The Law of Jury Selection

By Ira H. Leesfield
Leesfield Scolaro
2350 South Dixie Highway
Miami, Florida 33133
(305) 854-4900
www.leesfield.com
e-mail: Leesfield@leesfield.com

Introduction

Jury selection is the first and one of the most important opportunities for the parties and future jurors to communicate. Once an attorney has requested a jury trial, he or she must exercise the right to examine prospective jurors and take full advantage of voir dire. The parties to the action will have the right to question the prospective jurors and determine their suitability for serving on the jury. Fla.R.Civ.P. 1.431(b).

Voir Dire

The purpose of voir dire is to select jurors for the trial. Voir dire is the first time the prospective jurors will meet the lawyers in a case. In Florida, there is no official limit on the amount of time that may be spent in voir dire. Williams v. State, 424 So.2d 148 (Fla 5th DCA 1982) (court cannot arbitrarily limit time for voir dire). The court may interrupt questioning if it feels the attorneys are being insensitive to prospective jurors, are abusing their right to question them, or are grossly exceeding the appropriate or fair amount of time. Also, It is not error for the judge to impose time limits. Watson v. State, 693 So.2d 69 (Fla. 2d DCA 1997).

Selecting and Eliminating Prospective Jurors

As a means of eliminating prospective jurors, an attorney can make a challenge, either to the array-questioning the makeup of the entire jury pool, or to the poll-questioning the desirability of an individual prospective juror. Florida Civil Trial Practice, 5th ed. § 7.20. An array may be challenged on the basis that the court has failed to follow established procedures to call up the prospective jurors or that the array fails to represent cognizable classes present in the community from which it was drawn. Hoyt v. State, 119 So.2d 691 (Fla. 1960), aff'd 368 U.S. 57; State v. Silva, 259 So.2d 153 (Fla. 1972). Such a challenge must be timely or it is barred and cannot serve as the basis for a successful appeal. Hoskins v. State, 702 So.2d 202 (Fla. 1997).

Individual prospective jurors may be eliminated through challenges for cause and peremptory challenges. Challenges for cause are ruled on by the court, while peremptory challenges are exercised at the practitioner's will. Florida Civil Trial Practice, 5th ed. § 7.20.

There is no set order in which challenges to prospective jurors are raised and it is within the court's discretion to decide. Fla.R.Civ.P. 1.430. Usually, the court allows plaintiff's counsel to pose the first challenge, and then alternates challenges with the defense until a panel has been composed to the satisfaction of all parties. Attorneys may also back strike prospective jurors, in other words, they may challenge previously considered prospective jurors at any time before the jury is sworn in. This allows practitioners to use peremptory challenges judiciously. Florida Civil Trial Practice, 5th ed. § 7.21.

Challenges for Cause

The grounds for challenges for cause are set forth in Fla R.Civ.P. 1.431(c). There is no limit to the number of challenges for cause that may be made. The court may eliminate for cause relatives of parties, counsel, or injured parties to the action, or individuals who either have an interest in the outcome of the action, have formed an opinion or bias about the action, have been employed by a party to the action within 30 days before the trial, or have served as a juror within the past year. In addition, when the civil action requires reading, writing, or arithmetic skills, an individual lacking these skills may be eliminated for cause. Florida Civil Trial Practice, 5th ed. § 7.22. However, financial and time concerns expressed by potential jurors are not a sufficient basis to excuse jurors for cause. Morales v. State, 768 So.2d 475, 476 (Fla. 2nd DCA 2000).

When dismissing a juror for cause, all that is necessary to demonstrate is that reasonable doubt exists as to the juror's ability to remain impartial and unbiased, thus the juror's dismissal for cause is warranted. Juede v. State, 837 So.2d 1114 (Fla. 4th DCA 2003). The applicable test is whether a juror can lay aside any bias or prejudice and render a verdict solely on the evidence presented and the instructions on the law given by the court. Henry v. State, 756 So.2d 170, 172 (Fla. 4 th DCA 2000). The trial court has wide discretion in ruling on challenges for cause and is in a better position than the reviewing court to properly evaluate the responses of jurors. Pacot v. Wheeler, 758 So.2d 1141 (Fla. 4 th DCA 2000); Cook v. State, 542 So.2d 964, 969 (Fla. 1989) ("There are few aspects of a jury trial where we would be less inclined to disturb a trial judge's exercise of discretion, absent clear abuse, than in ruling on challenges for cause in the empaneling of a jury.").

Even where some doubt exists as to the juror's ability to remain impartial, Florida law allows a juror to be rehabilitated. Martinez v. State, 795 So.2d 279 (Fla. 3rd DCA 2001). However, these situations must be examined in context and when a juror expresses genuine reservation about his or her preconceived opinions, it is usually insufficient to overcome the reasonable doubts as to partiality. Scott v. State, 825 So.2d 1067 (Fla. 4 th DCA 2002) (reversing conviction where reasonable doubt existed as to juror's ability to be impartial and subsequent attempts at rehabilitation were insufficient).

