Bennett's Texas Criminal Jury Selection January 28, 2015
Bennett's Texas Criminal Jury Selection January 28, 2015
Bennett's Texas Criminal Jury Selection January 28, 2015
Mark W. Bennett
Bennett & Bennett
917 Franklin Street
Fourth Floor
Houston, Texas 77002
(713)224-1747
mb@ivi3.com
http://Blog.BennettAndBennett.com
Revised 1/28/15
Table of Contents
I.
Introduction .................................................................................................................................................... 1
II.
2.
Commitment questions............................................................................................................................. 7
a.
b.
c.
3.
4.
Exemptions ......................................................................................................................................................... 12
P.
1.
IV.
Revised 1/28/15
ii
I.
INTRODUCTION
In Texas criminal cases, voir dire is a matter of
constitutionally protected right and statutory law.
The Sixth Amendment to the U.S. Constitution
protects the right to a jury trial in criminal cases,
but the U.S. Supreme Court has limited all criminal
prosecutions to those involving at least six months
punishment. District of Columbia v. Clawans, 300 U.S.
617 (1937); Baldwin v. New York, 399 U.S. 66 (1970).
Texas courts have interpreted all criminal
prosecutions in article I, Section 10 of the Texas
Constitution and article 1.05 of the Texas Code of
Criminal Procedure much more broadly to guarantee
the right to a jury trial in all criminal prosecutions,
regardless of punishment. Since this constitutional
provision applies to all criminal prosecutions, the
defendant in a misdemeanor case has the same right of
trial by jury as in felony cases. Franklin v. State, 576
S.W.2d 621, 623 (Tex. Crim. App. 1978).
The right to a jury includes the right to voir dire
in order to intelligently and effectually exercise
peremptory challenges and challenges for cause. Ex
parte McKay, 819 S.W.2d 478, 482 (Tex. Crim. App.
1990). The voir dire process helps protect a
defendants right to trial by a competent and
unimpaired jury. See Tanner v. United States, 483 U.S.
107, 127 (1987) (Petitioners Sixth Amendment
interests in an unimpaired jury, on the other hand, are
protected by several aspects of the trial process. The
suitability of an individual for the responsibility of jury
service, of course, is examined during voir dire.)
Chapter 35 of the Texas Code of Criminal
Procedure governs the jury-selection process.
II. THE PURPOSE OF VOIR DIRE
There are three possible purposes for the
voir dire examination of veniremen. The first
purpose is to elicit information which would
establish a basis for a challenge for
cause.The second purpose is said to
facilitate the intelligent use of peremptory
challenges.And the third purposealbeit
not necessarily a legally legitimate oneis to
indoctrinate the jurors on the partys theory
of the case and to establish rapport with the
prospective jury members.
1.
Statutory Qualifications
1.
2.
3.
4.
5.
6.
7.
8.
D. Presence of defendant
A defendant has a constitutional right, under both
article I, Section 10 of the Texas Constitution and the
Sixth Amendment to the U.S. Constitution, to be
present at all phases of trial. Lewis v. United States, 146
U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892); Miller v.
State, 692 S.W.2d 88 (Tex. Crim. App. 1985).
Texas Code of Criminal Procedure article 33.03
requires the defendants presence at trial unless he
voluntarily absents himself. The defendant cannot
waive this requirement before the jury is selected.
TEX. CODE CRIM. PROC. art. 33.03.
The right to be present does not apply to the
taking of excuses and qualifications during the general
jury assembly. Chambers v. State, 903 S.W.2d 21, 31
(Tex. Crim. App. 1995).
There is no reason, however, to think that it does
not apply to questioning of jurors by counsel at the
bench.
On the record.
Object.
E.
F.
Open courtroom
The accused has a right under the Sixth
Amendment not only to a trial, but to a public trial.
This right may give way in certain cases to other
rights or interests, such as the defendants right to a
fair trial or the governments interest in inhibiting
disclosure of sensitive information. Waller v. Georgia,
467 U.S. 39, 45 (1984), but [t]rial courts are obligated
to take every reasonable measure to accommodate
public attendance at criminal trials. Presley v. Georgia,
130 S. Ct. 721, 725 (2010) (reversing for defendants
uncles exclusion from courtroom during voir dire). A
court can take steps to maintain decorum, such as
excluding a defendants family members who
repeatedly fall asleep during proceedings. United
States v. Cervantes, 706 F.3d 603, 612 (5th Cir. 2013).
Proceedings held in a place of highly-restricted
access, such as a prison unit, are suspect since
reasonable measures are often available to hold the
proceedings elsewhere. Lilly v. State, 365 S.W.3d 321
(Tex. Crim. App. 2012).
