Mark Twain, upon learning of the premature publication of his obituary, famously said, “Reports of my death are greatly exaggerated.” Reports of the death of so-called commitment questions during voir dire likewise are greatly exaggerated.
Commitment questions seek to test potential jurors’ reactions to specific pieces of evidence. In the wake of a trio of significant Texas Supreme Court cases on voir dire in 2005 and 2006, some commentators were ready to declare voir dire commitment questions dead before the body was even cold.
But a careful reading of those three opinions — Cortez ex rel. Estate of Puentes v. HCCI-San Antonio Inc., El Hafi v. Baker and Hyundai Motor Co. v. Vasquez — and a 2011 Texas Supreme Court opinion reveals that commitment questions during voir dire are alive and well. Their permissibility depends on the trial court’s broad discretion, the circumstances of the case and the line of questioning at issue.
The most-cited Texas Supreme Court case on litigants’ latitude to question panel members during voir dire is Babcock v. Northwest Memorial Hospital (1989). In Babcock, a medical-malpractice case,the high court held that the trial court abused its discretion in preventing the plaintiffs’ attorney from questioning panel members about the “lawsuit crisis” or “liability insurance crisis.” The court reasoned:
A broad latitude should be allowed to a litigant during voir dire examination. This will enable the litigant to discover any bias or prejudice by the potential jurors so that peremptory challenges may be intelligently exercised. Although we recognize that voir dire examination is largely within the sound discretion of the trial judge, a court abuses its discretion when its denial of the right to ask a proper question prevents determination of whether grounds exist to challenge for cause or denies intelligent use of peremptory challenges.
The Texas Supreme Court’s opinion in Cortez ex rel. Estate of Puentes v. HCCI-San Antonio Inc. (2005) was the first in the trio of important Texas Supreme Court opinions addressing voir dire during 2005 and 2006.
In Cortez, a nursing home case, a claims adjuster on the panel admitted that his experience might give him “preconceived notions,” that he would “feel bias,” that he had seen “lawsuit abuse . . . so many times,” and that, ” ‘in a way,’ the defendant was ‘starting out ahead.’ ” Justice David Medina wrote for the court that the juror was not disqualified because the juror indicated that he was “ willing to try” to listen to all of the evidence.
The Cortez court noted that the plaintiffs’ attorney “gave an extended and emotional opening statement summarizing the facts of the case to the venire,” and the court reasoned that a juror’s “statement that is more a preview of a veniremember’s likely vote than an expression of an actual bias is no basis for disqualification.”
The second case in the trio of cases was El Hafi v. Baker (2005), a medical malpractice case. In El Hafi, a panel member who defended health-care providers as an attorney admitted that he “might see things more from the defendant’s perspective.” In a per curiam opinion, the Texas Supreme Court nevertheless held that the juror was not disqualified, because he protested when it was suggested that plaintiffs were “starting out a little behind” and stated that he “would do [his] best to be objective.”
The third case was Hyundai Motor Co. v. Vasquez (2006), an automobile products liability case in which the parents of a young girl killed by a deploying airbag sued the automobile manufacturer. Vasquez, unlike the first two cases in the group, directly addressed the propriety of commitment questions based on specific evidence.
After two panels of jurors were disqualified because of answers to questions regarding the fact that the young girl was not belted, the trial court disallowed any disclosure of that information to a third panel and instead allowed only “general questions about belting.”
Justice Jane Bland, sitting by assignment from Houston’s 1st Court of Appeals, authored a Texas Supreme Court opinion that sustained the trial court’s refusal to allow disclosure during voir dire of the young girl’s failure to wear a seat belt and questions tied to the disclosure.
By implication, however, the language of the Vasquez opinion continues to vest the trial court with broad discretion to allow commitment questions, because Vasquez discussesthe implications of such questions in the event that the trial court allows them. Why would such a discussion be necessary if commitment questions are now outlawed?
If the voir dire includes a preview of the evidence, we hold that a trial court does not abuse its discretion in refusing to allow questions that seek to determine the weight to be given (or not to be given) a particular fact or set of relevant facts. If the trial court permits questions about the weight jurors would give relevant case facts, then the jurors’ responses to such questions are not disqualifying, because while such responses reveal a fact-specific opinion, one cannot conclude they reveal an improper subject-matter bias. (emphasis added).
In In Re Commitment of Hill (2011), the Texas Supreme Court removed any lingering doubt about the continued viability of commitment questions in an appropriate case. Hill was an appeal of a civil commitment proceeding involving an alleged sexually violent predator. A statute required the state to prove two things: Hill had committed two or more violent sexual offenses, and he had a behavioral abnormality that predisposed him to do so.
The trial court prevented Hill’s attorney from asking the panel whether, if the state proved that Hill had committed two or more violent sexual offenses, the potential jurors would convict Hill on that evidence alone, or whether they would also require the state to prove the required behavioral abnormality.
The trial court believed that these were improper commitment questions, but the Texas Supreme Court, in a per curiam opinion, held that trial court abused its discretion in prohibiting such questions. The Hill court noted that, implicit in the jurors’ oath to render a true verdict “is a commitment to follow the law the Legislature enacted, and a party participating in jury selection may solicit from potential jurors that promise, essential to the empaneling of a fair jury.”
The court cited Babcock with approval andreasoned that the trial court’s refusal to allow the questions “prevented Hill from discovering the potential jurors’ biases so as to strike them for cause or intelligently use peremptory challenges.”
Reports of the death of commitment questions during voir dire truly are exaggerated. If commitment questions relate to a part of a party’s proof, then a trial court’s refusal to allow them probably is an abuse of discretion. In most other cases, the trial court has abundant discretion to allow such questions, even if the jurors’ answers to the questions will not necessarily support the exclusion of jurors for cause.