“The Right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency.”
-Texas Constitution Article I Section 15
It goes without saying that the right to trial by jury is a cornerstone of fundamental rights in this country. It was among the grievances cited in the Declaration of Independence and ensconced in both the Sixth Amendment to the United States Constitution and Article I of the Texas Constitution.
But how is that jury selected? There are as many opinions on the correct style and art to conduct voir dire (I won’t insult you by pointing out this is French for “To Speak the Truth”) as there are attorneys selecting juries. There are, however, specific rules on the qualification and disqualification of the persons who will be deciding our client’s fate. “The voir dire process is designed to insure – to the fullest extent possible – that an intelligent, alert and impartial jury will perform the duty assigned to it by our judicial system.” DeLaRosa vs. State, 414 S.W.2d 668, 671 (Tex. Crim. App. 1967).
No matter how you decide to talk to your venire, the attorney that knows the rules has the upper hand.
Qualifying the Juror
Qualifications for jurors are governed both by the Texas Government Code Chapter 62 as well as the Texas Code of Criminal Procedure Chapter 35. While the two can appear redundant, look back at the Government Code qualifications in conjunction with the Code of Criminal Procedure for additional authority to support your arguments.
The goal of jury selection is to select a jury of twelve persons in a felony case and six persons in a misdemeanor. Tex. Code Crim. Pro. §33.01. The Government Code lays out the general qualifications for a juror, while the Code of Criminal Procedure provides the mechanism to reject a juror who does not meet those qualifications. Tex. Gov’t. Code §62.102 & Tex. Code Crim. Proc. §35.16. General requirements for a juror are:
- At least 18 years of age;
- A citizen of the United States;
- Is a resident of this state and the county in which the person is to serve as a juror;
- Is qualified under the constitution and laws to vote in the county in which the person is to serve as a juror;
- is of sound mind and good moral character;
- is able to read and write;
- Has not served as a juror for six days during the preceding three months in the county court or during the preceding six months in the district court;
- Has not been convicted of a misdemeanor theft or of a felony; and
- Is not under indictment or other legal accusation for a misdemeanor theft or felony.
Tex. Gov’t. Code §62.102.
Three of those standards are absolute: if convicted of or under indictment for a misdemeanor theft or felony, or if they are insane, they cannot serve. Tex. Code Crim. Proc. §35.19. Every other qualification can be waived by the parties. Id. Yup, if everyone agreed, you could have a six-year-old on your jury.
Some things which you might assume would disqualify a juror are actually not disqualifications. A juror is not required to be registered to vote. Tex. Gov’t. Code §62.1031. Blindness and deafness are not a bar to jury service, unless a judge finds specifically that the disability renders them unfit to serve. Tex. Gov’t. Code §62.104 & §62.1041. Section 1041 even specifically requires reasonable accommodation for a deaf or hard of hearing juror, allowing an interpreter to accompany a juror during all proceedings and deliberations in a case. Id.
Other disqualifications to a specific case include if the potential juror:
- Is a witness in the case;
- Is interested, directly or indirectly, in the subject matter of the case;
- Is related by consanguinity or affinity within the third degree, as determined by Texas Government Code Section 573, to a party in the case;
- Has a bias or prejudice in favor of or against a party in the case; or
- Has served as a petit juror in a former trial of the same case or in another case involving the same questions of fact.
Tex. Gov’t. Code §62.105.
Aside from disqualifications, there are also exemptions from serving on a jury. A person who is otherwise qualified may establish an exemption if the person is:
- over 70 years of age;
- has legal custody of a child younger than 12 that cannot find adequate supervision of;
- is a student at a public or private secondary school;
- is enrolled in and in attendance at an institution of higher education;
- is elected to or employed by the legislative branch of state government;
- has served on a jury in the last 24 months in a county with a population of at least 200,0000;
- is the primary caretaker of a person unable to care for themselves;
- has served on a jury in the last three years in a county with a population over 250,000; or
- is a member of the US Military on active duty and deployed out of their county of residence.
Tex. Gov’t. Code §62.106.
