Right to Cross-Section of Community

Your client has a right to have his or her case decided by a jury comprised of a cross-section of the community. This can be tricky, because although the case law says your client is “entitled to be judged by a fair cross section of the community,” what it really means is that your client has a right to not have members of certain “cognizable groups” discriminated against and systematically eliminated from the jury. Compare, State v. Slappy, 522 So2d 18 (Fla 1988) at 20, and State v. Neil, 457 So. 2d 481 (Fla. 1984). “In Florida, both jurors and litigants have right to jury selection procedures that are free from discrimination.” Murray v. State, 3 So. 2d 1108 (Fla. 2009).

The cognizable groups (approved by the Florida Courts) are based on race, gender and ethnicity, and include: Blacks (Neil, supra), Hispanics (State v Alen, 616 So2d 452 (Fla 1993)), Women (Abshire v. State, 642 So2d 542 (Fla 1994)); Murray v. Haley, 833 So2d 877 (Fla 4th DCA 2003)), Jews (Joseph v State, 636 So2d 737 (Fla 3rd DCA 1994)),  Muslims and Pakistanis (Olibrices v. State, 929 So2d 1176 (Fla 4th DCA 2006)), and apparently White Males (See, State v. Whitby, 975 So. 2d 1124 (Fla. 2008)).

A “cognizable” group must have certain characteristics: The group must be objectively discernible from rest of community, the population should be large enough that general community recognizes group as identifiable, and the group should be distinguished from larger community by internal cohesiveness of attitudes, ideas or experiences. Alen, supra at 454.

As mentioned above, it appears that in Florida white males are a cognizable group. See Curtis v. State, 685 So2d 1234 (Fla 1996), “The guidelines apply across the board to each venireperson (in this case a white male) who is a member or a distinct racial group.” and Whitby v. State, 933 So2d 557 (Fla 3rd DCA 2006) and State v. Whitby, 975 So. 2d 1124 (Fla. 2008). If this line of reasoning is true, then a Neil challenge could be asserted whenever opposing counsel asserts a strike against any venireperson because every person is a member of some “distinct racial group.”

Federal Courts have recognized “Italian-Americans” and “Native Indians” as “cognizable,” but not “city residents,” “young adults and college students,” and “blue collar workers.”

Gays and Lesbians may or may not be a cognizable group. There is no Florida case law, and other courts disagree. Compare People v Garcia, 92 Cal Rptr 2nd 339 (Cal App 4th Dist 2000) and State v Spitler, 599 NE 2d 408 (Ohio App 1991).

Procedure: See Murray v. State, 3 So. 2d 1108 (Fla. 2009), citing Melbourne v. State, 679 So. 2d 759 (Fla. 1996). The three-step process is set forth as follows: A party objecting to the other side’s use of a peremptory challenge on racial grounds must: 1) Make a timely objection on that basis; 2) Show that the venireperson is a member of a distinct cognizable group; 3) Request that the court ask the striking party its reason for the strike. If these initial requirements are met (step 1), the court must ask the proponent of the strike to explain the reason for the strike. At this point, the burden of production then shifts to the striking party 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).

If the explanation is facially race-neutral and the court believes the explanation is “genuine” and not a pretext, the strike will be allowed. Otherwise, the juror cannot be stricken at that point. In evaluating “genuineness” the trial court has to essentially determine whether the proponent of the strike is lying. See, Murray v. State, 34 FLWS 171 (Fla. 2009) where the trial court “did not find pretext or believe that the prosecution was lying to him.” A pretext may exist if a prospective juror is a member of a protected group and is struck for a reason equally applicable to an unchallenged juror. See Fleming v State, 825 So2d 1027 (Fla 1st DCA 2002) Numbers alone are not dispositive; fact that other members of racial group were left on jury is of no consequence – State v Slappy, 522 So2d 18 (Fla 1988).

A juror’s lack of interest, inattentiveness, or other non-verbal behavior can constitute a racially-neutral reason for a strike, especially when it is observed by the court or where the opponent does not dispute the observation proffered for the strike or object to it. See, Brown v. State, 994 So. 2d 1191 (Fla 4th DCA 2008). However, if the non-verbal behavior is disputed by opposing counsel, it will not be a valid reason for a strike unless it is confirmed by the Court on the record or otherwise documented somehow in the record. “…. a potential juror’s non-verbal behavior, the existence of which is disputed by opposing counsel and neither observed by the trial court nor otherwise supported by the record, is not a proper basis to sustain a peremptory challenge as genuinely race-neutral.” Dorsey v. State, 868 So2d 1192 (Fla 2003); Ruger v. State, 941 So2d 1182 (Fla 4DCA 2006). A client’s expression of discomfort with the way the juror was looking at him was not an acceptable reason for the strike if not observed by the court. Howell v. State, 1 So. 3d 322 (Fla 3d DCA 2009). A juror’s alleged nodding in agreement with statements made by a fellow juror was not an acceptable reason for a strike when both the judge and opposing counsel said they did not see this nonverbal behavior or communication. Brown v. State, 995 So. 2d 1099 (Fla 3d DCA 2008).

The Plaintiff does not have to be a member of a protected group to assert a Neil challenge. Kibler v State, 546 So. 2d 710, 719 (Fla 1989); Elliot v State, 591 So. 2d 981 (Fla 1st DCA 1991); and you don’t have to show your opponent is using a pattern of discrimination in striking a particular group. One strike alone against a prospective juror in a protected group is enough. See Pickett v State, 922 So. 2d 987 (Fla 3d DCA 2005)

The failure to conduct a Neil inquiry when requested constitutes per se reversible error. “The proper remedy in all cases where the trial court errs in failing to hold a Neil inquiry is to reverse and remand for a new trial.” State v Johans, 613 So. 2d 1319 (Fla 1993); Murray v Haley, 833 So. 2d 877 (Fla 4th DCA 2003); Pickett v State, supra. However, the error can be waived if counsel “accepts” the jury before the jury is sworn, Glinton v. State, 956 So. 2d 497 (Fla 4th DCA 2007) or fails to renew all objections made during jury selection before the jury is sworn. Pozo v. State, 963 So. 2d 831 (Fla 4th DCA 2007).