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Voir Dire, Commitment Questions in Criminal Cases

Mar 14 2025
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Jury Selection, voir dire, is an inherent component of the Sixth Amendment right to a fair and impartial trial. It is also guaranteed by Section 10 of Article I of the Texas Bill of Rights. Selecting a jury in a criminal trial is known as voir dire. Both prosecutors and criminal defense attorneys generally consider it one of the most crucial trial phases.

Under Texas’ Government Code, Section 62.0132, prospective jurors summoned for jury service must fill out a “Juror Questionnaire” that provides the Court and the counsels of record basic personal and background information about the prospective juror. In most circumstances, a panel of prospective jurors called a venire panel is called together as a group and sworn before the trial judge. The judge and the attorneys of record can then ask the jurors questions designed to determine their suitability for service.

The importance of the voir dire questioning process has been recognized by the Texas Court of Criminal Appeals (CCA) for more than one hundred years. The Court said nearly 70 years ago that “one improper juror will destroy the integrity of the verdict.” However, the continuous problematic issue in voir dire lies in what distinguishes a proper question from an improper one posed to a prospective juror.

In 2001, the CCA in Standefer v. State attempted to establish a bench mark that distinguished proper questioning from improper questioning based on the general legal principle that neither the prosecution nor defense can attempt to bind or commit a prospective juror to a given verdict based on hypothetical situations.

An improper commitment question attempts to create a bias or prejudice in the venireman before he has heard the evidence, whereas a proper voir dire question attempts to discover a venireman’s preexisting bias or prejudice.

For example, defense counsel in Standefer, a DWI case, asked a prospective juror the following question: “Would you presume someone guilty if he or she refused a breath test on their refusal alone?”

The trial court found that commitment questioning to be improper voir dire.

In 1999, the Court of Appeals reversed the trial court, finding that the question was a proper attempt to determine if any of the prospective jurors had a predisposition toward guilt based on a refusal to take a breath test.

We agree with the Court of Appeals that such a predisposition would render a prospective juror either unable or unwilling to consider all the evidence to determine the intoxication issue.

There has always been a gray area between “yes” or “no” improper commitment questions and open-ended questions that seek information upon which to decide whether to strike a prospective juror.

The CCA in Standefer sought to add some clarity to this gray area. The Court formulated a two-step analytical approach for determining whether a voir dire question is proper: “(1) Is the question a commitment question, and (2) Does the question include facts — and only those facts — that lead to a valid challenge for cause? If the answer to (1) is ‘yes’ and the answer to (2) is ‘no,’ then the question is an improper commitment question, and the trial court should not allow the question.”

Many in the legal community believe the Court failed in the clarity endeavor with its two-step approach.

For example, writing in the St. Mary’s Law Journal (Vol. 37, No. 2, 2006), San Antonio attorney Esperanza Guzman explained the lasting confusion Standefer has wrought on the voir dire process:

“There has been a great deal of discrepancy over the types of questions that can be asked during the voir dire process. In 2001, the Texas Court of Criminal Appeals, in Standefer v. State, attempted to simplify the voir dire examination by instituting a test for determining which types of questions are proper. However, the Court’s attempt to simplify the process of differentiating between proper and improper voir dire questions has ‘muddied the issue’ for court participants, and has resulted in the deprivation of a criminal defendant’s Sixth Amendment right to a fair and impartial jury …

“Under Standefer, it has become more difficult to distinguish between proper and improper commitment questions. The following two questions demonstrate just how complicated it has become: (1) ‘Would you presume someone guilty if he or she refused a breath test on their refusal alone?’ and (2) ‘Could you find someone guilty upon the testimony of one witness?’ While both of these questions appear to commit the jury to a given proposition, only the first question is deemed improper under the two-prong test adopted in Standefer.

“The standard adopted in Standefer presents a threat to a fair and impartial jury because, in deciding which types of commitment questions are proper, the Texas Court of Criminal Appeals appears to be limiting the right to use a peremptory challenge—which is solidly grounded in the process of impanelling a fair and impartial jury.  In addition to restricting counsel’s right to use their peremptory challenges in the voir dire examination, it appears that defendants in civil cases are afforded more rights than defendants in criminal cases. This is because Standefer is limited to criminal cases; hence, there are no such limitations on the counsel’s right to use peremptory challenges in civil cases.