A person can also establish a temporary or permanent exemption based on physical or mental impairment or an inability to understand English. Tex. Gov’t. Code §62.109.
Everyone wants to do jury service, right? No. And if you haven’t already, you will hear some amazing excuses at times. The court is allowed to excuse a juror with a sufficient excuse. Tex. Gov’t. Code §62.110. While these can be claims of exemption or lack of qualification discussed previously, they don’t have to be. The court or their designee may, for any reason except an economic reason, excuse or reschedule any juror who submits a statement of the exemption, lack of qualification, or excuse. Id. Prospective jurors can be excused for economic reasons, but only if each party of record is present and approves the release. Tex. Gov’t. Code §62.110(c).
Challenging the Array
What do you do if the entire panel was summoned against your client? “Either party may challenge the array only on the ground that the officer summoning the jury has willfully summoned jurors with a view to securing a conviction or an acquittal.” Tex. Code Crim. Proc. §35.06. A challenge to the array must be in writing and, if filed by the Defendant, must be supported by affidavit. Id. A challenge to the array is heard before any other qualification determinations. Tex. Code Crim. Proc. §35.06. If sustained, a new array is summoned. Tex. Code Crim. Proc. §35.09.
Seating & Shuffling your Venire
All of these qualification determinations are before we even get to talk to our venire. The disqualifications or exemptions are filed with the court or their designee or tested under oath by the court or their designee. Tex. Gov’t. Code §62.110 & Tex. Code Crim. Proc. §35.10. Depending on how your jurisdiction manages their jury summons, these qualifications may be done in the courtroom by the judge, in a central jury room, or even online before your potential juror even reports to the courthouse. Tex. Code Crim. Proc. §35.03.
After qualification questions by the Judge, but before the attorney’s questioning of the venire, either party can request that the jury panel be “shuffled”. The “Jury Shuffle” is not clear from the statute, but very well established in Texas jurisprudence. See Tex. Code Crim. Proc. §35.11; Alexander v. State, 523 S.W.2d 720, 721 (Tex. Crim. App. 1975) citing Woerner v. State, 523 S.W.2d 717 (Tex. Crim. App. 1975) “The right to have a jury panel assigned to a case redrawn is clearly provided for in Art. 35.11.” A “Jury Shuffle” may be demanded by either the State or Defense, but only one shuffle is required. Jones v. State, 833 S.W.2d 146, 148 (Tex. Crim. App. 1992 En Banc.). Failure to grant a motion to shuffle is reversible error, and no harm need be found. Id.
Once the venire is qualified, the disqualifications, exemptions, and excuses filed, your jury shuffled and is seated, and assuming there is no challenge to array, you may now begin your voir dire.
Conducting the Voir Dire
“The paramount concerns of jury selection and the laws governing is the ability for a defendant to exercise their preemptory challenges intelligently.” See Wappler v. State, 183 S.W.3d 765, 772 (Court of Appeals of Texas, Houston 1st Dist.) citing Smith v. State, 703 S.W.2d 641, 643 (Tex. Crim. App. 1985). “The right to question venire members to exercise preemptory challenges intelligently is an essential part of that Sixth Amendment guarantee.” Id. citing Franklin v. State, 138 S.W.3d 351, 354 (Tex. Crim. App. 2004); see also Gonzales v. State, 994 S.W.2d 170, 171 (Tex. Crim. App. 1999) (“[T]he right to pose proper questions during voir-dire examination is included within the right counsel under Article I §10 of the Texas Constitution”).
That does not mean there are no limitations on how voir dire is conducted. “Texas trial courts have broad discretion over the jury-selection process.” Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App 2002). Both the trial court’s discretion and established case law will limit what and how you can question your venire.
The first hurdle you may have to get over is how much time you will have to question your venire. Although it is unclear why anyone would need more than thirty minutes to question eighty-five people regarding guilt and innocence and punishment in a case involving sexual abuse, DNA, co-defendants, and police misconduct, some attorneys may find they want more time.
