A new appellate opinion in Texas raises an important issue for jury selection: observe your panel carefully to identify jurors who may not have a solid command of the English language. And make a record of any concerns!
The Second District of Texas issued an opinion in Eban Stillwell v. State of Texas on May 28th. It’s an important decision, especially for those who try cases in venues with a large percentage of residents who speak English as a second language… or do not speak English at all. The Stillwell appeal dealt specifically with a juror’s limited ability to grasp the English language.
The juror, Mr. Sanchez, was never identified during voir dire as having potential limitations, and was ultimately selected and sworn-in to serve as a juror in a criminal trial. But during the course of trial, Mr. Sanchez eventually notified the court that he was having difficulties understanding the proceedings. After the court spoke with the juror, the parties agreed that the Mr. Sanchez “could not adequately understand English and [could not] understand adequately what [was] being said in the courtroom.” The parties agreed that Sanchez should be released from the panel, but the parties disagreed on the legal basis for the dismissal.
The State argued that Juror Sanchez became “disabled,” and should be released according to Texas statute which would allow the trial to continue with 11 jurors. The Defense argued that Sanchez was never qualified to serve in the first place and motioned for a mistrial because his client would not waive the right to a trial with less than 12 jurors. The trial judge denied the mistrial, ruled the juror as “disabled,” and continued the criminal trial with 11 jurors. The defendant was ultimately convicted, and an appeal was filed based on the dismissal of Juror Sanchez.
The appellate court determined that Mr. Sanchez was not disabled, but was excludable. Texas Code of Criminal Procedure states that “a juror is incapable or unfit and may be challenged for cause based on the juror’s inability to read and write.” Case law places the duty of discovering this issue on counsel’s shoulders. However, since defense counsel never raised a concern or made a challenge for cause during the jury selection process, the right to complain about it after the fact was essentially waived.
However, the appellate court did reverse and remand the verdict, but not because Mr. Sanchez was unqualified to serve. Rather, the court concluded that Mr. Sanchez was not disabled, and that it was improper to continue with 11 jurors without the consent of the defendant… which was never given.
So what’s counsel to do when a juror fails to self-report language difficulties during voir dire? I keep my eyes and ears open for this very thing. Here are a few of my strategies:
- Carefully review written questionnaires and juror information cards. Missing demographic data, unanswered questions, numerous misspellings, or multiple blank spots are all red flags.
- Observe the panel carefully during the judge’s initial instructions and introductions. Pay special attention to those born outside of the U.S., jurors who have partially completed paperwork, and those who are of foreign ethnicity. Most jurors will give a subtle head nod here or there. Jurors who have difficulty following along will often have little or no reaction and look somewhat dazed and confused (or more bored than the others).
- Flag jurors who simply do not participate in any way shape or form during oral Q&A. Most of these jurors are simply quiet or don’t want to participate, but if a particular juror fails to participate and demonstrates some of the characteristics described above, it is very possible that a language problem exists.
- Refrain from relying solely on self-disclosure in the large group. Asking any juror to self-report something that is potentially embarrassing (like not understanding the English language) is a recipe for non-disclosure. Rather, explain to the panel that sometimes a person can do just fine in “real life” with reading, writing, and understanding the English language, but that doing so in the courtroom can be a lot more difficult. Encourage jurors who may fit in this category to raise their hand, or tell the bailiff, so that the Court can talk with that juror privately.
- During challenges for cause or follow-up questions with individual jurors, ask the Judge for permission to speak with any juror who you think may struggle with the English language. Use this time as another means to gain information. If your gut instinct pans out, then make a challenge for cause. If the juror seems qualified, then simply move on.
Protect yourself and your client by carefully observing the panel during the voir dire process. The folks who struggle with language issues typically fly under the radar. It’s your job to find them.