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Carr v. Smith6/29/2000
in conducting voir dire, do not constitute a formal part of the voir dire proceedings" and that "voir dire does not commence simply because a party has read the answers to written jury questionnaires."
Additionally, it is important to note that rule 226 requires the trial court or its designee to swear the jury panel " efore the parties or their attorneys begin the examination of the jurors." Further, rule 226a requires the trial court to give the jury panel admonitory instructions as prescribed by the Texas Supreme Court. The Approved Instructions accompanying rule 226a contain oral instructions that must be given by the trial court "to the jurors after they have been sworn as provided in Rule 226 and before the voir dire examination." Thus, voir dire examination cannot begin until the jury panel has been sworn and instructed. The record in this case reflects that once the jury panel members were segregated in the central jury room, they were sworn. There is no evidence, however, that the trial court had instructed the jury panel members before the attorneys viewed the questionnaires and before the shuffle was requested, thus indicating that voir dire had not yet begun.
The conduct of voir dire rests largely within the sound discretion of the trial judge. The questions posed on jury questionnaires traditionally are attributed to the trial court. The purpose of jury questionnaires is to elicit basic information, possible biases, and other problems that would otherwise be brought out during voir dire, the time when the attorneys actually speak with the prospective jurors. Counsel may rely on these questionnaires to determine which questions to ask during voir dire and which jurors to strike, thus minimizing the length of voir dire. While the trial judge is not required to allow the parties or their attorneys to view jury questionnaires before requesting a shuffle, I have found no authority prohibiting the trial judge from doing so.
The majority places great emphasis on the fact that the questionnaire in the case now before us was thirteen pages long and contained sixty-three questions. I have found no authority, however, holding that the start of voir dire is determined by the length of the questionnaire or the number of questions on the questionnaire. What if there had only been one page of questions? What if the parties had asked only twenty questions? What if the trial judge, rather than the parties, had drafted the questionnaires? What if the prospective jurors had answered the questionnaires, but the trial judge had withheld the completed questionnaires until after he had completed his required instructions? Would the trial judge then be required to add to the length and expense of the trial by dismissing the jury panel until the lawyers had been given time to copy and read the completed questionnaires?
The majority opinion holds that the questions in this case were too specific and too numerous and, thus, constituted the start of voir dire, but the majority fails to delineate any guidelines for what type of questionnaires, if any, could be used without cutting off a party's right to a shuffle. The majority's holding basically prohibits a trial judge from using any jury questionnaires because by doing so, the trial judge would cut off the parties' right to request a shuffle. Prohibiting a trial judge from using or allowing parties to use jury questionnaires is an unwarranted intrusion into the discretion of a trial judge to conduct a trial as efficiently as possible while still protecting the rights of all concerned.
The issue in this case is whether the trial judge abused his discretion by shuffling the jury after allowing the parties and their a
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