Time limits on jury selection deal with two competing rights: the constitutional right to question prospective jurors and a trial judge’s right to impose reasonable restrictions. McCarter v. State, 837 S.W.2d 117 (Tex. Crim. App. 1992) citing Naugle v. State, 40 S.W.2d 92, 94 (Tex. Crim. App. 1931); McManus v. State, 591 S.W.2d 505, 520 (Tex. Crim. App. 1979).
It’s well established that a trial court can impose reasonable limits on questioning and time. Id. citing McManus v. State, 591 S.W.2d 505, 520 (Tex. Crim. App 1980) (not abuse of discretion to disallow duplicitous question); Clark v. State¸608 S.W.2d 667, 669 (Tex. Crim. App. 1980) (trial court can set reasonable time limits); Abron v. State, 523 S.W.2d 405, 408 (Tex. Crim. App. 1975) (trial court can set reasonable time limits, restrict repetitious or vexatious questions, restrict questions asked in improper form, restrict questions directed at personal habits of jurors). Because it is a balancing of two rights, a trial court’s decision to limit voir dire is reviewed for abuse of discretion. Id. citing Smith, 703 S.W.2d 641, 643 (Tex. Crim. App. 1985).
Some time limits are too much. See E.g. Morris v. State, 1 S.W.3d 336 (Tex. App – Austin 1999) (45 minute time limit in Aggravated Assault case inappropriate); Cartmell v. State, 784 S.W.2d 183 (Tex. App – Fort Worth 1990) (20 minute time limit in DWI unreasonable). The central question is did counsel have enough time to intelligently question the venire? Look a little later in the paper for how to preserve error if your time is cut short.
In addition to the trial court’s discretion, the Court of Criminal Appeals has defined limits of what questions may be asked during Voir Dire. “A question is proper if it seeks to discover a juror’s views on an issue applicable to a case.” Barajas,93 S.W.3d at 39, citing Smith v. State, 703 S.W.2d 641, 643 (Tex.Crim.App. 1987). Questions which would be appropriate can become objectionable when they are either too vague or too specific.
With the touchstone of attempting to intelligently strike jurors, either preemptively or for cause, we need to make our voir dire questions specific enough to touch on the issues of our case. “[A] trial judge can exercise his discretion to prevent an improperly phrased question from being asked when it threatens to duplicate earlier questions, or presents so broad a question as to constitute a global fishing expedition.” Smith v. State, 703 S.W.2d 641,645 (Tex. Crim. App. 1985 overruled on other grounds).
The Smith case provides great examples of asking too broad or too narrow of questions. Mr. Smith’s attorney was relying entirely on the insanity defense at trial. Counsel’s question of the jurors about “their thoughts” on the insanity defense was found to be too broad. The Court found that to be a “general topic for discussion” and did not attempt a more restrictive question or direct the question to specific jurors based on prior answers. See Id. However, counsel’s question to the jury panel of “their idea of punishment” and “what they think its purpose should be” where his client was charged with murder and had filed for probation was proper. See Id.
Unfortunately, Smith was overruled by Easley v. State, which relegated limitations on juror questioning to non-constitutional harm analysis. Easley v. State, 424 S.W.3d 535 (Tex. Crim. App. 2014). Nonetheless, craft your questions to the theme and points in your case and object when the other side does not.
Too tight of a scope of question can draw and objection just as quickly as one that is too broad. Trying to nail a juror down to a specific answer may draw that terrible and confusing objection: a commitment question.
What is a commitment question? “Commitment questions are those that commit a prospective juror to resolve, or refrain from resolving, an issue a certain way after learning a particular fact.” Standfer v. State, 59 S.W.3d 177 (Tex. Crim. App. 2001). Not all commitment questions are objectionable. Id. at 182. To be objectionable, a commitment question must either (1) ask a commitment where the law does not require one or (2) provide facts in addition to what is needed to establish a challenge for cause. Id.
The Inappropriate Commitment
In the first scenario the problem is asking the juror to commit when it’s not appropriate. The question “Can you consider the entire punishment range in a murder case?” is a proper commitment question. However, the question “Can you consider my clients age in mitigation?” is not. A juror cannot be challenged for cause for failure to consider specific mitigation evidence. Raby v. State, 970 S.W.2d 1, 3 (Tex. Crim. App. 1998), cert. denied, U.S., 525 U.S. 1003 (1998).
