CHAPTER 9.I. Motion Authorities

• Jurisdiction: United States

I. Motion Authorities

A. Motion to Exclude Improper Voir Dire

1. Suggested Motion Text

(Name of Moving Party) hereby moves this Court for an order prohibiting counsel for (Name Party) from conducting any voir dire that relates to (Describe Anticipated Improper Voir Dire Questions, e.g., Educating the Jury on the State of the Governing Law in This Case). The motion is based upon the ground that (State Basis for Belief That Improper Voir Dire Will Occur, e.g., Opposing Counsel's Proposed Voir Dire Questions Listed Inappropriate Matters, Including a Description of the Pleadings and Statements of Law) and if allowed, would unfairly precondition the jury in this case.

2. Motion Summary

This motion is used to restrict counsel from asking improper questions during voir dire. The motion is based upon leading cases in this area. See Babcock v. Nw. Mem'l Hosp., 767 S.W.2d 705, 707 (Tex. 1989); Tacon Mech. Contractors, Inc. v. Grant Sheet Metal, Inc., 889 S.W.2d 666, 675 (Tex. App.—Houston [14th Dist.] 1994, writ denied); Gulf States Utils. Co. v. Reed, 659 S.W.2d 849, 856 (Tex. App.—Houston [14th Dist.] 1983, writ ref'd n.r.e.).

Note: Facts that might warrant a motion on this issue include past attorney misconduct, information on proposed voir dire questionnaires, comments of counsel, etc. Be prepared to back up your motion with a detailed declaration or consider making the motion orally at a sidebar during voir dire, if necessary.

3. Supporting Authorities

Texas Rule of Civil Procedure 230, states:

In examining a juror, he shall not be asked a question the answer to which may show that he has been convicted of an offense which disqualifies him, or that he stands charged by some legal accusation with theft or any felony.

Jacobs v. State, 560 S.W.3d 205, 210 (Tex. Crim. App. 2018) ("[A] trial judge has broad discretion in the manner it chooses to conduct voir dire, both as to the topics that will be addressed, and the form and substance of the questions that will be employed to address them.").

Jacobs v. State, 560 S.W.3d 205, 210 (Tex. Crim. App. 2018) ("[T]he Constitution does not always entitle a defendant to have questions posed during voir dire specifically directed to matters that conceivably might prejudice him. . . Instead, the State's obligation to impanel an impartial jury generally can be satisfied by less than an inquiry into the specific prejudice feared by the defendant.").

Jacobs v. State, 560 S.W.3d 205, 210 (Tex. Crim. App. 2018) ("[N]either the Texas constitutional guarantee of 'trial by an impartial jury' nor the Texas constitutional guarantee 'of being heard' by counsel grants a more expansive right to pose specific questions in jury selection than what is already guaranteed by the federal Constitution.").

Palacio v. State, 580 S.W.3d 447, 450 (Tex. App.—Houston [14th Dist.] 2019, pet. ref'd) ("The trial court has broad discretion over the jury-selection process.").

Evans v. State, 440 S.W.3d 107, 114 (Tex. App.—Waco 2013, pet. ref'd) (a trial court retains discretion to restrict voir dire questions that are confusing, misleading, vague and broad, or are improper commitment questions).

Contreras v. State, 440 S.W.3d 85, 88 (Tex. App.—Waco 2012, pet. dism'd, untimely filed) ("[T]rial judge may prohibit as improper a voir dire question that is so vague or broad in nature as to constitute a global fishing expedition.").

K.J. v. USA Water Polo, Inc., 383 S.W.3d 593, 601 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) (primary purpose of voir dire is to inquire about specific views that would prevent or substantially impair jurors from performing their duty in accordance with their instructions and oath).

McBride v. State, 359 S.W.3d 683, 689 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd) ("question [to the venire members during jury selection] is 'improper if it: (1) attempts to commit the juror to a particular verdict based on particular facts' (a commitment question), or (2) 'is so vague or broad in nature as to constitute a global fishing expedition.'").

Zavala v. State, 401 S.W.3d 171, 175 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd) ("[S]cope of permissible voir dire examination is necessarily broad to enable litigants to discover bias or prejudice so that they may make challenges for cause or peremptory challenges. . . . But questions that are not intended to discover bias or prejudice and instead seek only to determine how jurors would respond to the anticipated evidence and commit them to a specific verdict on that evidence are not proper.").

Dewalt v. State, 307 S.W.3d 437, 457 (Tex. App.—Austin 2010, pet. ref'd) ("[P]roper [voir dire] question is one which seeks to discover a venire members' views on an issue applicable to the case.").

Thompson v. State, 267 S.W.3d 514, 517 (Tex. App.—Austin 2008, pet. ref'd) ("[T]rial court may impose reasonable restrictions on the exercise of voir dire examination.").

Gulf States Utils. Co. v. Reed, 659 S.W.2d 849, 856 (Tex. App.—Houston [14th Dist.] 1983, writ ref'd n.r.e.) (improper during voir dire for attorney to comment on personal lives of families of parties or parties' attorneys).

