The Art of Voir Dire

Defense

In America, those facing criminal charges have the inviolate right to a jury trial. You may wonder, however, how these juries are selected. This is where voir dire comes in, which Merriam Webster defines as a preliminary examination to determine the competency of a witness or juror and which is a literal French translation for speaking the truth. The jury in your case will decide your fate in relation to said case, which can be exceptionally consequential, and this makes choosing the right jury exceptionally important. If you are facing a criminal charge of any kind, don’t delay consulting with an experienced Killeen criminal defense attorney.

The Jury’s Role

Ultimately, The Court of Criminal Appeals of Texas defines the voir dire process as being designed to ensure – to the fullest extent possible – that an intelligent, alert and impartial jury will perform the duty assigned to it by our judicial system. This is a tall order, and the truth is that the better your criminal defense attorney understands the voir dire process – and is invested in the art of voir dire – the better off you are.

The Juror Qualification Process

For felony cases, 12 jurors must be selected, and for misdemeanor cases, six jurors must be selected. The general requirements in the State of Texas for becoming a juror include:

  • The potential juror must be at least 18 years old.

  • The potential juror must be a citizen of the United States.

  • The potential juror must be a resident of the State of Texas.

  • The potential juror must be qualified to vote in the county in which the juror will serve.

  • The potential juror must be of sound mind and good moral character.

  • The potential juror must be able to read and write.

  • The potential juror must not have served as a juror for six days during the three months prior in county court or during the six months prior in district court.

  • The potential juror must not have a conviction for either a misdemeanor theft or a felony on his or her record and must not be under indictment – or another form of legal accusation – for either.

While that last standard regarding misdemeanor theft or felony and the issue of insanity are absolute bars to serving on a jury, the others can all be waived if both sides are in agreement.

Disqualifying Factors

Some factors that automatically disqualify potential jurors include the following:

  • If the potential juror is a witness in the case

  • If the potential juror is related to the accused in some capacity

  • If the potential juror has a direct or indirect interest in the case’s subject matter

  • If the potential juror has a bias or prejudice either for or against a party in the case

  • If the potential juror served as a juror in an earlier trial related to the same case or in another case that involves the same questions of fact

Juror Exemptions

In addition to being disqualified, potential jurors who would otherwise qualify can establish an exemption from service on a jury for any of the following reasons:

  • If the potential juror is over the age of 70

  • If the potential juror has legal custody of a child who is not yet 12 for whom he or she cannot obtain adequate supervision, or if the potential juror is the primary caretaker for someone who is unable to care for himself or herself

  • If the potential juror is a student at either a private or public high school

  • If the potential juror is a college student who is enrolled in and attends college classes

  • If the potential juror is either an employee of or an elected official in the legislative branch of Texas state government

  • If the potential juror served on a jury during the 24 months prior in a county that has a population of more than 200,000 people or served on a jury during the three years prior in a county that has a population of more than 250,000 people

  • If the potential juror is active-duty military and is deployed outside his or her county of residence

An exemption can also be established if the potential juror has a physical or mental impairment or is unable to understand English. Finally, it is important to note that the court has the discretion to exempt a potential juror for any excuse that it finds sufficient.

Challenging the Array Itself

If your criminal defense attorney believes that the entire panel from which your jury is intended to be selected is stacked against you, he or she can challenge the array itself – so too can the prosecution. The only ground for challenging the array, however, is that jurors were specifically summoned for the purpose of securing a conviction (or an acquittal in the case of the prosecution).

The Jury Shuffle

Texas is unique in many ways, and one of these ways is the jury shuffle. Once a jury panel is established, either side can request that they be shuffled, which means that their seating arrangement will be randomly reassigned.

On to the Voir Dire Itself

Once the jury panel is assembled, the voir dire process – in which both sides are allowed to employ their peremptory challenges – begins. Such challenges, however, are not without limitations. The trial court has considerable discretion in the matter, and case law also guides the proceedings.

Time Constraints

Your criminal defense attorney will only be allowed a specific amount of time to question the assembled potential jurors, and if your case is complicated – which most are – this time limit can be especially challenging. These time constraints are designed to balance the defense’s right to question potential jurors and the court’s right to impose reasonable limitations. Ultimately, the question becomes did your criminal defense attorney have the time he or she needed to adequately question the assembled panel of prospective jurors.

The Questions in Question

Your defense attorney does not have carte blanche when it comes to his or her questioning of the assembled jury pool. Questions are considered proper when they are intended to ascertain the potential juror’s views on issues that are relevant to the case. Questions that are otherwise considered appropriate, however, can be objectionable if they are deemed either overly specific or too broad. In other words, your attorney cannot go on what is commonly termed as a fishing expedition (as in fishing for information).

