As an attorney sees the jury venire that
has been numbered and seated, they observe a cross-section of people in that county. They begin to ready themselves for voir dire. But Texas is
nothing if it isn’t big and if it isn’t unique – which means another twist might
be around the corner.
At this point, the opposing party
invokes Texas Rule of Civil Procedure 223[1] or Texas
Criminal Procedure Article 35.11[2] for criminal
trials – the jury shuffle. Ordinarily, if the county follows an interchangeable
jury system[3],
the jurors are placed on the general panel randomly and assigned for service
from the top down. But, after being assigned to a court, all the names of the
assigned jurors are reshuffled in a receptacle and reordered based on the
shuffle if any party demands a shuffle before voir dire examination. Only one
shuffle is allowed per trial in civil trials while multiple shuffles are
allowed in a criminal trial. The jury shuffle is largely unique to Texas, and
it is looked at with mixed feelings inside and outside the Lone Star State.
The idea behind the shuffle is that jurors seated first in
order are more likely to be placed on the jury while those at the back are not.
The shuffle is intended to provide a more diverse jury by reordering the seated
potential jurors in an attempt to make it more likely to have a diverse panel
and not be stacked by unscrupulous officials.[4] But many
opponents believe that is being used for the exact opposite reasons, to make a
jury less diverse.[5]
Shuffling based on the racial makeup of the jury has been
the reason for several appeals under Texas law in an attempt to apply Batson
[6] to the
shuffle. The Court in Miller-El v. Dretke even noted that the
prosecution had a predisposition to asking for a jury shuffle when the front of
the panel was comprised of mainly Black jurors.[7] But as
it currently stands, Texas law is not inclined to apply Batson to jury
shuffling,[8] and
Federal law is only inclined to view shuffling with suspicion under the circumstances,
such as improperly peremptorily striking Black panel members as in Miller-El.[9] Even if Batson
were applied to jury shuffling, many of the issues surrounding jury shuffling
would remain because of the difficulty in showing a Batson violation.[10]
But proponents of the jury shuffle often look at it as a
tool to effectively increase the diversity of selected jury. In Yanez v.
State, the defendant took this approach and requested a jury shuffle to
potentially move the four Hispanic panel members, who were placed at the end of
the order, forward.[11] However,
the double-edged sword that is the jury shuffle seemingly cuts one way more
often, and that is against a diverse.
On its face, few reasons exist that are not based on prospective
jurors’ race, gender, or general appearance for requesting a jury shuffle because
so little information about the jurors is known before voir dire examination.[12] While
it is true that a jury shuffle could be used to increase the diversity of the jury
selected, better and more effective means are available that are not as easily
abused such as drawing on names from the county based on various identifications,
using electronic or mechanical equipment to select potential jurors, and
ensuring that the district clerks are maintaining a fair jury pool.[13]
Texans are then left with two important questions regarding
the state of the jury shuffle: 1) does the jury shuffle achieve more harm than
good in ensuring a diverse jury; and 2) should the jury system be set up to
allow for a favorable jury or an impartial one? In its current form, the jury
shuffle seems to be doing more harm than good and allowing litigates to shape
juries into favorable ones instead of impartial ones, often rewarding gamesmanship
instead of fairness.[14]
The answer to those two questions suggests that the jury
shuffle has outlived its usefulness in its current form in Texas and should be abolished
or reformed to better ensure justice and fairness in jury selection.
[4]
SUPREME COURT OF TEXAS JURY TASK FORCE, FINAL REPORT 5, 55-64 (1997), http://www.courts.state.tx.us/commtask/
at 176.
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