Posts filed under 'Questions About “Core Issues”'
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.
April 9th, 2015
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.”
January 26th, 2008
The Third District Court of Appeal recently approved the use of hypothetical questions by counsel during jury selection provided the questions are “designed to determine whether the jurors could correctly apply the law.” In Moore v. State, __ So2d __ (Fla 3 DCA Oct 4, 2006) the Court approved the use of hypothetical questions designed to explain the difference between testimonial evidence and physical evidence to prospective jurors.
Continue Reading October 31st, 2006
The 3rd DCA last week reaffirmed the trial lawyer’s right to question prospective jurors on matters that go to the heart of a party’s case.
Continue Reading May 1st, 2006
A trial judge should not impose “arbitrary time limits” or “number-of-question” limits on voir dire. Judge Gary Farmer recently wrote an excellent opinion reaffirming the trial lawyer’s right to have an adequate amount of time to question prospective jurors during the voir dire examination.
Continue Reading February 3rd, 2006