TBJ JULY/AUGUST 2023

Voir Dire

A look at the Process and 10 Quick Tips for Success.

Written by David Brenner

As courtroom practitioners, we spend hours contemplating our trial strategy. From the minute our case first lands on our desk, we begin to formulate our theme. Through discovery, we obtain, organize, and identify our evidence. All in preparation for the dramatic unfolding of our case at trial. All with the hope that the 12, the jurors—those we charge to observe, listen, and decide—find our story compelling. However, even the greatest trial lawyer cannot succeed if and when he faces a jury who is biased from the onset.

Hopefully, we are cognizant of conformation bias and cognitive dissonance. People favor information that confirms their beliefs. When people display this bias, they gather or remember information selectively, or interpret what they hear in such a way as to confirm their bias. They tend to interpret ambiguous evidence as supporting their existing beliefs.

Voir dire examination protects the right to an impartial jury by exposing possible improper juror biases. Through voir dire, counsel or the court inquire about specific views that would prevent or substantially impair jurors from performing their duty in accordance with the court’s instructions and oath. The voir dire process is the only tool at our disposal that permits us to identify and root out potential venire members who would ignore our presentation from the outset.

The Process
Voir dire examination falls within the sound discretion of the trial court. Local custom may impact how the discretion is exercised. For example, in Central and North Texas, judges allow each attorney to perform their general panel questions and individual panel questions as they see fit. In South Texas, attorneys must ask general questions. Then after both sides complete general questions, attorneys are allowed to engage individual venire members about specific responses to the general questions.

In federal courts, most judges request counsel to provide written questions that the judge will evaluate and decide whether to ask to the panel. After the federal judge has completed voir dire, some allow limited time for attorney voir dire but rarely on written questions submitted but not asked.

Jury Shuffle
The venire panel should appear random. At times, however, the panel appears skewed by the panel’s age, sex, education, or other characteristics. At a party’s request, a trial court must grant a jury shuffle if one is timely requested. You must request the shuffle after the panel is assigned but before voir dire. Only one shuffle is allowed in each case.

Time Limitations
Frequently, trial courts limit the amount of time to conduct voir dire. If insufficient time is allowed, preservation of error requires clear identification to the court as to why and how the time limitations are insufficient, an identification of the areas of inquiry that the time limitations precluded you from making, and identification of the venire members you could not question based on the limitations.

In evaluating whether time limitations imposed in voir dire resulted in an abuse of discretion, the Texas Court of Criminal Appeals identified a three-prong test. First, did counsel prolong voir dire by asking irrelevant, immaterial, or superfluous questions; second, were the questions that counsel sought to ask proper voir dire inquiries; and third, did the jury include venire members whom counsel was not allowed to examine. This approach was adopted for civil cases.

Challenges for Cause
Generally, a challenge for cause may be made during voir dire or after its completion. One should always ask the trial judge at what stage of voir dire the judge will address for- cause challenges. Usually, a challenge for cause is based on the statutes governing the qualification of jurors, like the venire members’ bias, interest, or medical impairment, etc. However, a juror may be excused for other reasons. Counsel must elicit the disqualifying information from the challenged juror to challenge for cause. There is no limit to the number of challenges for cause.

Bias and/or Prejudice
Bias is an inclination toward one side of an issue rather than to the other, but to disqualify, it must appear that the juror’s state of mind leads to the natural inference that he will not act with impartiality. Prejudice is more easily defined, as it means prejudgment, and consequently embraces bias; the converse is not true.

Specific examples of for-cause application of bias or prejudice include bias against counsel; a predisposition against a witness; a refusal to apply the law applicable to a case; and a predisposition against a party, relation by consanguinity or affinity within the third degree to a party in the case, or previous jury service in the same case. Disqualification, as opposed to bias and prejudice, requires the venire member be dismissed.

Evidence and Rehabilitation
Traditional notions of the nature of voir dire for evaluating bias and prejudice have changed. Bias and prejudice cannot relate to the evidence that will be presented in a case and arguing your case during voir dire might destroy your ability to preserve error relating to the denial of a for-cause strike. For-cause challenges must focus on predetermination unrelated to evidence to be practical.

