Preserving The Record For Appeal

A good trial lawyer, faced with an obstinate judge, must know how to preserve the record for appeal. It protects the client’s rights in the event of an unfortunate result. Trial judges are repeatedly reversed by the appellate courts in Florida for mistakes made during jury selection in two primary areas: 1) The refusal to conduct a Neil inquiry when properly requested; and 2) Forcing a party to use peremptory challenges on jurors that the court should have stricken for cause because there is a reasonable doubt about their qualifications to serve.

Failure to Conduct Neil Inquiry: If the judge commits a mistake during jury selection, and you preserve the issue, you will likely get a new trial. There is no harmless error. A mistake by the judge during voir dire is per se reversible error. The failure of the judge to conduct a Neil inquiry when requested constitutes reversible error. “The proper remedy in all cases where the trial court errs in failing to hold a Neil inquiry is to reverse and remand for a new trial.” State v. Johans, 613 So. 2d 1319 (Fla. 1993); Pickett v. State, supra.

Failure to Strike An Objectionable Juror For Cause: “A new trial is required where the trial court denies a challenge for cause based on a juror’s equivocal or conditional responses that are not rehabilitated and where a reasonable doubt exists as to whether the juror possessed the requisite state of mind necessary to render an impartial decision.” Bell, supra at 847.

Procedure to Follow: What you should do to preserve “cause” issue for appeal:

1) Attempt to strike all objectionable jurors for cause;

2) Use all of your peremptory challenges;

3) Ask for additional peremptory challenges;

4) If the court denies your request for additional peremptory strikes, object by name to at least one remaining juror (identify by name who you object to and state that if you had been granted additional strikes you would have stricken this juror; you don’t have to say why but it would be nice if you could articulate a compelling reason). If the court grants the same number of additional peremptory strikes as challenges for cause that were erroneously denied you do not have reversible error. In order to have reversible error, you need to have at least one erroneous denial of cause more than the additional strikes you were granted.

5) Before the jury is sworn state once again for the record that you don’t accept the jury because it contains objectionable jurors (this may no longer be necessary but do it anyway) and that you don’t believe your client will get a fair trial from this jury; 6) After jury is sworn identify for the record the names of all the objectionable jurors who are seated on the jury and state that you don’t believe your client will get a fair trial from this jury.

Bias Not Required: In Florida, contrary to Federal Courts, there is no requirement that the jury which ultimately decided the case contain legally-objectionable (i.e. biased or unfair) jurors. If you preserve the improper denial of a challenge for cause, you will get a new trial even if the jury consisted of six people who could not otherwise be challenged for cause. In other words, there is no requirement of a showing of actual prejudice by a biased or prejudiced juror. The fact that you were forced to improperly use your peremptory challenges on jurors that should have been stricken for cause is enough. See Kopsho v. State, 32 FLW S258 (Fla 2007); Busby v. State, 894 So. 2d 88 (Fla. 2004); Trotter v. State, 576 So. 2d 691 (Fla. 1990).

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