An Old-Fashioned Look at Voir Dire in Criminal Cases

The Texas Criminal Defense Lawyers Association (TCDLA) was born in 1971, but there were not many criminal law articles, “How to do it” manuals, or CLE materials available. So, TCDLA put on what we called “Skills Courses” covering subjects we thought would be both interesting and helpful to our early membership. I recently ran across a paper I prepared and delivered at a skills course in 1973 on the subject of voir dire that may prove of interest. I purposefully have not updated it. Except for very few changes, it is presented here verbatim.

This article is aimed at a practical, perhaps old-fashioned, jury voir dire rather than the “replete with citations and new theories” approach of today, in hopes that the reader may find it a useful, ready reference prior to and during that important phase of the trial of a criminal case, the voir dire.

Several general suggestions come to mind that I will pass on to you initially. Make yourself a voir dire file, and put in it from time to time various clippings, memoranda, etcetera, regarding the overall subject. For instance, I have a copy of an article entitled, “How I Pick Jurors” by F. Lee Bailey that appeared in Family Weekly on 20 February 1972; a copy of 27 Federal Rules Decisions, Section 8.12; the opinion in Gonzalez v. State, 331 S.W.2d 748 (Tex. Crim. App. 1960), and Mathis v. State, 322 S.W.2d 629 (Tex. Crim. App. 1959); Article 35.16 of the Texas Code of Criminal Procedure (C.C.P.), plus other sections of the C.C.P.; and various and sundry others in my own file.

Many other items should be kept in your own voir dire file. Your own imagination and increased experience will enable you to build one that fits your own needs. Such a file is a must.

Texas Code of Criminal Procedure Article 35.15 gives each side 15 peremptory challenges in capital cases; 10 in non-capital cases; 5 in misdemeanor cases tried in district court; 3 in misdemeanor cases tried in county court; plus special provisions for 2 or more defendants. Article 35.16, as amended, should be copied and placed in your file. You would be surprised how helpful it will be to you, especially in the area of attempting to disqualify a juror for cause. In this regard, both Sections 9 and 10 of Article 35.16(a) are most often used. Many attorneys are under the impression that Section 10 is best, which deals with when a prospective juror has formed an opinion as to the guilt of the accused. I prefer Section 9, which disqualifies a juror where he or she “has a bias or prejudice in favor of or against the defendant.”

You should read and familiarize yourself with Gonzalez v. State, supra, regarding Article 35.16(a)(9), and Mathis v. State, supra, regarding the freedom defense counsel should be allowed in questioning a prospective juror for purposes of exercising a peremptory challenge, as contrasted with a challenge for cause. If the prosecution attempts to block your questioning (often in a whining, complaining tone of voice—“Now, your Honor, that is not any grounds for challenge. That is not a proper question”), then throw Mathis at them and say (if the court shows an inclination to restrict you unduly): “If the Court please, the purpose of this inquiry is in order that I may better acquaint myself with the prospective jurors so that I may exercise perhaps a peremptory challenge. Further, your Honor, in order that I may render effective assistance of counsel to my client as is guaranteed him by the Sixth Amendment to the Constitution of the United States and Article 1, Section 10 of the Texas Constitution, and as further authority I respectfully cite the Court the case of Mathis v. State.

You cannot rely merely on the overruling of such requests by the court or upon the overruling of a challenge for cause. On appeal, you must again be sure you are thoroughly familiar with Gonzalez, and other cases later decided by our Court of Criminal Appeals. To preserve error, you must (1) assert a clear and specific challenge for cause; (2) use a peremptory challenge on the complained-of venireperson; (3) exhaust all peremptory challenges; (4) request additional strikes and have that request denied; and (5) show an objectionable juror sat on the jury; and then prove this up on a “bill.” So, read Gonzalez and cases following its holdings.

Even then, watch out for that monster that has arisen in the law known as “harmless error.” My dear friend Harry Nass was asked by one of the members of the appellate court: “Counsel, you haven’t shown us how your client has been harmed. Just where was he harmed?” To which Harry replied in all sincerity, “Your Honor, if he wasn’t harmed, then why am I here before this Court?” Believe me, trying to prove harmful error can prove to be an insurmountable task.

