Fundamental Error to Restrict Lawyer’s Questions During Voir Dire

April 9, 2015

A trial judge is Vero Beach was reversed last week for restricting defense counsel’s questions during jury selection.

The defense lawyer in the case had been forced by the judge into going to trial without his client being present.  As a result, during jury selection several of the prospective jurors raised questions about his client’s absence and whether his client was required to be present during the trial. This caused the judge, who apparently was upset by the defendant’s failure to appear, to call the attorneys to sidebar where he instructed defense counsel not to ask the panel any more questions about his client’s absence. As the voir dire continued, one of the prospective jurors persisted and asked the lawyer – “Are you going to answer the question of was he supposed to be here today?” The issue remained unresolved. Two of these prospective jurors were eventually seated on the jury. One of them served as foreperson. The defendant was convicted with a “relatively quick guilty verdict.”

The conviction was reversed. Citing well-established Florida law that “a court may not preclude a party from inquiry into bias bearing on a matter that is at the heart of the defendant’s case,” the Fourth District Court of Appeal held the trial judge committed fundamental error. Hillsman v. State, 159 So. 3d 415 (Fla 4th DCA 2015). The court observed “Here, the trial court restricted defense counsel’s examination as to the prospective jurors’ attitudes about the appellant’s absence, a matter that was conspicuously raised by numerous prospective jurors without, interestingly, the need for any prompting.” The court held, under the circumstances, it could be nothing other than fundamental error for the court to restrict questions during jury selection on the issue of the appellant’s “quite noticeable absence.” Thus, the conviction was reversed even though defense counsel had accepted the jury and failed to object when the jury was sworn.