Voir dire—French for “to speak the truth”—is the first opportunity a defense attorney has to interact with the jury directly in a criminal case. The second and final opportunity will be their closing argument. Everything else between the two are interaction between the court, the attorneys, and the witnesses.
It has been said that, “you make only one first impression.” That is true, especially in a courtroom when a defense attorney is conducting voir dire with prospective jurors—in Texas, a panel of usually 60 to 80 persons. That impression will either work to the attorney’s benefit or to their detriment during the rest of the trial proceedings. An attorney trying to secure a favorable first impression will have a limited time to accomplish the task, depending upon the judge and the nature of the case.
Acknowledging Biases of Potential Jurors
It is a daunting task for a defense attorney to secure a fair and impartial jury when faced with individuals randomly called to the courthouse to decide the fate of a defendant. Jurors often walk into the courtroom inclined to believe a defendant “must be guilty of something” simply because they are accused of a crime by indictment. This inclination is multiplied when a client comes to court carrying the burden of bias or prejudice or is charged with a crime that inflames the passions of the jurors.
Linda Lane, a Trial Advocacy Professor at the University Of San Diego School Of Law, explains the enormity of the first impression task facing criminal defense attorneys:
“In a juror’s eyes, you are the one that is perhaps single-handedly responsible for plucking her out of her happy existence and putting her in this courtroom. She received her jury summons weeks ago. She has been dreading this day. She has arranged coverage for other areas of her life. She may have even tried to post-pone it once, or twice. There are at least a dozen places that she should be instead of this courtroom. You are interrupting her life. You are an inconvenience. And she doesn’t trust you. She has heard the lawyer jokes. Your job as the attorney conducting voir dire is to begin the process of dissuading your jury of their preconceived notions of attorneys and becoming their trusted guide through the trial. This begins at voir dire. Truly, this begins the moment they first see you. Even if it’s in the parking lot before trial. They will watch how you treat others. They will watch how you treat the Court and its staff. They will especially watch how you treat them and their fellow jurors in voir dire. As soon as they are in the jury box, it is ‘us’ against ‘them.’ They have an instant bond with their fellow jurors and you are separate, you are ‘them’.”
The Texas Judicial Branch of government instructs the general public that “jury service is a privilege that offers the average citizen an unequaled opportunity to influence and deliberate over fundamental matters of justice. As a juror, you are in a position of responsibility. You will need to be fair, impartial, and be willing to make decisions that are not based on your personal feelings and biases.”
Jurors selected to hear and decide the case may ultimately reach that sense of duty and responsibility by the time of deliberations. On voir dire, however, prospective jurors are too consumed with their personal feelings and biases to think about fairness and impartiality. It is the defense attorney’s job to respectfully and with sincere courtesy nudge jurors toward their duty to be fair and impartial with the right questions in voir dire.
Challenges for Cause in Jury Selection
Under Texas jury selection protocols, an attorney has 10 challenges for cause to exclude jurors from the case. Article 35.16 of the Texas Code of Criminal Procedure list the following reasons why a challenge for cause may be made by either the defense or the prosecution:
- The juror is not a qualified voter in the state and county under the Constitution and laws of the state; provided, however, the failure to register to vote shall not be a disqualification.
- The juror has been convicted of misdemeanor theft or a felony.
- The juror is under indictment or other legal accusation for misdemeanor theft or a felony.
- The juror is insane.
- The juror has such defect in the organs of feeling or hearing, or such bodily or mental defect or disease as to render the juror unfit for jury service, or that the juror is legally blind and the court in its discretion is not satisfied that the juror is fit for jury service in that particular case.
- The juror is a witness in the case.
- The juror served on the grand jury which found the indictment.
- The juror served on a petit jury in a former trial of the same case.
- The juror has a bias or prejudice in favor or against the defendant.
- If the court, in its discretion, is not satisfied that the juror is impartial, the juror shall be discharged; if the juror answers in the negative, the juror shall be further examined as to how the juror’s conclusion was formed, and the extent to which it will affect the juror’s action; and, if it appears to have been formed from reading newspaper accounts, communications, statements or reports or mere rumor or hearsay, and if the juror states that the juror feels able, notwithstanding such opinion, to render an impartial verdict upon the law and evidence, the court, if satisfied that the juror is impartial and will render such verdict, may, in its discretion, admit the juror as competent to serve in such case. If the juror answers in the affirmative, the juror shall be discharged without further interrogation by either party or the court. To ascertain whether this cause of challenge exist, the juror shall first be asked whether, in the juror’s opinion, the conclusion so established will influence the juror’s verdict. That from hearsay, or otherwise, there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as would influence the juror in finding a verdict.