Remember, you must request the court reporter to take down the voir dire, otherwise you may wake up to the fact that you do not have a record of what went on in the trial, and the appellate court will “pour you out on the ground” and say, “Sorry, there is no record of the voir dire.” Repeat: Make sure you request the taking of the voir dire by the court reporter.

Jurors have told me that they have a hard time “judging the evidence”—a hard time weighing the weight to give this and that witness’ testimony, judging their credibility, satisfying themselves as to the meaning of “reasonable doubt,” and many, many other difficulties. 27 Federal Rules Decisions, Section 8.12, above cited, has been helpful to me. It says, among other things:

There is nothing peculiarly different in the way a jury is to consider the proof in a criminal case from that in which all reasonable persons treat any question depending upon the evidence presented to them. You are expected to use your good sense; consider the evidence for only those purposes for which it has been admitted and give it a reasonable and fair construction in the light of your common knowledge of the natural tendencies and inclinations of human beings.

The section concludes with a phrase that also is useful in making your argument to the jury:

Remember also that the question before you can never be: will the Government win or lose the case? The Government always wins when justice is done, regardless of whether the verdict be guilty or not guilty.

Perhaps it is well to backtrack at this point to Article 35.19, C.C.P, and remind you of this: “No juror shall be impaneled when it appears that he is subject to the second [convicted of misdemeanor theft or a felony], third [under indictment or other legal accusation for misdemeanor theft or a felony] or fourth [the juror is insane] cause of challenge in Article 35.16, though both parties may consent.”

I have succeeded in making a few “brownie points” with the entire panel when I have asked an elderly person or someone who appears to be fidgeting or seems otherwise nervous, in pain or what-have-you, something to this effect: “Ma’am (or Sir), may I inquire if there is anything about service on this jury that might require you to sit for several hours at a time over some three or four days that would prove unduly uncomfortable or perhaps hazardous to your health?”

Sometimes one, two, or more will mention that they have a sick person at home, that they themselves are diabetics or suffer from some other ailment. I remember one man who was sitting back in the middle of the panel one time in a leg cast that went almost up to his hip. It had gone somehow unnoticed until the question was asked the entire panel. And, of course, he was excused.

It is highly helpful and all-important to an effective voir dire if you have before you (and have studied it beforehand) a copy of either a proposed charge in your particular case or a copy of some old charge in a similar case. It is sort of like building a house—one must have a blueprint or a set of plans. Otherwise, there is no telling what the end result will be.

Let me give you an example. Let us say that you are about to try a plain vanilla burglary case. We know that an essential element of such a case is (if it is an “intent to commit theft” case) a “breaking and entering” with the requisite intent. If you have prepared your case adequately, you may have discovered that your client did not break nor did he enter, that he was without prior knowledge of any plan to commit any burglary or did not participate at all in the actual burglary and just happened to come along after the burglary was committed and merely accommodated the real burglar, who asked him to help him load the color TV into a pickup. Unless you have a copy of the charge, you may very well overlook an essential element that is missing and lose your case. In the above illustration, even if your client is guilty of something, he is not guilty of burglary, even as a principal with the real burglar, and if the State mistakenly goes ahead and tries him, you are entitled to an instructed verdict of Not Guilty, and they can’t try him again even for theft because of double jeopardy. Perhaps “carving” is a better word.

The above is helpful on voir dire because by educating the prospective jurors on the law applicable to your case, by illustrating to them the law of, say, “circumstantial evidence,” the law of “principals,” the essential elements of the indictment, and other items, you pre-condition the jurors to your way of thinking and get them to looking for holes from the start in the prosecution’s case. It is not good practice to voir dire the jury merely on personal “nitpicky” items and leave their education on the facts of the case to the initial—and prejudicial—unfolding of the State’s case from the witness stand and make them wait until the start of your cross-examination, or many times until the State actually rests its case in main, before you give them any inkling about the innocence of your defendant and the facts that show that innocence.

