“Not Particularly Engaged” Juror Should Have Been Stricken

July 3, 2018

A trial court’s decision was reversed early in June for failing to strike a juror based on her nonverbal behavior.  The Fifth District Court of Appeal held that a juror being “not particularly engaged” during jury selection was a legally sufficient race-neutral reason to strike the juror.  Travelers Home and Marine Ins. Co., v. Gallo, 2018 WL 2448799 (Fla. 5th DCA, June 1, 2018).

At trial, after concluding voir dire, Defense counsel used a peremptory challenge to strike an African-American female.  Plaintiff’s counsel objected and requested a race-neutral reason for the strike.  Defense counsel stated he was concerned that if the juror was sworn she would not pay attention or even consider evidence because she was inattentive and showed a lack of interest during the jury selection process.  Plaintiff’s counsel disagreed and argued he did not see the juror show any lack of interest.  Despite agreeing with Defense counsel and noting the juror was “not particularly engaged,” the trial court denied the peremptory strike finding the reason for it was “legally insufficient.”

The Fifth DCA held the trial court erred in finding Defendant’s reasoning legally insufficient because under Dorsey v. State, “a juror’s lack of interest, inattentive, and nonverbal behaviors are enough to satisfy a racially neutral reason for a peremptory strike.”  868 So. 2d 1192, 1196 (Fla. 2003).  However, when parties disagree as to the nonverbal behavior of a juror, the striking party can only satisfy its burden if the behavior is observed by the trial court or otherwise has record support.

In this case, the trial court did in fact observe the nonverbal behavior because it stated the juror was “not particularly engaged.”  It never retracted or altered this observation.  Thus, the Fifth DCA held that Defense satisfied its burden and was entitled to a presumption of genuineness and reversed and remanded the judgments for new trial.

In sum, the take-away lesson is that if a trial court observes nonverbal behavior—such as yawns, lack of interest, inattentiveness, or even boredom—a peremptory challenge based on this nonverbal behavior can satisfy a race-neutral explanation under Melbourne, even if the parties disagree as to the nonverbal behavior.

(This post was prepared by Bryan Siddique.  For more information, please contact Bryan at bryans@kulaw.com)

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