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Posts filed under 'Cause Challenges'

“I don’t believe in the jury system”

During jury selection in a car accident case, a prospective juror told counsel she “didn’t believe in the jury system” because of an experience her brother had in a criminal case two years earlier. She said she thought she would have a hard time judging the case because of her personal experience and that she no longer had any faith in the jury system. She also indicated that because of this experience one side may be starting out ahead of the other in the trial (although she didn’t say which side she would favor). The trial judge refused to strike the prospective juror for cause.

The Second District Court of Appeal held the trial judge erred in refusing to strike the juror for cause, and reversed the judgment for the plaintiff. Kochalka v. Bourgeois, 40 FLW D943 (Fla 2nd DCA 4-22-15). The court reaffirmed well established Florida law that a “trial court must excuse a prospective juror for cause if any reasonable doubt exists regarding his or her ability to render an impartial verdict,” and “in close cases, any doubt as to a juror’s competency should be resolved in favor or excusing the juror rather than leaving a doubt as to his or her impartiality.” The court observed that even though the prospective juror did not state which side she would favor, her acknowledgement of bias should have disqualified her from serving on the jury. Her bias did not have to be “party-specific.”

Add comment May 12th, 2015

How to Save a Potentially Contaminated Jury Panel

During jury selection in a civil trial a prospective juror stated in open court that he was familiar with one of the defendant’s expert medical witnesses. The juror said the expert had “kind of screwed-up my dad’s back,” and that his dad had filed a lawsuit against the doctor. The defense lawyer then moved to strike the entire thirty-seven member jury panel because of the prospective juror’s negative comment.

Thereafter, the judge conducted a day-long, individual, sequestered examination of each member of the panel to determine whether they had heard the comment, and if they had, whether it would affect them in the case. Every potential juror who expressed potential bias as a result of hearing the comment was struck for cause. The jurors which eventually served in the case stated they would be able to disregard the negative comment and apply the law fairly. At the end of the trial, that jury returned a $500,000 verdict for the Plaintiff.

On appeal, the Fourth District Court of Appeal approved the trial judge’s procedure and affirmed the verdict for the Plaintiff. See Williams v. Osking, 38 FLW D232b (Fla 4th DCA, Jan 30, 2013). The court held the trial judge acted within his discretion, and that this type of procedure had previously been approved by the court in a similar scenario in a criminal case. “Considering we found the procedure sufficient to protect the rights of a criminal defendant when the defendant’s life and liberty were at stake, the same procedure employed by the trial court was clearly sufficient (and within the trial court’s discretion) to protect the rights of the parties in this civil case.” Id.



Add comment January 30th, 2013

“Hearing About” Murder Case Not Enough for Cause Challenge

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.

2 comments May 14th, 2009

Prospective Juror Not “Under Prosecution.”

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.

1 comment June 23rd, 2008

“Conflicting Views” Raise a Reasonable Doubt

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.

Add comment June 18th, 2008

Cause Challenges for Caps On Damages and Rising Insurance Rates

This week, in Rodriguez v. Lagomasino, 972 So. 2d 1050 (Fla 3rd DCA 2008) the Third District Court of Appeal reversed a defense verdict in an auto accident case because the trial judge failed to strike two questionable jurors for cause. During voir dire, prospective Juror Gutierrez said he would not favor either side and would be “in the middle,” but he had also said his wife had been in an auto accident and his insurance company was going double his rates. He said he did not know if he could put his wife’s situation aside. Another prospective juror, Mr. Hillberry said he thought there should be caps on damages because of all the frivolous lawsuits in our litigious society. Juror Hillberry said he doubted his “thoughts” would come into play in this particular case, but he admitted it was possible they could. The Miami trial judge, Daryl Trawick, refused to strike the jurors for cause because “based upon their responses” he felt “they were rehabilitated.”

The Third District reversed based on Florida law’s well established “reasonable doubt” standard, and cited Nash v. General Motors Corp. 734 So. 2d 437 (Fla 3d DCA 1999), “When any reasonable doubt exists as to whether a juror possesses the state of mind necessary to render an impartial verdict based solely on the evidence submtted and the instructions on the law given to her by the court, she should be excused.”

1 comment January 26th, 2008

Voir Dire and Comparative Fault

Last week, in Algie v. Lennar Corp., 969 So. 2d 1135 (Fla 4th DCA 2007) the 4th District Court of Appeal reversed a defense verdict in a slip and fall case. A juror had told the lawyers during jury selection that although he wouldn’t have any problem “serving fairly” if chosen, he believed that in every slip and fall case the person who slips and falls is at least partially responsible. The juror said this would factor into his decision in the case and would be something the plaintiff would have to overcome in order to prevail.

Referring back to the seminal Supreme Court decision of Singer v. State, 109 So.2d 7 (Fla 1959), and its progeny, the court observed that although the juror in this case subsequently stated he believed he could be fair, the juror never recanted or receded from his earlier expressed view. The court held that any “ambiguities or uncertainties” concerning a juror’s impartiality must be resolved in favor of excusing the juror. Therefore, the defense verdict was reversed.