- The juror cannot read or write.
Article 35.16 gives the prosecution three additional reasons to make a cause challenge:
- The juror has conscientious scruples in regard to the infliction of the punishment of death for crime, in a capital case, where the State is seeking the death penalty;
- The juror is related within the third degree of consanguinity or affinity … to the defendant; and
- The juror has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment.
Article 35.16 gives the defense two additional reasons to make a cause challenge:
- The juror is related within the third degree of consanguinity or affinity … to the person injured by the commission of the offense, or to any prosecutor in the case; and
- The juror has a bias or prejudice against any law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof or of the punishment therefor.
Peremptory Challenges Cannot be Used to Discriminate
In addition to these cause challenges, the defense, as well as the prosecution, has 10 peremptory challenges they can use to challenge a prospective juror without giving a reason. However, Texas law and both the state and federal constitutions do not permit these challenges to be based on discriminatory factors such as race, ethnicity, religion, or sex. If the defense attorney believes the prosecutor has used a peremptory challenge for any of these discriminatory factors, they may make what is known as a “Batson Challenge”—the name comes from a U.S. Supreme Court case, Batson v. Kentucky, which declared it is unconstitutional for prosecutors in criminal cases to exercise their peremptory challenges in a discriminatory manner.
The Art and Science of Voir Dire and Jury Selection
It has been often repeated that a defense attorney must understand both the “art” and “science” of the law in conducting voir dire. The attorney must not only be skilled enough to recognize a Batson violation but know that a formal objection must be made to that violation in order to preserve it for possible future appellate review. Failure to timely and properly object will foreclose the issue from being heard on appellate review.
Batson Objection
Once a Batson objection is made by the defense, the prosecution must offer a race-neutral reason for exercising the challenge, and the court is not permitted to offer its own suggestion for the challenge. The Supreme Court has made these constitutional points binding in Batson challenges:
- An objection can be made to a first discriminatory strike: “Constitution forbids even striking a single prospective juror for a discriminatory purpose.”
- The defendant does not have to be a member of the as cognizable class as the juror.
- The defendant has the burden to show an inference of discrimination.
The following reasons given for a Batson strike are considered evidence of purposeful discrimination by the Supreme Court:
- The reason applies equally to white jurors the State has passed. Jurors don’t have to be identical; “would leave Batson inoperable;” “potential jurors are not products of a set of cookie cutters”
- The reason is not supported by the record.
- The reason is nonsensical or fantastic.
- The prosecutor failed to ask the juror any questions about the topic that the State now claims disqualified them.
- State’s reliance on juror’s demeanor is inherently suspect.
- A laundry list of reasons is inherently suspect.
- Shifting reasons are inherently suspect.
- State’s reliance on juror’s expression of hardship or reluctance to serve is inherently suspect (hardship and reluctance does not bias the juror against any one side; only causes them to prefer quick resolution, which might in fact favor the State).
- Differential questioning is evidence of racial bias.
- Prosecutor training and practices are relevant.
A trial court in Texas has broad discretion concerning proper voir dire, including the use of peremptory challenges. The Texas Court of Criminal Appeal has repeated help it will not overturn the trial court’s resolution of the Batson issue unless it determines that the trial court’s ruling was clearly erroneous. This judicial discretion continues to allow racial discrimination to infect the jury selection process, including allowing a prosecutor to use his peremptory challenges to exclude African-Americans from jury service because they sense a “vibe” (or a rapport) between defense counsel and these prospective jurors.
Judicial Deference Defeats Goals of Defense Attorneys
This type of abuse of judicial discretion defeats the three main goals a defense attorney must strive to achieve in voir dire. These goals were outlined in a 1993 SMU Law Review article by the famed jury selection expert Cathy E. Bennett:
“(1) to elicit information from jurors; (2) to educate jurors on the defense case while defusing the prosecutor’s case; and (3) to establish a relationship between the jurors, the defense attorney and his or her client.”
But defense counsel in Texas must be careful not to establish a “vibe” with juror because the prosecution can strike them with a peremptory challenge for that “vibe,” its race-based motive notwithstanding.
Voir Dire Most Important Stage of Fair Trial
Many attorneys believe that voir dire is the most important stage to achieve a fair and impartial outcome in a criminal trial.
We agree.
This reality imposes a duty on counsel to conduct a skilled and effective voir dire. That duty begins with defense counsel establishing, through investigation and discovery, a theory of the case. This theory can help shape questions asked prospective jurors. This is especially important because some studies have shown that nearly half of all people with prior jury service wrongly believed a defendant must prove their innocence.
Voir dire is a difficult forest to traverse. It is easy to get lost among the trees. But preparation is always a reliable guide.