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

Photo by Amol Tyagi on Unsplash

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 False Idea of Juror Rehabilitation—Why we may be covering instead of uncovering juror bias.

“It’s ok, you just need to tell us.” “It doesn’t mean you aren’t a good juror, but maybe just not a good juror for this case.” “You’ve said you’ve suffered from the same kind of injury yourself, but would you be able to set those experiences aside and be fair and impartial in this case?” The first two statements are commonly heard from attorneys seeking to start plucking jurors out of the pool for cause, but it’s the last question, with the golden words “fair and impartial”, that are troubling jury consultants, attorneys, and this law student. When bias by a potential juror is indicated, is it really fair for judges to try to rehabilitate the juror with the “fair and impartial” question?

In a study conducted by researchers from Centre College, analysis revealed two types of practices at work.  Rehabilitation, which attempts to remedy the bias a prospective juror has exposed, looks something like “You’ve said that certain information you heard on the TV news may make it difficult for you to be completely fair. Do you think you would be able to overcome those feelings if you were seated on the jury?” The second practice researchers refer to as "pre-habilitation", involves attempting to remedy potential bias up front, by signaling a socially desirable response, and then asking a subsequent bias question. “You seem like a reasonable person. Do you think you’ll be able to keep an open mind and base your opinion solely on evidence that’s presented in court?” The study found judges are more likely to engage in rehabilitation, while attorneys work up front with "pre-habilitation" questions.

Dr. Ken Broda-Bahm in his article “Getting Beyond ‘Can You Be Fair?’: Framing Your Cause Questions” asserts that the undeniable obstacle attorneys face in voir dire examination is the human tendency to portray themselves in the best possible light. This “social desirability bias” as he refers to it can be a direct product of the very courtroom and individuals we have questioning jurors. Dr. Broda-Bahm explains the bias serves as a motivation for jurors to answer questions with what they believe to be the “right” or “good” answer. “The courtroom itself, with its many trappings of official power and formality, can heighten for jurors a preference for an answer that they believe will satisfy the judge and the attorneys over an answer that honestly conveys a bias.” See,  “Getting Beyond ‘Can You Be Fair?" for a more in depth look at Broda-Bahm’s view of "pre-habilitation" and rehabilitation techniques

Parties seeking to get a juror removed for cause are stuck between a rock and hard place when judges and opposing counsel set out on the rehabilitative and "pre-habilitative" route. They are forced to use preemptive strikes on jurors they arguably should have been able to dismiss for cause. Further, what a judge views as being “fair and impartial” is arbitrary, so there’s now way to have an equal assessment across the board.

 We put on the rose colored glasses hoping that bias is as easy as an “on/off” switch jurors just sort of hit, but is it really plausible to believe that jurors facing a judge are going to always honestly indicate that they “can’t be fair and impartial?” It's unrealistic, and has empirically been shown to be so. In the long run attorneys on either side are hurting themselves in the voir dire process when they seek to cover up potential bias. Further, judges should err on the side of caution when it comes to potential strikes for cause. Close calls should be cause calls. 

Trial consultant Charli Morris does offer hope for the frustrated attorney (or aspiring attorney). Morris believes educating judges on "pre-habilitation" and rehabilitation are one step to changing the traditional voir dire practice. Further, her article "If Impartial is Impossible: How Did We Get Here and What Are We To Do?" offers an extensive list of techniques attorneys can use to make their challenges rehabilitation resistant. As trial attorneys and jury consultants continue to look at the latest jury studies and innovative techniques, I can only hope this is one that continues to be developed.