TTAP Ch. 2 - Jury Selection

Voir Dire Examination It is improper for counsel to ask a prospective juror a?

"Commitment to a verdict" question. Namely, counsel may not ask, "Are my facts so bad that you won't find for me?"

Qualifications When the prospective jurors report to the courthouse, the judge in charge may ascertain if each person is qualified for jury service. Each member of the jury panel must (Gov't. Code §§ 62.101-62.1041):?

1) Be 18 years of age or older. 2) Be a citizen of the state and of the county in which he is to serve. 3) Be qualified to vote in such a county. 4) Be of sound mind and good moral character. 5) Not have been convicted of misdemeanor theft or any felony and not be under indictment or other legal accusation for misdemeanor theft or any felony. 6) Not have served as a juror for six or more days during the preceding six months in a district court, or during the preceding three months in a county court, unless the county is so sparsely populated as to make the requirement seriously inconvenient to enforce. 7) Be able to read and write, unless the requisite number of jurors able to read and write and cannot be found in the county, in which case the judge may dispense with this requirement. Moreover, the requirement will be waived when the fact of a juror's illiteracy is not ascertained during voir dire or if no challenge for cause is properly asserted. Coca Cola Bottling Co. v. Mitchell, 423 S.W.2d 413, 418 (Civ. App.—Corpus Christi 1967, no writ).

Summoning and Empaneling Upon arrival, jurors must report either to:

1) To the specific court district court room or 2) To an independent or central jury room.

3-Step Process to Urging Batson Challenges (3rd Step) During the third step in the process, a number of factors should be used to determine whether the allegations of purposeful discrimination are true in fact, i.e., whether the explanation given for the strike was race-neutral or pretextual:

1) the statistical data pertaining to the peremptory strikes 2) A comparative analysis of the "black venire panelists who were struck and the white panelists who were allowed to serve," 3) whether a jury shuffle was used by the party making the challenge, and 4) contrasting voir dire questions posed to "black and non-black panel members."

Allocating the Number of Peremptory Strikes Each "side" gets 6 peremptory challenges in district court and?

3 peremptory challenges in county, JP, and federal court).

In re Commitment of Hill How does counsel preserve error when it believes the trial court erred when it denied counsel's right to ask a voir dire question?

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Preservation of Error Furthermore, what is the proper procedure for preserving error when a claimant's motion to equalize is overruled?

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Preserving Batson Complaints (Proper Timing) To preserve a Batson Complaint, by when must a claimant object?

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Standard of Review What is the standard of review that an appellate court utilizes to review a trial court's ruling on a Batson challenge?

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Tamburello v. Welch How should the lawyer raise the issue of allocating peremptories?

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Time Restrictions Is the trial court permitted to place reasonable time restrictions on voir dire examination?

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Summoning and Empaneling Notice is sent to each prospective juror on the jury list to appear on?

A certain date and time.

Peremptory Challenges A peremptory challenge is?

A challenge to a juror for which no reason needs to be given.

Hyundai Motor Co. v. Vasquez While counsel's latitude in voir dire is broad, the right is "constrained by reasonable trial court control." Refusals to allow lines of questioning during voir dire are reviewed under an abuse of discretion standard:

A court abuses its discretion when its denial of the right to ask a proper question prevents determination of whether grounds exists to challenge for cause or denies intelligent use of peremptory challenges.

Remedy for Batson Violation What are the remedies for a Batson Challenge?

A discharge of the jury panel and the selection of a new jury from a panel not previously associated with the case; or challenges and presumption of the jury selection process after reinstatement of the improperly challenged jurors.

Bias or Prejudice Probably the most common ground for the challenge for cause is a claim that?

A particular juror is biased or prejudiced against a party or the party's case.

Exemptions?

A person may claim an exemption by filing a signed statement of the ground of the exemption with the clerk of the court at any time before the date upon which that person is summoned to appear. Gov. C. § 62.107(a). Moreover, a person in a county employing the jury wheel system may file a sworn statement claiming an exemption with the sheriff, tax assessor-collector, or district or county clerk. No card for such person will be placed in the jury wheel for the ensuing year. Gov. C. § 62.107(b). The person may appear in court in response to a summons, then claim the exemption with the judge in charge.