The key is does a possible answer to the question lead to a valid challenge for cause? See Id. In the example above, no matter what the answer is considering your clients age, you cannot challenge the juror for cause.
Remember that as long as you’re not seeking commitment, you are not prohibited from exploring any number of issues. Consider these two questions: “Do you believe age can influences a person’s choices and actions?” vs. “Can you consider my client’s age when looking at his actions?” The first question is a information gathering question. It does not demand a commitment. Question two however…
Committing To Too Much
The second scenario is when the question adds too much to your commitment question. Look at a permutation of our appropriate commitment question on a range of punishment: “Can you consider the entire range of punishment in a murder case when the victim was a clown?” Now we have an additional fact: the identity of the victim.
“To be proper, then, a commitment question must contain only those facts necessary to test whether a prospective juror is challengeable for cause.” Standfer, 59 S.W.3d at 182. The Court in Standfer uses the example of the decision in Atkins v. State. There, the prosecutor asked prospective jurors if they could convict a person of possession of a controlled substance if the crack pipe in their pocket during arrest had residual amount of cocaine in it. Atkins v. State, 951 S.W.2d 787, 789
(Tex.Crim.App.1997).The additional facts of the arrest, the crack pipe, and the fact that it was in defendant’s pocket “rendered improper what otherwise would have been a proper question designated to assess whether a prospective juror was challengeable for cause.” Id.
To keep it in perspective, then, remember it’s ok to ask a juror to commit, as long as the law requires them to.
Not all examination of the venire has to be done orally. A well-crafted juror questionnaire can not only help with identifying specific jurors you want to zero in on and challenge for cause, but frequently will give you some information on that juror in the back you never got to while you’re doing your strikes.
There is no requirement that a judge allow or include the use of any questionnaire or a specific questionnaire. Remember that the trial court has very broad discretion in conducting voir dire that trial courts are given. Barajas, 93 S.W.3d at 38 (Tex.Crim.App 2002). If you get shut down, make your record as to how your inability to use the questionnaire inhibits your ability to effectively question the venire and exercise your preemptory challenges. Also make the case to your judge that the questionnaire will make voir dire go faster, since you’ll have to ask all those questions in person if you can’t do it on paper.
Even if a questionnaire is allowed BEWARE! You cannot rely on a questionnaire alone to challenge for cause. Gonzales v. State, 3 S.W.3d 915 (Tex. Crim. App. 1999). You must follow up with oral questions to establish a jurors answer. “[W]ritten questionnaires, while often helpful tools in conducting voir dire, do not constitute a formal part of the voir dire proceeding.” Garza v. State, 7 S.W.3d 164, 166 (Tex. Crim. App. 1999). A questionnaire can be an amazing tool for jury selection but can only go so far.
What do you do if you feel like your questions were inappropriately excluded, either by time or direct objection? To preserve error concerning the manner of voir dire, the record must reflect a question which the trial court has not allowed to be answered. Caldwell v. State, 818 S.W. 29d 790, 794 (Tex. Crim. App. 1991). It has to more than just a general question. “A question that is so vague or broad as to constitute a global fishing expedition is not proper, and fails to preserve error because it is impossible for a reviewing court to determine if the question is relevant and property phrased.”Id.
The abuse of discretion test for voir dire is three pronged: (1) whether the party attempted to prolong the voir dire; (2) whether the questions that the party was not permitted to ask were proper voir dire questions, and; (3) whether the party was not permitted to examine prospective jurors who actually served on the jury. Ratfill v. State, 690 S.W.2d 597, 600 (Tex. Crim. App. 1985). To preserve the error, the reviewing court will need enough information to answer those questions.
