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Board Certified - Criminal Law - Texas Board of Legal Specialization

Criminal Law Blog

January 30, 2006

What Does It Mean To “Bust” A Jury Panel?

Here’s the answer, using a felony case as an example. 

To begin with, most jury panels start with approximately 54 people. 
Now, the first 12 people on that jury panel will be on the jury unless someone exercises a strike against each one of them. 

One kind of strike is a challenge for “cause,” in which someone gets the judge to strike a panel member from the panel because they cannot qualify to serve.  A good example of a challenge for cause is when a panel member says that he cannot follow the law in a given case, such as he says he will hold it against a defendant in a criminal case if the defendant chooses not to testify.  Since he cannot follow the law, he can’t serve on the jury, and so the judge strikes him from the panel. 

Both the State and the Defense can move to strike each and every single panel member for cause, provided they have a good reason. 
In a felony case, each side also has 10 “peremptory” strikes against jury panel members. 

So the math works this way: 12 people on the jury + 10 strikes by the State + 10 strikes by the Defense = 32 people.  All 32 people are in what is called the “strike zone.”
If fewer than 32 people are left on a jury panel after all the challenges for cause are granted, and neither the State nor the Defense is willing to give up any peremptory strikes, then the panel is “busted.”

About three weeks ago, I was picking a jury for a client and the panel was busted.  Out of the 54 people on the panel, only 23 were left after the challenges for cause were granted.  The Defense certainly wasn’t going to give up any strikes, which left the State with only one peremptory strike or a busted panel. 

Last week, we went to pick a jury again in the same case, again with 54 people – at first.  Then the judge told the jury office to add 10 more names to the panel. 
That was a good thing, because the last panel member in the “strike zone” was number 58.  If he hadn’t added 10 more names, the panel would have been “busted” again. 

What does a defendant get out of a busted panel?  He knows his rights were protected in the jury selection process that day.  He and his lawyer can prepare more.  But when the judge declares a “mistrial” because the panel was busted, it doesn’t mean he doesn’t need to deal with the case anymore.  There will simply be another opportunity to pick a jury later. 

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