Rehabilitating expression of bias. In Cortez v. HCCI-San Antonio,¹ the Supreme Court of Texas evaluated whether a venire member could be rehabilitated after expressing bias. If the record, taken as a whole, clearly shows that a venire member was materially biased, his or her ultimate recantation of that bias at the prodding of counsel will normally be insufficient to prevent the venire member’s disqualification. However, statements of partiality may be the result of inappropriate leading questions, confusion, misunderstanding, ignorance of the law, or merely loose words spoken in warm debate. If the initial apparent bias is genuine, further questioning should only reinforce that perception; if it is not, further questioning may prevent an impartial venire member from being disqualified. Because trial judges are actually present during voir dire, they are “in a better position . . . to evaluate the juror’s sincerity and his capacity for fairness and impartiality . . .” When a venire person expresses bias or confusion, the trial court has the discretion to stop the line of questioning to clarify that person’s response.

One side starting ahead. Asking a venire member which party is starting out “ahead” is often an attempt to elicit a comment on the evidence. Asking which party is “ahead” may be appropriate before any evidence or information about the case has been disclosed. But when preceded by an attorney summarizing the facts of the case to the venire, a statement that one party is ahead cannot disqualify if the venire member’s answer merely indicates an opinion about the evidence. A statement that is more a preview of a venire member’s likely vote than an expression of an actual bias is no basis for disqualification because litigants have the right to an impartial jury, not a favorable one. Commitment questions. Asking prospective jurors what their verdict would be if certain facts were proved is improper. Fair and impartial jurors reach a verdict based on the evidence, and not on bias or prejudice. Voir dire inquiries to jurors should address the latter, not their opinions about the former.

Peremptory Challenges
After the conclusion of voir dire, a party may challenge jurors without assigning reason. This is the peremptory challenge.² The attorneys retire and exercise their peremptory challenges, and from their lists, the clerk designates the first (12 in district court, six in county court) who will serve on the jury. A peremptory challenge may be used for any reason other than on improper discriminatory grounds.

Number of Peremptory Challenges
Generally, each party is entitled to six peremptory challenges in a case tried in the district court and to three in the county court. Each side is also entitled to one additional peremptory challenge if one or two alternate jurors are to be impaneled. Each side may exercise two additional peremptory challenges if three or four alternate jurors are to be impaneled. The additional peremptory challenges may be used against an alternate juror only, and none of the normal peremptory challenges may be used against an alternate.

Batson Challenge
In Batson v. Kentucky,³ the U.S. Supreme Court held that a criminal defendant is denied equal protection under the U.S. Constitution if a prosecutor uses peremptory challenges to exclude members of the venire panel solely on the basis that their race is the same as the defendant’s. Batson applies to civil cases. Batson has also been extended to prohibit peremptory challenges solely based on sex. It should be noted that a pattern of discrimination is not necessarily limited to strikes against a protected class but can be applicable to a pattern of strikes against a particular race or sex, protected or not.

Procedure for Making Batson Challenge
To challenge an opposing party’s use of peremptory challenge for a discriminatory purpose, the party must lodge an objection as to the use of peremptory challenges before the jury is sworn and the remainder of the venire discharged. The objection triggers a threestage process. Step one: the opponent of the peremptory challenge must establish a prima facie case of racial discrimination. If no prima facie case is made for discrimination in the use of the peremptory challenges, the objection to the challenge should be overruled. During the second step of the process, the burden shifts to the party who has exercised the strike to come forward with a non-discriminatory explanation for why the juror was stricken. The issue for the trial court at this juncture is the facial validity of the explanation. Unless a discriminatory intent is inherent in the explanation, the reason offered will be deemed race-neutral for purposes of the analysis of step two. However, if no non-discriminatory explanation is offered for the strike, then the objection to the use of the strike should be sustained. During step three, the trial court determines if the party challenging the strike has proven purposeful discrimination, and the trial court may believe or not believe the explanation offered by the party who exercised the peremptory challenge. The burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the peremptory strike and is left to the trial court discretion.

10 Quick Voir Dire Tips

Voir dire is not an opening statement.
Do not ask factual commitment questions.
Always address the charge and its instructions.
Try to rehabilitate favorable venire members.
Always spend time on bias and sympathy.
Don’t preach! We need to hear the venire persons’ opinions; they don’t need to hear your opinions.
Avoid leading questions.
Do your homework about your venue and public sentiment may affect your case.
Object judiciously.
Bring help. It is difficult to take good notes when you are engaged in voir dire. ^TBJ

Headshot David Brenner DAVID BRENNER is a partner in Burns Anderson Jury & Brenner. He has a statewide practice in personal injury, civil trial, and appellate practice.

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