Supreme Court Upholds Importance of Peremptory Strikes

June 22, 2007

The Supreme Court of Florida properly reversed a jury verdict in a case where counsel was forced to use a peremptory strike during jury selection on a juror who should have been stricken for cause. The jury verdict was reversed even though it was undisputed on appeal that the jury that ultimately decided the case was a “constitutionally impartial” jury. The Supreme Court held it is prejudice “per se” to require counsel to use even a single peremptory strike on a prospective juror if there was a “reasonable doubt” about that juror’s impartiality. No showing of “actual prejudice” is required on appeal. See, Kopsho v. State, 959 So. 2d 168 (Fla 2007).

This case reaffims the importance of peremptory strikes and demonstrates the unique position they have in jury selection in Florida. The purpose of peremptory challenges is different than the purpose of challenges for cause. In Florida, a juror should be stricken for cause by the Court if the juror is legally objectionable, i.e. if there is a “reasonable doubt” about the juror’s impartiality. Peremptory strikes are different. They are discretionary strikes for counsel. They can be used by counsel to remove potential jurors who are NOT otherwise legally objectionable. They can be used by counsel to remove potential jurors who your gut tells you will not be good jurors in your case. They are for removing the potential jurors who give you the willies, even while the “record” is clean, and even while they smile and proudly proclaim they can be fair and impartial and follow the court’s instructions. Our Supreme Court has repeatedly held it is “per se” reversible error for a trial judge to require counsel to use even a single peremptory strike on a juror who should have been stricken for cause. Forcing counsel to use even one discretionary peremptory strike on such a juror is reversible error, EVEN if the jury that ultimately decides the case is an impartial jury. It is prejudice “per se” to require counsel to use a precious peremptory strike on a juror if there was a reasonable doubt about that juror’s impartiality. On appeal, in Florida, it is not necessary to show that there was “actual prejudice” or that the jury that returned the verdict was somehow biased. That is how important discretionary peremptory strikes are during jury selection in Florida.

A common misconception of many trial judges during jury selection is that peremptory strikes can and should be used by counsel to “cure” improperly denied cause challenges. This is one of the most common mistakes made by trial judges during voir dire. Counsel should not have to use one of his or her precious and limited peremptory strikes to cure an error by the trial judge. Counsel is immediately at a disadvantage when opposing counsel suddenly has more of these discretionary strikes due to an error of the trial judge in failing to remove a juror who should have been removed for cause. That disadvantage is “per se” reversible error. Peremptory strikes are different and unique, and in Kopsho, the Supreme Court has reaffirmed their importance in the law of jury selection in Florida.

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