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Voir Dire






Voir Dire
Revised March 16, 2000
Walter P. Wolfram
Table of Contents
No Rehabilitation of Biased Juror

Bias Against Type of Suit Disqualifies

Harmless Rule Does Not Apply to Disqualification

Broad Latitude of Questioning Permitted

Question Seeking Juror’s Commitment Is Error

Question Whether Particular Evidence Will Influence Juror Is Error

Adequate Compensation Attitudes

Jurors Knowledge of Insurance Crisis

Evidence of defendant’s worth admissible

Preemptory Challenges Based on Racial Motivation Prohibited

Standard for Bias

Formula to Remove Challenged Juror

 

No Rehabilitation of Biased Juror. Bias or prejudice of a juror disqualifies him/her as a matter of law, and they may not be rehabilitated. Gum v. Schaefer, 683 S.W.2d 803, 808 (Tex.App. – Corpus Christi 1984, no writ). Lumberman’s Ins. Corp. v. Goodman, 304 S.W.2d 139 (Tex.Civ.App. – Beaumont 1957, n.r.e.); Flowers v. Flowers, 397 S.W.2d 121 (Tex.Civ.App. – Amarillo 1965, no writ); Erwin v. Consolvo, 521 S.W.2d 643 (Tex.Civ.App. – Fort Worth 1975, no writ). Bias or prejudice against a party disqualifies the juror under Texas Government Code § 62.105(4).

Bias Against Type of Suit Disqualifies. In Compton v. Henrie, 364 S.W.2d 179, 182 (Tex. 1963), the supreme court held that a bias or prejudice against a particular type of suit is a disqualification of a juror and that “bias or prejudice extends not only to the litigant personally, but to the subject matter of the litigation as well.”

Harmless Rule Does Not Apply to Disqualification. In Compton v. Henrie, 364 S.W.2d 179, 182 (Tex. 1963), the supreme court held that “in cases involving juror disqualification the complainant need not establish that probable injury resulted therefrom before a new trial may be granted.

Broad Latitude of Questioning Permitted. In voir dire examination, the litigant’s attorney should be allowed broad latitude in order to discover any bias or prejudice on the part of the potential jurors so that preemptory challenges may be intelligently exercised. Babcock v. Northwest Memorial Hospital, 767 S.W.2d 705, 708 (Tex. 1989). If counsel has reason to believe that a juror is directly or indirectly interested in the result of the trial to be had, he has a right to question the juror touching that interest. Greet v. Ligon, 190 S.W.2d 742 (Tex.Civ.App. – Fort Worth 1945, n.r.e.).

Question Seeking Juror’s Commitment Is Error. In voir dire, counsel may not seek an answer from a juror, the purpose of which is to indicate the juror’s views on certain facts and thereby commit the juror to certain views and conclusions. Campbell v. Campbell, 215 S.W. 134, 136 (Tex.Civ.App. – Dallas 1919, writ ref’d). Questions may not be asked which are designed to commit the juror to any course of reasoning in advance. Barry v. State, 305 S.W.2d 580, 165 Tex.Crim. 204 (Tex.Crim.App. 1957).

Question Whether Particular Evidence Will Influence Juror Is Error. In voir dire, it is error to seek answers as to whether particular evidence or facts will influence the juror. Campbell v. Campbell, 215 S.W. 134, 136 (Tex.Civ.App. – Dallas 1919, writ ref’d). Counsel may not ask jurors as to the weight the juror will give to any particular evidence. Rothermel v. Duncan, 365 S.W.2d 398 (Tex.Civ.App. – Beaumont 1963) reversed on other grounds 369 S.W.2d 917 (Tex.).

Adequate Compensation Attitudes. In voir dire, jurors may be asked if they can award in their answers to damages the amount of money they actually find even if they find that it is very substantial. See Rice v. Ragan, 129 S.W. 1148 (Tex.Civ.App. – San Antonio 1910, writ ref’d).

Jurors Knowledge of Insurance Crisis. In voir dire examination, jurors may be asked whether they have been exposed by hearing, reading or seeing comments and commentaries about a so-called “liability insurance crisis,” or a so-called “lawsuit crisis.” If there is an affirmative answer to that, then such juror may be asked to state whether or not those comments or commentaries have influenced the juror in any way whatsoever that would keep them from serving impartially and would keep them from serving with an open mind on this jury. Babcock v. Northwest Memorial Hospital, 767 S.W.2d 705 (Tex. 1989).

Evidence of defendant’s worth admissible. In a lawsuit seeking punitive damages in Texas, the Plaintiff may offer evidence of the defendant’s wealth and net worth. Lunsford v.  Morris, 746 S.W.2d 471, 473 (Tex. 1988) which held that “parties may discover and offer evidence of a defendant’s net worth,” in those cases where punitive damages are likewise sought. See also Miller v. O’Neill, 775 S.W.2d 56 (Tex.App. – Houston [1st Dist.] 1989, no writ).

Preemptory Challenges Based on Racial Motivation Prohibited.

a. In Powers v. Palacios, 813 S.W.2d 489 (Tex. 1991), the Texas Supreme Court held that a private litigant may not use a preemptory challenge to exclude a juror on account of race, relying upon Edmondson v. Leesville Concrete Co., Inc., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). The supreme court of Texas held: “We hold that equal protection is denied when race is a factor in counsel’s exercise of a preemptory challenge to a prospective juror. The apparent procedure for ascertaining whether that has been done, is for the complaining party to pose questions to opposing counsel to establish a racially discriminatory use of a preemptory to strike.

b. When a racial minority venireman is struck by a private litigant using a preemptory challenge, the burden is upon the striking party to justify that his or her exercise the preemptory challenge was not racially motivated. The exercise of such a challenge is presumptively discriminatory and it must be something more than the juror “didn’t appear to be quite that swift.”

c. Racial neutral explanations for exercising preemptory challenges on ethnic minorities include strikes based on a juror’s age, familial relationships, appearance during questioning, responsiveness to questions and background knowledge that might raise the possibility of bias. Failure to use all preemptory challenges against minority juror tends to support a finding of no discrimination. Moore v. Keller Industries, Inc., 948 F.2d 199 (5th Cir. 1991).

Standard for Bias. Shephard v. Ledford, 962 S.W.2d 28, 34 (Tex. 1998) held that “[a] prospective juror who admits bias or prejudiced is disqualified to serve as a juror. See Tex. Gov’t Code, § 62.105(4); Compton v. Henri, 364 S.W.2d 179, 182 (Tex. 1963).” One juror, when asked if she consider the facts objectively and in a neutral way replied, “I don’t think so.” The next juror said, “I feel the same way.” The second juror was disqualified.

Formula to Remove Challenged Juror. In Shephard v. Ledford, 962 S.W.2d 28, 34 (Tex. 1998), the supreme court set forth the formula for a reversal for a trial court’s refusal to disqualify a juror for bias or prejudice. The court held:

When a trial court refuses to disqualify a juror for bias or prejudice, the complaining party must show that the error was harmful. To do this, the party, before exercising its preemptory challenges, must advise the trial court that “the court’s denial of the challenge for cause would force the party to exhaust its preemptory challenges and, that after exercising its preemptory challenges, specific objectionable jurors would still remain in the panel.” Goode v. Shoukfeh, 943 S.W.2d 441, 442 (Tex. 1997); Hallett v. Houston N.W. Medical Center, 689 S.W.2d 888, 890 (Tex. 1985).

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