To Shuffle or Not to Shuffle? A Critical Look at the Jury Shuffle in Texas

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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.

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[1] Tex. R. Civ. P. 223

[2] Tex. Crim. P. Art. 35.11

[3] Gov. C. §§62.016, 62.017

[4] SUPREME COURT OF TEXAS JURY TASK FORCE, FINAL REPORT 5, 55-64 (1997), http://www.courts.state.tx.us/commtask/ at 176.

[5] Michael M. Gallagher, Abolishing the Texas Jury Shuffle, 35 St. Mary's L.J. 303, 316 (2004)

[6] Batson v. Kentucky, 476 U.S. 79 (1986)

[7] Miller-El v. Dretke, 545 U.S. 231 (2005)

[8] Blanton v. Quarterman, 543 F.3d 230, 242 (5th Cir. 2008)

[9] Miller-El, 545 U.S. at 253-54.

[10] Michael M. Gallagher, Abolishing the Texas Jury Shuffle, 35 St. Mary's L.J. 303, 328 (2004)

[11] Yanez v. State, 403 S.W.2d 412 (1966)

[12] Texans for Lawsuit Reform, Recommendation for Lawsuit Reform: The Civil Jury in Texas (2007)

[13] Michael M. Gallagher, Abolishing the Texas Jury Shuffle, 35 St. Mary's L.J. 303, 320 (2004)

[14] Michael M. Gallagher, Abolishing the Texas Jury Shuffle, 35 St. Mary's L.J. 303, 325 (2004)

The Limits of FRE 606(b) on Juror Misconduct

Like all human beings, jurors come with biases, prejudices, and preconceived notions.¹  Jury misconduct contentions may arise when jurors bring their biases, prejudices, and preconceived notions with them into the jury room and use them against a party.  While attorneys attempt to weed out jurors with unfavorable biases during the voir dire process, they are not always successful.²  Some jurors fail to disclose biases during voir dire, only to have them later exposed by fellow jurors after a verdict has been returned.  Jury misconduct discovered at this stage can lead to a mistrial, resulting in a huge waste of resources.³   

In 1987, the Supreme Court addressed the issue of discovering jury misconduct post-trial.⁴  In Tanner v. United States, the Court held that jury misconduct such as consuming alcohol, marijuana, and cocaine during jury deliberations was not enough to overturn a jury verdict.⁵ Justice O’Connor delivered the opinion to the Court and expressed her concerns about allowing jury misconduct to result in a mistrial:

There is little doubt that post verdict investigation into juror misconduct would in some instances lead to the invalidation of verdicts reached after irresponsible or improper juror behavior. It is not at all clear, however, that the jury system could survive such efforts to perfect it. Allegations of juror misconduct, incompetency, or inattentiveness, raised for the first time days, weeks, or months after the verdict, seriously disrupt the finality of the process. [. . . .] Moreover, full and frank discussion in the jury room, jurors' willingness to return an unpopular verdict, [. . .] and the community's trust in a system that relies on the decisions of laypeople would all be undermined by a barrage of post verdict scrutiny of juror conduct.⁶

The Supreme Court based its decision to deny a hearing on jury misconduct on Federal Rule of Evidence 606(b).⁷  According to the rule, a juror may not testify about statements made or incidents that occurred during the jury’s deliberations.⁸  In line with Justice O’Connor’s opinion, this juror anti-impeachment rule was put into place to encourage jurors to freely express themselves during deliberations, to reduce the amount of post-trial hounding jurors receive from lawyers, and to provide verdict finality.⁹ 

However, courts do not always turn a blind eye to juror misconduct.  The appellate courts have inconsistently applied FRE 606(b) in their decisions, thus making it difficult to decide what exactly constitutes juror misconduct severe enough to warrant a mistrial.  This split recently led the Supreme Court to grant cert in Warger v. Shauers.¹⁰  The case was brought by a motorcyclist whose motorcycle collided with a truck near Mount Rushmore in South Dakota.¹¹  The motorcyclist lost his leg in the accident and sued the truck driver for negligence, which resulted in a jury verdict in favor of the truck driver. ¹²  And this is where the case gets interesting: after the trial, one of the jurors had second thoughts and told the motorcyclist’s lawyer that the forewoman decided the case based on her own personal experiences rather than on the evidence presented. ¹³  According to the juror’s sworn statement, the forewoman told her fellow jurors during jury deliberations that her daughter was at fault in a fatal automobile accident and that a lawsuit would have ruined her daughter’s life. ¹⁴  Based on the juror’s sworn testimony, the motorcyclist’s attorney moved for a mistrial on the grounds that the juror had lied during voir dire,¹⁵  but the district court denied the motorcyclist’s motion, using as its support FRE 606(b).¹⁶ 