When the constitutionally tainted portion of
trial encompasses the entire jury-selection process, it
has been almost universally held that relief involves a
new voir dire and a new jury; perforce, it necessitates a
new trial. Steadman v. State, 360 S.W.3d 499, 510
(Tex. Crim. App. 2012) (reversing and remanding for
new trial where defendants family was excluded from
courtroom during jury selection).
No Texas cases discuss the interplay of the right
to a public trial with article 35.17 of the Texas Code of
Criminal Procedure, which allows the voir dire of each
venireperson apart from the others (see infra, section
immediately following), but the accuseds right to a
public trial is a factor that a trial court may want to
consider before performing individual voir dire.
I.
The shuffle
Article 35.11 of the Texas Code of Criminal
Procedure requires the jury panel to be randomly
shuffled on either partys demand. The jury shuffle
may be used as a strategic tool and is designed to
ensure the compilation of a random list of jurors.
Ford v. State, 73 S.W.3d 923, 926 (Tex. Crim. App.
2002).
The right to a shuffle is absolute, though the
granting of a request made by either party satisfies this
right. Jones v. State, 833 S.W.2d 146, 149 (Tex. Crim.
App. 1992).
A trial judge has discretion to shuffle the panel
sua sponte, but a sua-sponte shuffling does not
foreclose the right of a party to request a subsequent
shuffle. Wilkerson v. State, 681 S.W.2d 29 (Tex. Crim.
App. 1984). Otherwise only one shuffle is allowed.
Chappell v. State, 850 S.W.2d 508, 511 (Tex. Crim.
App. 1993).
A party has the right to see the panel members
seated in the order in which they were called before
deciding whether to request a shuffle. Batchelor v.
State, 757 S.W.2d 455, 457 (Tex. App.Dallas 1988,
pet. refd). The court has discretion to allow or
disallow the parties to review panel members
biographical questionnaires or juror information cards
in determining whether to exercise the right to a
shuffle. Garza v. State, 7 S.W.3d 164 (Tex. Crim. App.
Scope of questioning
The permissible areas of questioning the panel
in order to exercise peremptory challenges are broad
and cannot be unnecessarily limited. Mathis v. State,
576 S.W.2d 835, 836837 (Tex. Crim. App. 1979). A
question is proper if it seeks to discover a jurors views
on an issue applicable to the case. Smith v. State, 703
S.W.2d 641, 643 (Tex. Crim. App. 1985).
The trial court should give a defendant great
latitude in questioning the jury panel during voir
dire. Trevino v. State, 572 S.W.2d 336 (Tex. Crim.
App. [Panel Op.] 1978). The trial court can, however,
control the scope of voir dire by exercising its sound
discretion to limit improper questioning. Smith v.
State, 513 S.W.2d 823 (Tex. Crim. App. 1974). See also
Abron v. State, 523 S.W.2d 405, 408 (Tex. Crim. App.
1975) (trial court can restrict repetitious or vexatious
questions, restrict questions asked in improper form,
restrict questions directed at personal habits of jurors).
Like time limits, refusals to allow lines of
questioning during voir dire are reviewed under an
abuse of discretion standard. In re Commitment of
Hill, 334 S.W.3d 226, 229 (Tex. 2011).
That discretion inquiry turns on the propriety of
the question: a court abuses its discretion when its
denial of the right to ask a proper question prevents
determination of whether grounds exist to challenge
for cause or denies intelligent use of peremptory
challenges. Standefer v. State, 59 S.W.3d 177, 185
(Tex. Crim. App. 2001). Defense counsel must be
barred from asking a specific permissible question in
order to justify reversal. In re Commitment of Crosby,
09-11-00371-CV, 2012 WL 983168 (Tex. App.
Beaumont Mar. 22, 2012).
J.
Time limits
The trial court may impose reasonable time limits
on voir dire. Cantu v. State, 842 S.W.2d 667, 687 (Tex.
Crim. App. 1992). Time limits are reviewed under an
abuse-of-discretion standard. Boyd v. State, 811 S.W.2d
105, 115-16 (Tex. Crim. App. 1991).
1.
2.
3.
4.
5.
6.
7.
K. Alternate jurors
The trial court can seat up to four alternate
jurors; these alternates replace jurors who become or
are found to be unable or disqualified to perform their
duties or are found by the court on agreement of the
parties to have good cause for not performing their
duties. TEX. CODE CRIM. PROC. art. 33.011.
L.
