Criminal Background

An insider’s view of Houston’s criminal courts with Murray Newman

Jury Selection and Strikes for Cause


Rick Casey had an article in Sunday’s print edition of the Chronicle outlining his recent experience with being a potential juror on a drug case in Harris County. I posted on why I think many of his assumptions about how Voir Dire works were wrong in this post on the other blog, but I did think it would be a good idea to explain how Strikes work in the jury selection process with this post.

In a typical felony jury trial, a court will order 65 potential jurors to be brought to court for the process of jury selection. The Judge, the Prosecutor and the Defense attorney will pose questions to those jurors, and at the end of the process, hopefully there will be 12 jurors ready to hear the case.

There are two types of ways a juror can wind up not being on a jury. He or she can either be struck for Cause, or be struck by a Peremptory Strike.

A Peremptory Strike is one that can be used for virtually any reason at all. One of the lawyers may not like a potential juror’s level of enthusiasm. They may not like the potential juror’s hair, eye contact, fashion sense, etc. As long as a Peremptory Strike is not based on race, religion, or gender, etc., the striking attorney can use it however they see fit.

In a Felony jury trial, each side gets 10 peremptory strikes a piece.

Strikes for Cause are slightly more complicated. These are strikes made based on a potential juror stating that there is some aspect of the law that he or she can not or will not follow. For instance, a potential juror who states that they will hold it against the Defendant if he doesn’t testify will be struck for Cause based on his inability to honor the 5th Amendment Right against self-incrimination.

Here are some other questions that can potentially get a juror struck for cause:

“Who here feels that they could not convict the Defendant unless there was some sort of physical evidence linking him to the crime?”

Under the law, testimonial evidence, if believed beyond a reasonable doubt, can be legally sufficient to convict someone. Prosecutors typically ask this question to weed out those CSI-watching jurors who are going to demand a fingerprint or some DNA before returning a guilty verdict.

“Who here could not consider the maximum punishment in an appropriate case?”

Again, a prosecutorial question designed to find out what jurors wouldn’t have the intestinal fortitude to hand down the maximum punishment if need be. A juror has to be able to consider the full range of punishment to end up on a jury.

“You must believe that the Defendant is guilty beyond a Reasonable Doubt, but how many of you would require the State to prove guilt beyond All Doubt?”

A prosecutorial question that helps get rid of the more wishy-washy prospective jurors who are going to make proving the State’s case nearly impossible. A juror must commit to holding the State to their Burden of Proof — nothing more and nothing less. An affirmative answer to this question raises the State’s burden.

From the defense side:

“How many of you would think that if my client doesn’t testify that it would mean he was guilty?”

As noted above, an affirmative answer to this question is going to be a violation of the Defendant’s right not to testify.

“How many of you have been affected by a crime like this to the degree that you could not give my client a fair trial?”

This one is pretty obvious on why it would be important to have a juror struck for Cause if they answered this question in the affirmative.

“How many of you would automatically believe the testimony of a police officer?”

You would probably be surprised to see how many jurors get struck for Cause because they believe if a policeman said it, it must be true. Defense attorneys are looking for jurors who are going to evaluate all witnesses based on what they say on the stand, and not because of the occupation they hold. If a juror is going to automatically give super-extra-credibility to a police officer just because they are, in fact, a police officer, they probably won’t be sitting in judgment on the case.

“How many of you could never consider probation, in the appropriate case, on a charge like this?”

As I noted above, a potential juror has to be able to, at least, consider the full range of punishment if they are going to serve on a jury. Many jurors can’t do that on the more serious cases like Aggravated Robbery and Sexual Assaults. If they can’t consider it, they can’t be on the jury.

These are just but a few of the questions that prosecutors and defense attorneys will ask a jury panel during voir dire. Many of the questions that are asked are specifically tailored to the case being tried. The idea is to get a panel that can follow the law as provided on the case, and then use peremptory strikes to remove those jurors that an attorney feels aren’t going to be helpful to his side.

It is often a grueling process, and the phrasing of these questions often make the difference between whether or not a Strike for Cause is granted by the Court or not.

Categories: General
Murray Newman

5 Responses

  1. JR123 says:

    Mr. Newman,

    In regards to the first question on your list, asked by prosecutors, why shouldn’t a juror feel it important for the state to prove their case with evidence that the defendant did the crime? Take for instance a rape trial, if the man’s DNA was not found on the woman making the accusation, how is that proof he did the crime? I mean if another person witnessed the rape, that would be pretty good evidence but if nobody did and there was no physical evidence, how could the state expect any juror to send a guy away to prison on someone’s word alone? It is the states job to prove guilt, not the defendant’s job to prove innocence….right?

  2. JR123,

    Think about the hypothetical situation where a woman is sexually assaulted by someone she knows. DNA is sometimes found in a case like that, but more often than not, it isn’t. There can be numerous (and graphic) details for why no DNA was recovered.

    The law just provides that if a juror heard the testimony of the Complainant AND believed her Beyond a Reasonable Doubt as to all the elements of the case that they could convict.

    I have tried more sexual assault cases than I care to remember during my time in criminal law. I think in all of those cases, only two of them had DNA evidence.

    Sure, it would be great if there was a physical evidence link, but what that first question is designed to figure out is whether or not a person would REQUIRE it or otherwise be completely unable to convict.

  3. ASeaton says:

    I always want the laws to be changed, just for one day, to let guys like JR123 and his ilk to get robbed in a dark alley with no witnesses, or beat up by a cop on a lonely highway with no witnesses, or to have himself get raped in his own house with–you guessed it–no witnesses. Then we’d see, of course, the caterwauling and backpedaling inherent after these sorts of foolish comments.

  4. JR123 says:

    Oh right and accusors never lie…..especially in rape cases right?

  5. ASeaton says:

    Not saying accusers never lie. I’m saying that when commenters say ridiculous things like “how could the state expect any juror to send a guy away to prison on someone’s word alone?” that it needs to be pointed out how ridiculous that statement is.

    Sounds like this is hitting a little close to home for you…