The Florida Jury Selection Blog » Questions About “Core Issues”

Cause Challenges for Caps On Damages and Rising Insurance Rates

Bob Kelley — Sat, 26 Jan 2008 18:13:28 +0000

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.”

Court Approves “Hypothetical Questions” in Voir Dire

Bob Kelley — Tue, 31 Oct 2006 14:17:37 +0000

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, 939 So. 2d 1116 (Fla 3 DCA 2006) the Court approved the use of hypothetical questions designed to explain the difference between testimonial evidence and physical evidence to prospective jurors.

Relying on fifty year-old precedent, the Court held that a trial court may permit hypothetical questions during voir dire if they make a “correct reference to the law of the case that aid in determining whether challenges for cause, or peremptory are proper.”

This opinion is in accord with established Florida law. In Franqui v. State, 699 So2d 1312 (Fla 1997), the Supreme Court of Florida approved the use of hypothetical questions in voir dire. Adopting the reasoning of Judge Pearson in Lavado v. State, 469 So2d 917 (Fla 3 DCA 1985), the Court held: “Where a juror’s attitude about a particular legal doctrine (in the words of the trial court, “the law”) is essential to a determination of whether challenges for cause or peremptory challenges are to be made, it is well settled that the scope of voir dire properly includes questions about and references to that legal doctrine even if stated in the form of hypothetical questions.”

In phrasing hypothetical questions, counsel must take care to make sure that no reference is made to the actual facts of the specific case that is being tried, nor to ask the jurors in advance what their decision would be under a certain state of evidence or upon a certain state of facts. See, Williams v. State, 931 So2d 999 (Fla 3 DCA 2006). “It is improper to ask jurors hypothetical questions purporting to embody testimony that is intended to be submitted for the purpose of ascertaining from the jurors how they will vote on such a state of testimony.” Franqui v. State, supra.

Trial Court Reversed For Precluding Voir Dire Question

Bob Kelley — Tue, 02 May 2006 00:47:57 +0000

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. In Stevens v. State, 928 So. 2d 409 (Fla 3rd DCA 2006), the Court held that it was error in a criminal trial to preclude the defense attorney from asking potential jurors about the legal defense of “necessity.” The trial court had reasoned that allowing the defense to question the jury on the defense of necessity would be “pre-trying” the case and would only confuse the jury if the evidence was inadquate to support the defense. The defendant was thereafter convicted of carrying a concealed firearm. The Appellate Court reversed, holding it was an abuse of discretion to deprive the defendant of the opportunity to discuss, or question the jury about, the defense of necessity during voir dire. This case reaffirms the trial lawyer’s right to question prospective jurors on “core” issues that go to the heart of a party’s case.

4th DCA Reaffirms Trial Lawyer’s Right To Adequate Time

Bob Kelley — Sat, 04 Feb 2006 01:20:34 +0000

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. In Carver v. Niedermayer, 920 So2d 123 (Fla 4th DCA 2006), the Court held that the time limits imposed by the trial judge during voir dire were “arbitrary” and deprived counsel of a fair opportunity to identify prospective jurors for challenge. It is well established in Florida that it is error for a trial judge to impose arbitrary or unreasonable time limits or number-of-question limits on the voir dire examination of jurors. The trial attorney, Gregg Schlesinger, did a great job asserting his client’s rights and preserving the record for appeal. This opinion is well worth reading and should be a part of every lawyer’s trial notebook.