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JURY SELECTION Davis v. Fisk Electric Co., 268 S.W.3d 508 (Tex. 2008). Hyundai Motor Corp. v. Vasquez, 189 S.W.3d 743 (Tex. 2006). Cortez v. HCCI-San Antonio,

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Presentation on theme: "JURY SELECTION Davis v. Fisk Electric Co., 268 S.W.3d 508 (Tex. 2008). Hyundai Motor Corp. v. Vasquez, 189 S.W.3d 743 (Tex. 2006). Cortez v. HCCI-San Antonio,"— Presentation transcript:

1 JURY SELECTION Davis v. Fisk Electric Co., 268 S.W.3d 508 (Tex. 2008). Hyundai Motor Corp. v. Vasquez, 189 S.W.3d 743 (Tex. 2006). Cortez v. HCCI-San Antonio, Inc., 159 S.W.3d 87 (Tex. 2005). Goode v. Shoukfeh, 943 S.W.2d 441 (Tex. 1997). Patterson Dental Co. v. Dunn, 592 S.W.2d 914 (Tex. 1979).

2 Primary Purpose of Voir Dire “Voir dire examination protects the right to an impartial jury by exposing possible improper juror biases that form the basis for statutory disqualification. Thus, the 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.” Hyundai Motor Corp. v. Vasquez, 189 S.W.3d 743, 749 (Tex. 2006).

3 Voir Dire Within the Court’s Discretion “Of course, the rules of civil procedure contain no rule on voir dire, but a few can be gathered from case law. Among these are that voir dire examination is largely within the sound discretion of the trial judge and that broad latitude is allowed for examination.” Cortez v. HCCI-San Antonio, Inc., 159 S.W.3d 87, 92 (Tex. 2005).

4 Fact-specific opinions do not reveal bias “If the voir dire includes a preview of the evidence, 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. If the trial judge permits questions about the weight jurors would give relevant case facts, then the jurors' responses to such questions are not disqualifying, because while such responses reveal a fact-specific opinion, one cannot conclude they reveal an improper subject- matter bias.” Hyundai, at 753. "The relevant inquiry is not where jurors start but where they are likely to end." Cortez, at 93.

5 Preserving error on Motions to Strike “…to preserve error when a challenge for cause is denied, a party must use a peremptory challenge against the veniremember involved, exhaust its remaining challenges, and notify the trial court that a specific objectionable veniremember will remain on the jury list.” Cortez, at 90. But see, Escamilla v. State, 143 S.W.3d 814, 821 (Tex. Crim. App. 2004) (holding error in denying challenge for cause is harmful only if party (1) strikes that veniremember peremptorily, (2) exhausts peremptory strikes, (3) requests additional strikes, and if refused (4) identifies objectionable juror remaining on venire).

6 Showing Antagonism for Equalization of Strikes The antagonism must exist on an issue of fact, not law. Patterson Dental Co. v. Dunn, 592 S.W.2d 914, 918 (Tex. 1979). The trial court is not bound by the mere existence of cross claims or third party actions, but must consider the pleadings, pretrial discovery and other matters brought to the court’s attention, such as argument of counsel, statements made during voir dire, positions taken on motions in limine, admissibility of evidence, conflicting opinions of experts and insurance coverage. Pojar v. Cifre, 199 S.W.3d 317, (Tex. App.—Corpus Christi 2006, pet. denied).

7 Batson Challenges Race: Edmonson v. Leesville Concrete Co., 500 U.S. 614, (1991). Gender: J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994). Ethnicity: Hernandez v. New York, 500 U.S. 352 (1991); State v. Alen, 616 So.2d 452 (Fla. 1993); People v. Snow, 746 P.2d 452 (Cal. 1987); State v. Gilmore, 511 A.2d 1150, 1159 n.3 (N.J. 1986). Religion: Casarez v. State, 913 S.W.2d 468 (Tex. Crim. App. 1994). Age: State v. Willis, 293 N.E.2d 895, 896 (Ohio 1972).

8 Batson Procedures “The proceedings should be in open court, and the rules of evidence and procedure apply.” Goode v. Shoukfeh, 943 S.W.2d 441, 451 (Tex. 1997). The court should provide a reasonable opportunity to cross-examine opposing counsel about the reasons for striking panel members. Goode, at 452. “We hold that an Edmonson movant has the right to examine the voir dire notes of the opponent's attorney when the attorney relies upon these notes while giving sworn or unsworn testimony in the Edmonson hearing.” Goode, at 449. “The juror information cards may be made a part of the record by inclusion in the transcript or by a formal tender into evidence.” Goode, at 451. “Peremptory strikes may legitimately be based on nonverbal conduct, but…” Davis v. Fisk Electric Co., 268 S.W.3d 508, 518 (Tex. 2008).

9 Showing race-neutral reasons Counsel defended Batson challenge by stating could not “get a read” on potential juror and therefore “not comfortable” with person being on the jury. “We conclude that this assertion is not legally distinguishable from the cases holding that a "bad feeling" about a panelist is not an adequate race- neutral reason. It is too vague for a court to be able to judge its legitimacy because it is not based on any observable facts, so it is not legally distinguishable from a general denial of discriminatory intent.” Moeller v. Blanc, 276 S.W.3d 656, (Tex. App.—Dallas 2008, pet. denied).

10 Questions that can’t be asked in voir dire Rule 230 Certain Questions Not to Be Asked 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. A.General Qualifications for Jury Service A person is disqualified to serve as a petit juror unless the person:... (7) has not been convicted of misdemeanor theft or a felony; and (8) is not under indictment or other legal accusation for misdemeanor theft or a felony. Tex. Gov't Code § (2007).


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