Last week, the United States Supreme Court held that trial judges should not exclude the public from courtrooms during jury selection.
Eric Presley’s uncle came to court to watch jury selection in his nephew’s trial. He was the only spectator in the courtroom. The judge said he had to leave. The judge told him he could not sit where potential jurors would be sitting, and instructed him to come back after voir dire. Eric’s lawyer objected, but the judge ruled he had discretion to limit access to the courtroom to prevent “intermingling” between family members and prospective jurors, for fear that the jurors might “overhear some inadvertent comment or conversation.”
Addressing the question, whether the Sixth Amendment right to a public trial applies to the voir dire of prospective jurors, the Supreme Court answered in the affirmative. Presley v. Georgia, 528 U.S. __ (2010). The Court held, “Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials.” “The public has a right to be present whether or not any party has asserted the right.” The Court further explained that trial courts must consider alternatives to limiting pubic access, even when no alternatives are offered by the parties. In the present case, for example, the Court suggested the lower court could have resolved the issue by reserving rows for the public, dividing the jury panel to reduce congestion, or instructing the prospective jurors not to engage or interact with audience members. And while the Court recognized there may be cases where a threat of improper communications or safety concerns are significant enough to close voir dire, those threats must be clearly articulated. “The generic risk of jurors overhearing prejudicial remarks, unsubstantiated by any specific threat or incident” is insufficient.
Justices Thomas and Scalia dissented stating that the Court had never before directly answered the question whether jury selection is part of the “trial” within the meaning of the Sixth Amendment. That question has now been answered.
January 26th, 2010
Yesterday the Fourth District Court of Appeal upheld the trial court’s denial of a challenge for cause directed at a potential juror in a case involving murder-for-hire. In Samuels v. State, __ So. 2d __ (Fla 4th DCA, May 13, 2009), the Court reaffirmed the longstanding rule that if there is any reasonable doubt about a juror’s ability to render an impartial verdict the juror should be stricken for cause. As noted by the Court, close cases on this issue should be resolved in favor or excusing the juror rather than leaving a doubt as to impartiality.
However, in reviewing the colloquy between counsel and the prospective juror in this case the Court found nothing in the record that would raise a doubt as to the juror’s impartiality other than she admitted during voir dire that she had heard people talk about the case where she was employed as a hairdresser, and she had also seen it on the news and read about it on the internet. The prospective juror stated that notwithstanding what she had heard, she had not formed an opinion about the case, and she could decide the case based solely on the evidence presented at trial. As a result, the conviction was affirmed.
May 14th, 2009
The law concerning the use of pe
remptory challenges in jury selection has been changing in recent years. There is a vast difference between Florida law and Federal law in this area. While “Cause is Still King,” the effective use of peremptory challenges can make or break the outcome of a trial. As Justice Adkins wrote in the seminal case of Ter Keurst v. Miami Elevator Company, 486 So. 2d 547 (Fla. 1986), “In the trial of a case the jury selection and voir dire examination are just as critical to the outcome as the presentation of evidence….The change of a single juror in the composition of the jury could change the result.”
The annual jury selection seminar of the Florida Justice Association will be held this Thursday and Friday in West Palm Beach and Tampa. I will be speaking alongside the legendary down-home jury picker Keith Mitnik and the remarkably insightful jury consultant Jay Burke on both dates. Keith and Jay will focus on the effective use of cause challenges during voir dire, but my talk this year will focus on how to maximize the power of your peremptory strikes during jury selection.
If you would like to attend the seminar, contact the Florida Justice Association by clicking here, or call (850) 224-9403.
There will also be a live webcast of the Seminar on Friday, April 24th.