If a prospective juror says, “I am President of the First National Bank,” do not exclaim “Oh, that is nice” or other complimentary words. Do not contrast your reply by saying, “Oh, I see”—in a less complimentary tone to someone who might say he is a garbage collector. Nor do I like to ask a lady sitting obviously in her best dress that was new several years back, whose questionnaire shows her to be a housewife and her husband an employee of the city sanitation department: “Ma’am, just what does your husband do in his work?” You won’t make a friend by asking such questions, believe me. In other words, treat every juror with the same respect, and do not differentiate.

I spend much more of my voir dire time pre-conditioning the panel as a whole on the possible charge, highlighting the facts I think are important, eye-to-eyeing them as both the prosecutor and I are questioning them, and so forth. One of my longtime dearest friends likes to tell that one of his greatest thrills in picking a jury one time was when one lady juror “gave him a great big knowing wink.” That happened to me one time in a burglary case in San Antonio—except that the wink from an obviously “motherly” juror was for my young 20-year-old client. She turned out to be one of our real champions during deliberations resulting in an acquittal. So from the start, pay close attention to the potential jurists, searching their faces, probing for some sign or indication of either favor or antagonism that may help you in making your “strikes.”

When questioning the jurors individually, it is well to work out some “get acquainted” question that sort of helps you get off to a good start with that particular juror. You might look over the questionnaire and note that the person was born in, say, Tyler, Texas. You might inquire of that juror something like: “I see that you come from Tyler. Did you happen to know Jim Jones the football coach there?” If they come back and say, “Yeah, I knew him”—in a tone of voice that is not too pleasant, if you happened to know Jim Jones and knew him to be a pretty nice guy—then you might sort of be on your guard about that particular juror and want to make doubly sure before taking him or her on the jury.

Or perhaps you might want to ask a question of each juror something like this: “Mr. Jones, where did you spend your boyhood?” (giving just a trace of a smile). As this same friend of mine might caution, if the juror says with a sour tone in his voice, “Omaha, Nebraska,” that begins to tell you a little bit about that individual. For one thing, for certain, it sure tells you that “he ain’t no hog about Omaha!” And so again, you might want to be on your guard about this individual because he apparently did not enjoy his childhood and that might very well affect the type of adult he has turned out to be.

Warren Burnett was one of our truly great criminal defense attorneys and my longtime friend from my Odessa days. It was my privilege and pleasure to successfully prosecute the rape case of Barry Gray against Warren when I was serving as First Assistant District Attorney in San Antonio. During the voir dire, Warren and I had some real battles over challenges for cause, and he demonstrated an amazing ability to work and corner a poor, unsuspecting juror into admitting (be it ever so slight) that he had a prejudice against the defendant. The result? Article 35.16(a)(9) came into play and the juror was disqualified.

Perhaps I might at this point illustrate the way this was done. Ask the juror if he remembers discussing the case when it first appeared on TV and in the newspaper (if there was, in fact, some publicity on the case) with one of his fellow employees over coffee. Ask him to think carefully about that (but do not antagonize him; be ever so solicitous and gentle with him). If he is like most people, he will pause before answering, and many times say, “Well, yes, I do believe I did mention it in passing.”

Then say, “Well, sir, at least to that extent you formed some sort of opinion about this case and about what ‘they ought to do with people like that’—didn’t you?”

If he says, “Well, I might have, maybe,” then, say, “Well, sir, I suppose it is fair to state in summary then that at least to that extent, be it ever so slight, understand, at least to that extent is it not fair to state that you were a bit prejudiced toward the person accused of this crime?”

If he says, “Well, maybe,” then, you can say: “Then to that extent it would take some evidence to change your mind, wouldn’t it, sir? Is that a fair statement?”

If he says “yes,” then say, “To that extent you still have at least a wee bit of prejudice toward the accused at this time do you not, sir?”

In many instances the juror will by then be so committed that he will say, “Well, yes, I suppose so, yes.” That juror may be disqualified for cause!

