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Posts filed under 'General Voir Dire'

Fundamental Error to Restrict Lawyer’s Questions During Voir Dire

A trial judge is Vero Beach was reversed last week for restricting defense counsel’s questions during jury selection.

The defense lawyer in the case had been forced by the judge into going to trial without his client being present.  As a result, during jury selection several of the prospective jurors raised questions about his client’s absence and whether his client was required to be present during the trial. This caused the judge, who apparently was upset by the defendant’s failure to appear, to call the attorneys to sidebar where he instructed defense counsel not to ask the panel any more questions about his client’s absence. As the voir dire continued, one of the prospective jurors persisted and asked the lawyer – “Are you going to answer the question of was he supposed to be here today?” The issue remained unresolved. Two of these prospective jurors were eventually seated on the jury. One of them served as foreperson. The defendant was convicted with a “relatively quick guilty verdict.”

The conviction was reversed. Citing well-established Florida law that “a court may not preclude a party from inquiry into bias bearing on a matter that is at the heart of the defendant’s case,” the Fourth District Court of Appeal held the trial judge committed fundamental error. Hillsman v. State, 40 FLW D712 (Fla 4th DCA 2015). The court observed “Here, the trial court restricted defense counsel’s examination as to the prospective jurors’ attitudes about the appellant’s absence, a matter that was conspicuously raised by numerous prospective jurors without, interestingly, the need for any prompting.” The court held, under the circumstances, it could be nothing other than fundamental error for the court to restrict questions during jury selection on the issue of the appellant’s “quite noticeable absence.” Thus, the conviction was reversed even though defense counsel had accepted the jury and failed to object when the jury was sworn.

 

 

 

Add comment April 9th, 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

Failure to Conduct Juror Background Check During Trial May Constitute Lack of Due Diligence

The Third District Court of Appeal recently held that the failure of trial counsel to perform background checks during trial on the members of the jury  – as was suggested by the judge be done during this trial  – may constitute a lack of due diligence, thereby precluding any right to a new trial based on later-discovered juror concealment after the jury’s verdict. Tricam Industries Inc v Coba, 2012 WL 3733642 (Fla 3rd DCA Aug. 29 2012).

In TriCam, the trial judge  – during the trial – suggested that counsel run a background check on the jury before the jury started its deliberations while an alternate juror was still available. The plaintiff’s lawyer refused and said he was satisfied with the juror’s responses to his questions during jury selection. After the verdict and after the jury had been discharged, the plaintiff’s lawyer conducted an investigation of the jurors and learned one of the juror’s had failed to disclose his own litigation history involving a divorce, foreclosure actions, and collection cases. The lawyer filed a motion for a new trial based on the juror’s concealment of his litigation history, and the motion was denied.

The 3DCA wrote: “We acknowledge that the Florida Supreme Court held that trial counsel are not categorically required to run the juror’s litigation histories before the end of trial in order to satisfy the “due diligence” prong [of Roberts v Tejada, 814 So.2d 334 (Fla. 2002)]. Trial attorneys are, however, permitted to conduct such searches, just as trial courts are permitted to suggest them. Notably, the Florida Supreme Court, in Roberts, did not hold that trial courts cannot, in the appropriate circumstances, consider a trial counsel’s refusal to run a juror’s litigation history as one of several factors under a due diligence inquiry. Given this set of facts, we cannot say the trial court abused its discretion in denying the plaintiff’s motion for a new trial.”

The 3rd DCA also observed that, in its opinion, plaintiff’s counsel had failed to use due diligence in his questioning of the jury during voir dire. The Court wrote that “a reasonable attorney, exercising due diligence, should have asked follow up questions or have explained to the jurors that the trial court’s questions were not limited to personal injury suits,” and that “plaintiff’s counsel did not make any effort whatsoever to explain the types of legal actions that were encompassed in the trial court’s questions.” This despite the fact that the juror in question had denied ever being sued in response to a questionnaire and in answers to questions by the Court, and the lawyers had been specifically instructed by the Court not to ask “the same exact question that’s on the questionnaire.”