Questioning by counsel
The U.S. Constitution does not provide a right
for the lawyers (as opposed to the court) to conduct
5
Permissible questions
Proper questions seek to discover a jurors
views on an issue applicable to the case, and are not
commitment questions, nor so vague or broad in
nature as to constitute a global fishing expedition.
Sells v. State, 121 S.W.3d 748, 75556 (Tex. Crim. App.
2003).
Hypothetical fact situations may be employed
during voir dire to explain the application of the law,
but not to determine how a venireperson would
respond to particular circumstances. Cuevas v. State,
742 S.W.2d 331, 336 n. 6 (Tex. Crim. App.1987).
A trial court abuses its discretion if it refuses to
allow the defendant to ask venirepersons about what
they think reasonable doubt means. Lane v. State, 828
S.W.2d 764, 766 (Tex. Crim. App. 1992).
Some other permissible questions:
c.
e.
4.
5.
d.
a.
Impermissible questions
Some questions held impermissible, or at least
within the courts discretion to disallow:
f.
Fishing expedition
A fishing expedition question does not seek
particular information from a particular panel
member; rather, it presents a general topic for
discussion. Smith v. State, 703 S.W.2d 641, 645 (Tex.
Crim. App. 1985) (holding that the trial judge
correctly restricted appellant from asking every juror
for his or her thoughts on the insanity defense
because the question, as phrased, was improperly
broad and duplicitous).
In Boyd v. State counsel inquired, What Im
basically asking you is what you as layman think is a
case that is proper for the death penalty to be
imposed? This question was unrelated to the
statutory sentencing scheme, was improperly broad,
and so was an improper fishing expedition. Boyd v.
State, 811 S.W.2d 105, 119 (Tex. Crim. App. 1991).
Another example of a fishing expedition
question: [W]hat would be a mitigating
circumstance, in your mind? Dickson v. State, No.
74533, 2001 WL 34736485, at *5 (Tex. Crim. App.
Oct. 13, 2004).
2.
Commitment questions
Commitment questions commit a prospective
juror to resolve or refrain from resolving an issue a
certain way after learning a particular fact. Standefer v.
State, 59 S.W.3d 177, 179 (Tex. Crim. App. 2001).
Commitment questions often require a yes or
no answer. Davis v. State, 313 S.W.3d 317, 346 (Tex.
Crim. App. 2010). Often they do not, though, and
7
(1)
For example:
Can you be fair and impartial if the victim in this
case is a nun? See Barajas v. State, 93 S.W.3d 36,
40 (Tex. Crim. App. 2002) (overruling Nunfio v.
State, 808 S.W.2d 482 (Tex. Crim. App. 1991))
(too many facts).
Three-Part Inquiry:
Commitment Question
1.
2.
3.
c.
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 had 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 venireman
actually served on the jury because he had to
waste strikes on the improperly committed
jurors; and
3.
Preserving error
When the state has made misstatements of law,
the defense preserves error by pursuing the objection
to an adverse rulingoverruled objection, denied
motion to disregard, Hackbarth v. State, 617 S.W.2d
944 (Tex. Crim. App. [Panel Op.] 1981), or denied
motion to strike the panel, see Hogan v. State, 496
S.W.2d 594, 598 (Tex. Crim. App. 1973) (There was
no request to have the jurors to disregard the
complained of answer and no motion was made to
discharge the members of the panel who heard the
remark.No error is shown.).
(Note that rather than a motion for mistrial, the
technically correct error-preservation step following a
granted instruction to disregard in voir dire is a motion
to quash the panel or strike those jurors who heard the
improper statements.)
It may also be necessary to exhaust peremptory
challenges against jurors who heard the comment. See
Hammett v. State, 578 S.W.2d 699, 705 (Tex. Crim.
App. 1979). (The appellant had sufficient remaining
peremptory challenges to have removed each juror he
now complains of who sat on the panel. No error is
shown.)
On the record.
Ask proper question.
Invoke Texas Constitution article I, section 10:
right to be heard.
Point out that error prevents you from
intelligently exercising peremptory challenges.
Exhaust peremptory challenges.*
Request more strikes until request is denied.*
Identify an objectionable person seated on the
jury on whom you would have exercised a
peremptory challenge.*
On the record.
Make a timely and specific objection.
Instruction to disregard.
Move to strike jurors who heard the comments.
Exhaust peremptory challenges against jurors who
heard the comments.
4.
a.
Exemptions
Section 62.106 provides nine exemptions from
jury duty.
7.
8.
9.
1.
2.
3.
4.
5.
6.
7.
1.
2.
3.
4.
5.
6.
7.
8.
9.
1.
2.
Vacillating jurors
When the record reflects that a venireman
vacillates or equivocates on his ability to follow the
law, the reviewing court must defer to the trial court.
