One of the most important parts of a criminal trial is jury selection, formally known as “voir dire." In federal court, the judge conducts the majority (if not all) of the jury selection. In state court in Texas, the lawyers have a much larger role.
In state court, lawyers are permitted to question the jurors to determine whether they can be challenged “for cause,” or to determine if the lawyer would like to use a “peremptory challenge” on them. A juror can be challenged for cause if there is a legal reason that they cannot serve on a jury. The most common reason is that a potential juror is or will be biased towards one side or the other. Challenges for cause are unlimited, provided that the judge agrees with the basis for the challenge.
After the jurors are excused for cause, the attorneys may use their peremptory challenges. In a felony trial in Texas, each side has 10 of these challenges, and in a misdemeanor case each side receives 3. Peremptory challenges are made by each side in secret, and the lawyers are not aware of these challenges until after they turn their challenges in to the court.
Peremptory challenges can be used for any reason other than factors deemed discriminatory, such as race and gender. If a prosecutor makes an improper peremptory challenge, a defense attorney must make a “Batson Challenge” questioning the motives (Batson is the name of the Supreme Court case that forbids improper exercises of peremptory challenges). Once a defense attorney makes a Batson challenge, the prosecutor must give a “bias-neutral” reason for the challenge. If a defense attorney fails to make such a request, the defendant forever loses the right to complain.
Another area of jury selection that far too many defense attorneys make mistakes in is in regards to “commitment” questions. An improper commitment question is one that asks a juror how they will interpret certain evidence. It is proper, however, to commit jurors to “follow the law”. Courts must allow defense attorneys to ask proper commitment questions and courts must forbid prosecutors from asking improper commitment questions.
Unfortunately, if a defense attorney doesn’t object, objects in the wrong way, or objects at the wrong time, his client will not be able to complain about the question later. Sadly, many people are in prison because their attorney failed to object properly at the right time.
Of course, there is a difference between the formal “letter of the law” and the way it is practiced in actual jury selection. Influencing jurors in jury selection is not formally permitted. In practice, savvy prosecutors and defense attorneys have techniques to subtly begin winning their case, even before the case has actually begun.
Many trials are won or lost in jury selection, before the trial has even begun.