This opinion should be studied by all trial lawyers who want to win and hold-on to their hard-earned verdicts for two reasons: 1) It demonstrates the importance of asking precise easy-to-understand follow up questions during voir dire (even though the trial judge has asked similar questions and ordered counsel not to re-ask the same exact questions); and 2) It provides a potential way to protect the jury’s verdict from post-trial attack by asking the trial court at the beginning of the trial to request that all the lawyers perform their background checks on the jurors while alternate jurors are still available. Many trial judges are willing to provide counsel with a short recess at the beginning of the trial in order to perform their background checks if requested.

Add comment September 11th, 2012

Tweeting Jurors Will Face Jail In California

Going further than his predecessor was willing to go, California Governor Jerry Brown has criminalized juror tweeting. Under AB 141, which will go into effect on January 1, 2012, any juror who willfully disobeys the court admonishment against any form of communication or research about the case, including tweeting, may be sent to jail for contempt.

Courts already tell jurors not to talk about an ongoing trial, but under the new law, they will be further told not to do any research or spread any information on any subject of the trial. This admonishment will explicitly apply to “all forms of electronic and wireless communication.”

The SF Chronicle reports that this new law was prompted by many reports of jurors’ using electronic devices to “sidestep judges’ warnings against outside research or contacts.”  Jurors have been known to research the defendant’s criminal record and check out crime scenes online.

This may feel a bit like deja vu, because a similar bill came up last year, but was vetoed by then-Governor Schwarzenegger, who, according to the ABA Journal, believed the current warnings to jurors were adequate. Apparently they were not enough for Governor Brown.

4 comments October 31st, 2011

E-Mail Your Problems To Me

As you all know, the annual FJA Jury Selection Seminar is this Friday in Miami. If you have a jury selection problem or a particular area of concern in an upcoming jury trial, send me an email by this Wednesday, and I will make sure one of our speakers addresses it during the program. This should be a great seminar.

The agenda and speakers are as follows:

Program Co-Chairs: Robert W. Kelley and Gene Odom

8:30 am
Welcome and Introductory Remarks
Robert W. Kelley, Fort Lauderdale, and Gene Odom, Brandon

8:45 am
Leveling the Playing Field – A Jury Selection System That Roots Out Bias
Keith R. Mitnik, Orlando

9:15 am
Voir Dire – Buttons that Need to be Pushed
Gene Odom, Brandon

9:45 am
Voir Dire Themes That Carry Through To Closing Arguments
C. Steven Yerrid, Tampa

10:30 am
Break and Exhibit Viewing

10:40 am
Being Successful in Jury Selection: What You Need to Know Now
Jeffrey T. Frederick, PhD

11:25 am
The Use of Social Media in Voir Dire
Amy Singer, PhD., Founder, CEO, President, Trial Consultants, Inc., Gainesville

12:00 pm
Adjourn

This year’s program should be one of the best we’ve ever had. If you haven’t already registered, you can sign up for the seminar by clicking here: Jury Selection Seminar

See you in Miami!

 

Add comment October 24th, 2011

Don’t Miss This Program!

The once-a-year FJA Jury Selection Seminar is going to take place a week from this Friday at the Intercontinental Hotel in Miami. This year’s seminar is part of the two-day Masters of Justice Program.  If you are a trial lawyer who understands the importance of voir dire in the outcome of your trial, you won’t want to miss this year’s presentation on the latest jury selection techniques and case-law. The agenda and speakers are as follows:

Program Co-Chairs: Robert W. Kelley and Gene Odom

8:30 am
Welcome and Introductory Remarks
Robert W. Kelley, Fort Lauderdale, and Gene Odom, Brandon

