How Jury Selection Works during a Texas Criminal Case

October 18, 2017

Most defendants and their families and loved ones have questions about jury selection in a Texas criminal case. Jury selection, or voir dire, is considered the most crucial part of the jury trial because it determines:

The jurors who will sit in judgment of the defendant in a trial.
The jury’s first impression about the issues involves.
The attorneys’ first opportunities to make positive or negative impressions upon the jurors.

This post concerns a brief description of the jury selection process in a Texas criminal case.

Jury Selection in Texas

Specific rules control the jury selection process in Texas. The jury is made of up 12 persons in a district court and six persons in county court. District courts hear felony cases while county courts hear misdemeanor cases:

Sixty to 80 people are called to serve on a jury panel in district court.
The judge provides opening remarks, instructions, and comments to the jury panel.
Both sides are provided with equal time—between 30 to 120 minutes—to query the prospective jurors.
Both attorneys may ask the judge to remove any prospective juror based on his or her answers. This is a challenge for cause.
Up to 20 members of the jury panel, or 10 on each side, will be excluded by the attorneys:
Texas attorneys are allowed to ask potential juror questions in order to determine if panelists may be challenged for cause or to discern whether the attorney should use a peremptory challenge.
If there’s a legal reason a prospective juror can’t serve on a jury, he or she may be challenged for cause. Commonly, a prospective juror is challenged because he or she is perceived as in favor of one side.
Each side has unlimited challenges for cause as long as the judge agrees with the bases for challenges.

Do you need assistance during the jury selection process?
Contact experienced criminal defense attorney Brett Podolsky today »

Peremptory Challenges

An attorney uses his or her right to challenge any prospective juror without the assignment (or the required assignment) of a reason for making a challenge:

In a felony trial in the state of Texas, both sides have 10 peremptory challenges.
In a misdemeanor trial in Texas, each side of the proceeding has three peremptory challenges.
It may be used for any reason, other than discriminatory factors such as the prospective juror’s race or gender.
For instance, if the prosecutor enters an inappropriate peremptory challenge, the defense lawyer may question his or her motives by making a Batson Challenge, named after a Supreme Court case that forbade the improper exercise of peremptory challenges.
If the defense counsel doesn’t make a Batson Challenge, the defendant in the case permanently loses his or her right to complain.
After the defense attorney enters a Batson Challenge, the prosecutor is required to provide a bias-neutral explanation for the challenge.

A peremptory challenge is made in secret. That is, the attorneys in the proceeding are aware of challenges only after they’re turned in to the court.

Jury selection is often a complex process. Successful jury selection involves both “art” and “science,” or deep knowledge of the law. A skilled defense attorney must possess both to properly defend his clients.

Jury selection rules in Texas

Attorneys must obey many rules during the jury selection process in Texas:

Neither the prosecutors nor defense attorneys may provide the jurors with facts concerning the case.
The attorneys can’t ask a juror how he or she would vote if certain facts were presented and proven.

Probing questions, called commitment questions, must be carefully worded. Improper commitment questions are against the rules.

Commitment Questions

Commitment questions are a common cause of mistakes in the jury selection process, such as when a defense attorney asks a prospective juror, “How will you interpret specific types of evidence?”

This is an example of an inappropriate commitment question. It’s up to the court to ensure that the defendant’s attorney is allowed to ask appropriate commitment questions—and forbid the prosecutor from making improper commitment queries.

Of course, it’s always proper for either side to determine that a juror will agree to follow the law.

Timing and Manner of Objections

The experience level of a criminal defense lawyer is extremely important:

If the defendant chooses an attorney who doesn’t object—or objects in the wrong way, or at the wrong moment—he or she won’t have the right to object to the question later.
Unfortunately, too many individuals are in prison today because their defense attorney didn’t object in the right way at the right time.
For this reason and others, many trials are lost or won during the jury selection process.

According to the Texas Bar Journal – State Bar of Texas, many young attorneys lack trial experience today. Although law firms do their best to prepare new attorneys for the realities of the courtroom in other ways, there’s really nothing like actual experience.

If you or someone you care about has been charged with a crime, realize your case is too important to entrust to an inexperienced lawyer. The harsh reality is that trial experience and credentials are extremely valuable and can make the difference between freedom and prison time. A board-certified criminal attorney has the invaluable knowledge you need to prepare for a trial involving a serious criminal matter.

Texas Grand Jury Selection and House Bill 2150

Governor Greg Abbott signed H.B. 2150 into law in June 2015. It went into effect on September 1, 2015.

Until the passage of H.B. 2150, Texas judges were required to select a jury commissioner to serve on a grand jury without input from others. For that reason, many referred to the practice as “pick-a-pal” or the “key man” system. These individuals sometimes tapped jurors to be summoned by the grand jury.

The practice is also outlawed in many other states across the nation because it’s perceived to lead to conflicts of interest and fails to represent the diversity of an individual community. In the past, members of the grand jury didn’t always represent a community’s broader perspectives.

Now, jury commissioners will be selected in a randomized process. Lawmakers believe this is much closer to the selection of the trial jury:

The Greater Houston Coalition for Justice praised H.B. 2150, saying that the bill promotes transparency in the criminal justice system.
Advocates at the University of Houston Law Center commented that H.B. 2150 should increase the number of persons willing to serve.

Harris County grand jurors are required to serve in three-month intervals. Each juror is asked to commit two days per week.

Role of the grand jury

A grand jury often plays a critical role in the criminal justice process. It is typically reserved for serious felony cases.

The grand jury differs from a criminal jury because it doesn’t determine the defendant’s guilt. Instead, the prosecutor’s office works with the grand jury to discern whether it should bring criminal charges or deliver an indictment against the defendant.

Under federal law and the laws of Texas, a grand jury of citizens is required to issue a felony criminal indictment. For that reason, steps taken by the defendant during the grand jury proceeding are vitally important. Reach out to an experienced criminal defense attorney as soon as possible.

Contact an Experienced Criminal Defense Attorney in Houston, TX

Realize that jurors are everyday people. They don’t check self-interests and biases at the courthouse cloakroom when they’re called for jury service.

It’s up to your criminal defense attorney to recognize potential jurors’ receptiveness to your case facts. Contact the Law Office of Brett A. Podolsky in Houston, TX at 713-227-0087 to schedule an initial case evaluation.