The Florida Jury Selection Blog

Tweeting Jurors Will Face Jail In California

Bob Kelley — Mon, 31 Oct 2011 23:07:44 +0000

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.

E-Mail Your Problems To Me

Bob Kelley — Mon, 24 Oct 2011 19:12:58 +0000

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!

Don’t Miss This Program!

Bob Kelley — Tue, 18 Oct 2011 17:57:16 +0000

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

Have You Ever Been In Court?

Bob Kelley — Mon, 01 Aug 2011 11:34:08 +0000

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.

Court Errs In Blocking Peremptory Strike

Bob Kelley — Tue, 02 Nov 2010 14:46:10 +0000

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.

Memos Posted on Timing of Peremptory Strikes

Bob Kelley — Wed, 06 Oct 2010 21:38:36 +0000

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.

Court Rejects “Confession of Error” in Voir Dire

Bob Kelley — Thu, 30 Sep 2010 12:52:55 +0000

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.

IPhone + Encarta = New Trial

Bob Kelley — Mon, 20 Sep 2010 13:25:53 +0000

A jury verdict was reversed earlier this month due to juror misconduct when the foreperson used his Iphone to look up the definition of “prudent” on Encarta during a break in the jury’s deliberations. In Tapanes v. State, 35 FLW D2031A (Fla 4 DCA 2010) the court wrote: “Although here we confront new frontiers in technology, that being the instant access to a dictionary by a smartphone, the conduct complained of by the appellant is not all novel or unusual. It has been a long-standing rule of law that jurors should not consider external information outside of the presence of the defendant, the state, and the trial court.” The court cited earlier Florida cases holding that a dictionary is not one of the materials permitted to be taken into the jury room. See, Smith v. State, 95 So. 2d 525 (Fla. 1957).

Can A Potential Juror Be Asked To “Promise” A Verdict?

Bob Kelley — Thu, 19 Aug 2010 15:13:08 +0000

A common technique in voir dire, especially by defense attorneys, is to ask each prospective juror during jury selection whether the juror will “promise” to return a certain kind of verdict (e.g. guilty or not guilty) if it is supported by the evidence. Many trial judges for a variety of reasons will not permit that type of question to be answered. Last month, in the case of Benayer v. State, the Fourth District Court of Appeal implicitly approved that specific voir dire question in a brief opinion dealing with the issue of a jury’s pardon power. In Benayer, the trial judge himself had asked the prospective jurors whether they would “promise” to find the defendant guilty if they were convinced of his guilt beyond a reasonable doubt. The Defendant objected to the question. The Fourth District reviewed the record and held the question was not error. The Defendant’s conviction was affirmed. This case, while not directly on point, certainly belongs in the trial notebook of any trial lawyer who plans to ask a prospective jury panel for any sort of “promise” during voir dire.

Don’t Let Sleeping Dogs Lie

Bob Kelley — Thu, 25 Feb 2010 22:15:50 +0000

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.