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
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