As a practical matter, to do this you will need to identify the person or persons you were unable to question, the specific questions that would have been asked, and that these persons actually served on the jury. This can be done either by dictating that information to the court reporter or by filling a bill of exceptions. But be careful! The timeliness requirement of objections requires that the trial court is made aware of objections or complaints at a time when there is an opportunity to cure or respond to the complaints. The “contemporaneous objection rule” is that an objection must be made at the first opportunity to do so. Tex. R. App. Proc. 33.1; Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997). Filing your bill of exception or dictating objections after a Jury is sworn will probably be too late. Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991).
Challenging the Juror
Let’s step back and remember why we are asking these questions: to intelligently exercise our peremptory challenges. See Smith, supra. There are three ways a prospective juror may be dismissed. The first is by agreement of the parties. Tex. Code Crim. Proc. §35.05. Second is to establish for the court that a potential juror is not qualified. Tex. Code Crim. Proc. §35.16. Finally, is to use one of the limited number of preemptory challenges afforded each side.
Challenges for Cause
A challenge for cause is established from a juror not meeting the basic qualifications discussed above or by showing some objectionable level of bias or prejudice. The sole finder of fact on the disqualification of jurors is the Judge. “The court is the judge, after proper examination, of the qualifications of a juror, and shall decide all challenges without delay and without argument thereupon.” Tex. Code Crim. Proc. §35.21.
Any juror may be dismissed for failing to meet one or more of the basic qualifications from the Texas Government Code or Code of Criminal Procedure noted above. “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.” Tex. Code Crim. Proc. §35.16(a). Additionally, the State may dismiss any juror within the third degree of consanguinity or affinity of the Defendant. Tex. Code Crim. Proc. §35.16(b). The Defendant may do the same for any person injured by the alleged offense, or to any prosecutor in the case. Tex. Code Crim. Proc. §35.16(c).
Remember that with the exception of having a pending misdemeanor theft or felony, being convicted of theft or felony, or being insane, any juror disqualification can be waived. Tex. Code Crim. Proc. §35.19; Mayo v. State, 4 S.W.3d 9, 12 (Tex. Crim. App. 1999). And even past insanity may not be enough! See Carter v. State 278 S.W.840 (Tex. Crim. App. 1925). In Carter, the Defendant found out after the trial that one of his jurors “had been duly adjudged a lunatic and confined in the insane asylum at Terrell…” Id. However, because there was no objection, and because the court did not clearly abuse its discretion in judging the juror sound of mind, there was no error. Id. You must lodge an objection to preserve an error for appeal.
Bias or Prejudice
In addition to the qualification issues for each juror “a prospective juror is challengeable for cause if he or she has a bias or prejudice against the defendant or against the law upon which either the State or the defense is entitled to rely.” Buntion v. State, 382 S.W.3d 58, 83 (Tex. Crim. App 2016), citing Tex. Code Crim. Proc. §35.16(a)(9) & (c)(2); Gardrner v. State, 306 S.W.3d 274, 295 (Tex. Crim. App. 2009). A prospective juror is disqualified if their bias or prejudice would substantially impair their ability to follow their oath to uphold the law. Id., citing Wainwright v. Witt, 469 U.S.412, 424 (1985).
Bias does not have to be proven with unmistakable clarity. Id. For a prospective juror to be excused for cause, the law must be explained to them, they must understand the requirements of the law, and they cannot overcome their prejudice well enough to follow the law. Davis v. State, 329 S.W.3d 789, 807 (Tex. Crim. App. 2010). The proponent for the challenge for cause has the burden to show their challenge is proper. See, e.g., Howard v. state, 941 S.W.2d 102, 128 (Tex. Crim. App. 1996); Harris v. State, 784 S.W.2d 5, 25 (Tex. Crim. App. 1989).
The flip side of a direct answer establishing bias is an evasive or vacillating venireman. Getting different answers or having a juror who is unable or unwilling to say that they can follow the law is a basis for cause. Riley v. State, 889 S.W.2d 290, 300 (Tex. Crim. App. 1993).
The central test for juror bias isn’t whether a person is influenced by their background or pre-conceived notions. If a prospective juror is consistent that they can put aside bias, even if it would be difficult or “violate their moral conscious”’, they are not challengeable for cause. See Id. The test if they are unwilling or unable to follow the law. See Id.
