Posts filed under 'General Voir Dire'
Potential juror Sanders may have been sleeping during jury selection. Florida law is clear that “sleeping” during voir dire is a valid race-neutral reason for striking a juror — not to wake him up, but to remove him from the panel! See, Davis v. State, 560 So2d 1346 (Fla 3d DCA 1990).
When the prosecutor used a peremptory strike against juror Sanders, the lawyer for the defendant, Eugene Harriell, raised a Neil challenge because Sanders was African-American. During argument on the Neil challenge, the lawyer for a codefendant said that she didn’t see Sanders sleeping “at all,” to which the trial judge replied, “I didn’t see him sleeping either.” Harriell’s lawyer then said, “Whether he’s sleeping or not, if he had his eyes closed, it doesn’t matter. He can still be listening.” The trial judge permitted Sanders to be stricken, and yesterday the Fourth District Court of Appeal correctly upheld that decision. Harrell v State, ___ So. 2d ___ (Fla 4th DCA – 2/24/10).
The 4 DCA noted that in order for non-verbal behavior (like sleeping) to be a valid “race-neutral reason” for a strike the non-verbal behavior must meet the “hurdle” of either being observed by the trial court or being supported by the record. Dorsey v. State, 868 So. 2d 1192 (Fla. 2003) However, before that hurdle even arises opposing counsel must challenge the factual basis for the nonverbal behavior. In reviewing the above colloquy between defense counsel and the trial court, the 4 DCA noted that (unlike the lawyer for the codefendant) Harriell’s lawyer “did not expressly dispute the prosecutor’s observations about juror Sanders.” The Court noted that “At best, the defense attorney conceded that the juror’s eyes may have been closed, but suggested that the juror may have been sleeping.” As a result, since he never expressly disputed the prosecutor’s observation that juror Sanders was sleeping, the matter was not preserved for appeal and his client’s conviction was affirmed.
Lesson: Don’t let sleeping dogs lie. State your observations and objections clearly, and make sure the record accurately reflects everything (verbal and nonverbal) that is taking place in the courtoom.
February 25th, 2010
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
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
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
The Harris Corporation released a poll on jury duty yesterday. Harris Poll on Jury Duty. The poll contains some interesting findings on who is most likely to show up for jury duty and actually end up serving on a jury. It also shows that Americans, by a factor of 2 to 1, would trust a jury more than a judge to arrive at a fair verdict in a case. Sadly, the poll reveals that many Americans are still shirking their civic responsibility — three-quarters of Americans have never served on a jury, and over half have never attended jury duty. The poll is worth taking a look at, and it provides some interesting information on how Americans currently view trial by jury in this country.
January 22nd, 2008
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.
November 19th, 2007
Earlier this month, the Supreme Court of Florida adopted several new rules and jury instructions that pertain to juries during jury trials in Florida. In Re: Amendments to Rules 967 So. 2d 178 (Fla 2007). These new rules, which become effective on January 1, 2008, codify and expand some of the rights afforded to jurors in the ”Juror’s Bill of Rights” passed by the Florida legislature in 1999. The new rules and instructions deal with a juror’s ability during trial to take notes, ask questions, compile notebooks of exhibits, and other matters, and the rules vary between civil and criminal trials in Florida.
The Honorable Robert Shevin (pictured above) was instrumental in the creation of the new rules and he chaired the “Jury Innovations Committee” that produced these recommendations. Unfortunately, Judge Shevin died before his work came to fruition, but the Supreme Court noted his “extraordinary dedication and service” to this project in its opinion. A complete copy of the committee’s report and recommendations (many of which were not adopted by the Court) can be found by clicking here: Jury Innovations Committee – Final Report.
A brief analysis and explanation of some of the new rules and jury instructions is set forth in the left-hand column of this blog in the section entitled: Juror’s Bill of Rights .
October 30th, 2007
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Potential juror Sanders may have been sleeping during jury selection. Florida law is clear that “sleeping” during voir dire is a valid race-neutral reason for striking a juror — not to wake him up, but to remove him from the panel! See, Davis v. State, 560 So2d 1346 (Fla 3d DCA 1990).