8:45 am
Leveling the Playing Field – A Jury Selection System That Roots Out Bias
Keith R. Mitnik, Orlando

9:15 am
Voir Dire – Buttons that Need to be Pushed
Gene Odom, Brandon

9:45 am
Voir Dire Themes That Carry Through To Closing Arguments
C. Steven Yerrid, Tampa

10:30 am
Break and Exhibit Viewing

10:40 am
Being Successful in Jury Selection: What You Need to Know Now
Jeffrey T. Frederick, PhD

11:25 am
The Use of Social Media in Voir Dire
Amy Singer, PhD., Founder, CEO, President, Trial Consultants, Inc., Gainesville

12:00 pm
Adjourn

This year’s program should be one of the best we’ve ever had. You can sign up for the seminar by clicking here: Jury Selection Seminar

Add comment October 18th, 2011

Have You Ever Been In Court?

Last week the Fourth District Court of Appeal reinstated a $4.9 million dollar jury verdict against State Farm Insurance Company in a UM case that had been set aside by the trial judge on the grounds of “juror non-disclosure” about the juror’s prior litigation history. In Gamsen v State Farm, 36 FLW D1630A (Fla 4th DCA 2011), the appellate court held that State Farm’s counsel had “quite simply” not asked pertinent questions during jury selection to elicit information about the juror’s litigation history. The court found a lack of “due diligence” by State Farm’s counsel. Additionally, the Court held that even if the proper questions had been asked by State Farm there was nothing in the juror’s past that was relevant or material to the pending rear-end collision UM case. The trial judge erred in setting aside the verdict.

This case once again emphasizes the importance of asking clear and straightforward questions during jury selection. Just because a trial judge may ask  jurors a generic question concerning whether they have “ever been in court for any reason” (as was done in Gamsen), trial counsel still has a duty to use due diligence and follow up with specific questions if litigation history is an area of concern during jury selection. As the appellate court noted here, just because a potential juror may have been involved in tenant evictions or domestic matters in the past, that does not necessarily mean the potential juror had actually “been in court” as was asked here, or that those matters are material to the pending case. Many cases and legal matters are resolved without ever actually going into a courtroom. In other words, “being in court” is not necessarily the same as being involved in litigation. There was insufficient evidence to conclude the two jurors in this case had failed to disclose anything about their litigation history because “no one bothered to ask them.”

Questions asked during jury selection should be short and clear. Voir dire questions should be planned well ahead of the start of the trial, and should be designed to explore the areas that truly concern your case. Think about your words from the juror’s perspective. “Being in court” may mean something different to a lay juror than it does to a lawyer or a judge. It is that way with all your questions. There is a lesson to be learned in Gamsen. It is a case worth reading and keeping in your Voir Dire notebook.

Add comment August 1st, 2011

Court Errs In Blocking Peremptory Strike

A single mistake in jury selection can result in an entire new trial. Nowhere is that truer than in the area of “Neil Challenges” and peremptory strikes. A mistake there is usually reversible error per se.

In Garcia v. State , 35 FLW D2328 (Fla 3rd DCA 2010), the Defense wanted to exercise a peremptory strike on a prospective juror. The trial judge would not allow it. The prospective juror ended up on the jury and the Defendant was convicted. There was no indication the juror was prejudiced against the Defendant, but his lawyer had wanted to strike the juror because she had had prior jury experience. The appellate court reversed the conviction because the trial judge failed to follow the three-step procedure for Neil Challenges as set forth in Melbourne v. State, 679 So.2d 759 (Fla. 1996). There was no need to establish the Defendant was prejudiced by the court’s error. Prejudice is presumed.

