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Posts filed under 'Peremptory Challenges'

Is it Possible to “Unstrike” a Potential Juror?

After he finished his voir dire questions, a lawyer used his last peremptory strike on one of the remaining jurors. The jury panel was then accepted by his opponent. Before the jury was sworn, the lawyer asked the judge to “unstrike” the last juror he had stricken, asserting he could “backstrike” into the panel at anytime. The judge denied the request, correctly observing that a lawyer can backstrike only if the lawyer has unused peremptory strikes. In this case, the lawyer had already used all of his peremptory strikes. On appeal, the Fourth District upheld the trial judge’s ruling, but left the door open as to whether there might be circumstances under which a lawyer could permissibly “unstrike” a juror after his opponent accepts the jury panel. McCray v. State, 2016 WL 3533852 (Fla 4th DCA – June 29 2016). If so, that would complicate voir dire beyond imagination.

In McCray, the Fourth District reached the correct legal and practical result. The last paragraph of the opinion sums it up nicely: “We are aware of no authority holding that a party, who has exhausted their peremptory strikes, has the right to retract a peremptory strike in order to use a peremptory strike on another juror after the other party has revealed their jury selection strategy but before the jury is sworn. To recognize such a holding would disrupt what should be an otherwise orderly jury selection process.”

Nonetheless, the Court went on to observe that the Third District in McIntosh v. State, 743 So. 2d 155 (Fla. 3d DCA 1999), had approved a lawyer’s withdrawing a peremptory strike, over objection by opposing counsel, in order to get a jury seated without having to call up more jurors for questioning. The Court distinguished McIntosh but certified conflict (potentially) with that opinion.

On this issue, the Fourth District is correct, and the Third District is wrong. McIntosh is distinguishable from McCray, but more importantly, the situation in McIntosh arose because the trial judge clearly failed to follow the procedure set forth by the Florida Supreme Court for the proper use of peremptory strikes. If that procedure is followed, the situation in McIntosh would never arise. The Supreme Court has held that a litigant has a “right to view the panel as a whole in order to use his peremptory challenges intelligently and effectively.” Tedder v. Video Electronics, Inc. 491 So. 2d 533 (Fla. 1986). “The only fair scheme is to allow the parties to exercise their challenges singularly, alternately and orally so that, before a party exercises a peremptory challenge, he has before him the full panel from which the challenge is to be made.” Ter Keurst v. Miami Elevator Company, 486 So. 2d 547 (Fla. 1986). “After challenges for cause are made, those excess persons over the number of needed jurors plus the number of allowable peremptories should be excused so that counsel may know who will serve or not if excused.” Ter Keurst, supra.

If this simple procedure is followed, it would be difficult, if not impossible, to imagine a situation where a lawyer could ever permissibly “unstrike” a juror.

Add comment October 19th, 2016

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

Don’t Let Sleeping Dogs Lie

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.

1 comment February 25th, 2010

Maximizing The Power of Peremptory Strikes

The law concerning the use of peremptory 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 Keith Mitnik and 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.

2 comments April 20th, 2009

SCOTUS Upholds Verdict of Improper Foreperson

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.

Add comment April 15th, 2009

“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

Ban on Using Nationality to Exclude Jurors is Upheld

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.

Add comment March 5th, 2008

Whitby Walks

Edgar Sylvester Whitby was prosecuted for permanently disfiguring his victim by throwing hot water on her. He was convicted of aggravated battery “by a clearly impartial jury” in an “otherwise error free” trial. But Edgar is a free man today, and the Supreme Court of Florida just turned down the State’s appeal of this case. State v. Whitby, 975 So. 2d 1124 (Fla. 2008).

What happened? During jury selection the prosecutor sought to use a peremptory strike on a white male — Juror Lynn. The Defense objected stating that, as a white male, Juror Lynn was a member of a protected class, and requested that the State provide a race-neutral reason for the strike. The trial court allowed the peremptory strike without requiring the State to provide a race-neutral reason. Whitby was convicted by Juror Lynn (and others), and on appeal, the Third District in a lengthy opinion reluctantly overturned the conviction due to the failure of the trial judge to require the prosecutor to provide a race-neutral reason for the strike. See, Whitby v. State , 933 So. 2d 557 (Fla 3d DCA 2006).

Although the Supreme Court initially accepted review of the case on the basis that it concerned a question of great public importance, the Court later decided not to hear it. However, the concurring opinion of Justice Pariente and the dissenting opinion of Justice Cantero in this case are educational, informative and well worth reading. The justices both argue their positions persuasively, and they illustrate the vast difference between Florida law and Federal law in the area of “Neil” challenges. There appears to be a 4/3 split in our Supreme Court on this issue.

The issue boils down to whether the party challenging an opposing party’s peremptory strike as being discriminatory must do something more than merely object to the strike on the grounds that the prospective juror is a member of a distinct racial group. In the federal courts, the challenging party must establish a prima facie case of discrimination before the other side is required to provide an explanation for the strike. But in Florida, under Melbourne v. State, 679 So. 2d 759 (Fla. 1996) and its prodigy, that is not required. As Justice Pariente points out in her concurring opinion, “Florida courts generally have provided parties greater protection than federal courts in preventing discriminatory jury selection practices.”

The Procedure in Florida is relatively simple: “A party objecting to the other side’s use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis, b) show that the venireperson is a member of a distinct racial group [in this case – a white male], and c) request that the court ask the striking party its reason for the strike. If these initial requirements are met (step 1), the court must ask the proponent of the strike to explain the reason for the strike.” See, Melbourne v. State, supra. There is no requirement in Florida to prove a prima facie case of discrimination as there is in federal court.

Professor Thaddeus Hoffmeister, at the University of Dayton School of Law, applauded the Supreme Court’s decision in his blog last week. He wrote that, in his opinion, Florida has made significant strides recently in improving its jury system, and that as a result of Florida law “it is much easier in Florida to ensure that neither party is basing their peremptory challenges on either race, ethnicity or gender.” See, Juries.

1 comment February 19th, 2008

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