jurors who could never convict based on the testimony of a single eyewitness alone but who would require the State to offer additional evidence. Courts have also approved prosecutors using a variation of this question to commit jurors to convict without medical evidence in sexual assaults or without breath tests in driving while intoxicated cases if the jurors believe other evidence establishes the elements beyond a reasonable doubt.19

8

Don’t object to Lydia defense questions that ask the panel whether they would automatically reject a witness’ testimony because the witness has a prior criminal record. While the question, “Would you automatically reject a witnesses’ testimony because he has a prior criminal record?” sounds exactly like the improper type of commitment question Standefer prohibits, these questions are likely appropriate because they expose any extreme or absolute opinions on witness credibility.20

In Lydia, the prosecutor, over the defense objection, was permitted to ask the panel if each member could evaluate a witness and his testimony without automatically dismissing his testimony because of some criminal history.21 While the Fort Worth Court of Appeals held this was not a commitment question, the Court of Criminal Appeals disagreed, finding that it was a commitment question for the State to ask “whether any of the potential jurors would not impartially judge the credibility of the witness or hold extreme or absolute positions regarding credibility.”22

On remand, the Fort Worth Court of Appeals then found that this question met the second prong of Standefer because it led to a valid challenge for cause based on a juror’s potential bias by seeking to discover if the juror had any extreme or absolute positions regarding a witness’s credibility.23 The appellate court also found that the question satisfied the second prong of Standefer because it contained only those facts necessary to lead to a valid challenge for cause. Thus, the Fort Worth Court of Appeals determined that the question of whether a juror would dismiss a witness’s testimony because of some criminal history was a proper commitment question.24

One important note: The Court of Criminal Appeals in Lydia determined only that the question was a commitment question but did not rule on whether it was a proper commitment question. Fort Worth appears to be the only court of appeals that has addressed this issue, finding that this commitment question was proper. However, the Court of Criminal Appeals did refuse the petition for discretionary review in Lydia v. State and Tijerina v. State, both Fort Worth cases holding this was a proper commitment question.

Be careful not to object to Lydia-type questions because if the judge sustains your objection, you may very well build reversible error into your case.25 Rather, take advantage of Lydia-type questions. Like the Chinese character for crisis, the Lydia decisions present both a danger and an opportunity for the State. While the danger lies in reflexively objecting to a proper defense question, you can also use these questions for your benefit when you have a snitch, co-defendant, or other witness with a less-than-sterling past. Be sure to commit the panel to not automatically reject your witnesses’ testimony just because they have criminal history.26

I hope that, with these hints, you can ensure that it is the child molester—not the prosecutor—who wakes up screaming, only to realize that his nightmare has come true: his 50-year sentence has been affirmed because you skillfully navigated Standefer at trial.

Endnotes

1 See Standefer v. State, 59 S.W.3d 177 (Tex. Crim. App. 2001).
2 See Sanchez v. State, 165 S.W.3d 707, 713 (Tex. Crim. App. 2005).
3 See id.
4 See id. at 714.
5 See, e.g., Murphy v. State, 2006 WL 1096924 (Tex. Crim. App. 2006) (unpublished opinion); Perkins v. State, 2004 WL 3093239 (Tex. Crim. App. 2004) (unpublished opinion); Perez v. State, 2002 WL 872645 (Tex. App.—San Antonio 2002, no pet.) (unpublished opinion); Thornton v. State, 994 S.W.2d 845 (Tex. App.—Fort Worth 1999, pet. ref’d).
6 See Wingo v. State, 189 S.W.3d 270, 272 (Tex. Crim. App. 2006).
7 186 S.W.3d 86, 90 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
8 Id.
9 See Vrba v. State, 151 S.W.3d 676 (Tex. App.—Waco 2004, pet. ref’d).
10 Id.
11 Id.
12 See Sells v. State, 121 S.W.3d 748, 755-57 (Tex. Crim. App. 2003).
13 See Freeman v. State, 74 S.W.3d 913 (Tex. App.—Amarillo 2002, pet. ref’d).
14 See Barajas v. State, 93 S.W.3d 36, 40 (Tex. Crim. App. 2002).
15 See id., 93 S.W.2d at 39-40.
16 See Braxton v. State, 2007 WL 441675 (Tex. App.—Houston [1st Dist.] 2007, pet. dismissed untimely filed).
17 See Lee v. State, 206 S.W.3d 620 (Tex. Crim. App. 2006).
18 See id. at 623.
19 See, e.g.,Harris v. State, 122 S.W.3d 871 (Tex. App.—Fort Worth 2003, pet. ref’d) (approving State’s commitment for panel to convict in sexual assault case without medical evidence if elements proved beyond a reasonable doubt); Mason v. State, 116 S.W.3d 248, 254 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (upholding State committing panel to convict in aggravated sexual assault case without DNA or medical evidence and without the child’s testimony if elements proven beyond a reasonable doubt); Holmes v. State, 2001 WL 892512 (Tex. App.—Corpus Christi 2001, no pet.) (unpublished opinion) (approving of court’s for-cause excusal of witness who could not convict without a breath test).
20 See Lydia v. State, 117 S.W.3d 902 (Tex. App.—Fort Worth 2003, pet. ref’d).
21 See Lydia v. State, 109 S.W.3d 495 (Tex. Crim. App. 2003).
22 See id. at 498-99.
23 See Lydia, 117 S.W.3d 902, 905 (Tex. App.—Fort Worth 2003, pet. ref’d).
24 See id.
25 See, e.g., Vann v. State, 216 S.W.3d 881 (Tex. App.—Fort Worth 2007, no pet.); Tijerina v. State, 202 S.W.3d 299 (Tex. App.—Fort Worth 2006, pet. ref’d).