April 20th, 2009
Late last month the United States Supreme Court upheld the murder conviction of a man, Michael Rivera, who was convicted by a jury whose foreperson, Deloris Gomez, was improperly allowed to sit on the jury. Rivera v. Illinois, 556 U.S. __ (2009). During jury selection, Rivera’s attorney properly attempted to use one of his peremptory strikes against Gomez, but the trial judge wrongfully refused to allow the strike, erroneously believing the challenge was discriminatory since Gomez was a black woman. As a result, Gomez remained on the jury and she ended up as foreperson. Rivera was convicted of first degree murder. It was undisputed in the ensuing appeals that the trial judge erred in preventing the use of the peremptory strike because the strike was not discriminatory. Nevertheless, the United States Supreme Court affirmed the conviction on the grounds that in Illinois (unlike Florida) there is no freestanding constitutional right to peremptory challenges. They are a “creature of statute,” which a State may decline to offer at all. The Court held that if a defendant is tried before a qualified-jury composed of individuals not challengeable for cause, the loss of a peremptory strike due to a state court’s good faith error is not a matter of federal constitutional concern. Rather, it is a matter for the State to address under its own laws.
Fortunately, peremptory strikes have strong constitutional protection under Florida law. In several opinions in recent years, the Supreme Court of Florida has recognized the unique and important role that peremptory challenges play during jury selection. The Court has held that “peremptory challenges are a necessary tool for achieving the constitutional right of a trial by an impartial jury.” See, Kopsho v. State, 959 So. 2d 168 (Fla. 2007) and Busby v. State, 894 So. 2d 88 (Fla. 2004). In Florida, it is reversible error and prejudice “per se” to require counsel to use a peremptory strike on a juror who should have been stricken for cause, and a new trial is required even if the jury that decided the case is composed of qualified individuals not otherwise challengeable for cause. It is per se reversible error to prevent a defendant or attorney from exercising peremptory challenges at any time before the jury is sworn. See, Gilliam v. State, 514 So. 2d 1098 (Fla. 1987), and Peacher v. Cohn, 786 So. 2d 1282 (Fla 5th DCA 2001).
As a result, Michael Rivera’s conviction would almost certainly have been overturned had the trial taken place in Florida instead of Illinois.
April 15th, 2009
During jury selection in a car accident trial, the defense attorney (who had been hired by an insurance company to defend the case), told the jury panel: “I’m a consumer justice attorney, and I represent John Hooks, a merchant marine, not some fancy company, not some conglomerate.” The plaintiff’s attorney immediately objected and moved for a mistrial since the defense attorney had been hired by Hook’s insurance company. The trial judge denied the motion for mistrial.
On appeal, the First District Court of Appeal held the trial court abused its discretion in denying the mistrial because the defense attorney’s “egregious” statement was misleading, and was “nothing less than an appeal to the jury to protect that individual from a harmful verdict.” The appellate court noted that because Florida law prevents liability insurers from being named as parties in car accident cases, it would be impossible for the plaintiff’s attorney to refute the misleading statement, and therefore the jury verdict rendered in the case was a “miscarriage of justice.” Hollenbeck v. Hooks, 993 So. 2d 50 (Fla 1st DCA 2008).
This excellent opinion deals squarely with an improper voir dire technique that some insurance company lawyers have been using, in one fashion or another, for many years. Hopefully, this opinion will put an end to these kind of misleading statements (e.g. “Do you all understand that insurance is not an issue in this case?”). The statement by the insurance company lawyer in this case was particularly offensive because of his attempt to disguise himself as an attorney for consumers.
September 17th, 2008
On the day the jury was sworn – after a week of voir dire – a prospective juror got a traffic ticket. The ticket was for the “crime” of knowingly driving on a suspended license, a second-degree misdemeanor. No one in the courtroom on that day asked her about it. She didn’t tell anyone about it. And she ended up serving on the jury that convicted Jason Tucker of premeditated first-degree murder. Tucker appealed his conviction on the grounds that Florida Statute 40.013(1) states: “No person who is under prosecution for any crime…shall be qualified to serve as a juror.” On Friday, the Fifth District Court of Appeal, while recognizing the undisputed nature of the “crime,” rejected his argument and affirmed the conviction. Tucker v. State, 987 So. 2d 717 (Fla 5th DCA 2008).