You may want to work out some standard questions of your own for that particular juror whom you ultimately will run across that you just have to get rid of for cause in order to save your peremptory challenges or “strikes.” I consider the above together with Gonzalez and Mathis, supra, “musts” in your voir dire repertoire. Also, see Quintana v. State, 441 S.W.2d 191 (Tex. Crim. App. 1969), on the matter of exhausting peremptory challenges, and Summers v. State, 464 S.W.2d 126 (Tex. Crim. App.), cert. denied, 403 U.S. 933, 91 S.Ct. 2260, 29 L.Ed.2d 711 (1971. These cases also apply to challenges for cause as well as peremptory challenges.

You might have occasion to take a look at note 9 and the cases therein cited in the pocket part of Ar­ti­cle 35.17, C.C.P., that illustrate the importance of having the court reporter make a record of the voir dire examination. Some attorneys file a written request routinely with the court reporter. Personally, I have that included as a must in my voir dire file and make the request routinely before any questions are asked of the jurors. I know some other attorneys include both a request that the voir dire as well as argument be taken down in a formal, written motion.

In questioning prospective jurors, it is well to work out a system of grading or coding each potential juror so that you will remember each one later when you prepare to make your strikes. Myself, it suits me to grade as “0” for a flat “no,” “1” for an “in between,” and “2” for “okay.” Every once in a while, it is good to reverse the order so that the prosecution won’t get too wise to your code system when they “accidentally” look across the counsel table at your list. Work out something that suits you; you will find it a big help.

Along this line, it is well to mention that a seating chart of each of the jurors is helpful after the jury is selected and sworn. This is done by going back over the jury questionnaires and making a list of each juror, starting with #1 on through #12 (if a felony case), listing the full name, place of birth, marriage status, number of children, religion, occupation (both husband and wife), and some characteristic about each juror that will help you remember them throughout the trial so that when you make your argument to that same jury, you will have a personal feel for that jury and each member on it. If you list each of the foregoing in the same order with each juror, it will help you attain and maintain an orderly, organized picture of them in your mind. For example, say a particular juror at the time of voir dire had on a bright green sweater and wore gold-rimmed glasses. Write that on the questionnaire and later onto your jury chart. Another example: Say a juror’s husband works as a bulldozer operator, another has a husband who works as a union carpenter—both occupations entailing hard work. If your client is an oil field derrick hand, a truck driver, a brick layer’s helper, your juror might identify with the accused. So study your jury, study each one of them and search out possibilities for their identifying with your client and your side of the case.

When I was Chief Prosecutor in Judge Charlie Lindsey’s court in Fort Worth before moving to San Antonio, the importance of the foregoing on “identifying” was brought home to me crystal clear. Rufus Adcock and I were prosecuting the case of The State of Texas v. Melvin Stuart Pittman (434 S.W.2d 352). It was a brutal, senseless, bizarre murder case in which Pittman, 19, had shot a man in the forehead from 12 steps away while he was fishing on the west banks of Lake Arlington—“just because I wanted to see if I could hit him ‘right between his eyes’” in the moonlight, which he did.

During the voir dire, we sought the death penalty, and we had selected 11 jurors. We (the State) had exhausted all of our 15 peremptory challenges; the Defense had a couple left. So we either had to take the next venireman or else knock him off with a challenge for cause.

I remember the old man who was next up so very well. He ran the kiddie rides at Forest Park and was exactly 65 years old. He could have donned a white wig, whiskers, and a red suit and passed as anybody’s Santa Claus. He had a son himself who was 19 years old. On the matter of death penalty he said something like: “Oh, no, I couldn’t give the death penalty in this case. I have a son the age of the defendant.”

With variations we repeatedly failed to get the old gentleman disqualified. Bear in mind also that we had to be careful not to antagonize him because it was becoming apparent that he was going to be our 12th juror. Every time we would try to knock him off for cause, my good friend and superb defense counsel Charlie Dickens (later, a distinguished criminal district judge in Fort Worth) would take him back, rehabilitate him, and prop him back up. And so on it went.

Finally, a spark from above hit me like a bolt of lightning and for no other reason than “inspiration” I asked the old gentleman, “Sir, do you ever go fishing?”

His eyes lit up and he smiled and said, “I sure do!”

I then asked (hopefully): “Tell me, sir. Do you ever go fishing with your son?”

When he said again with a fond smile, “yes,” I begin to live again!

Finally, I asked, “Have you ever fished Lake Arlington?”

