Section 10 of Article I of the Texas Bill of Rights guarantees a criminal defendant the right to an impartial jury.
Selecting an impartial jury is no minor feat. All prospective jurors who enter a courtroom for possible criminal jury duty bring with them personal biases, preconceived opinions, and a host of negative attitudes about crime and criminals. The prosecution naturally wants to select a jury prone to convict, while the defense seeks a jury receptive to impartial decision-making.
Selecting a jury in a criminal trial is known as voir dire. Many prosecutors and criminal defense attorneys consider it the most critical trial phase. Under Texas’ Government Code, Section 62.0132, prospective jurors summoned for jury service are required to fill out a “Juror Questionnaire” that provides the court and the counsels of record basic personal and background information about the prospective juror.
Prospective jurors are then assembled into a venire panel and questioned to determine their qualifications to serve on a jury. The judge and the attorneys then ask the potential jurors questions designed to assess their suitability for service. The process is more accurately described as deselection, as members are struck from the panel for various reasons, and those remaining make up the jury.
Either party may move to strike prospective jurors from the panel for cause or by using a peremptory challenge.
Amoung a host of other reasons, a challenge for cause can be based on a prospective juror’s disqualification because they have a bias in favor or against the defendant, a conclusion as to the defendant’s guilt or innocence, or have a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely. For example, a juror who believes a defendant’s failure to testify constitutes an admission of guilt, in violation of the Fifth Amendment, is subject to challenge for cause.
Both the prosecution and the defense also have what are called ten (10) peremptory challenges—a challenge that allows each side to strike a prospective juror from service without explanation.
Defense attorneys must be prepared for voir dire. The very purpose of voir dire for the defense is to identify prospective jurors who are unfair and biased and, therefore, incapable of rendering an impartial verdict. The American Bar Association, the Texas State Bar, reputable criminal defense attorneys, and legal scholars have all identified “tips” or “suggestions” that the defense can and should use in questioning prospective jurors. A synopsis of these includes but is not limited to the following:
- Establish some background with the juror: their occupations, media viewing habits, educational background, and socioeconomic status.
- Explore juror’s personal experiences: as victims of a crime, having family members who have been victimized by crime, or as participants in relevant litigation.
- Create discussion: get jurors talking about personal beliefs, such as the value of truth and honesty, their opinions towards crime, media coverage, and their feelings about certain kinds of criminal conduct.
- Ask open-ended questions: “why” questions or questions that seek personal views over questions that solicit a “yes” or “no” response.
- Watch, listen, and pay attention: pay close attention to everything the jury panel does. For example, how members interact with other members, their body language, manner of dress, and any reading material in their hands.
- Study juror vibes: some jurors will give defense counsel a bad vibe, just as some will generate a good vibe. Keep the bad vibe jurors in mind for a possible challenge for cause, and if cause does not exist, for a peremptory challenge.
- Talk to jurors individually: Encourage jurors to express themselves without being judgmental and listen intently to their answers. Communicate with the juror that you are genuinely interested in them as a person and appreciate their willingness to serve.
- Look for probable juror leaders: Jurors who, by job status or verbal skills or air of self-confidence, seem to have a “take charge” personality. These potential leaders should be pressed about individual biases and strongly held opinions.
The key to successful voir dire is preparation, attitude, and understanding of human behavior. Even with these precautions taken, there will be times when questioning a prospective juror when the person will make remarks or comments with the real potential to infect the entire jury panel with prejudice against a particular defendant. When this situation arises, the defense counsel may have no choice except to make a motion to the court to quash the entire jury panel.
Preserving error based upon a trial courts refusal to grant motion to strike for cause requires defense counsel to make the following showing:
(1) the trial court overruled a valid challenge for cause; (2) appellant exhausted his number of peremptory challenges; (3) one or more disqualified jurors sat in the case, and (4) the trial court denied appellant’s request for additional peremptory challenges or would have done so had they been requested.
Preserving error for appeal based upon a failed challenge for cause is vitally important.
The case of Juan Arnulfo Villegas illustrates the difficulty in preserving challenges for cause regarding individual jurors (and efforts to quash the entire panel). Villegas was being tried in a San Antonio court for three counts of indecency with a child when the prosecutor asked during voir dire, “What does a person look like who has committed child abuse? Sexual child abuse? What does that person look like? Anyone?”
Two prospective jurors answered “depressed” and “withdrawn” before one juror stood up and blurted out, “Something like him,” pointing toward the defendant. Defense counsel objected that this tainted the entire panel, and following a bench conference, the trial judge held the prospective juror in contempt and had him handcuffed and escorted from the courtroom. The trial judge then overruled the objection.
Following this extraordinary event, another prospective juror said for the entire panel to hear that “if they look guilty, they are guilty … that’s just it, so I don’t think I would be, you know, fair to the defendant.”
Defense counsel objected again, requesting a mistrial premised on the argument that the remarks had prejudiced the entire jury panel. The trial judge overruled this objection as well.
Villegas was convicted. He appealed to the Fourth Court of Appeals in San Antonio. He raised the issue of whether these inflammatory remarks infected the entire jury panel. The State argued that the point was not properly preserved because the defense did not request an instruction from the judge to cure the error by instructing the panel to disregard the inflammatory remarks. The appeals court did not directly answer these questions. Instead, the court ducked, finding:
“Thus, the issue is whether the remarks were so emotionally inflammatory that the seated jurors were influenced to the prejudice of the defendant.
The record is simply devoid of evidence that any juror on the panel was prejudiced or that any other juror held a similar opinion as either of the prospective jurors who made the statements.”
“The fact that venire member 45 was handcuffed and led away from the courtroom in contempt clearly indicated the court’s displeasure with the opinion expressed by venire member 45. Even without an instruction, the other jurors could have reasonably drawn on their own experiences to know that individuals who commit child abuse do not all look alike. Another venire member responded that a child abuser would look ‘normal’ immediately before venire member 45 made his comment. Furthermore, it does not seem probable that remaining members of the panel would have been so persuaded by the panelists’ statements to make them incapable of drawing their own conclusions.”
That is why preparation for voir dire is so essential. A defense attorney can never predict what will be said by a potential juror. Could defense counsel in Villegas have done anything differently?
Further questioning of the panel to lay the foundation that the entire panel had been prejudiced by the comments would have been necessary to sway the Court of Appeals.
The Villegas case is a prime example of the bias and personal baggage prospective jurors bring into the courtroom. It is vital to discuss this reality with prospective jurors and get a commitment from them that they will leave those biases and experiences outside the courtroom if selected to perform jury duty. It is a difficult task, but one that must be done head-on and without apology.