3-Step Process to Urging Batson Challenges (1st Step) A prima facie case is established by?

A suspect pattern of strikes against members of a protected class. Must show suspect pattern of strikes (you must name class and identify the pattern)

Constitutionally Flawed Peremptory Challenge While the lawyer can generally strike any potential juror for any reason, certain reasons are improper under the United States Constitution. Scrutiny applied to discrimination:

Age, wealth, or education = Rational basis Gender or religion = Heightened scrutiny Race or ethnicity = Strict scrutiny

Interchangeable Juries and the Shuffle A judge cannot excuse a prospective juror for economic reasons, unless?

All the parties agree.

Patterson Dental Co. v. Dunn 4 to 1 disparity as a matter of law is improper because it?

Allows defense to pick the jury.

Alignment of the Parties In multiple party cases, it shall be the duty of the trial judge to decide whether any of the litigants aligned on the same side of the docket are?

Antagonistic with respect to any issue to be submitted to the jury, before the exercise of peremptory challenges. The co-parties must be antagonistic to get more strikes. The existence of antagonism is a question of law.

Multiple Parties on 1 Side Cases In determining how the challenges should be allocated the court shall consider

Any matter brought to the attention of the trial judge concerning the ends of justice and the elimination of an unfair advantage.

Hyundai Motor Co. v. Vasquez The scope of voir dire in Texas is broad, and counsel may generally ask?

Anything during voir dire examination.

Cortez v. HCCI-San Antonio, Inc. Many potential jurors have some sort of life experience that might impact their view of a case; we do not ask them to leave their knowledge and experience behind, but only to?

Approach the evidence with an impartial and open mind. A bias is disqualifying if "it appears that the state of mind of the juror leads to the natural inference that he will not or did not act with impartiality."

Rehabilitation If the prospective juror has pre-judgment, then he or she has?

Bias or prejudice.

Voir Dire Examination Other remarks and questions that are not permissible includes ones that:

Bring inadmissible information to the attention of the jury. Comment on the personal lives or families of the parties or their attorneys. Attempt to foster sympathy for or prejudice against a party. Attempt to commit the jury to a particular result. Attempt to preview a juror's likely vote by asking how jurors will respond to particular pieces of evidence.

Challenges for Cause Challenges for cause are made orally during voir dire. Challenges for cause are objections alleging some fact which?

By law disqualifies a juror to serve in the case or which renders the person unfit to sit on the panel in the opinion of the trial judge.

Challenges What are the three types of challenges for Voir DIre?

Challenges to the array Challenges for cause Peremptory challenges

3-Step Process to Urging Batson Challenges (2nd Step) During the second step of the process, the burden shifts to the challenged attorney to?

Come forward with a neutral legitimate explanation why peremptory strikes were exercised on the jurors who were struck.

Voir Dire Examination It is improper for counsel to ask a prospective juror if he or she has been?

Convicted or indicted of a felony, misdemeanor, or indictment.

3-Step Process to Urging Batson Challenges After the 3-step process, the court will?

Decide the result. The trial court must make the factual determination.

Multiple Parties on 1 Side Cases Motion to Equalize: In multiple party cases, upon motion of any litigant made prior to the exercise of peremptory challenges, it shall be the duty of the trial judge to?

Equalize the number of peremptory challenges so that no litigant or side is given unfair advantage as a result of the alignment of the litigants and the award of peremptory challenges to each litigant or side.

Hallett v. Houston Nw. Med. Ctr. How does counsel preserve error when it believes the trial court erred in denying counsel's challenge for cause?

Error is preserved only if a party uses all of his peremptory challenges and is thus prevented from striking other objectionable jurors from the list because he has no additional peremptory challenges. It is at this point that any harmful error occurs, i.e. "when the court is made aware that objectionable jurors will be chosen." Method of Making Challenges for Cause A challenge for cause must be made orally during the voir dire examination as soon as counsel believes that grounds have been established for disqualification. (TRCP 227, 229) The court is required to decide the challenge without delay. (TRCP 227)

Tamburello v. Welch When should the allocation decision be made? What can the trial court properly consider?

Existence of antagonism among multiple parties on same side of a lawsuit such as to authorize additional peremptory challenges must be determined prior to exercise of the strikes by the parties; trial court must consider the pleadings, information disclosed by pretrial discovery, and other information brought to attention of trial court, and information and representations made during voir dire of jury panel also may be considered.

