Ten rules for great jury selection: with some lessons from Texas case law.

• Author: Harrison, Cliff

JURY SELECTION is the most difficult and intimidating part of the trial. It is intimidating because the trial lawyer must not, if he is to learn anything about the potential jurors, simply follow a prepared script. While preparation is crucial, such preparation must include anticipating and preparing for the unexpected. The trial lawyer's job, especially during jury selection, is not to talk, but to listen and to "feel." It is to "connect" by being open, thereby inviting the prospective jurors to do the same. Good, effective jury selection requires ten (10) things:

1. A complete understanding of the relevant case law governing jury selection, including limits on questioning, bases for strikes, shuffling and alignment matters, Batson and related issues, objections and preservation of error.

2. A complete mastery of the facts of the case, including, most importantly, those facts which present a problem for your side of the case.

3. A theme or story of the case that embodies the basic values of the community, and which clearly and emotionally says that your side is right and the other side is wrong. A winning theme must trigger the jury's sense of injustice.

4. A good familiarity with the basic demographics of the community, such as neighborhoods, socioeconomic levels, educational levels, types of employment, and even political leanings.

5. A plan which includes identifying and dealing with the problem areas of your case, and which identifies any bias or prejudice with respect to those facts, your clients, and the willingness of the potential juror to at least consider doing what you will ask them to do at the end of the trial. The plan must envision the types of questions you will ask, how and why you will ask them, anticipated objections, anticipated (and unanticipated) responses, and follow up questions.

6. Anticipation of the opponent's voir dire, including the types of objections that you wish to make.

7. A good understanding of human nature (we do not know nearly as much as we think we do.)

8. Experience.

9. Flexibility.

10. Confidence.

    The main purpose of jury selection is to discover any bias and prejudice against you, your client, or your case, and to provide you with the sufficient information to move to strike potential jurors for cause, and to enable you to make informed, intelligent (even though not always rational) peremptory challenges. To the extent that communication and the battle of credibility begins the moment the jury panel walks into the courtroom, a very legitimate goal of voir dire is to persuade, although "argument" of the case will not be allowed and is not advised. Early argument likely will be rejected by the jury panel, damaging your credibility. Your primary objective is to learn.

    Bias is "an inclination toward one side of an issue rather than to the other, but to disqualify, it must appear that the state of mind of the juror leads to the natural inference that he will not or did not act with impartiality. Prejudice is more easily defined, for it means prejudgment, and consequently embraces bias: the converse is not true." (1)

    1. Important Texas Cases

       The following cases provide a representative sample of the case law relating to voir dire from a jurisdiction with which I have some familiarity. Many of the issues raised by Texas law will apply equally in other jurisdictions.

       1. Cortez v. HCCI-San Antonio, Inc. (2)

          Cortez was a personal injury case against a nursing home. During voir dire, the plaintiff's attorney asked one of the panelists, an auto insurance adjuster, questions about his experience as an adjuster. The panelist told the attorney that his experience as an adjuster gave him some "preconceived notions." (3) He went on to state that he would "feel bias," since he had seen "lawsuit abuse so many times." (4) However, although he stated that "in a way ... the defendant was starting out ahead," he also stated that "I can't answer anything for certain." He went on to describe how he has seen cases with merit and without, and that he was "willing to try" to listen to the evidence and base his decision on the evidence and the law. (5) Plaintiff's motion to strike the panelist for cause was denied, and plaintiff appealed.

          As a threshold matter, the Supreme Court began its analysis by rejecting the notion that venire members cannot be "rehabilitated" once they have expressed bias. The Court stated:

          We disagree that there is such a rule, and to the extent these decisions [cited by plaintiff] conflict with our opinion here, we disapprove those cases. ... the proper stopping point in efforts to rehabilitate a venire member must be left to the sound discretion of the trial court. 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." (6) The Court held that the trial judge has discretion to permit further questioning even after a venire member has expressed what appears to be bias, and stated that "we see no reason to categorically prohibit further questioning that might show just the opposite or at least clarify the statement." (7) The Court cited its earlier decision in Goode v. Shoukfeh. (8) In Goode, the venire member admitted that he had a "slight bias" and was "leaning a little" toward the defendant and that the plaintiff was "starting off a little bit behind." (9) He then explained, however, that "both sides are pretty even" and "I can make my decision on the evidence that comes from the witness stand." (10) The Goode court affirmed the trial court's refusal to strike the venire member for cause.