The Juror Questionnaire

Not all the questions asked of these potential jurors have to be in oral form. A well-conceived and well-written questionnaire can serve an important role in the process. A jury questionnaire can provide well-rounded information that can help fill in the blanks – especially in response to tighter than optimal time restrictions. It is important to note here that the court has broad discretion when it comes to rejecting or accepting a specific jury questionnaire. If yours is, however, struck down, your criminal defense attorney will likely make a case regarding its ability to effectively question the assembled potential jurors and its capacity to help make the process less time-consuming.

Challenging a Potential Juror

Ultimately, your criminal defense attorney will question potential jurors in an effort to knowledgeably exercise the peremptory challenges available to you. The three ways that a prospective juror can be dismissed during the voir dire process include:

  • Agreement to the dismissal by both sides

  • A demonstration to the court that the potential juror is not qualified

  • Use of one’s limited number of peremptory challenges

Some of the most common reasons for the dismissal of a potential juror include failing to meet basic qualifications as discussed above and exhibiting bias or prejudice.

Your peremptory Challenges

A peremptory challenge can be used to dismiss a potential juror without having any verifiable reason for doing so. Such strikes are extremely limited, however. Consider the following:

  • Misdemeanors are generally allowed three peremptory challenges.

  • Felonies are allowed ten peremptory challenges

  • Capital cases are allowed 15 peremptory challenges.

When co-defendants are tried together, each person charged with a misdemeanor receives three peremptory challenges, while each person charged with a non-capital felony receives six such strikes. Each capital defendant, on the other hand, receives 8. The prosecution receives the same number of strikes as the defense, and the following apply if alternate jurors are involved:

  • For one or two alternates, both the defense and the state get one additional peremptory challenge.

  • For three or four alternates, both the defense and the state get two additional peremptory challenges.

These additional strikes can only be used for alternates. While peremptory challenges can be used for nearly any reason – or for no reason at all – there are exceptions. Prohibited reasons include strikes from the jury that are based on the potential jurors’ race or sex. Further, a juror cannot be struck for his or her age. If there is a rational explanation for striking a juror with a disability, it will not be barred. For example, if the medication a prospective juror takes in response to his or her disability leaves him or her groggy, the dismissal may be deemed appropriate.

Considering Potential Jurors

When potential jurors file into a courtroom, they tend to assume that the person on trial has to be guilty of something – why else would he or she be in this predicament? Further, prospective jurors would generally rather be anywhere other than where they are – in a courtroom being put through their paces. Many of the potential jurors in any given panel have postponed the process at least one time, and they all have plenty of places they should be at the moment. Additionally, many had to jump through hoops to cover their bases at work and/or at home. These are the facts, and identifying those potential jurors who are going to warm to their civic duty and give the job at hand their all is the primary focus of voir dire.

Your Criminal Defense Attorney

It is your criminal defense attorney’s job to disabuse potential jurors of their preconceived notions and to help them move beyond legal stereotypes. Seasoned criminal defense attorneys recognize how important it is to connect with potential jurors and to help ensure that an us vs. them mentality does not take root (with your attorney representing them). In the end, serving on a jury is a privilege that allows ordinary people from every walk of life an unparalleled opportunity to play a critical role in fundamental matters of justice, but you should rest assured that most – if not all – of the potential jurors in your case fail to see it this way (at least in the beginning). Jurors shoulder an immense responsibility that involves putting aside their personal biases and feelings and remaining fair and impartial throughout the legal process. Your criminal defense attorney will help to ensure that the jurors in your trial recognize the immense responsibility and privilege involved and take the matter exceptionally seriously.

The Batson Objection

A Batson objection refers to an objection regarding the validity of the other side’s peremptory challenge based on it being discriminatory in relation to the potential juror’s sex, race, or ethnicity. All the following can be deemed evidentiary of purposeful discrimination in the matter:

  • The reason supplied is not supported by the record.

  • The reason supplied is fantastic or otherwise nonsensical.

  • The questioner failed to ask the potential juror any questions related to the topic that the side in question now claims disqualified him or her.

  • Reliance on the potential juror’s demeanor, which is considered highly suspect

  • Reliance on a long list of reasons, which is considered highly suspect

  • Reliance on reasons that shift, which is considered highly suspect

  • Reliance on the potential juror’s stated hardship or reluctance to serve, which is highly suspect (hardship and reluctance are not considered forms of bias)

An Experienced Killeen Criminal Defense Attorney Can Help

Brett Pritchard at The Law Office of Brett H. Pritchard in Killeen, Texas, is an accomplished criminal defense attorney who takes great pride in his impressive track record of successfully defending the legal rights of clients like you – through voir dire and well beyond. For more information, please do not hesitate to contact us online or call us at 254-501-4040 today.

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