Remember the foundation of who is making the final decision. The trial court is given extreme deference since they are “in the best position to evaluate a venire member’s demeanor and responses.” Colburn v. State, 966 S.W.2d 511, 517 (Tex. Crim. App. 1998). An appeals court will review all the evidence for a challenge for cause, and only reverse on a clear abuse of discretion. Davis, 329 S.W.3d at 808.
Once a potential juror reveals a bias or prejudice, can they be brought back from being caused? The answer is maybe. The general rule is that once a bias or prejudice is established, the juror must be dismissed. Tex. Gov’t. Code §62.105(4); Tex. Code Crim. Proc. §35.16(a)(9). It is not discretionary.
The previous rule was once established, a juror could not be rehabilitated. Sullemon v. U.S. Fidelity & Guaranty Co., 734 S.W.2d 10, 14 (Tex. App – Dallas 1987, no writ). Even if a juror is “rehabilitated through the efforts of counsel or the court by stating that he would decide the case on the evidence and could be fair to both sides, the trial court must excuse the juror.” White v. Dennison, 752 S.W.2d 714 (Tex. App. – Dallas 1988), citing Gum v. Schaefer, 683 S.W.2d 803, 808 (Tex. App. – Corpus Christi 1984, no writ).
While not specifically overruling that standard, the Texas Supreme Court in 2005 essentially left the determination with the trial court’s discretion. Cortez ex rel. Estate of Puentes v. HCCI – San Antonio, Inc. 159 S.W3d 87 (Tex. 2005). In disapproving of the hard and fast rule of no rehabilitation, the Supreme Court in Cortez held that “trial courts exercise discretion in deciding whether to strike venire members for cause when bias or prejudice is not established as a mater of law, and there is error only if that discretion is abused.” Id. at 92. “If the initial apparent bias is genuine, further questioning should only reinforce that perception…”Id.at 93
So what to do if the Judge denies your perfect challenge for cause? “To establish harm for an erroneous denial of a challenge for cause, the defendant must show on the record that he used a preemptory strike to remove the venireperson and thereafter suffered a detriment from the loss of the strike.” Buntion v. State, 482 S.W.3d 58 (Tex. Crim. App. 2016). Preserving error in jury selection is a five step process: 1) make a clear and specific challenge for cause; (2) use a preemptory challenge on the complained of venire; (3) exhaust your preemptory challenges; (4) request and be denied additional strikes; and (5) identify an objectionable juror you were forced to accept. Id., citing Chambers v. State, 866 S.W.2d 9, 22 (Tex. Crim. App. 1993). Make a cheat sheet. Check your list. Don’t skip your steps.
Juror number twelve is giving your client the stink eye, but knows how to answer all of your brilliant cause questions and not get kicked. What to do? Bring out the peremptory challenge. “A peremptory challenge is made to a juror without assigning any reason therefor.” Tex. Code Crim. Proc. §35.14. These are your strikes to dismiss jurors who are not otherwise disqualified.
How Many You Get and How To Get More
The number of challenges given to each side is governed by level of offense being tried. A capital case receives fifteen strikes, non-capital felonies ten, misdemeanors tried in District Court five, and misdemeanors tried in the County Court, or County Court at Law, three. Tex. Code Crim. Proc. §35.15. If two or more co-defendants are tried together, a capital defendant receives eight strikes, non-capital felony six, and misdemeanors three each. Id. The State then receives equal strikes (e.g. two defendants with three strikes each equals six strikes for the State). Id.
If alternate jurors are to be used, both the State and Defense get one additional peremptory challenge if one or two alternates are to be used, two additional peremptory challenges if three or four alternates are used. Tex. Code Crim. Proc. §35.15(d). Those additional strikes can only be used on alternates, and your other strikes cannot be used on alternates. Id.
Additional peremptory strikes are discussed above with challenges for cause. An additional peremptory strike is granted to allow the judge “the opportunity to correct his error by granting additional peremptory strike to make up for the one that was wrongfully denied.” Comeaux v. State, 445 S.W.3d 745, 751 (Tex. Crim. App. 2014). Rule of thumb, you’ll never get more if you don’t ask.
