Ala. Code §12-16-6 (1975), places responsibility on the trial court to determine proper juror qualifications. Rule 47 ARCP gives the trial court the latitude to allow attorneys the right to participate in juror qualification.
Participation in the juror qualification process, or voir dire, is designed to enable the court and the parties' attorneys the opportunity to determine if the prospective persons meet the statutory and common law qualifications to serve as jurors.
In making these determinations, knowledgeable counsel will introduce their client to the venire and set out a framework for the upcoming case.
II. STATUTORY BASICS
Ala. Code §12-16-60 requires jurors to be: a U.S. citizen; over 19; able to read, speak, and understand English; not afflicted with a condition or disease making jury service impossible; and not having lost the right to vote by conviction of a crime of moral turpitude. A prospective juror not qualified under this section is subject to challenge for cause. Poole v. State, 497 So.2d 537 (Ala. 1986).
Ala. Code §12-16-150, entitled "Challenges of jurors for cause - Grounds generally," provides:
It is good ground for challenge of a juror by either party:
(1) That the person has not been a resident householder or freeholder of the county for the last preceding six months.
(2) That he is not a citizen of Alabama.
(3) That he has been indicted within the last 12 months for felony or an offense of the same character as that with which the defendant is charged.
(4) That he is connected by consanguinity within the ninth degree, or by affinity within the fifth degree, computed according to the rules of the civil law, either with the defendant or with the prosecutor or the person alleged to be injured.
(5) That he has been convicted of a felony.
(6) That he has an interest in the conviction or acquittal of the defendant or has made any promise or given any assurance that he will convict or acquit the defendant.
(7) That he has a fixed opinion as to the guilt or innocence of the defendant which would bias his verdict.
(8) That he is under 19 years of age.
(9) That he is of unsound mind.
(10) That he is a witness for the other party.
(11) That the juror, in any civil case, is plaintiff or defendant in a case which stands for trial during the week he is challenged or is related by consanguinity within the ninth degree or by affinity within the fifth degree, computed according to the rules of the civil law, to any attorney in the case to be tried or is a partner in business with any party to such case.
(12) That the jury, in any civil case, is an officer, employee or stockholder of or, in case of a mutual company, is the holder of a policy of insurance with an insurance company indemnifying any party to the case against liability in whole or in part or holding a subrogation claim to any portion of the proceeds of the claim sued on or being otherwise financially interested in the result of the case.
III. COMMON LAW GROUNDS FOR CHALLENGE
Common law grounds for challenges for cause continue to survive. Actual bias is always a valid ground to support a challenge for cause. Watson v. State, 398 So.2d 320 (Ala.Crim.App.), cert. denied, (Ala. 1980); Nettles v. State, 435 So.2d 151 (Ala. 1983); Clark v. State, 443 So.2d 1287 (Ala.Crim.App. 1983).
In Sewell v. Webb, 95 WL 490595 (Ala.Civ.App. Aug. 18, 1995), Sewell sued Weyerhaeuser Corp. for trespass and conversion. The jury awarded $35,000.00 compensatory and $10,000.00 punitive, but the plaintiff was not satisfied. Mr. Sewell requested a new trial on the ground of an inadequate verdict. The Supreme Court granted a new trial based on the trial court denying three independent challenges for cause.
JUROR #1: He and his father were in the logging business and had some contracts with Weyerhaeuser. He told plaintiff's attorney that connection might bias him. The judge asked if he could be fair, and he still only said, "I think I could."
JUROR #2: His wife was a sister-in-law to a key defense witness. He first said he would tend to believe the witness because "I know how truthful he is." He then told defense counsel and the court that he could be fair.
JUROR #3: He was the nephew of the same defense witness. He told plaintiff's counsel that relationship might influence him; then told defense counsel and the court he could be fair.
Citing Knop v. McCain, 561 So.2d 229 (Ala. 1989), the Court held that the initial statements of bias could not be cured by boilerplate "can you be fair" questions.
In Noble Trucking Co. v. Payne, 664 So.2d 202 (Ala. 1995), Plaintiff appealed a defense verdict in a wrongful death case. After the trial, plaintiff discovered a juror was a convicted felon whose right to vote had not been restored. He was subject to challenge for cause under §12-16-60. The court had asked the whole venire whether any were convicted felons. The record reflected that no one responded to the question.