The Appellate Court affirmed the conviction for two reasons: 1) this prospective juror was not “under prosecution” for this crime in this scenario (as used in the jury qualification statute) because the state attorney had not exercised his discretion to pursue the charges against her through formal judicial proceedings (i.e. merely getting the ticket was not enough), and 2) even if this juror was “under prosecution” during jury service, a new trial was not warranted because there was no showing of prejudice by Tucker.
June 23rd, 2008
Today the Fourth District Court of Appeal reversed a criminal conviction because the trial judge failed to strike for cause a juror who “held conflicting views” on the presumption of innocence. Initially, during jury selection the juror stated “he’s guilty until proven innocent,” but later said “I think it was a misunderstanding earlier…,” and then went on to state ”I can be fair and impartial.” The Court looked at the entirety of the juror’s comments (which are set forth in the opinion) and concluded there was reasonable doubt about the juror’s ability to serve in the case. The Court reiterated the long-standing principle that “close cases involving challenges to the impartiality of potential jurors should be resolved in favor of excusing the juror rather than leaving a doubt as to impartiality.” Joseph v. State, 983 So. 2d 781 (Fla 4th DCA 2008.)
The opinion also sets forth the procedural steps which must be taken in order to preserve error in this situation. Defense counsel properly: 1) used all peremptory challenges, 2) requested an additional peremptory challenge, 3) objected to the court’s denial of the request for additional peremptory challenges, and 4) identified the juror he was required to accept as objectionable. The court noted, “It is not necessary that a defendant explain why the venireperson for whom the additional peremptory challenge was sought was objectionable; they must merely identify that individual as objectionable.”
Bottom line: The juror’s statements, taken in their entirety, and although coupled with an expression that she could be fair and impartial, raised a reasonable doubt about her impartiality, and she should have been excused for cause.
June 18th, 2008
The section of The Florida Jury Selection blog dealing with juror pay has been updated thanks to the work of my brilliant law clerk, Kristin Bianculli. One of the most common concerns of potential jurors during voir dire is whether they will get paid while they are serving on a jury. State law only requires the government to pay jurors a very small amount for their service, and imposes no obligation at all on private employers. In researching this issue Kristin discovered there are some local County ordinances which require some private employers to pay some employees for all or a portion of the time they serve on the jury. The Broward County ordinance has been added to the Blog and others will be in the near future.
April 2nd, 2008
The Supreme Court of the United States reversed a brutal murder conviction yesterday concluding that the prosecutor’s peremptory strike of a black college student appeared to be racially discriminatory. In Snyder v. Louisiana, 128 S. Ct. 1203 (2008) the Court held, in a 7 – 2 decision written by Justice Samuel Alito, that the trial court committed clear error in rejecting the defendant’s Batson objection to the prosecution’s peremptory strike. Justices Thomas and Scalia dissented.
The high Court reviewed the trial transcript and concluded that the two reasons proffered by the prosecution as justification for the strike (1: that the black student looked nervous, and 2: that he had a student-teaching obligation to fulfill) were pretextual. The Court observed that this prospective juror was 1 of more than 50 venire members expressing concern that jury service would interfere with work, school, family or other obligations, and therefore that the prosecutor’s explanation was implausible.
March 20th, 2008
This Wednesday’s New York Times reports that a federal district court judge has concluded that allowing American-born blacks on a Bronx jury but systematically excluding West Indian-born blacks from the jury is discriminatory. Federal Judge William H. Pauley III concluded that prospective black jurors cannot be excluded from jury service because of their national origin even though other blacks served on the jury. In other words, it is improper to exclude prospective jurors from a jury because of their national origin (as opposed to their race). The complete Times’ story can be viewed by clicking here: Ban on Using Nationality to Exclude Jurors is Upheld.
March 5th, 2008
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