In essence, while the majority in Standefer attempted to simplify the practice of deciding which types of commitment questions are proper, the opinion seems to generate more confusion and results in a deprivation of the rights of criminal defendants …”

Commitment Questions in Sexual Assault of a Child Case

In McDonald v. State, this Court held that the State’s question to a venire panel—”Do you feel that children likely will make up sexual abuse or unlikely?”— was not a commitment question. 

McDonald was indicted for aggravated sexual assault of a child and the State’s case depended in part on the jury’s understanding of the “one witness rule” and the concept of “delayed outcry.” McDonald complained that the trial court erred by allowing the State to ask the venire panel, “Do you feel that children likely will make up sexual abuse or unlikely?”

The Court held that the question was not a commitment question because it “[did] not ask the venire members to resolve, or to refrain from resolving, an issue a certain way after being informed of a particular set of facts” but rather “merely ask[ed] the prospective jurors whether they [thought] it [was] likely or unlikely that children generally will fabricate allegations of sexual abuse.” citing Standefer, 59 S.W.3d at 179, and Vrba v. State, 151 S.W.3d 676, 678–79 (Tex. App.—Waco 2004, pet. ref’d)).

Not all commitment questions are improper. “Just because a question explicitly or implicitly seeks a commitment does not make it improper. If the commitment question would lead to a valid challenge for cause and contains the facts necessary for the challenge, then it is proper under Standefer.”

Trial courts have broad discretion in determining the line of voir dire questioning. This reality was made clear by the U.S. Supreme Court as far back as 1931. In at least two cases since, the Supreme Court reinforced this position:

  • Ristaino v. Ross: The trial judge “acted within the Constitution” when he declined a request made by a defendant on trial for a cross-racial crime of violence to question the prospective jurors about racial prejudice.
  • Mu’Min v. Virginia: “Petitioner in this case insists, as a matter of constitutional right, not only that the subject of possible bias from pretrial publicity be covered—which it was—but that questions specifically dealing with the content of what each juror has read be asked. . . . [W]e hold that the Due Process Clause of the Fourteenth Amendment does not reach this far [.]”

In a 2018 decision, Jacobs v. State, the Texas CCA reaffirmed these Supreme Court cases by re-emphasizing the trial court’s discretion to limit the parameters of voir dire, saying:

“[We have in the past] left open the possibility that some limitations of voir dire might violate an accused’s Texas constitutional right ‘of being heard’ by counsel. But even if this is so, we would not be inclined to construe that right as being more solicitous of voir-dire questioning than the constitutional provision that speaks most directly to this issue—the provision protecting an accused’s right to an ‘impartial jury.’ The reason for this is simple: ‘[i]f we were to associate any trial error relative to counsel’s ability to ensure the accused is ‘heard’ at trial, we would be forced to reach the illogical conclusion that nearly every error in a criminal case is of constitutional dimension because the error, in some measure, deprived the accused of his right to counsel.’ Any reason we might give for construing the right ‘of being heard’ to be more protective of defendant’s ability to pose questions in voir dire than his right to trial by an impartial jury could be applied with equal force to any number of federal or state constitutional protections. We are unwilling to go this far.

“So we do not question [our past] statement that ‘[t]here may be instances when a judge’s limitation on voir dire is so substantial as to warrant labeling the error as constitutional error subject to a Rule 44.2(a) harm analysis .’ But we wish to clarify that neither 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. While the right ‘of being heard’ under the Texas Constitution arguably affords some procedural advantages in voir dire that the Sixth Amendment does not, we will not construe the former to require more in the way of substantive questioning than the latter.”

Generally, we feel that the need for more specific information trumps whatever harm may be attributed to improper commitment. The law, however, doesn’t see it that way. That’s why voir dire, from a defense perspective, must be deftly handled, penetrating for as much relevant information as possible. It is vital to the guarantee of a fair, impartial trial.

 

 

 

 

 

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