          The Cortez court also stressed that challenges for cause do not turn on the use of "magic words." (11) Potential jurors may be disqualified even though they say they are "fair and impartial," and they are not necessarily disqualified simply because they admit to having a "bias" so long as the rest of the record shows that this is not the case. (12) In this case, the venire member stated that he was willing to listen to all the evidence and to withhold judgment until the entire case had been presented, and that he was "willing to try" to make his decision based upon the evidence and the law. Accordingly, the trial court was within its discretion to refuse to strike the venire member. (13)

          The venire member's statement that the defendants would be starting out ahead of the plaintiff did not, as a matter of law, indicate bias or prejudice. This was no more than an initial leaning and is not disqualifying "if it represents skepticism rather than an unshakable conviction. (14) The Court cited with approval Jim M. Perdue's A Practical Approach to Jury Bias, (15) which recommended that disqualification should turn on follow up questions such as "had you formed this opinion before you entered this courtroom?" (As opposed to a "leaning" based upon an argument of the facts.)

       2. El Hafi v. Baker (16)

          El Haft was a medical malpractice case, in which one of the jury panelists was a medical malpractice defense lawyer who agreed with leading questions that suggested he would relate to the defense lawyers but denied that the plaintiff would be starting out "a little bit behind." (17) He further explained that "he would do his best to be objective." The trial court denied the plaintiffs motion to strike the panelist for cause. In affirming the trial court's decision, the Supreme Court observed that the statements of the venire member were made merely so that the plaintiff's lawyer could intelligently exercise a peremptory challenge, and did not rise to the level of bias that would require disqualification, is

       3. Hyundai Motor Co. v. Vasquez (19)

          Vasquez was a products liability case against an auto manufacturer. The case arose from an accident in which a four year old child sitting in the front seat, unbuckled, was killed when the passenger side airbag deployed in a low speed accident. During jury selection, the plaintiff's attorney asked the jury panel whether the fact that the four year old child was not wearing her seatbelt would determine their verdict. Enough panelists raised their hand that the entire panel was disqualified and a second panel brought in. This time, the trial judge asked a very similar question, with the same result. The entire panel was disqualified. The trial court then instructed the plaintiff's attorney to ask "general questions about belting" and about the juror's personal seatbelt habits, but would not allow disclosure to the jury panel that the child was not wearing a seatbelt at the time of the accident. (20) A jury was chosen and, after a jury verdict for the defendant, the plaintiff appealed, maintaining that the trial court erred in not allowing the plaintiff to ask whether the potential jurors would be "predisposed, regardless of the evidence" against the plaintiffs because the minor was not belted. The Supreme Court held that the trial court did not abuse its discretion in refusing to allow questions that, in effect, sought to preview the verdict. (21)

          The Court stated that voir dire should address bias and prejudice as to parties" and types of cases, not the evidence of a particular case. (22) A party is not allowed to preview how a juror will decide or weigh a specific piece of evidence.

          If the voir dire includes a preview of the evidence, we hold that a trial court does not abuse its discretion in refusing to allow questions that seek to determine the weight to be given (or not to be given) a particular fact or set of relevant facts. (23) If the trial court allows evidence-specific questions, then "the juror's response, without more, is not disqualifying." (24) The trial court must decide whether the question is one seeking to uncover an external bias or seeking to test for possible verdicts based on case-specific evidence. (25) An external bias is one held by the juror before walking into the courtroom. (26)

    2. Conclusions from Texas Case...