The Supreme Court held the trial court was required to grant a new trial. The Alabama Supreme Court stated that counsel has the right to rely on the answers to the court's questions, and need not repeat the same question in order to exercise diligence in discovering disqualifications. Lollar v. State, 422 So.2d 809 (Ala.Crim.App. 1982). The Court also relied on Chrysler Credit Corp. v. McKinney, 456 So.2d 1069 (Ala. 1984) (trial court asked venire if they could read and write; an illiterate served on the jury), and Beasley v. State, 39 Ala. App. 182, (96 So.2d 693) (trial court asked venire if anyone convicted of a crime of moral turpitude; convicted adulterer served on jury). The Court distinguished Holland v. Brandenburg, 627 So.2d 867 (Ala. 1993) (convicted felon juror - waived because neither court nor parties inquired of the venire), and McBride v. Sheppard, 624 So.2d 1069 (Ala. 1993) (illiterate juror - but no one had inquired of venire members about their English ability).
In CSX Transportation, Inc. v. Dansby, 659 So.2d 35 (Ala. 1995), CSX challenged for cause one of its own employees. The established common law rule is that employees of a party are subject to challenge for cause. This case holds, however, that when it is the employer challenging its own employee, "it must make a showing of prejudice or bias on the part of its employee" to support a challenge for cause. 659 So.2d at 39.
In Sealing Equipment Products Co., Inc. v. Valarde, 644 So.2d 904 (Ala. 1994) (affirmed about $200,000.00 in compensatory and punitive damages in a fraud suit), the Court affirmed the granting of a challenge for cause to a venire member who said, "I'm against punitive damages," when asked if anyone just wouldn't fell comfortable "awarding punitive damages. 644 So.2d at 906. The Supreme Court said there was nothing "vague, ambiguous, equivocal, uncertain, unclear, or confused" about her categorical statement, and it fully supported the challenge for cause. Id. at 907.
IV. PROTECTING THE RECORD
The Alabama Supreme Court's reluctance to reverse a case for juror misconduct or for failing to properly respond to questions has been based primarily on the failure of the lawyer to do an adequate job in articulating an understandable question, or in properly pursuing the line of questions so that the jury fully understands the question.
If you are asking questions that are important in your information gathering efforts, you must ask them articulately and follow up with the juror that you want off the case. Sometimes you will have a juror respond to a question that you know is the kind of person you want to leave on the jury. In this situation, too much follow-up my lead to your potential juror's disqualification. You have to know when to go forward and when to stop. However, if the record is not clear the appellate courts tend not to reverse a case on juror disqualification.
When a motion for a new trial is based on improper answers to voir dire, "the proper inquiry for the trial court...is whether this has resulted in probable prejudice to the movant." Freeman v. Hall, 286 Ala. 161, 166, 238 So. 2d 330, 335 (1970). Some of the factors that may be considered in making this judgment are: "temporal remoteness of the matter inquired about, the ambiguity of the question propounded, the prospective juror's inadvertence or willfulness in falsifying or failing to answer, the failure of the juror to recollect, and the materiality of the matter inquired about." Freeman, 286 Ala. at 167, 238 So.2d at 336. See also, e.g., Conference America, Inc. v. Telecommunications Cooperative Network, Inc., 885 So.2d 772, 777 (Ala. 2003)(recent case relying on Freemanfactors to hold that trial court exceeded its discretion by refusing to grant new trial when juror responded improperly to questionnaire and during voir dire).
Under the Freemanfactors, even a single juror's improper responses to juror questionnaires and voir dire questions can require a new trial. See id. at 776-78; Gold Kist, Inc. v. Brown, 495 So.2d 540 (Ala. 1986). This is in part because, subject to Freeman's elaboration of the "probable prejudice" requirement, parties "have a right to have their [voir dire] questions answered truthfully to enable them to exercise their discretion wisely in the use of their peremptory strikes." Sanders v. Scarvey, 284 Ala. 215, 219, 224 So. 2d 247, 251 (1969).
A "material fact" for the purpose of applying the foregoing rules has been described as "'one which an attorney[,] acting as a reasonably competent attorney, would consider in making the decision whether or not to excuse a prospective juror.'" Conference America, Inc., 885 So. 2d at 777(quoting with approval the trial court's definition as reported in Gold Kist, Inc., 495 So. 2d at 545). In fact, a close reading of some of the cases suggests that what is in essence a showing of "materiality" is in itself sufficient to establish probable prejudice without reference to any additional factor under the Freemanrule: "If the party establishes that the juror's disclosure of the truth would have caused the party either to (successfully) challenge the juror for cause or to exercise a peremptory challenge to strike the juror, then the party has made a prima facie showing of prejudice. . . . Such prejudice can be shown by the obvious tendency of the true facts to bias the juror. . .or by direct testimony of trial counsel. . . ." Ex parte Dobyne, 805 So. 2d 763, 773 (Ala. 2001).
