Texas Voir Dire Examination - Is There a Limit On What Can be Asked?

At What Point Does the Law How You Back?

    Although the Texas Supreme Court has recognized that counsel has broad latitude in questioning during voir dire, this latitude does have an end and there are certain limitations. [1] Although, these limitations are somewhat unclear and controversial among the courts. It is not always easy to determine whether a juror’s response indicates a prejudice due to personal ill feelings or simply an opinion based on the previewed evidence.[2] It could be a very close call. [3] The same is true for counsels questions to the prospective jurors.[4] The trial judge is in the best position to evaluate and balance these competing concerns and thus is the best person to decide whether the answer is a bias or not. [5] The Texas Supreme Court in Hyundai has made it clear that it is within the trial judge’s discretion to decide whether a juror’s response has resulted because of confusion or mistake and also whether a question seeks the gauge the weight a juror will give a specific piece of evidence.[6] There must be a proper balance between the competing concerns, and this must be done based on the facts of the case and the jurors answers to the questions. [7] Again, the trial judge is in the best position to make this decision. [8]


    The traditional rule of voir dire is that the inquiry may extend somewhat beyond matters that simply serve as grounds for challenges for cause, but they are usually limited to matters that are material and relevant to the particular type of case at hand. [9] As such, counsel is permitted to ask questions about the jurors background, experiences, and attitudes. [10] Counsel’s goal is to ask questions of the jurors that would help them find any biases or prejudices, so he/she must ask questions that he/she thinks will bring any of these to light. But sometimes questions presented to the panel try to elicit unnecessary or improper information.




    As such, the trial judge is allowed to limit the questioning when he/she thinks that a question might inaccurately commit a prospective juror to a particular verdict or is otherwise improper. [11] For example, it is improper for counsel to ask a question that would show that the prospective juror has been convicted of an offense that disqualifies the juror or is accused of a crime. [12] It is also improper for counsel to advise the panel of the effect of their verdict on the trial courts judgment or tell the panel about inadmissible information. [13] Also, counsel cannot comment on personal lives of the parties or their attorneys, attempt to create a bias or prejudice, attempt to preview a juror’s likely vote, or misstate the applicable law. [14] But even with these limitations in mind, counsel is still allowed broad latitude in their questioning even if the extent is unclear.

Conclusion    

    The Court has made clear that attorneys are given broad latitude in conducting their voir dire examinations of the panel. They have also made clear that this latitude has its limits and that it is in the trial court judges’ discretion to decide this limit. But even so, problems arise as neither the Legislature nor the Courts have made clear how far this latitude extends and exactly what questions are not allowed. The line between bias or prejudice and the mere opinion on a specific fact can very blurry and very hard to navigate. Thus, some courts have struck certain questions as improper, while others have allowed those same questions to remain.

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[1] Hyundai Motor Company v. Vasques

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Greenman v. Fort Worth, 308 S.W.2d 553, 554 (Tex. Civ. App.—Fort Worth 1958, writ ref’d n.r.e.); Johnson v. Reed, 464 S.W.2d 689, 691 (Tex. Civ. App.—Dallas 1971, writ ref’d n.r.e.).

[10] Id.

[11] Id.

[12] Tex. R. Civ. P. 230; cf. Tex. Gov’t Code § 62.102(7) (person is disqualified to serve as juror if person has been convicted of felony).

[13] Texas Employers Ins. Ass’n v. Loesch, 538 S.W.2d 435, 440 (Tex. Civ. App.—Waco 1976, writ ref’d n.r.e.); see A.J. Miller Trucking Company v. Wood, 474 S.W.2d 763, 764–766 (Tex. Civ. App.—Tyler 1971, writ ref’d n.r.e.).

[14] Gulf States Utilities Co. v. Reed, 659 S.W.2d 849, 855–856 (Tex. App.—Houston [14th Dist.] 1983, writ ref’d n.r.e.); Hyundai Motor Company, 189 S.W.3d at 752–753;  Middlebrook v. State, 803 S.W.2d 355, 360 (Tex. App.—Fort Worth 1990, pet. writ ref’d); see Texas & New Orleans Railroad Co. v. Lide, 117 S.W.2d 479, 480 (Tex. Civ. App.—Waco 1938, no writ).