Moore v. State, 999 S.W.2d 385, 400 (Tex. Crim. App.
1999).
5.
3.
Trick questions
The proponent of a challenge for cause has the
burden of establishing that the challenge is proper.
Gardner v. State, 306 S.W.3d 274, 295 (Tex. Crim.
App. 2009). The proponent does not meet this burden
until the proponent shows that the venireperson
understood the requirements of the law and could not
overcome his prejudice well enough to follow the law.
Id.
A common trick question is the one-witness
rule question; it is asked correctly of the first juror
(assuming that we prove all of the elements beyond a
reasonable doubt from the testimony of a single
witness, would you require more to convict), then a
shorthand version of the question is asked of later
jurors.
By the time the question reaches the back rows
the jurors have lost track of the underlying assumption
(that they believe the witness beyond a reasonable
doubt). I have found that these later jurors are often
rehabilitable because they answered yes only
because they did not accept the assumption.
Before the trial court may sustain a States
challenge for cause on the ground that the venireman
will not convict on the testimony of a single
eyewitness, it must be demonstrated to the trial court
that the veniremans categorical refusal is predicated
upon something other than his understanding of proof
beyond a reasonable doubt. Castillo v. State, 913
S.W.2d 529, 534 (Tex. Crim. App. 1995).
(It is doubtful that this is a proper area of inquiry
in the vast majority of cases, in which the state does
not intend to prove its case using a single witness,
because it is not the law applicable to the case.)
Preserving Error:
Courts Sua Sponte Excusal of Disqualified Juror
1.
2.
3.
4.
4.
Rehabilitation
A venireperson who initially indicates an inability
to consider the full range of punishment may be
rehabilitated through further questioning by the
prosecutor or the trial court. See Von Byrd v. State, 569
S.W.2d 883, 891 (Tex. Crim. App. 1978); Westbrook v.
State, 846 S.W.2d 155, 160-61 (Tex.App.Fort Worth
1993, no pet.).
By statute, a juror who says that she has reached
such a conclusion as to the guilt or innocence of the
Error preservation
A party preserves error by a timely request that
makes clearby words or contextthe grounds for
the request and by obtaining a ruling on that request,
whether express or implicit. TEX. R. APP. PROC. 33.1.
Here, a party preserves error (but does not show harm)
by making the challenge for cause and explaining
clearly its grounds.
6.
b.
Showing harm
In addition to preserving error, the defendant
whose challenge for cause has been denied must be
conscious of the need to show harm.
To show harm resulting from the denial of a
challenge for cause, the defendant must show that he
was forced by the denial to accept an objectionable
juror. This showing requires a record showing that (1)
he exhausted all of his peremptory challenges; (2) he
requested more challenges; (3) that request was
denied; and (4) he identified an objectionable person
seated on the jury on whom he would have exercised a
peremptory challenge. Anson v. State, 959 S.W.2d
203, 204 (Tex. Crim. App. 1997).
The fundamental basis of this rule recognizes
that without exhausting his peremptory challenges it is
impossible to conclude that the defendant had to
accept an objectionable juror. Green v. State, 764
S.W.2d 242, 247 (Tex. Crim. App. 1989).
P.
Peremptory challenges
A peremptory challenge is made to a juror
without assigning any reason therefor. TEX. CODE
CRIM. PROC. art. 35.14.
Each party gets fifteen peremptory challenges in a
death-penalty trial with one defendant; if two or more
defendants are tried together, each defendant gets
eight peremptories and the state gets eight
peremptories per defendant. TEX. CODE CRIM. PROC.
art. 35.15(a).
In a non-death-penalty felony trial with one
defendant, the state and defendant each get ten
peremptory challenges; if two or more defendants are
tried together, each defendant gets six peremptories
and the state gets six peremptories per defendant.
15
Number of Peremptories
(Single-Defendant Case)
1.
2.
3.
4.
1.
Batson
The rule of Batson v. Kentucky, 476 U.S. 79
(1986), that the state cannot exercise peremptory
challenges for the purpose of excluding people from
the jury on the basis of their race, is codified at Texas
Code of Criminal Procedure article 35.261. The trialcourt remedy for a Batson / 35.261 violation is
dismissal of the array and calling of a new array. TEX.
CODE CRIM. PROC. art. 35.261
Batson is more than just race-based peremptories
by the state, though. Race-based peremptory
challenges by the defense are barred by the Batson line
of cases, Georgia v. McCollum, 505 U.S. 42 (1992), as
are sex-based peremptory challenges, J.E.B. v.
