Improper Melbourne Analysis Requires Reversal of Criminal Conviction

August 23, 2021

Earlier this summer, the Third District Court of Appeal reversed a criminal conviction due to a trial court’s improper Melbourne analysis.  In Brannon v. State, Defendant, Earl Brannon, was convicted of two counts of criminal trespass and one count of resisting arrest without violence.  During jury selection, the jurors were questioned regarding their prior interactions with law enforcement, as there was expected to be testimony from police officers during trial.

After questioning concluded, the State asserted a Melbourne challenge to the Defendant striking a Hispanic male juror.  Defendant responded that this juror expressed prior involvement with law enforcement and that the juror wanted to “curry favor” with police.  Then, instead of asking the State to rebut Defendant’s argument, the trial court ruled that the juror’s prior involvement with law enforcement was not a genuine reason to deny the peremptory challenge.

The Third District Court of Appeal reversed the convictions, holding it was not clear that the Court followed the correct Melbourne three step process.[1]  First, the trial court did not articulate whether the proffered reason for the strike was race-neutral, and instead skipped ahead and simply determined the reason was not genuine.  Next, the appellate court was concerned about the trial court’s genuineness analysis, particularly whether there was factual support that the strike was not merely pretextual.  The appellate court held that there was no evidence in the record stating the racial make-up of the venire as a whole which “makes it impossible for us to find the necessary support in the record to uphold the trial court’s genuineness finding.”

Thus, the take away from this case is that in order to protect your client, you need to ensure that when either striking a juror who is a member of a protected class, or making a Melbourne challenge against a juror, the record is preserved and all three Melbourne steps are thoroughly explored by the parties, and the court, on the record.

(This post was prepared by Kimberly L. Wald, Esq. Kim is a trial attorney at the Kelley|Uustal Law Firm in Fort Lauderdale, FL. For more information, please contact Kim at


[1] “A party objecting to the other side’s use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis, b) show that the venireperson is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike. If these initial requests are met (step 1), the court must ask the proponent of the strike the reason for the strike.  At this point the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained (step 3). The court’s focus in step 3 is not on the reasonableness of the explanation but rather its genuineness.”