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Voir Dire Is a Mass Blind Speed Date — Avoiding Improper Juror Commitments

Elizabeth Davidson

The following discussion draws from insights in an article by attorney Elizabeth Conry Davidson, originally published in the American Board of Trial Advocates (San Antonio Chapter) Newsletter (Aug/Sept 2021). The piece examines how lawyers can effectively conduct voir dire — the jury selection process — while staying within the ethical and procedural boundaries of Texas law.

The Challenge of Voir Dire

Voir dire is among the most nuanced stages of trial practice. It requires strategy, empathy, and an ability to listen closely to potential jurors while identifying bias. Although Texas procedural rules provide only limited direction, decades of case law have established important principles for what attorneys may — and may not — ask during jury selection.

The central issue concerns commitment questions: inquiries that attempt to make jurors pledge in advance how they would decide a case based on hypothetical facts. The distinction between legitimate bias inquiries and improper commitments is subtle but essential to maintaining the fairness of the trial process.

Defining Commitment Questions

A commitment question seeks to bind jurors to a particular outcome before evidence is presented. For example:

“If the evidence shows the defendant ran a red light, would you automatically find them at fault?”

Such a question requires jurors to make a promise about how they would decide based on a fact scenario, which is impermissible.

In contrast, questions testing whether jurors can follow the law are proper. These include asking whether jurors can disregard illegally obtained evidence, follow instructions about corroboration of testimony, or respect a defendant’s right not to testify. These inquiries assess jurors’ ability to uphold legal obligations, not to pre-judge the case.

Guidance from Key Texas Cases

Texas appellate courts have repeatedly refined the boundaries of proper questioning in voir dire:

  • Standefer v. State (2001) established the test for determining whether a question improperly commits a juror, focusing on whether one possible answer would resolve an issue in the case.

  • Cortez v. HCCI-San Antonio, Inc. (2005) clarified that mild bias or the sense that one party “starts ahead” does not automatically disqualify a juror.

  • Hyundai Motor Co. v. Vasquez (2006) emphasized that only bias preventing impartiality warrants disqualification and distinguished between external bias and case-specific opinions.

  • K.J. v. USA Water Polo, Inc. (2012) held that asking jurors if they could award a certain dollar amount in damages was an improper commitment question.

  • More recent cases, including In re Commitment of Barnes (2020) and Durden v. State (2021), reaffirmed that proper questions must focus on a juror’s willingness to consider all evidence and follow the law, not on predicting how they would rule.

Common Improper Questions

Improper questions often share a theme: they attempt to gauge a juror’s likely decision rather than their impartiality. Examples include:

  • “If the evidence reveals X, is that something you would consider important?”

  • “Based on what you’ve heard so far, are you leaning one way or the other?”

  • “If my client was intoxicated, would that prejudice you against them?”

These inquiries subtly push jurors to commit to outcomes based on hypothetical facts, which undermines the fairness of the process.

Effective Voir Dire Practices

Effective questioning avoids previewing case facts too early and instead focuses on pre-existing biases or beliefs that jurors bring into the courtroom. This approach seeks to uncover whether potential jurors can apply the law impartially, regardless of their personal attitudes.

Examples of legitimate questions include:

  • “Would you require proof beyond what the law defines as a preponderance of the evidence?”

  • “Would you be unable to consider awarding damages for pain and suffering if supported by the evidence?”

  • “Are there types of cases you believe you could not be fair about?”

By focusing on these broader questions, counsel can identify disqualifying bias without improperly influencing jurors’ views on the facts.

The Importance of Restraint

The more facts disclosed during voir dire, the less opportunity exists to identify cause challenges based on bias. Limiting factual details preserves the ability to explore fairness without prompting jurors to pre-commit. The ultimate goal is not to find jurors predisposed to one side, but to ensure a panel capable of impartial evaluation based solely on the evidence and the law.

Conclusion

Avoiding improper commitment questions during voir dire is both an ethical and strategic necessity. The process should focus on discovering bias that exists before jurors enter the courtroom, not on creating new bias through the presentation of case facts. Careful, neutral questioning maintains the integrity of jury selection and upholds every party’s right to a fair trial.