Lawyer Tip:
Jury Selection Examination on Homosexuality Bias

warning sign about homophobia

One of the primary functions of voir dire (jury selection) is to identify “challenges for cause.” Basically, developing facts demonstrating that a person is not legally fit to serve on a jury. This requires skill and keeping up with current appellate decisions and legal trends. We are all used to challenging jurors for a variety of biases or prejudices. Bias against the race or gender of a criminal defendant is a reason to challenge someone for cause. A bias in favor of the prosecution or police is another reason I’ve had hundreds of prospective jurors struck. Recently, I picked a jury, and it occurred to me that views on same-sex relationships may be an issue. I know, it seems obvious. Regardless, I recently examined the array* in my trial on thoughts and feelings about homosexuality. I used a slide like this:

PowerPoint Slide for Homosexual Bias

I believe if there may be some evidence presented at trial that the accused is a homosexual, the criminal defense attorney has a right and obligation to question jurors about their bias or prejudice related to same-sex relationships. Fortunately, I was prepared for an objection and the judge was reasonable, so in my trial I was allowed to make my inquiry. Unfortunately, I had to use one of generic viagra that otherwise would have been on our jury.

I believe the information I obtained using this discussion topic was invaluable in my case. The allegation was a male-on-male aggravated sexual assault. The Texan zeitgeist has strong feelings about masculinity that are at odds with trends in current civil rights and social views. Our national conversation is a positive step, but it also causes an “escalating commitment” for those deeply troubled by same-sex relationships. Explore this. Dig into people’s feelings and beliefs.

Bias Against Homosexuality | Challenge for Cause

This is not established law in Texas. This blog post should only be the beginning of your preparation for voir dire related to homosexuality. But here are some starting points for developing your brainstorm and strategy…

Like with any objection, your chances of convincing a judge (smart judge) and your chances on appeal are better if you can articulate your position in terms of a constitutional issue. takes exception with the Court’s denial of examining on bias against homosexuality based on:

  1. Tex. Crim. Proc. Code Art. 35.16 – Reasons for Challenge for Cause
  2. Tex. Crim. Proc. Code Art. 35.14 – Preemptory Challenges
  3. Tex. Crim. Proc. Code Art. 38.03 – Presumption of Innocence
  4. Texas Penal Code Section 2.01 – Presumption of Innocence
  5. Tex. Const. Art. I § 19 – Due Course of Law
  6. Tex. Const. Art. I § 10 – Right to a Trial
  7. Tex. Const. Art. I § 3a – Equality Under the Law
  8. Tex. Const. Art. I § 3 – Equal Rights
  9. Tex. Const. Art. I § 15 – Right to Jury Trial
  10. U.S. Const. Amend. V & XIV – Due Process
  11. U.S. Const. Amend. V, VI & XIV – Right to Jury Trial
  12. U.S. Const. Amend. XIV – Equal Protection

The United States Supreme Court recently told us, persons engaged in same-sex relationships are entitled to the same Due Process and Equal Protection under the Fourteenth Amendment as heterosexual persons. See Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

Even our Texas Court of Criminal Appeals has some respect for the freedom to be homosexual. The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons. Criminalizing homosexuality violates our Due Process rights under the Fourteenth Amendment. See Lawrence v. Texas, 539 U.S. 558 (2003).

The Due Process and Equal Protection grants us the liberty to be homosexual and enjoy the same liberties as heterosexuals. Accordingly, I think Due Process and Equal Protection is violated if courts prohibit voir dire examination on: bias against homosexuals; and a prospective juror’s ability to give homosexuals the “presumption of innocence.” If your judge denies your request to voir dire on homosexual bias, then the judge deprives the accused of a fair trial. Defense counsel cannot develop a record for appropriate challenges for cause or intelligently use preemptory strikes.

Help with Your Jury Selection

If you’re a Texas criminal defense attorney, and you need help with your jury selection, please contact us. We are happy to consult or second chair. Even if you don’t want a lawyer prying into your case, but you want to talk some ideas over, email us.

Link to profile of Attorney Cody Cofer