The challenged juror was argued to be Hispanic. The State Attorney had asked for a race neutral reason for the strike. This was insufficient to trigger a Neil inquiry. The Court held “the proper means of testing the peremptory challenge would have been to object [which wasn’t done], to show that the venire member is a member of a distinct racial group [which apparently was argued but never established], and then to request that the court ask a reason for the strike [which appears to have been the only thing done by the prosecutor].” Because this procedure was not followed, and because, on appeal, peremptory challenges are presumed to be exercised in a nondiscriminatory manner, the appellate court held it was not in a position to determine whether the strike was truly being exercised in a discriminatory manner by the defense attorney, and therefore the jury’s verdict was reversed.

1 comment November 2nd, 2010

Memos Posted on Timing of Peremptory Strikes

Two memorandums of law were added to the Jury Blog today concerning the timing of peremptory strikes during jury selection. The law is clear that “the only fair [jury selection] scheme is to allow the parties to exercise their challenges … so that, before a party exercises a peremptory challenge, he has before him the full panel from which the challenge is to be made” — a panel that does not include “those excess persons over the number of needed jurors plus the number of allowable peremptories … after challenges for cause are made.” This procedure is discussed in more detail in the section of this Blog entitled – Procedure in Civil Cases.

Add comment October 6th, 2010

Court Rejects “Confession of Error” in Voir Dire

Earlier this week the First District Court of Appeal, in a kafkaesque opinion, upheld a robbery conviction even though both the State and the Defense agreed on appeal that the trial judge had committed error during jury selection. In Hayes v. State, 35 FLW D2137A (Fla 1st DCA 2010), the defendant was charged with robbery and other crimes. During voir dire, his defense lawyer learned that one of the prospective jurors, a Ms. Haupt,  had two family members in law enforcement. Obviously, this would be a concern to any defense lawyer in any criminal case so he exercised a peremptory strike to remove her. However, since the prospective juror was female, the prosecutor objected and requested a gender-neutral reason for the strike. The defense attorney, who was apparently surprised by the request since there were already so many women on the jury panel (and in fact the next prospective juror in the line-up was also a woman), said offhandedly:  “I don’t have a gender neutral reason. She has some relatives or whatnot in law enforcement……”  After hearing the explanation, the trial judge denied the strike on the grounds that the proffered reason “was not genuine under the circumstances.” In essence, the trial judge ruled he didn’t believe the criminal defense attorney’s explanation that he didn’t want to have law-enforcement-related jurors sitting on a criminal case. As a result, the woman with two family members in law enforcement sat of the jury, and James Hayes was convicted.

This is a troubling opinion. Judge Kahn wrote an excellent dissent. “I find the Attorney General’s confession of error on the jury selection issue both highly professional and highly perceptive” He noted: “As a practical matter, I can scarcely envision a situation where a defense lawyer might not, at a gut level, whether justified or not, feel concerned about defending a person accused of a serious felony before a jury comprised, even in part, of members with close relationships with law enforcement officers.” He concluded that by permitting the trial judge to prevent the peremptory strike, the majority’s opinion is “an invitation to arbitrary results,” because “until this decision, most criminal lawyers, both for the prosecution and the defense, believed that a prospective juror’s relationship with law enforcement officers would certainly be an important consideration in determining whether that juror would remain on the panel for a criminal case.” In fact, there is a case directly on point on this issue. See, Rojas v. State, 790 So.2d 1219 (Fla 3d DCA 2001) (holding that reason given for a peremptory strike — the proposed juror’s husband was a law enforcement officer — was gender neutral).

This case turns the law on the use of peremptory strikes on its head, and a perfectly valid, established and case-law-documented reason for striking a prospective juror can be discounted by a trial judge who subjectively doesn’t “believe” an attorney’s explanation.

There is a lesson to be learned from this case: Be careful what you say on the record. Think before you speak. The cold written transcript can belie your true thoughts and intentions. In this case the majority opinion relied heavily on the defense attorney’s offhanded comment that “I don’t have a gender neutral reason,” even though all experienced trial lawyers and judges know that, in reality, he did. This is a bad decision. Unfortunately, James Hayes is probably going to have to live with it — in jail.

2 comments September 30th, 2010

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