Preservation of Error (Proper Timing) To properly preserve error, counsel must?

Follow the proper procedure at the end of voir dire questioning and before counsel begins to assign peremptory strikes.

Interchangeable Juries and the Shuffle While qualified, a prospective juror may be excused if?

He or she can meet an "exemption."

Preservation of Error If a claimant's motion to equalize is overruled, is it necessary to?

Identify objectionable juror that will remain.

Preservation of Error (Proper Timing) During this window of time, counsel would need to say something along the lines of . . . "We wish to note to the court that an objectionable juror(s) would remain even after exercising all of our peremptory challenges." Counsel would then have to?

Identify the juror(s) and make sure that it gets on the record. Suggestion: Get the trial court to introduce the juror information cards into the record, so that the appellate court can know who is who. Make sure you address the jurors by their name.

Tamburello v. Welch With regards to Tamburello, what is the meaning of "side?" What is the definition of "antagonistic?"

In order to move to equalize strikes, the co-parties on that side must be antagonistic. It is not necessary to show antagonism that the co-parties have claims against each other or seeking affirmative relief - a defensive position can create antagonism.

Patterson Dental Co. v. Dunn Proportionalizing the strikes may be accomplished by?

Increasing the number allotted a sole party on one side, by decreasing the number allotted the multiple parties on the other side, or by both.

Mechanical or Electronic System The commissioner's court of any county, upon written recommendation of the district judge or a majority of the district judges of the county, may adopt a plan for the selection of prospective jurors with the aid of?

Mechanical or electronic means instead of drawing names from a jury wheel.

Allocating the Number of Peremptory Strikes Definition of Side: The term "side" as used in this rule is not synonymous with "party," "litigant," or "person." Rather, "side" means?

One or more litigants who have common interests on the matters with which the jury is concerned.

3-Step Process to Urging Batson Challenges (2nd Step A legitimate reason, at this second stage of the Batson proceeding, "need not be persuasive or even plausible" but merely?

One that facially does not offend equal protection principles.

Interchangeable Juries and the Shuffle Before voir dire, a party can ask for a jury shuffle and have it?

Only once to shuffle jury.

3-Step Process to Urging Batson Challenges (1st Step) First, the complaining party must establish a prima facie case that?

Opposing counsel has engaged in purposeful discrimination through the use of peremptory challenges.

3-Step Process to Urging Batson Challenges (3rd Step) In step three, the objecting party has the ultimate burden to?

Persuade the trial judge that the allegations of purposeful discrimination are true in fact. At this stage, the court must decide whether opposing counsel gave a rationally neutral explanation for each of the challenged strikes and, if so, whether the explanation was truly race-neutral or merely a pretext for a racially motivated strike. At this stage, the objecting party may examine the voir dire notes of the opponent's attorney when the attorney relies upon these notes while giving sworn or unsworn testimony.

The "Jury Wheel" System Convicted felons and persons listed on a register of persons exempt from jury service may not be?

Placed in the jury wheel.

Bias or Prejudice Prejudice is more easily defined for it means?

Prejudgment and consequently embraces bias.

Powers v. Palacios Challenged juror's equal protection rights were denied when race was factor of exercise of peremptory challenge to?

Prospective juror in civil case.

Voir Dire Examination The purpose of voir dire is to interrogate?

Prospective jurors, in search of ascertaining whether they are qualified to serve. Counsel's goal is to ask relevant questions for the purpose of discovering whether prospective jurors have bias or prejudice towards counsel's client or case.

Davis v. Fisk Elec. Co. What is the Rule of Law in Davis?

ROL (preservation): must objection before petit jury is sworn and the remainder of the members are discharged. ROL (remedy): 1) discharge the entire panel; 2) disallowance of discriminatory strikes and presumption of selection process

Peremptory Challenges While the lawyer can generally strike any potential juror for any reason, certain reasons are improper under the United States Constitution when the sole motivation for exercising the strike is based on:

Race Ethnicity Gender

Rehabilitation If a juror's response indicates unequivocal bias, then the court may not attempt to?

Rehabilitate that juror and the juror must be dismissed as a matter or law.