Alabama ex rel. T.B., 511 U.S. 127 (1994).
a.
Batson procedure
To establish a prima facie case under Batson, a
defendant must show (1) that the state exercised its
strikes to exclude members of a cognizable racial group
from the venire, and (2) that this fact, along with any
other relevant facts and circumstances, raise an
inference that the State exercised these strikes against
the venire members because of their race. See Batson v.
Kentucky, 476 U.S. at 96, 106 S.Ct. 1712.
16
4.
5.
1.
2.
On the record.
After the parties deliver their strike lists to the
clerk.
3. Before jury is sworn.
4. Show that the state exercised its strikes to exclude
members of a cognizable racial group.
5. Show race of accused (CCP 35.261), race of
venirepeople, race of struck jurors.
6. Show facts that raise an inference that the state
struck certain people because of their race.
7. Request a hearing.
8. State provides race-neutral explanation.
9. Rebut states proffered explanation (for example,
evidence of a pattern or practice; evidence of
disparate questioning of minority jurors; evidence
of racially motivated shuffle).
10. Make sure prosecutors notes are part of record.
17
2.
3.
4.
5.
18
STATUTES
Tex. Code Crim. Proc. art. 1.05 ------------------------------------------------------------------------------------------------------------------ 1
Tex. Code Crim. Proc. art. 33.011 --------------------------------------------------------------------------------------------------------------- 5
Tex. Code Crim. Proc. art. 33.03 ---------------------------------------------------------------------------------------------------------------- 3
Tex. Code Crim. Proc. art. 35.03 -------------------------------------------------------------------------------------------------------------- 12
Tex. Code Crim. Proc. art. 35.07 ---------------------------------------------------------------------------------------------------------------- 1
Tex. Code Crim. Proc. art. 35.11 ----------------------------------------------------------------------------------------------------------------- 4
Tex. Code Crim. Proc. art. 35.14 -------------------------------------------------------------------------------------------------------------- 15
Tex. Code Crim. Proc. art. 35.15(a) ----------------------------------------------------------------------------------------------------------- 15
Tex. Code Crim. Proc. art. 35.15(b) ----------------------------------------------------------------------------------------------------------- 16
Tex. Code Crim. Proc. art. 35.15(c) ----------------------------------------------------------------------------------------------------------- 16
Tex. Code Crim. Proc. art. 35.15(d) ----------------------------------------------------------------------------------------------------------- 16
Tex. Code Crim. Proc. art. 35.16(b) ------------------------------------------------------------------------------------------------------------- 3
Tex. Code Crim. Proc. art. 35.17 -------------------------------------------------------------------------------------------------------------- 4, 5
Tex. Code Crim. Proc. art. 35.17(1) ------------------------------------------------------------------------------------------------------------- 4
Tex. Code Crim. Proc. art. 35.17(2) ---------------------------------------------------------------------------------------------------------- 4, 5
Tex. Code Crim. Proc. art. 35.22 ---------------------------------------------------------------------------------------------------------------- 9
Tex. Code Crim. Proc. art. 35.261 ------------------------------------------------------------------------------------------------------------- 16
Tex. Code Crim. Proc. art. 38.14----------------------------------------------------------------------------------------------------------------- 8
Tex. Code Crim. Proc. art. 38.141 --------------------------------------------------------------------------------------------------------------- 8
Tex. Code Crim. Proc. art. 38.15----------------------------------------------------------------------------------------------------------------- 8
Tex. Code Crim. Proc. art. 44.46(1) ------------------------------------------------------------------------------------------------------------- 3
Tex. Code Crim. Proc. art. 44.46(2) ------------------------------------------------------------------------------------------------------------ 3
Tex. Govt Code 62.007 ----------------------------------------------------------------------------------------------------------------------- 1
Tex. Govt. Code 62.001------------------------------------------------------------------------------------------------------------------------ 2
Tex. Govt. Code 62.001(a) -------------------------------------------------------------------------------------------------------------------- 1
Tex. Govt. Code 62.011 ------------------------------------------------------------------------------------------------------------------------ 1
Tex. Govt. Code 62.102 --------------------------------------------------------------------------------------------------------------------- 2, 3
RULES
Tex. R. App. Proc. 33.1 ------------------------------------------------------------------------------------------------------------------------- 15
CONSTITUTIONAL PROVISIONS
Tex. Const. art. I 10 -------------------------------------------------------------------------------------------------------------------------- 1, 3
Tex. Const. art. I 4 ------------------------------------------------------------------------------------------------------------------------------ 9
Tex. Const. art. VI 3 ----------------------------------------------------------------------------------------------------------------------------- 9