Discriminatory Use (Batson)
Peremptory challenges are used any way one wants to, within limits. Either party “may strike any member of the venire panel for any reason (except a prohibited reason such as race or sex) or no reason at all.” Id. at 749. Strikes based on gender or race violate the equal protection clause of the fourteenth amendment. Batson v. Kentucky, 476 U.S. 79 (1986); Ladd v. State, 3. S.W.3d 547, 563 (Tex. Crim. App. 1999 overruled on other grounds).
To establish a Batson challenge, the party objecting must make a prima facie showing of discriminatory motives behind peremptory strikes. Herron v. State, 86, S.W.3d 621, 630 (Tex. Crim. App. 2002). Strikes in a pattern against a specific race or gender, along with statements during voir dire, may support or refute the inference of a discriminatory purpose. Batson, 476 U.S. at 97.
If the court determines a prima facie showing of discriminatory use of peremptory challenges, the burden shifts to the other party to provide a discriminatory neutral explanation for the use of their challenge. Id. The trial court will then make a determination if intentional discrimination has been shown. Id. The trial court must consider the entire record. Watkins v. State, 245 S.W3d 444 (Tex. Crim. App. 2008). The final determination is a fact question, and the trial court is given extreme deference in their findings. Id.
In addition to race, gender cannot be the basis for exclusion from jury service. JEB v. Alabama, 511 US 127 (1994); Fritz v. State, 946 S.W.2d 844 (Tex. Crim. App. 1997). Not all classes are protected from a biased peremptory strike. Batson’s foundation is equal protection analysis. Harkening back to law school days, some classes and groups receive more protection than others. “A violation of the Equal Protection Clause may occur when the government discriminates against the members of a class of individuals who have historically suffered discrimination, i.e., a “suspect” class, or when the government impairs the members of a class from exercising a fundamental right.” Casarez v. State, 913 S.W.2d 468, 473 (Tex. Crim. App. 1995).
Equal protection analysis does not apply to peremptory challenges of prospective jurors on the basis of religion. Id. at 472-74.Striking a juror for age is not prohibited. See Gerber v. State, 845 S.W.2d 460, 465 Tex. App.—Houston [14th Dist.] 1993, pet. ref’d.) While a juror may not be dismissible simply because of their disability, a rational explanation stemming from a disability is not prohibited. U.S. v. Harris, 197 F.3d 870 (7th Cir. 1999) (Dismissal of a juror with multiple sclerosis was proper due to medication making her tired).
The prohibition against peremptory challenges based on race is codified at Tex. Code Crim. Proc. §35.261. But don’t stop just at race. Batson does not apply to a challenge for cause. When a potential juror cannot follow they law, they can be precluded from jury service. See Staley v. State, 887 S.W.2d 885 (Tex. Crim. App. 1994). If, however, there is a discriminatory purpose behind the use of preemptory challenges it must be rationally related to a legitimate governmental interest. Casarez, 913 S.W.2d at 474. Watch how voir dire is conducted and preserve that discriminatory challenge if it appears to be harming your client.
So how do you do this? That is a question of style and far beyond my area to lecture on. If by the Colorado Method or psychodrama, rhetorical or scaled questions, lecture or looping, every person has their own style. If I have learned anything, it’s that while you can learn from every attorney you watch, you cannot be any of them. You need to find your style.
But while you’re doing that, keep the central tenants in mind: 1) The trial court is going to make the ultimate determination with wide deference; 2) The exclusion of a juror isn’t because they have a bias or prejudice, but because they cannot put it aside; and 3) harm for appeal only comes about if you have an objectionable juror on your case either because you had to waste a peremptory on anther, or got cut off and didn’t get to question that objectionable juror.
The rules of voir dire are not short and sweet. And every voir dire should be different for every case. Set your theme, convey your foundations, and seek out the jurors sympathetic to your case. It is the court’s job to find a neutral and unbiased jury. It is ours to advocate for our clients.