What is a Commitment Question?


We don't lose at trial very often. While my ego informs me that this success is entirely attributable to personal skill, a more realistic explanation would include strong selection effects. If you try to avoid taking bad cases and give your clients a realistic view of their odds in court, you're going to find yourself losing fewer jury trials.

But nobody bats 1000 and losses do happen. I try to look at them as teaching experiences. Even if a minor mistake or sub optimal decision was unlikely to have made the difference in the verdict any lesson learned from a loss is embedded with more emotional resonance. If you've tried a lot of cases, you walk around with an indelible list of trial rules or checklists as permanent legacies of adverse outcomes.

One not-quite- mistake that tends to stick in your memory are bad jurors that you didn't strike. Jury selection is a very difficult process often done with extremely imperfect information. And there are rarely enough strikes to hit everyone that you might want to exclude. You do the best that you can under the circumstances aided, at times, by jury consultants and or focus groups. But sometimes you still end up with jurors that you'd rather not have. If the case then goes poorly, you can still think years later, “Man I wish I'd cut that weirdo.”

To avoid that you do your best to suss out potential problems in voir dire. You ask jurors as many questions as you can. But there’s really only one question that you want answered. In an ideal would, you would just show the potential jurors the evidence to ask them which way they intend to vote.

But can you do that? What rules are there about asking a potential juror how they feel about the evidence in the case?

Many jurisdictions have restrictions on commitment questions. Commitment questions – sometimes called “stakeout questions” – “are those that commit a prospective juror to resolve or refrain from resolving an issue a particular way after learning a particular fact.” [1] For example, a prosecutor could ask:

Imagine a suspect is arrested with a crack pipe in his pocket that tests positive for crack cocaine. Is there anyone who would not convict on that set of facts?

Or a defense attorney could ask:

Imagine you were deciding on the proper penalty in a capital murder case. And imagine the victim’s family testifies that they were terribly impacted and aggrieved by the crime. Can you assure me that that testimony would not prevent you from considering a life sentence instead of the death penalty?

Not all commitment questions are prohibited – Texas, in particular, distinguishes between proper and improper ones. And many jurisdictions do not have clear law on this issue. But commitment questions are broadly controversial and, in some courts, prohibited, particularly in criminal trials.

Why? The basic theory is that people don't like to contradict themselves particularly after having made a statement in a formal setting in front of others. So, if you get a juror to say that they will or won't find a particular way if certain facts are true, they are likely to feel pressure to do what they said. And they may feel that pressure even if after considering all the facts – not just the ones mentioned by the attorney – they would be inclined to deliver a different result.

The difficulty, of course, is in figuring out what constitutes a commitment question and what does not. Attorneys are permitted – indeed even ethically obligated – to investigate potentially disqualifying jury biases. And these biases necessarily relate to the facts of the case. For example, does a juror hate postal workers? If so, that is critical information if your case involves postal workers and potentially irrelevant if it does not. If your client drives a mail truck you're going to want to find out! So, at what point does asking jurors about facts in the case straight into impermissible commitment questions?

Different courts take slightly different approaches. In Standefer v. State, [2] a divided panel of the Texas court of criminal appeals considered whether a contentious voir dire question was permissible. The challenged question in that case was “Would you presume someone guilty if he or she refused a breath test on their refusal alone?” The court employed a three-part test in assessing the question. First, it considered whether it was a commitment question at all. The court held that a question was a commitment question “if one or more of the possible answers is that the prospective juror would resolve or refrain from resolving an issue in the case on the basis of one or more facts contained in the question.”

Second, the court considered whether the commitment in the question was one required by law. For example, the court reasoned that “Could you consider a sentence of probation in a murder case?” to be an acceptable commitment question because the law requires jurors to consider all available sentences for any crime.

Third, the court considered whether the question included more case specific facts than were necessary to support a challenge for cause.

Applying the three-part test the court held the breath test question to be improper. However, four judges vociferously dissented. Their main complaint was that the court had applied too loose a test to what would constitute commitment and that in so doing created a very different legal standard for voir dire in criminal cases than existed in civil cases where such questions were commonplace.

A Federal District Court employed a very different test in United States v. Johnson.[3] That case involved a capital murder trial of a defendant charged with killing five witnesses to a drug conspiracy.

The Johnson court was asked by the parties to set rules concerning what case specific questions could be asked in the course of “death qualifying” the jury. The court began by noting the permissible general death qualification questions that had already been established by precedent. Those included asking jurors if they would always impose the death penalty for murder or whether they would never do so.

After an extensive survey of the legal landscape the court found substantial confusion in how courts approached the issue of case specific commitment questions, for death penalty cases and otherwise. Synthesizing these decisions as best it could the court found the proper test to be:

1.     Does the question ask a juror to speculate or pre commit to how that juror might vote based on any particular facts? or

2.     Does it seek to discover in advance what a prospective jurors decision will be under a certain state of the evidence? or

3.     Does it seek to cause prospective jurors to pledge themselves to a future course of action and indoctrinate them regarding potential issues before the evidence has been presented and they have been instructed on the law?

If so, the Johnson court held a question is a commitment question and should be barred.

As always, it's important to check with your jurisdiction to determine what will or will not fly. And if your adversary starts asking jurors to focus group oddly familiar hypotheticals in voir dire you should be ready to object and make your record.


[1]           Standefer v. State, 59 S.W. 3d 177 (Texas Crim. App. 2001).

[2]           59 S.W. 3d 177 (Texas Crim. App. 2001).

[3]           386 F. Supp. 2d 822 (N.D. Iowa 2005).

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