The case will be heard on October 8th, 2014, and the Supreme Court will ultimately decide “[w]hether Federal Rule of Evidence 606(b) permits a party moving for a new trial based on juror dishonesty during voir dire to introduce juror testimony about statements made during deliberations that tend to show the alleged dishonesty.”¹⁷   In other words, can the motorcyclist rely on evidence from inside the jury room to get a new trial? ¹⁸   Hopefully the Supreme Court will go further than just answering this question and address the federal circuit’s split, which may shed light on how severe juror conduct must be before a mistrial is warranted. 

Skeletons in the Juror's Closet

           You are the plaintiff’s attorney in a personal injury suit.  Two years ago your client was hit by a semi-truck and it is finally time for jury selection and trial.  During voir dire, Juror Number 3 tells you that he has never been involved in a serious car accident.  Fast forward two weeks.  The jury returns a verdict in favor of the defendant, but you receive an anonymous letter from one of the jurors:
     Juror Number 3 lied to you.  During deliberations, he said “I used to be a truck driver and I’ve 
     been in these types of crashes.  It’s always the non-professional driver’s fault and they just want 
     to collect money.”

Do you think that your client, and you, received a fair trial?  If not, is there anything you can do about it?

            If your case is in federal court, it appears that the Supreme Court of the United States will answer this question soon.  According to the New York Times and SCOTUSblog, the Supreme Court heard oral argument from a factually similar case in October of this year.  When the case was before the Eighth Circuit, the plaintiff argued that jury misconduct tainted the verdict in two ways: (i) through the introduction of extraneous information and (ii) because a juror lied during voir dire.

The hurdle for the plaintiff is Federal Rule of Civil Procedure 606(b), which prohibits jurors from testifying about anything that occurred during deliberations, subject to three exceptions.  Two of the exceptions involve the introduction of extraneous information or outside influence, but the Eighth Circuit held that “Jurors’ personal experiences do not constitute extraneous information; it is unavoidable they will bring such innate experiences into the jury room.”

The Eighth Circuit is correct, but that is why you asked Juror Number 3 if he had ever been in a serious car accident.  You wanted to know what experiences each juror would be taking back into the black box, and Juror Number 3 lied to you.  So what happened to the plaintiff’s second ground for jury misconduct?  The Eighth Circuit noted that FRE 606(b) is silent on the issue and cited a current circuit split.  The Eighth Circuit adopted the Third and Tenth Circuits' approach and held that statements made during jury deliberations are not admissible to show that a juror lied during voir dire for the purposes of challenging the jury's verdict.

          What is at stake in the pending case?  There are competing interests on either side of the issue.  A traditional argument is that by limiting the amount and scope of exceptions to 606(b)’s prohibition against the admissibility of statements made during jury deliberations, we uphold the insulated nature of the jury and allow the jurors to express their true opinions, even if unpopular.  Another argument is that allowing deliberation based challenges to the verdict would result in a huge number of post-verdict challenges.  Based on reports of the questions asked by the Justices during oral argument, it appears that the Court buys into both of these pro-prohibition arguments.

          However, I find these argument unpersuasive for two reasons.  First, an exception for statements made during deliberations that directly contradict a juror’s answers during voir dire would be narrow enough that it would not greatly diminish the insulated nature of the jury and would not lead to huge amounts of post-verdict challenges.  Second, a juror expressing an unpopular opinion is already in a room with eleven (or five, etc.) other human beings.  And each of the other jurors can speak freely about the deliberations (to friends, family, media, etc.) after the trial anyway.  

            I do not think that courtrooms across the United States are full of John Cusack style runaway jurors, but I do think that there are jurors like Juror Number 3 who conceal strong biases about a case during void dire and espouse those biases during deliberations.  Why not set up a procedure to evaluate this type of jury misconduct?