Rehabilitation If a juror's response indicates equivocal bias, the court can attempt to?

Rehabilitate that juror by asking the juror if he or she can keep an open mind in the case and if the juror says yes, then the juror can be rehabilitated.

Bias or Prejudice A prospective juror will be disqualified to serve if bias or prejudice in favor of or against either of the parties can be?

Shown.

Bias or Prejudice Moreover, a disqualifying bias or prejudice may be directed toward the?

Subject matter of the litigation.

Batson Challenge The equal protection logic of Batson and its progency prohibits discrimination in the exercise of peremptory challenges based on race, and such strikes are?

Subject to strict scrutiny because classifications based on race are inherently suspect.

3-Step Process to Urging Batson Challenges (1st Step) The trial judge must then decide whether the complaining party has made a?

Sufficient primary facie showing of purposeful discrimination.

3-Step Process to Urging Batson Challenges (1st Step) A prima facie case is the "minimum quantum of evidence" necessary to?

Support the rational inference that counsel has used one or more preemptory challenges in a racially discriminatory manner.

Harmful Error To show the error was reversible, the claimant must satisfy the "materially unfair" test, by showing?

That the judgment against a party who suffered an adverse ruling was "materially unfair."

Preservation of Error The procedures for preserving the right to complain are different when the complaint is made about?

The apportionment of peremptory challenges from the procedures required when a challenge for cause is overruled improperly.

King v. Maldonado Mathematical equality is not the rule. "'Equalization' mean[s], in the words of the statute, an allocation 'in accordance with?

The ends of justice so that no party is given an unequal advantage because of the number of peremptory challenges allowed that party."

Harmful Error What is the "materially unfair test?"

The evidence was sharply conflicting evidence and hotly contested case (i.e. jurors could have gone either way).

Batson Challenge Standing to assert Batson Challenge: It is not necessary that a party have?

The excluded juror's racial background in order to make out a prima facie case of discrimination in jury selection.

Batson Challenge Claimant is alleging that?

The opposing party has engaged in purposeful discrimination.

The "Jury Wheel" System The "Jury Wheel" is?

The source of names of prospective jurors for each county in Texas.

Bias or Prejudice Bias must be more than an inclination toward one side than the other; rather, it must appear that?

The state of mind of the juror leads to the natural inference that the juror will not or could not act with impartiality.

Bias or Prejudice A determination of bias or prejudice is a question of fact for?

The trial court when the evidence is conflicting. But the existence of such bias or prejudice once established, disqualifies a juror as a matter of law and removes all discretion form the trial judge.

3-Step Process to Urging Batson Challenges (2nd Step) The reasons stated for the peremptory challenge cannot be expanded by?

The trial judge or an appeals court. If the stated reason does not hold up, a new reason that was never advanced by the party who made the peremptory challenge may not be used to justify the strike.

Ways to Strike Jurors on the Panel?

There is an unlimited number for challenges for cause, but a limited number of peremptory challenges. Challenges for cause: These challenges are not legally qualified. These are unlimited. Peremptory strikes: These strikes may be used for whatever reason. These are limited (3 in county and JP court; 6 in district court). The first twelve non stricken jurors comprise the jury

Tamburello v. Welch What is the proper method for allocating peremptory strikes when antagonism is found?

Threshold question to be answered in allocating strikes when multiple litigants are involved on one side of a lawsuit is whether any of those litigants on same side are antagonistic with respect to a question that jury will decide; where no antagonism exists, each side must receive same number of strikes, and when antagonistic parties on same side are required to share six strikes, it is error amounting to violation of basic right to trial by jury.

Interchangeable Juries and the Shuffle Ultimately, jurors are numerically seated and?

Voir dire begins thereafter.

The "Jury Wheel" System Statutes require that the source of names in the jury wheel must be:

Voter registration lists; and Lists showing the citizens of the country who hold a valid Texas Driver's License and the citizens of the county, other than persons who are disqualified from jury service, who hold a valid personal identification card or a certificate issued by the Department of public Safety. (NOTE: Failure to register to vote does not disqualify person from jury service).

Statutory Disqualification Grounds A person may be disqualified to serve as a petit juror in a particular case if he or she:

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 . . . 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 involving the same questions of fact.