Can Texas Criminal Defense Lawyers Rely Upon Jury Questionnaires in 2020?

The Aftermath of Fort Worth Court of Appeals Decision in Badger

Here in Texas, jury selection begins down in Austin.  The Secretary of State’s Office combines (1) each county’s list of registered voters with (2) those whose residence address on their Texas Driver’s License or Texas Identification Car is within the county’s jurisdiction, according to the Texas Department of Public Safety.  A joint list is prepared for each county in the state.

This list, called the county’s “jury list” or “jury wheel,” is sent to each county.  It is updated every two years or so.

It All Begins With the Jury Wheel

From the county’s “jury wheel” comes everyone who may be called into service as a juror in either a civil or criminal matter.  It’s a big list.  Dallas County’s jury wheel has around two million names, for example.

From the jury wheel, an official “summons” is issued to each prospective juror.  The jury summons give information on where the individual is to report for jury duty, as well as the date and time.  It gives contact information for questions, parking validation, and provides a juror badge.

Importantly, the Dallas County jury summons also includes the juror affidavit questionnaire.  The juror questionnaire can be completed online or returned by mail.  In Tarrant County, potential jurors may be given a questionnaire once they enter the Tim Curry Justice Center central jury room.  Alternatively, they may be handed a juror questionnaire until they are selected on a jury panel and sent to a particular courtroom.

The Juror Questionnaire Form

There is no standardized juror questionnaire form serving all of Texas. Forms can vary around the state.  However, the reason for asking potential jurors to complete a questionnaire is the same:  it is to help both sides (prosecutor and defense counsel) in the jury selection process.  Accordingly, jurors must swear the information provided in their answers to the questionnaire is truthful and accurate.

Potential jurors will be asked questions based upon these completed questionnaires in “voir dire,” where attorneys on both sides ask each person specific questions in order to decide whether or not there is a reason they should not serve on this particular jury.

What is Voir Dire?

In voir dire, a potential juror is called to the witness stand by the court clerk and sworn in before the judge.  Afterwards, the prosecutor and the defense attorney will question the individual.  These questions will be based upon the person’s completed, sworn answers to their juror questionnaire.

Each side will get to opportunity to strike potential jurors for cause or based upon a peremptory challenge.  In a Texas felony case, each side gets ten (10) “peremptory challenges,” where the lawyer can decide against someone being on the jury without explaining his or her reasons for doing so.

Both the ADA and the defense attorney will have been given time limits to ask their questions by the judge and decide which potential jurors to strike.  Particularly in criminal trials, judges are very concerned with time and scheduling.  It has been my experience that the judge will limit each side to one hour or so for their voir dire (usually; it can vary).

Of course, trial strategy is already in play at this point.  The ADA always wants the defense to waste as much time as possible on voir dire.  At the same time, the prosecutor will be tempted to do the state’s voir dire and then do the defense’s voir dire for them. (I call this the ‘filibuster voir dire’).   So, it’s important to the defense lawyer that the judge sets those voir dire time limits.

More on time limits, below.

Importance of the Jury

Obviously, choosing jurors to serve in a criminal jury trial is extremely important.  Some trial lawyers will argue that jury selection is the most important step in the criminal trial process.  The jury will decide guilt or innocence.  In Texas, juries are given the power of choosing life or death in capital cases where the prosecutor is asking for the death penalty.

Our founding fathers established the importance of the jury trial in our justice system.  The Constitution guarantees every criminal defendant his right to trial by a jury of his peers.  As the Supreme Court of the United States (SCOTUS) has explained, not only is the right to a jury trial guaranteed by the Sixth Amendment, it is “so basic in our system of jurisprudence” that it is also protected against state action by the Fourteenth Amendment.  Duncan v. Louisiana, 391 U. S. 145, 149 (1968).

Jurors are to be selected to judge the criminal matter who are not biased or pre-disposed to a certain result and are representative of the local community.  Again, from SCOTUS:

“Trial by jury presupposes a jury drawn from a pool broadly representative of the community as well as impartial in a specific case. . . . [T]he broad representative character of the jury should be maintained, partly as assurance of a diffused impartiality and partly because sharing in the administration of justice is a phase of civic responsibility.” Thiel v. Southern Pacific Co., 328 U. S. 217, 227 (1946) (Frankfurter, J., dissenting).

Importance of the Jury Questionnaire

From the jury panel come the jurors who will set in judgment of the accused.  There are strict prohibitions preventing any contact between the jury panel and the attorneys in the case.  The only way that the ADA and the defense lawyer can hone or focus their questioning for each potential juror is through a review of their sworn answers to the jury questionnaire.

The importance of the jury questionnaire cannot be underestimated in any criminal proceeding.  Attorneys depend upon those answers to form their questions.  Defense attorneys are especially dependent upon those answers being truthful and forthright.  The entire voir dire process depends upon it.

Which brings us to the recent opinion of the Fort Wort Court of Appeals in Badger v. State, No. 02-18-00475-CR (Tex. App. Oct. 10, 2019), petition refused by the Texas Court of Criminal Appeals on December 18, 2019.

The Dangerous Precedent of the Qwenton Badger Case Out of Fort Worth

In the matter of Qwenton Narvell Badger v. the State of Texas, Mr. Badger was tried and convicted of murder in a Tarrant County courtroom. He appealed his conviction to the Fort Worth Court of Appeals.