The Freemanfactors have never been presented as either an exclusive or mandatory list, and, as noted above, such materiality alone may sometimes be sufficient to establish probable prejudice. See Freeman, 286 Ala. at 167, 238 So. 2d at 335 (noting that "the factors upon which the trial court's determination of prejudice is made must necessarily vary from case to case" and further noting that what have come to be known as the Freemanfactors are only "some" of the factors that have been considered by other courts in making this determination); Ex parte Dobyne, 805 So.2d at 773 ("Such prejudice can be shown by the obvious tendency of the true facts to bias the juror. . . .").
Although there is little case law from Alabama discussing the question of remoteness, at least one very recent case has held that collection actions commenced five years earlier and continuing up until the date of the trial was not temporally remote. See Holly v. Huntsville Hospital, 925 So.2d 160 (Ala. 2005). In addition, a careful independent survey of national decisions suggests that at least ten years must have elapsed before a prior lawsuit will be considered "remote." See Annot., Effect of Juror's False or Erroneous Answer on Voir Dire in Personal Injury or Death Action as to Previous Claims or Actions for Damages by Himself or His Family, 38 A.L.R. 4th 267, 315-17 (1985 & Supp. 2005)(collecting no case in which a prior lawsuit less than ten years old was held to be remote).
See also Colbert County-Northwest Alabama Healthcare Auth. v. Nix, 678 So. 2d 719, 720 (Ala. 1995)(holding that the question "Have any of you ever been a defendant in a lawsuit, that is, the person against whom the suit is brought for personal injury or property damage or money damages?" was not ambiguous).
V. DEFENSE PERSPECTIVE OF JURY SELECTION IN AUTOMOBILE ACCIDENT CASES
There are many goals to be achieved by defense counsel. In addition to learning about potential jurors and their qualifications to serve, voir dire provides the only opportunity to seek feedback from the pool of potential jurors about the case. Examples are numerous:
1. How many of you have ever been confronted with a sudden emergency while driving that resulted in an accident that was not your fault?
2. Have any of you ever had a vehicle in front of you stop abruptly (because of some event) that did not give you enough time to stop?
3. Have any of you had a light change to red just as you were going through an intersection but after it was too late to stop?
4. Have any of you ever been blamed for causing an accident that really wasn't your fault?
5. Is there anyone who would disagree with the statement that sometimes accidents can occur without anyone being at fault?
Questions such as this help you determine potential bias and they also begin to prepare the venire for the presentation of the defense case.
The voir dire process allows an attorney the chance to question prospective jurors on issues touching their attitudes, interests and qualifications. Challenges for cause should be granted by the court for potential jurors who are not qualified. This includes any potential juror who holds a "fixed opinion" as to the guilt or innocence of the parties or, for whatever reason, admits that they cannot be fair and impartial. Ex Parte Beam 512 So.2d 723 (Ala. 1987). Many times it is the less obvious preemptory challenges that require the most attention by defense counsel.
In order to make good and effective use of preemptory challenges you must listen carefully. People who have been sued before in an automobile case will tend to identify with the defendant. People who have received injuries, but were not compensated, may be less likely to compensate a plaintiff, especially where the plaintiff's injuries are less by comparison.
By the time the defense attorney begins their questioning of the jury panel, the prospective jurors have already been questioned by the court then questioned in great detail by the plaintiff attorney. It is therefore critical that you get right to the point and that you do not waste time. Thank the jurors for their patience and then get right to work without replowing the ground covered by the plaintiff. You should be able to look at the potential jurors and ask specific follow-up questions. In doing this you should attempt to speak to individuals by name and show interest in their answers.
Examples of follow-up questions:
1. Mr. Smith, you mentioned that you were involved in a motor vehicle accident, how did the accident happen? Was there a lawsuit?
2. Mr. Jones, you mentioned that you are familiar with back pain, are your back problems related to your involvement in a motor vehicle accident? How many of you have experienced back pain that has nothing to do with being involved in an accident? Have any of you ever heard of the term degenerative disc disease?
3. You were asked a number of questions about compensation and damages. Do any of you believe that just because an accident occurred that my client should have to pay the plaintiff damages?
Alabama's English language requirement is not unconstitutional. Kittle v. State, 363 So.2d 1260 (Ala.Crim.App.1977); Smith v. State, 482 So.2d 1312 (Ala: Crim.App.1985).
There are numerous examples of the grounds and procedures for challenges for cause. SEC 35 Ala. Digest 2d. Jury Key nos. 124-133 (1994) and David D. Wininger, Trial Handbook for Alabama Lawyers §§ 68 et seq.
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This client alert is provided solely for educational and informational purposes. It is not intended to constitute legal advice. No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.