Preliminary Voir Dire Instruction Revised

The Supreme Court has authorized the use of a revised preliminary jury instruction to be given by the Court to the jury before the start of voir dire. The revised instruction (FSJI 1.0) is much more verbose and will be less helpful in selecting a jury than the earlier version. It repeatedly uses the hackneyed phrase “fair and impartial,” and eliminates the prior and better language of the earlier version requesting jurors to inform the Court and counsel of their “personal opinions” and “strong feelings.”

The choice of “fair and impartial” is unfortunate. Case law has recognized this phrase, in the context of jury selection, as pretty much meaningless because, as the Supreme Court recognized in the seminal case of Singer v. State, 109 So. 2d 7 (Fla. 1959), “it is difficult for any person to admit he is incapable of being able to judge fairly and impartially.” Or, as stated by the Court in Goldenberg v. Regional Import, 674 So. 2d 761 (Fla. 4th DCA 1996) “It is only human nature to think of oneself as fair-minded; such a statement is meaningless against a backdrop of clearly and strongly expressed negative opinions….” Thus, the language in the earlier version of FSJI 1.0 was much better than the revised version because it appropriately encouraged jurors, in accordance with all current case law, to share their “strong feelings” and “personal opinions” with counsel and the Court.

The instruction also informs prospective jurors they should be “as neutral as possible at this point and have no fixed opinions about the lawsuit.” It leaves unmentioned the possibility of jurors having pre-conceived fixed opinions about issues in the lawsuit (e.g. large damage awards, or monetary compensation for non-economic damages). And it also inartfully advises prospective jurors “There are no right or wrong answers to the questions that will be asked of you.” While that statement may be correct for voir dire questions asking for a juror’s opinion, it is clearly not correct for fact-based questions inquiring into to a juror’s prior litigation history, criminal record or other matters.

The revised instruction leaves much to be desired, and counsel would be well advised to submit their own proposed instruction to the trial court prior to trial based on current Florida case law. The Supreme Court suggested as much: in the closing paragraph of its opinion, In Re: Standard Jury Instructions in Civil Cases, 31 FLW S806 (Fla. 2006), the Court cautioned:  “We express no opinion on the correctness of these instructions and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of these instructions.”