Add comment November 19th, 2007

Juror Doubting Own Ability = An Easy Strike

During jury selection a potential juror stated she “did not think she could focus on the trial.” Both sides agreed she should be stricken for cause. But the trial judge refused to strike her, and she ended up on the jury. (This alone would probably have resulted in a quick reversal of any verdict). However, after the first day of testimony, the woman raised her hand (she obviously REALLY didn’t want to be there) and told the judge she lived near the store where the incident occurred. She said she disagreed with the police officer’s testimony about which direction the store faced. She said her independent knowledge about the store made her distrust the testimony of the officer, and she no longer thought she could be fair and impartial. The judge then dismissed her from the jury (saving the almost certain reversal) and seated an alternate in her place. On appeal, the Fifth District affirmed the trial judge’s actions, and held it was not error to remove the juror from the jury. The Court held that the juror’s “own expressions of doubt about her ability to decide the case impartially easily provided a reasonable doubt about her ability to decide the case solely on the evidence,” and therefore justified her removal from the case. Lowry v. State, 963 So. 2d 321 (Fla 5th DCA 2007).

This case demonstrates, once again, the problems that can arise when judges attempt to keep jurors who are trying to get out of serving on a case. It is a frustrating and all-too-common reality of voir dire. However, this issue was squarely addressed in a recent decision from the Fourth District. “We recognize that, here, the trial court and the appellees’ counsel may well have been right in surmising that the juror really ‘did not want to be there’ and ‘wanted off this jury.’ But, close issues as to juror bias are resolved in favor of excusing the juror, rather than leaving a doubt.” See, Four Wood Consulting, LLC v. Fyne, 981 So2d 2 (Fla 4th DCA 2007).

Add comment September 14th, 2007

Whose Prejudice Is This Anyway?

The Fourth District Court of Appeal reversed a breach of contract case for failure to excuse a Juror Green for cause who said she  had a “bad taste” from having been sued in the past which would “probably” cause her to view the case with prejudice one way or another. The problem was — Green never did say against whom she would be prejudiced, and none of the attorneys ever followed up during voir dire to find out, and no one ever bothered to ask her whether she could set her “negative feelings” aside. At one point during jury selection the trial judge asked the panel as a whole whether there was anyone on the panel who would not have the parties starting off on the same starting line, like in a race, but none of the prospective jurors responded verbally.

The 4th DCA applied the reasonable doubt standard and reversed the verdict. The Court noted that “while the juror was silent when the court advised the panel that both parties are entitled to ‘start off at the same line’ and inquired of the panel whether they could wait until ‘the end of the race’ to deliberate and determine what the verdict should be, reasonable doubt is not overcome by a juror’s silence as to a question asked on the entire panel.” Four Wood Consulting, LLC v. Fyne, 981 So. 2d 2 (Fla 4th DCA 2007)

Interestingly, the Court also observed: “We recognize that, here, the trial court and the appellees’ counsel may well have been right in surmising that the juror really ‘did not want to be there’ and ‘wanted off this jury.’ But, close issues as to juror bias are resolved in favor of excusing the juror, rather than leaving a doubt.”

1 comment August 24th, 2007

Supreme Court Upholds Importance of Peremptory Strikes

The Supreme Court of Florida properly reversed a jury verdict in a case where counsel was forced to use a peremptory strike during jury selection on a juror who should have been stricken for cause. The jury verdict was reversed even though it was undisputed on appeal that the jury that ultimately decided the case was a “constitutionally impartial” jury. The Supreme Court held it is prejudice “per se” to require counsel to use even a single peremptory strike on a prospective juror if there was a “reasonable doubt” about that juror’s impartiality. No showing of “actual prejudice” is required on appeal. See, Kopsho v. State, 959 So. 2d 168 (Fla 2007).

This case reaffims the importance of peremptory strikes and demonstrates the unique position they have in jury selection in Florida. The purpose of peremptory challenges is different than the purpose of challenges for cause. In Florida, a juror should be stricken for cause by the Court if the juror is legally objectionable, i.e. if there is a “reasonable doubt” about the juror’s impartiality. Peremptory strikes are different. They are discretionary strikes for counsel. They can be used by counsel to remove potential jurors who are NOT otherwise legally objectionable. They can be used by counsel to remove potential jurors who your gut tells you will not be good jurors in your case. They are for removing the potential jurors who give you the willies, even while the “record” is clean, and even while they smile and proudly proclaim they can be fair and impartial and follow the court’s instructions. Our Supreme Court has repeatedly held it is “per se” reversible error for a trial judge to require counsel to use even a single peremptory strike on a juror who should have been stricken for cause. Forcing counsel to use even one discretionary peremptory strike on such a juror is reversible error, EVEN if the jury that ultimately decides the case is an impartial jury. It is prejudice “per se” to require counsel to use a precious peremptory strike on a juror if there was a reasonable doubt about that juror’s impartiality. On appeal, in Florida, it is not necessary to show that there was “actual prejudice” or that the jury that returned the verdict was somehow biased. That is how important discretionary peremptory strikes are during jury selection in Florida.

A common misconception of many trial judges during jury selection is that peremptory strikes can and should be used by counsel to “cure” improperly denied cause challenges. This is one of the most common mistakes made by trial judges during voir dire. Counsel should not have to use one of his or her precious and limited peremptory strikes to cure an error by the trial judge. Counsel is immediately at a disadvantage when opposing counsel suddenly has more of these discretionary strikes due to an error of the trial judge in failing to remove a juror who should have been removed for cause. That disadvantage is “per se” reversible error. Peremptory strikes are different and unique, and in Kopsho, the Supreme Court has reaffirmed their importance in the law of jury selection in Florida.

1 comment June 22nd, 2007

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