Understanding the Jury Selection Process in Criminal Cases in Texas

The US Constitution’s Sixth Amendment provides that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state where the said crimes shall have been committed.” If you’ve been charged with any crime, you have the right to a fair trial. The selection of the jurors for your case is critical. Different jurors may decide cases differently. Often, just one juror can persuade the other jurors to decide whether you are not guilty or guilty.

The selection of the jurors who are most likely to be impartial and fair requires years of experience. It really is an art, based on a lawyer’s history of trying cases before juries in Texas.

At Mary Beth Harrell Criminal Defense and DWI Lawyers, you get a hard-hitting group of Killeen defense attorneys who help you take back control of your life, and the benefit of our experience when it comes to jury selection. We understand that selecting the best jury for your case involves a lot of legal and practical preparation before we even walk into the courtroom. We understand the laws that govern the selection process and the factors that indicate a juror is likely to give you a fair trial or to be biased against you.

Jury selection rules for Bell County

Jurors are selected from voter and motor vehicle registration databases. Twelve jurors are generally selected for a criminal jury in district court and 6 jurors in county courts. Bell County requires that jurors:

• Be at least 18 years old.
• Be a US citizen.
• Be a resident of Texas and Bell County.
• Be able to read and white.
• Not have a conviction (or an indictment) for a felony or a third-degree misdemeanor.

Questioning and challenging jurors in Central Texas criminal cases

Texas uses the voir dire process – a “preliminary examination of a witness or juror by a judge or counsel” – to help ensure that jurors are impartial, and that they’ll be fair and unbiased when deciding your case. Along with questioning potential jurors, defense attorneys and prosecutors can also challenge a juror for cause. (“Cause” means that the juror cannot be impartial.) The judge decides whether a challenge for cause should be granted.

The government and your defense lawyer can also use peremptory challenges, where the defense attorney of prosecutor does not have to explain why he or she objects to a particular juror. A peremptory challenge can be for any reason. It’s usually because your lawyer has concerns about the juror’s ability to accept your version of events or to be skeptical of the prosecution’s case.

The Texas Code of Criminal Procedure Chapter 35 governs the formation of a jury. For example, the number of challenges is set forth in 35.15 as follows:

• In cases where the prosecution seeks the death penalty, the government and the defense lawyers have up to 15 peremptory challenges. If there are multiple defendants, each side has 8 peremptory challenges.
• In felony cases and capital cases where the death penalty is not being sought, the prosecution and defense each have 10 peremptory challenges. If there are multiple defendants, each side has 6 peremptory challenges.

The number of challenges is lower for misdemeanor offenses.

The Batson challenge

Our Killeen defense lawyers understand that there are some limits to peremptory challenges, called “Batson” challenges, that provide some control over peremptory challenges. In short, a Batson challenge (so named for Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986)) indicates that a preemptory challenge has been used in a discriminatory way.

What factors do defense lawyers consider when questioning prospective jurors?

If defense lawyers don’t have grounds for challenging the juror for cause, then it is necessary for the defense lawyer to prioritize the jurors who are most likely to be fair jurors and submit peremptory challenges for the rest. In most criminal cases, the art of selecting jurors who will be more favorable to your defense includes the following considerations:

• Examining the juror’s background. We normally want to know what type of job the juror has, where he/she lives, and whether he or she has a spouse or children. For example, if a juror owns a retail store, then we may try to avoid that juror if you are charged with retail theft. We are looking to see if there are any indicators that a juror is close-minded or is willing to listen to all sides before making a decision.
• Whether a juror can influence jurors. Some jurors are more likely to lead a jury in one direction than more passive jurors. We may or may not prefer the more persuasive juror – if we think that juror is good for the defense. For example, a juror with a legal background or a public speaking job might be more persuasive than someone who doesn’t normally interact with the public.
• Social media accounts. Once we have the juror’s name, our team will examine the juror’s social media postings to try to determine how they might decide a criminal case.
• Experience with criminal activity. We can ask background questions to determine if a juror has ever been a victim of a crime, has law enforcement officers in the family, and so forth. What we cannot discuss is the current case. We also cannot ask the jurors how they might decide a hypothetical set of facts.

Other factors affecting a jury trial

Defense lawyers also take into account the type of criminal case, the judge who is hearing the case, and other factors when deciding which jurors to select and which jurors to avoid. Often, if the prosecution really likes a juror, then we probably won’t. (The reverse is also true.)

At Mary Beth Harrell Criminal Defense and DWI Lawyers, our Killeen criminal defense lawyers are skilled trial lawyers. We understand what questions to ask jurors, and how to build a jury that will be fair and just. The best strategy is to call an experienced criminal defense lawyer as soon as you are arrested. To speak with a seasoned defense lawyer, call us at 254-680-4655 or fill out our contact form to schedule an appointment at one of our offices in Killeen or Copperas Cove.