Criminal

Juror Disqualification in a Criminal Case

That the jurors be convicted of a misdemeanor or a felony — that’s a disqualification that cannot be waived by other party – that the juror is under indictment or other legal acquisition for a misdemeanor theft or a felony and someone who’s on differed adjudication right now, is considered under indictment.

So that’s another disqualification that can’t be waived. That the juror’s insane. I never gotten to use this one even though I have practiced this one even though I practiced in Travis County but there’s still time. Umm, that the jurors have a defect in the organs of feeling or hearing. Basically we are talking about medical conditions.

So this one has come up on fair number of basis where you get people who have ongoing medical concerns where people cannot sit for long periods of time that they have to use the rest room frequently. I kind of want those folks to go home just because they’re going to be distracted by other things. My father who is 66 years old and he lives in Granite Shoals, which is near marble falls and is a small community and because he is one of the few people who is not running a meth lab or convicted of a felony – he gets called for jury service a lot and he asked me, “how can I get out of his? Like I’m old, I don’t want to go there anymore”, and he was too young for the exemption and I so said, “Well! dad first id tell them what you think, you’re an awful juror, you think everyone’s guilty just because they’re sitting there and second, I’d tell them you’re part deaf. Which you are, you’re catching every second of third word umm you would probably qualify under this and they’d let you go home”. The main one we are working with is that the juror has a biased or prejudiced – in favor of – against the defendant. That’s where the bulk of your challenges are going to come from.

Common challenges for cause are going to be the type of case. DWI and sexual assault examples are going to be some of the examples that come to mind for names. So you’re going to get jurors who are affected by alcohol related incidents who just – for whatever reason – cannot put that aside and be able to sit on your jury. Sexual assault is a big one. Umm I read a horrible study that about 30% of your panel – has either been a victim of a sexual offense or they have a close friend and family member – and it’s important to fair those people out because of the type of case. And some of them will tell you right out – I can’t sit on this case. But it’s important to find those people. And let the jurors know when you’re dealing with that kind of issue – that they don’t need to give out specifics in front of their 17 new best friends – you just need to know – have you ever been affected by this – -then if you want to give details later we can approach the judge’s cabin.

Police officer credibility:

There are some people who would not believe that the police would lie under oath or any circumstances just by nature of the fact that they are police officers. So that is the potential challenge for cause.

Child witness credibility:

There are some people who would not believe that children would never lie or make up accusations. The defendant’s failure to testify, and then, finally, the ability to consider the full range of punishment. This is a big big area where I think lawyers miss out on challenges for cause. Over half of our challenges come from punishment related issues. And I’ll give you a couple more examples. We did a continuous sexual assault of a child trial and so umm out of a panel of 17 we had 15 strikes for cause and a bunch of them were punishment related. We got so deep into the panel that the State had to give up 7 parameterizes in order to go forward – and it ended up being a not guilty. And I was talking to the prosecutor later and he said, “I know why I lost that case. He said it was in the jury panel selection and I know I should have let that go and we could have come back for another round”.

This can only happen when you live in Austin but we were doing a super edge actual assault for under the age of 6 and the minimum was 25. We were asking the people – whether you consider the low end of the punishment range and given the age of the child. We had one lady raise her hand and she goes, “we can’t consider less than 25?” – “No ma’am, its statutory, 25 is the minimum”. And she goes like, “it’s not like he killed anybody”, so…and the prosecutor just looks at me and like…Yeah…you know…! So, But it’s important to phrase the questions when you’re doing challenge for cross questions on these issues. It’s important to phrase the questions in a way where it is easy to say – yes. So, giving you an example from child sexual assault cases – if you’re trying to get to the issue of people who believe that – children would never lie. You can start with something like this… some people feel that a child would never lie or make up an accusation like that. Who here agrees with that statement? And you’ll get people and you will follow up with them – why do you feel that way? — Once you get one juror then you can ask who else agrees with that statement and then go through those folks and start elevating them for cause. You want to find the other people on the other side too – get a discussion going on with your jurors – so does anyone here feel differently. In this type of case – you’re — the teachers are good people to pay off because they are around children and they know their children lie. So you can get a discussion going on with the jurors and you can start getting your theory of the case out there for the challenge of cause questions.

Francisco Hernandez

Author Francisco Hernandez

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