Disqualifying or Removing a Juror From a Criminal Trial

Criminal Defense | Jury

During a jury trial, jurors have the responsibility of determining the defendant’s guilt or innocence based on the evidence presented during the trial. A good juror must remain fair and unbiased during the entire trial. A juror’s ability to judge fairly is taken into account during the pretrial jury selection as well as during the trial.

There are certain circumstances when a juror can be removed or disqualified to ensure the defendant receives an impartial jury.

Disqualifying Jurors During Jury Selection

The prosecution and the defense both have the opportunity to disqualify potential jurors during the jury selection based on a variety of reasons. Some potential jurors are disqualified from serving based on their failure to meet certain legal requirements. Others are disqualified based on potential biases they may hold.jury-disqualification

Some reasons for disqualification during the jury selection include:

  • Failure to speak English
  • Failure to provide evidence of U.S. citizenship
  • Previous conviction of a crime
  • Prior experience as the victim of a similar crime
  • Has a connection to someone in the trial
  • Has a connection to law enforcement
  • Possession of a physical or mental ailment

Removing Jurors During Trial

Attorneys and judges also have the option of removing jurors once the trial has started. Once a juror is chosen to serve, he or she must remain unbiased and fair during the entire trial. The court can remove a juror at any time during the trial for a variety of reason. The reasons for removing a juror during the trial include:

  • Absence
  • Tardiness
  • Contact with the defendant or witnesses
  • Personal illness or illness of a family member
  • Talking or falling asleep during the trial
  • Disobeying the law of the court
  • Being charged with a crime
  • Showing bias

Replacement of Disqualified Jurors

If a juror is removed during the trial, the court has several options for continuing the trial. They may replace the disqualified juror with an alternate juror who was chosen during the jury selection process. Alternate jurors are chosen during the pretrial jury selection in case a regular juror is unable to fulfill the requirements. If no additional jurors are available, the court may also choose to continue the trial with a lesser amount of jurors.

The court may also declare a mistrial. If a mistrial occurs, the prosecution can later charge the defendant with the same crime and have a completely new trial with a new jury.

To learn more information about excluding jurors before and during a trial, get in touch with Mario Madrid at 713-877-9400.

Motion for Continuance After Voir Dire


I recently took part in a Sexual Assault trial. After voir dire, the jury was impaneled but not sworn. Later that day, it came to the court’s attention that the state’s complaining witness could not attend trial due to being ill.

The questions that stemmed from this were the following:

(1) when will the trial take place and

(2) what will happen to the jury that was impaneled.

Both of these questions seem to hinge on whether the jury was sworn-in.


The point in time when trial begins is not explicitly defined in the Texas Code of Criminal Procedure (CCP). To begin, Code of Criminal Procedure 3.01 says that all phrases used in this code are to be taken and understood in their usual acceptation in common language, except where specially defined. It is important to note that jeopardy attaches when the jury is sworn. State v. Torres, 805 S.W.2d 418, 421.

In the situation like the one at hand, if a trial has not begun, then under CCP 29.03 the state can get a continuance for “sufficient cause shown.” The illness of a witness can be sufficient cause. For example, the judge in Younger v. State did not err when they granted a 2-day recess so the state could secure the testimony of an officer who was the only one who could testify as to a certain subject, was necessary to the state’s case, and the state was taken by surprise. 457 S.W.2d 67.

On the other hand, if the trial has begun, then the state could be granted a continuance under CCP 29.13 if (1) the situation is unexpected and occurred since the trial began (2) no reasonable diligence could have anticipated the occurrence and (3) the state is so taken by surprise that a fair trial cannot be had.


This issue was addressed in Pizano v. State (20 Tex. App. 139). In Pizano, the State’s key witness was not present and the jury had been impaneled and sworn-in.

The state was certainly surprised because they announced ready only after the sheriff told them the witness was present, although the witness was not. The issue regarding what would happen to the jury that had already been chosen depended on the fact that jeopardy had already attached because the jury had been sworn.

Because the jury had been sworn, the court explained that “in this case, when the postponement was granted, the jury should have been kept together in charge of an officer until the witness could be brought into court and the trial renewed.” Id. at 144. Although this is an old case, the law is the same.


In the case at hand, the judge reset the trial date. The jury panel was discharged and a new jury will be chosen at the new trial setting. As explained above, the key to this decision was that the jury had only been impaneled and not sworn.

If you’ve been accused of a criminal offense in the State of Texas, contact the criminal defense attorneys of Madrid Law PLLC.

Can My Lawyer Object to Jury Instructions?

Criminal Defense | Jury

A jury consists of a peer group from the community. Its responsibility is to decide whether a defendant is innocent or guilty of the crime he is charged with. While the members of a jury are selected for their potentially unique perspectives on a crime, they often have very little knowledge of the law.  Before a criminal trial, they are given a series of instructions on how to process the information that is presented to them. Both the defense and the prosecution can object to the court’s instructions to the jury. By objecting to instructions, the attorneys can redirect the members of the jury. This can result in a more favorable outcome for the defendant.

Common Objections to Jury Instructions

Any attorney who objects to instructions does so in the presence of a jury unless it could hurt his chances of winning the case. In this situation, the attorney would approach the judge’s bench to make the objection. A judge can also sequester a jury at the request of an attorney.

Some common objections to jury instructions include:

  • Flawed or confusing instructions
  • Failing to offer instructions

All objections must be legally explicit, on the record and presented in a timely manner. This is important as issues can be raised if the defendant requests an appeal.

How to Object to Jury Instructions

Attorneys must be very specific when they object to jury instructions. In each instance, the objector must specify the legal concerns of the request and how it could potentially impact the outcome of a case. A judge must consider each request to ensure that the defendant gets a fair trial.

When to Object to Jury Instructions

Objections to jury instructions must be made immediately and addressed before the jury deliberates the verdict. After the jury has been sequestered to contemplate guilt or innocence, it is too late to object to the instructions that are provided by the judge. The jury members hear the court’s instructions right before deliberating. A well-constructed objection could make a big difference in the outcome of the case and may establish grounds for a defendant to appeal.

To learn more about objections to jury instructions, contact Madrid Criminal Law by calling 713-877-9400.