I occasionally handle criminal appeals. DWI criminal appeals are usually pretty rare, and even more rarely successful.
Handling an appeal is a little like Monday morning quarterbacking… A lot of "why didn’t they say XXX or XXX?" is running through my head. The appeal I am reading now has an attorney making a challenge for cause improperly, and because he does so improperly, I cannot raise that point of error on my appeal.
Instead of complaining, I thought I would blog here on the correct way to challenge a juror for cause. This would be in case you you are in trial, and end up wanting or needing to appeal a case. Truth is, you never know until after the case is over if you need or want to appeal your case. Therefore, it is good practice to preserve all possible points of appeal during your case.
During jury selection, (for a misdemeanor case), both sides get 3 juror challenges. Generally speaking, you can strike any 3 people for whatever reason you want, (peremptory challenges) so long as it is not race, gender, etc. related.
You may also challenge (ask the Judge to strike) jurors for "cause." This is when a juror indicated they can not be fair to either your side or the opposing side. One example (in caselaw I’m reading) is where someone cannot be fair because they always believe the police are telling the truth. Even before hearing from them.
How to properly challenge the juror for cause:
First, you must make your challenge to the court and present to the court why you believe that juror is "challengable" (Is that a real word?).
If your objection is sustained, the juror is removed (no need to appeal). If your objection is wrongly overruled, there are more steps you must take.
You must first off, use all of your peremptory challenges.
Second, you must request from the court additional strikes (which is always denied) to use.
Third, after the panel is selected, you must object to an "identifiable" juror that you were forced to take that you would not otherwise have accepted but for the court’s overruling of your challenge for cause.
That’s it! But unfortunately, I almost never see attorneys properly handling these challenges for cause. By following these procedures, you are showing that your client was harmed by the erroneous ruling of the court.
If you do not follow this procedure, the opinion of the appeal will read "Accordingly, appellant failed to properly preserve this point of error for appeal, and we overrule his point of error." That means you lose.