Is it Possible to “Unstrike” a Potential Juror?

October 19, 2016

After he finished his voir dire questions, a lawyer used his last peremptory strike on one of the remaining jurors. The jury panel was then accepted by his opponent. Before the jury was sworn, the lawyer asked the judge to “unstrike” the last juror he had stricken, asserting he could “backstrike” into the panel at anytime. The judge denied the request, correctly observing that a lawyer can backstrike only if the lawyer has unused peremptory strikes. In this case, the lawyer had already used all of his peremptory strikes. On appeal, the Fourth District upheld the trial judge’s ruling, but left the door open as to whether there might be circumstances under which a lawyer could permissibly “unstrike” a juror after his opponent accepts the jury panel. McCray v. State, 2016 WL 3533852 (Fla 4th DCA – June 29 2016). If so, that would complicate voir dire beyond imagination.

In McCray, the Fourth District reached the correct legal and practical result. The last paragraph of the opinion sums it up nicely: “We are aware of no authority holding that a party, who has exhausted their peremptory strikes, has the right to retract a peremptory strike in order to use a peremptory strike on another juror after the other party has revealed their jury selection strategy but before the jury is sworn. To recognize such a holding would disrupt what should be an otherwise orderly jury selection process.”

Nonetheless, the Court went on to observe that the Third District in McIntosh v. State, 743 So. 2d 155 (Fla. 3d DCA 1999), had approved a lawyer’s withdrawing a peremptory strike, over objection by opposing counsel, in order to get a jury seated without having to call up more jurors for questioning. The Court distinguished McIntosh but certified conflict (potentially) with that opinion.

On this issue, the Fourth District is correct, and the Third District is wrong. McIntosh is distinguishable from McCray, but more importantly, the situation in McIntosh arose because the trial judge clearly failed to follow the procedure set forth by the Florida Supreme Court for the proper use of peremptory strikes. If that procedure is followed, the situation in McIntosh would never arise. The Supreme Court has held that a litigant has a “right to view the panel as a whole in order to use his peremptory challenges intelligently and effectively.” Tedder v. Video Electronics, Inc. 491 So. 2d 533 (Fla. 1986). “The only fair scheme is to allow the parties to exercise their challenges singularly, alternately and orally so that, before a party exercises a peremptory challenge, he has before him the full panel from which the challenge is to be made.” Ter Keurst v. Miami Elevator Company, 486 So. 2d 547 (Fla. 1986). “After challenges for cause are made, those excess persons over the number of needed jurors plus the number of allowable peremptories should be excused so that counsel may know who will serve or not if excused.” Ter Keurst, supra.

If this simple procedure is followed, it would be difficult, if not impossible, to imagine a situation where a lawyer could ever permissibly “unstrike” a juror.