One of his “points of error” was that the trial judge should have granted his request to grant a mistrial of the entire proceeding after the discovery that a juror allegedly failed to disclose a close relationship with “a high-ranking employee of the Tarrant County Criminal District Attorney’s office.” Essentially, what had happened was a juror didn’t correctly answer two jury questionnaire questions concerning her family relationship with someone in law enforcement and also to someone in a law firm.

Mr. Badger’s defense attorney was notified about this problem through the Tarrant County District Attorney’s Office after jury selection was over, but before the jurors were officially sworn in as the jury.

This meant that it was too late for the defense lawyer to strike that juror either for cause for use a peremptory challenge. Voir dire was over.

Why the delay in revealing this information?  Was it intentional or a mistake?  Of course, the juror could plausibly claim they weren’t intentionally lying because the relationships were disclosed – just after voir dire was over.

In the Fort Worth appeals court’s review of this appellate point, it was acknowledged that there was a proper foundation at trial (the defense made all the correct objections) and he properly moved for a mistrial.  However, the appellate court found that litigants shouldn’t rely on answers in the juror questionnaires.  It noted that the juror was not an attorney and therefore couldn’t have properly understood the questions about family members working for law enforcement or law firm.

Since the defense never asked that juror about her family during voir dire, the case would not be reversed.

Mr. Badger took this ruling to the highest criminal court in the State of Texas, the Court of Criminal Appeals (CCA). Read his Petition for Discretionary Review here.

The CCA declined to hear his case.  So, this precedent stands.

The Lessons for Fort Worth Criminal Defense Attorneys

In the aftermath of Badger, one can argue whether or not the Tarrant County juror questionnaire was difficult to understand for a non-lawyer.   Personally, I disagree that the questions were tough to comprehend: you can make your own personal determinations by reviewing the questions as they are detailed in the Petition, page vii.

And, it’s a given that this is not a case of a juror’s failure to disclose a relationship because it was revealed after voir dire was completed and the jury was selected.  The juror did disclose – the issue is when that disclosure occurred.

Considering the opinion from a criminal defense perspective, questions arise:

• How could the defense lawyer know to ask about these relationships when the juror withheld important information on their questionnaire?
• If a juror affirmatively withholds material information about a bias relationship with law enforcement by answering “NO” to two questions, when the answer should have been a “YES” with an explanation, what is the Tarrant County defense bar to take from this? All jurors are sworn to tell the truth.
• How can we rely upon juror answers to questionnaires at this juncture?

Now that the CCA has refused to hear this case, in my opinion we must deal with a very dangerous precedent here in Texas.

Defense Warning: The Aftermath of Barger

It is my belief that the Texas Criminal Defense bar must consider what this case means to their representation of clients at trial. While this is a concern statewide, it’s paramount to anyone practicing in Fort Worth and Tarrant County.

1. Risk of Biased Jurors

It is possible in the aftermath of Badger that jurors in Texas criminal matters will be permitted to affirmatively misrepresent themselves on the sworn jury questionnaire without any form of recourse for the defendant.  In other words, jurors who are biased in favor of the police or the prosecuting district attorney theoretically can now sneak their way on to a jury.  The defendant cannot object to it, or get another juror if they find out later on about the relationship.

Think about it:  there could also be scenarios where jurors sneak on to the jury and nobody ever finds out about their family relationships.  Remember that John Cusack movie based upon a John Grisham novel, “Runaway Jury”?  The concern about stealth jurors is not new.  See, e.g., Gershman, Bennett L. “Contaminating the Verdict: The Problem of Juror Misconduct.” SDL Rev. 50 (2005): 322, 345.

2. Length of Voir Dire: Re-Asking the Questionnaire to Preserve Error

Practically speaking, the aftermath of Badger means that defense attorneys must re-ask each venire member the questions they already answered on the standard county juror questionnaire.  Each juror must then give their sworn answers in open court, to be taken down by a court reporter.

That’s the only way error can be preserved on this issue.  (For a more detailed argument here, read the Petition, page 12).

3. Prosecution Strategy to Take Away Defense Voir Dire

Yes, this will cause voir dire to go much longer — or become far less useful for the defense.  ADAs will continue to strategize ways to limit the defense lawyer’s turn at bat in jury selection.  If the DA is allowed to do the state voir dire and then do the defense’s voir dire for them (the “filibuster voir dire” described earlier), when it’s the defense’s turn,  there won’t be any questions left to ask without totally frustrating or alienating the jurors – because the state has already asked all of the defense questions.

I’ve seen this happen.  It is devastating to the defense.  This prosecutorial strategy basically takes away the defense’s voir dire altogether.  It is not illegal per se for the state to do this; and I admit that I actually did this a few times when I was a prosecutor.  I’m not proud of it.  I do understand how it works.

Bottom line, because any competent defense lawyer will demand time limits to voir dire for both sides, the state gains a huge advantage if they can force the defense to waste a bunch of time re-asking all the questions on the standard jury questionnaire. 

It is the equivalent to playing an NFL football game, where one team gets three (3) time outs and the other team gets zero (0) time outs.  The result will be the team with all the time outs will have more time to run their plays than the other team.  This is inherently unfair to the defense.

Nevertheless, now that Badger is good law in Texas, it’s on the books for prosecutors to consider — and defense lawyers to prepare accordingly.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his article, ”TOP 5 MISTAKES IN DEFENDING A TEXAS CRIMINAL CASE.”