Voir dire is the process by which both the prosecution and criminal defense attorneys attempt to select the most favorable people to sit on a jury and decide a criminal case, especially a death penalty jury. From the defense perspective picking jurors is often an uphill battle as we try to identify fair-minded folks who are willing to consider arguments in favor of our clients. This process becomes even more complicated and difficult when trying a capital case – one in which the death penalty may be imposed if our client is found guilty. Not only the structure of jury selection, but the methods and strategy of voir dire change completely in a capital murder case.

Jury pools for criminal cases usually involve about sixty potential jurors. Out of these sixty, twelve are eventually selected and the trial proceeds. In these trials jurors are evaluated in a group and questions are posed to individuals within the hearing of all the potential jurors. The process usually lasts no longer than one day. However, for a Texas death penalty jury, about two hundred (or more) potential jurors are summoned to the courthouse. The process of selecting twelve of these people continues for weeks and the questioning of jurors is done one at a time. It’s a long and drawn-out affair for just one trial. But one important factor makes the capital case different – a person’s life or death hangs in the balance.

Again, while most juries are selected based on group questioning sessions, capital juries are chosen after one group session and then additional weeks of individual interviews. Before the individual questioning begins each potential juror is given a written questionairre which is used to determine their general feelings on the death penalty. Following this, the attorneys evaluate candidates based on oral questioning . . . one-on-one with the juror. More probing quesitons are posed during these individual sessions. In fact, there is much strategy involved as both the prosecutors and criminal defense lawyers attempt to elimate undesireable jurors based on challenges for cause. A capital case can be won (or lost) during the individual questioning. The pressure is intense . . . every hour a new juror arrives and the battle of ideas is on!

The length, intricacy, and strategy of the death penalty jury selection process makes it unique among all types of voir dire. But from the perspective of the criminal defense lawyer, capital voir dire is one-of-a-kind. The death penalty is the focus of questioning as the true feelings of each person are queried. In a capital trial a dozen jurors will ultimately be selected and those twelve hold the power to grant freedom or assess the most severe and irreversible punishment ever envisioned.

Visit my Bryan-College Station Criminal Defense Blog for other posts about criminal defense and trial advocacy.


Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.

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