And he replied, “Oh, yes, we fish there all the time.”

We breathed at least a partial sigh of relief, for we had established a thread of identification with the old gentleman. The balance of the voir dire as to him from our standpoint was to establish in his mind that the victim could very well have been, but for the grace of the good lord, his own 19-year-old son. We ascertained after the verdict that the strategy had worked. I have had the same experiences on the defense side of the docket many times over, although the Pittman case was the case where I found myself in the deepest hole with apparently no way out.

After doing my bit as a prosecutor for several years and having assured myself that I had rid the State of all criminals, I returned to the defense side of the counsel table, where I have been happily and busily engaged in representing the innocent. One of my former colleagues on the district attorney’s staff in San Antonio questioned me rather severely and in a disillusioned manner as to what had happened to me after a jury had acquitted a man named Wilbert Young of a murder charge. He ended by saying, “I always thought you were for law enforcement.”

I don’t suppose he ever read Article 2.01 C.C.P., which says, “It shall be the primary duty of all prosecuting attorneys . . . not to convict, but to see that justice is done.” Nor did he understand the Sixth Amendment guarantees of the right to counsel.

On the subject earlier mentioned about “harmless error” as well as the necessity of having the voir dire taken down by the court reporter, Rule 13.1 of the Texas Rules of Appellate Procedure is mandatory provided you object to the court reporter not taking down the voir dire. If ever a court refuses my request to have a reporter at voir dire, I will be forced to object on the grounds of Rule 13.1 plus the Sixth Amendment to the Constitution of the United States guaranteeing effective assistance of counsel; the Fifth and Fourteenth Amendments guaranteeing due process, trial by a fair, impartial jury, and equal protection of the law; as well as Article 1, Section 10 of the Texas Constitution. I will then aver that we are being harmed in the Constitutional sense, withdraw my previous announcement of ready, and pray the court does not order me to proceed anyway!

It is well to admonish you to make sure none of the jurors are kin to any of the prosecutors, witnesses, victims, police or sheriff’s deputies, or any of the DA’s secretaries or other employees. Make sure that none of them have ever been a prosecuting witness or the victim of a crime. If they have served on a criminal jury, find out the nature of the case, when and where it was tried, and if they reached a verdict—and if so, its outcome and if the juror served as the foreman. Find out if anyone has served as a grand juror and if they have ever served on a federal jury and when. Be sure to double-check their religious background and guard against anyone too closely connected with any narrow-minded church activity. This is not to disparage religion at all; it is just that experience has shown that for some reason or other some of the most rigid, unforgiving, narrow-minded jurors are those closely associated in their everyday affairs with certain religious groups and activities.

Conclusion

If you do all of these many things and dream up some things to do on your own, you ought to be able to pick a good jury and have your case come out all right. On the other hand, you may be like another friend of mine who says: “The best voir dire is no voir dire,” and picks the first 12! An old-fashioned look at voir dire? Old-fashioned, yes, but as someone once said: “It works for me!”

TCDLA
TCDLA
Charles D. Butts
Charles D. Butts
Charles D. Butts, a charter member of TCDLA and former president (1987–88) as well as a member of the TCDLA Hall of Fame, has also served as president of the San Antonio Bar Association (1979–80) and director of the State Bar of Texas (1981–83). Charles has been a member of the Editorial Board of San Antonio Lawyer magazine since 1999 and a frequent contributor. Charles’ many honors include listing in the Best Lawyers of America (1991–present). He received at BA in government and economics and his LLB from the University of Texas after serving in the 381st Bomb Group in England during World War II, for which he received a Bronze Star.

Charles D. Butts, a charter member of TCDLA and former president (1987–88) as well as a member of the TCDLA Hall of Fame, has also served as president of the San Antonio Bar Association (1979–80) and director of the State Bar of Texas (1981–83). Charles has been a member of the Editorial Board of San Antonio Lawyer magazine since 1999 and a frequent contributor. Charles’ many honors include listing in the Best Lawyers of America (1991–present). He received at BA in government and economics and his LLB from the University of Texas after serving in the 381st Bomb Group in England during World War II, for which he received a Bronze Star.

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