Why Challenges for Cause Aren't Enough

 Posted on March 06, 2009 in Uncategorized

In response to the blawgospheric discussion of peremptory challenges, Minnesota renaissance man Joel "Jdog" Rosenberg wrote:

As an outsider, I'm finding this discussion more than moderately interesting. I think it's (what passes for) conventional wisdom outside your trade that challenges for cause aren't particularly difficult to get judges to do that okay-thingee on.

In a criminal case in Texas (YMMV in the territories), either side may challenge a juror for cause for any of the following reasons (lifted wholesale from Texas Code of Criminal Procedure Article 35.16):

1. That the juror is not a qualified voter in the state and county under the Constitution and laws of the state; provided, however, the failure to register to vote shall not be a disqualification;

2. That the juror has been convicted of misdemeanor theft or a felony;

3. That the juror is under indictment or other legal accusation for misdemeanor theft or a felony;

4. That the juror is insane;

5. That the juror has such defect in the organs of feeling or hearing, or such bodily or mental defect or disease as to render the juror unfit for jury service, or that the juror is legally blind and the court in its discretion is not satisfied that the juror is fit for jury service in that particular case;

6. That the juror is a witness in the case;

7. That the juror served on the grand jury which found the indictment;

8. That the juror served on a petit jury in a former trial of the same case;

9. That the juror has a bias or prejudice in favor of or against the defendant;

10. That from hearsay, or otherwise, there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as would influence the juror in finding a verdict. To ascertain whether this cause of challenge exists, the juror shall first be asked whether, in the juror's opinion, the conclusion so established will influence the juror's verdict. If the juror answers in the affirmative, the juror shall be discharged without further interrogation by either party or the court. If the juror answers in the negative, the juror shall be further examined as to how the juror's conclusion was formed, and the extent to which it will affect the juror's action; and, if it appears to have been formed from reading newspaper accounts, communications, statements or reports or mere rumor or hearsay, and if the juror states that the juror feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that the juror is impartial and will render such verdict, may, in its discretion, admit the juror as competent to serve in such case. If the court, in its discretion, is not satisfied that the juror is impartial, the juror shall be discharged;

11. That the juror cannot read or write.

The second, third, and fourth grounds for challenge cannot be waived - a juror who admits having been convicted of misdemeanor theft, for example, cannot serve on the jury even though both sides consent.

The State can challenge a juror for three additional reasons:

1. That the juror has conscientious scruples in regard to the infliction of the punishment of death for crime, in a capital case, where the State is seeking the death penalty;

2. That he is related within the third degree of consanguinity or affinity, as determined under Chapter 573, Government Code, to the defendant; and

3. That he has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment.

The defense can challenge a juror for two additional reasons:

1. That he is related within the third degree of consanguinity or affinity, as determined under Chapter 573, Government Code, to the person injured by the commission of the offense, or to any prosecutor in the case; and

2. That he has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof or of the punishment therefor.

That's it. Many of these reasons can be objectively discovered. The reasons that criminal-defense lawyers and prosecutors most often find themselves wrangling over are partiality and "bias or prejudice".

It's hard for most of us to admit the biases and prejudices that we have, but unless a juror flat-out admits being partial to one side or being unable to follow the law, a judge has broad discretion to grant or deny a challenge for cause. For example, the court of appeals will defer to the trial court when a juror vacillates on her ability to follow the law that applies to the case. A lawyer has to jump through a couple of hoops to appeal the denial of a challenge for cause, which further decreases the likelihood that a court of appeals will correct a judge's denial of a challenge for cause. Unfortunately, many judges take into account, when making legal calls, the likelihood that they will be reversed when they should only be considering what is right.

Oddly, whether a challenge for cause is granted often depends on how many other jurors have been challenged for cause. When a judge looks at her list of 60 jurors and sees that 26 have already been struck for one reason or another, leaving 34 jurors, on whom each side may use 10 peremptory challenges (which rarely coincide), leaving a theoretical 14, out of which the judge wants to pick a jury of 12 with one alternate (after each side has used an eleventh strike on the pool of alternates), getting a jury picked appears improbable - the lawyers are likely to "bust the panel" - and the judge is less likely to grant the next challenge for cause.

I've even seen judges hold off on ruling on a challenge for cause until it's clear that enough jurors will remain to form a jury; that strikes me as dishonest - if a juror has provided sufficient cause to render her unfit to serve on the jury, she is unfit whether excusing her will bust the panel or not. Unfortunately again, some judges are jealous protectors of "judicial efficiency" - defined in Harris County as "getting the docket numbers down" - even at the expense of fundamental fairness.

Once a juror has made it clear that she will not follow the law, the judge has no business trying to cajole her into vacillating, saying the magic words, "I can follow the law." Doing so risks empaneling a juror who is willing to say the words to make the man in the black muumuu happy, but who still can't follow the law. Yet there are judges who will try to rehabilitate jurors who have clearly evinced a bias. And (as I've noted above) the judge's denial of a challenge for cause to such a juror will be upheld by the court of appeals, which will guide many judges' actions.

So yes, Joel, it can be very difficult to get judges to grant challenges for cause. The obstacles include people's reluctance to admit bias, the standard of review, and judges' love of efficiency. Add to those a judge's own possible bias (gasp!) toward (or even, conceivably, against) the State that signs his paycheck, and you can see why trial lawyers would want to hang on to as many peremptory challenges as possible.