Right To Back Strike

The trial lawyer has the right to back-strike at any time. A party may use an unused peremptory challenge at any time up until the jury is sworn. Lottimer v. North Broward Hospital District, 889 So. 2d 165 (Fla 4th DCA 2004) Counsel has the right to back-strike into main panel even if the main panel has been accepted, the parties are selecting alternates, and even after strikes against alternate jurors have been exercised and the alternates have been selected. Lottimer, supra. The Court, no matter how well-intentioned, can’t impose artificial procedures to prevent a party from backstriking at any time. See, e.g., Van Sickle v. Zimmer, 807 So. 2d 182 (Fla 2nd DCA 2002). (Error for court to implement procedure whereby the court would allow an opportunity to backstrike once six jurors were accepted, but if six jurors were accepted and the parties had no backstrikes, those six would serve as jurors, no further backstrikes would be allowed, and then an alternate would be chosed.)

“The term backstriking has been misused and abused. The term itself refers to a party’s right to retract his acceptance and object to a juror at any time before that juror is sworn.” Dobek v. Ans, 475 So. 2d 1266 (Fla 4th DCA 1985). “When an attorney has concluded his questions to a panel, there are infinite modes of tendering the panel for further questioning (“I tender,” “I accept the jury,” “No further questions,” etc.) — but all such language is to be regarded as conditional because anything can change with further questions and even further attorney contemplation, all of which may continue up until that terminal moment when the jury is sworn.” Florida Rock Industries, Inc. v. United Building Systems, Inc., 408 S0. 2d 630 (Fla 5th DCA 1981), citing Saborit v. Deliford, 312 So. 2d 795 (Fla 3rd DCA 1975).

In a civil case, the trial judge cannot infringe upon a party’s right to challenge any juror, whether for cause or peremptorily, before the jury is sworn. The denial of this right is per se reversible error. Peacher v. Cohn, 786 So. 2d 1282 (Fla 5th DCA 2001) (Error per se to prevent counsel from backstriking into main panel even after counsel said they were satisfied with main panel and had already begun striking alternates).

Florida Rule of Civil Procedure 1.431 states: “no one shall be sworn as a juror until the jury has been accepted by the parties or until all challenges have been exhausted.”

It is important to remember that the additional peremptory challenges allowed for the selection of alternates can only be used against alternates. They cannot be used to strike back into the main panel, and vice-versa. Main panel strikes cannot be used against alternates. See Fla R Civ P 1.431(g)(2).

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