Lawyer Can’t Withdraw Strike And Then Backstrike

March 15, 2006

Defense Counsel, in a criminal case, used all of his peremptory strikes, and then accepted the jury and an alternate. Before the jury was sworn, Counsel attempted to withdraw a strike previously used against a juror, and then backstrike another juror. The trial judge refused to permit this kind of “backstriking.”

In Davis v. State, 922 So. 2d 454 (Fla 4th DCA 2006), the Court held that the trial judge was correct in preventing this attempt at backstriking because “although it is clearly reversible error to deny a challenge to a juror when the defendant has not exhausted all of his peremptory challenges prior to the jury’s being sworn, that is not the case where, as here, a party has exhausted all of its peremptory challenges.”

The Court also noted that opposing counsel, who had expended his peremptory challenges based partially on the manner in which the defense exercised its challenges, would be prejudiced by a change in the process so late in the proceedings.