Brown v. Poff, 387 S.W.2d 101, 104 (Tex. Civ. App.—El Paso 1965, writ ref'd n.r.e.) (attorney may not attempt to commit prospective juror to particular verdict amount).

Green v. Ligon, 190 S.W.2d 742, 746 (Tex. Civ. App.—Fort Worth 1945, writ ref'd n.r.e.) (trial judge may exercise sound discretion to impose reasonable limitations on scope of attorney's voir dire examination to prevent questioning on matters with only remote or tenuous connection to potentially relevant attitudes or biases or unduly time-consuming in light of potential for exposing significant prejudice).

Tex. & New Orleans R.R. Co. v. Lide, 117 S.W.2d 479, 480 (Tex. Civ. App.—Waco 1938, no writ) (improper during voir dire for attorney to attempt to foster sympathy for or prejudice against a party by appealing to prospective jurors to decide case on basis of comparative wealth of parties).

Campbell v. Campbell, 215 S.W. 134, 137 (Tex. Civ. App.—Dallas 1919, writ ref'd.) (attorney may not ask questions of prospective juror that would require juror to disclose personal views on particular issues and committing juror to certain views or conclusions; in will contest, improper for attorney to ask jurors if they would be influenced by testator's disinheriting certain family members).

Note: Counsel should also be sure to check the local rules for the jurisdiction in which the trial is heard, which may place additional restrictions on voir dire. For example, Rule 3.26 of the Harrison County Rules of Practice states that "all counsel with cases to be tried will be expected to take notice of the preceding voir dire examinations. Repetition of previous voir dire questions will not be permitted."

See also Rule 403 of the Texas Rules of Evidence, which states:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.

a. Preconditioning

Davis v. State, 349 S.W.3d 517, 518 (Tex. Crim. App. 2011) ("[A] commitment question is a question that commits a prospective juror to resolve or to refrain from resolving an issue a certain way after learning of a particular fact.").

Mims v. State, 434 S.W.3d 265, 271 (Tex. App.—Houston [1st Dist.] 2014, no pet.) ("[Q]uestions attempting to commit venire members to give mitigating or aggravating effect to particular facts are improper.").

Hawkins v. State, 278 S.W.3d 396, 401 (Tex. App.—Eastland 2008, no pet.) ("[I]t is impermissible to attempt to bind or to commit a prospective juror to a verdict based upon a hypothetical set of facts.").

In re Travelers Lloyds of Tex. Ins. Co., 273 S.W.3d 368, 374 (Tex. App.—San Antonio 2008, orig. proceeding) ("[V]oir dire inquiries may address bias or prejudice, but may not be used to address how specific evidence such as settlement offer evidence may affect a verdict.").

Tex. Employers Ins. Ass'n. v. Loesch, 538 S.W.2d 435, 442 (Tex. Civ. App.—Waco 1976, writ ref'd n.r.e.) (improper during voir dire for attorney to advise jurors of effect of answers on judgment).

Brown v. Poff, 387 S.W.2d 101, 104 (Tex. Civ. App.—El Paso 1965, writ ref'd n.r.e.) (attorney may not attempt to commit prospective juror to particular verdict amount).

Lassiter v. Bouche, 41 S.W.2d 88, 90 (Tex. Civ. App.—Dallas 1931, writ ref'd) (attorney may not attempt to commit prospective juror to amount of weight to give to particular piece of evidence).

i. Preconditioning on Issue of Amount of Damages

Brown v. Poff, 387 S.W.2d 101, 104 (Tex. Civ. App.—El Paso 1965, writ ref'd n.r.e.) (attorney may not attempt to commit prospective juror to particular verdict amount).

Tex. & New Orleans R.R. Co. v. Lide, 117 S.W.2d 479, 480 (Tex. Civ. App.—Waco 1938, no writ) (improper during voir dire for attorney to attempt to foster sympathy for or prejudice against party by appealing to prospective jurors to decide case on basis of comparative wealth of parties).

b. Educating Jury on the Law

Tex. Employers Ins. Ass'n. v. Loesch, 538 S.W.2d 435, 442 (Tex. Civ. App.—Waco 1976, writ ref'd n.r.e.) (improper during voir dire for attorney to advise jurors of effect of answers on judgment).

Robinson v. Lovell, 238 S.W.2d 294, 298 (Tex. Civ. App.—Galveston, 1951, writ ref'd n.r.e.) (trial court abuses discretion permitting counsel to advise jury of legal consequences of any of its findings).

Lassiter v. Bouche, 41 S.W.2d 88, 90 (Tex. Civ. App.—Dallas 1931, writ ref'd) (attorney may not attempt to commit prospective juror to amount of weight to give to particular piece of evidence).

c. Insurance References

A.J. Miller Trucking Co. v. Wood, 474 S.W.2d 763, 766 (Tex. Civ. App.—Tyler 1971, writ ref'd n.r.e.) (improper for attorney to inject subject of insurance into voir dire examination...