If the issue of the juror's impartiality becomes somewhat of a debate or close call, courts should favor excusing the juror rather than leaving doubt as to impartiality. Straw v. Associated Doctors Health and Life, 728 So.2d 354,356 (Fla. 5th DCA 1999). In Straw, a potential juror unequivocally stated he had strong negative feelings towards insurance companies, and that nothing could be said to change that opinion because "it is subconscious." Id. The court concluded that the juror had manifested a clear bias against insurance companies, that he never stated an ability to set aside that bias, and therefore the lower court erred by denying the attorney's challenge of such juror. Id. at 357. See also Goldberg v. Regional Import and Export Trucking Co., Inc., 674 So.2d 761, 764 (Fla. 4th DCA 1996) (Juror was not arguably rehabilitated in subsequent questioning and never indicated she could be fair and impartial in this case-she stated only that she was a fair person. "We continue to adhere to the proposition that in close cases a juror should be excused for cause so that impartiality of the jury is not compromised.").

Peremptory Challenges

Prospective jurors may also be eliminated through peremptory challenges. The plaintiff and defendant have three peremptory challenges unless there are an uneven number of plaintiffs and defendants. Then the court will make provisions so that the plaintiffs combined and defendants combined have the same number of peremptory challenges. Fla.R.Civ.P. 1.431(d). Generally the attorney does not have to articulate why a prospective juror is being stricken using a peremptory challenge, however, an exception exists and the reason may have to be articulated if opposing counsel objects to the use of the peremptory challenge. Florida Civil Trial Practice, 5th ed. § 7.23.

Florida courts allow peremptory strikes against jurors for any reason, as long as they are race-neutral. For example, in English v. State, 740 So.2d 589 (Fla. 3 rd DCA 1999), the appellate court reversed the lower court and held that, if the venireperson did exhibit the complained of behavior (rolled his eyes and didn't like counsel's questions), counsel's reason was race neutral and not pretextual. Id. The strike should have been permitted. Id.

However, peremptory challenges cannot be used in a discriminatory manner. State v. Neil, 457 So.2d 481 (Fla. 1984). When a peremptory challenge is made toward a juror who is a member of a distinct class of people, the challenge may be discriminatory. Distinct groups include race, gender, religion, and ethnicity. An Overview of Current Law Impacting Jury Selection in Civil Cases, 76 APR Fla. B.J. 42 (2002).

An interesting point to note on race, an individual does not have a right to serve as a juror, rather, one has a right not to be excluded from jury service on the basis of racial, gender, or ethnic discrimination. Dilorenzo v. State, 711 So.2d 1362, 1363 (Fla. 4 th DCA 1998)

When race is raised as an objection to a peremptory challenge, the Supreme Court of Florida established a procedure for determining the racial neutrality and genuineness of the peremptory challenge, called the Neil inquiry. 457 So.2d 481. The procedure has evolved since then and was recently clarified in Melbourne v. State, 679 So.2d 759 (Fla. 1996). Step 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 venire person is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike. Step 2, at this point, the burden of production shifts to the proponent of the strike to come forward with a race neutral explanation. Step 3, 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. Id. at 764.

Melbourne, still the standard, was applied in a subsequent case, Johnson v. State, 706 So.2d 401, 403 (Fla. 3 rd DCA 1998), where the court held that at the second stage of the analysis, to determine racial neutrality and genuineness of peremptory challenge, defense counsel only had to proffer race-neutral reasons and there was no specific threshold of neutrality that had to be satisfied. The stated explanation does not need to be persuasive or even plausible. Id; see also Purkett v. Elem, 514 U.S. 765, 768 (1995) ("unless discriminatory intent is inherent to the prosecutor's explanation, the reason offered will be deemed race-neutral"). Although the second step of the Melbourne analysis is a source of recurring difficulty for trial judges, the Third District Court in Johnson affirmed because defense provided race-neutral reasons to excuse juror based on her job, family history, and effect of accusation on her. 706 So.2d at 403.

Following the Melbourne (and Neil) guidelines again in Michelin North America, Inc. v. Lovett, 731 So.2d 736 (Fla. 4th DCA 1999), the Fourth District found reversible error with the trial judge's denial of peremptory challenge and reversed. During jury selection, Michelin peremptorily challenged a prospective juror and the Lovetts objected on the basis that the challenge was racially motivated. Id. at 738. Michelin provided four sufficient race-neutral reasons for its challenge yet the trial court denied Michelin's challenge and the juror sat on the jury. Id. at 738-739.

The court went into a lengthy discussion of the steps to be followed, from Melbourne, when the issue of race-motivated peremptory challenges arise. Id. at 740. Application of the Melbourne principles "compels our finding that clear error occurred in the denial of Michelin's peremptory challenge of Ms. Meeks." Id. at 742. Furthermore, Michelin's reasons for its peremptory challenge of Ms. Meeks were race-neutral, compelling, and exercised in a non-discriminatory manner. Id.

Preserving Challenges on Appeal

In order to properly preserve a peremptory cause objection for appellate purposes, the trial lawyer must exhaust all peremptory challenges and be denied a request for additional peremptory challenges. In addition, cause objections must be renewed before the jury is sworn; acceptance of the panel without objection will waive any error that might exist. 76 APR Fla. B.J. at 43.

Beginning with the decision in Joiner v. State, 618 So.2d 174 (Fla. 1993), the Florida Supreme Court concluded a Neil voir dire issue was not been properly preserved for appellate review where the appellant had affirmatively accepted the jury panel immediately prior to its being sworn in without reservation of his earlier-made objection. Further support is found in Melara v. Cicione, 712 So.2d 429, 430 (Fla. 3 rd DCA 1998), where the court held defendants failed to preserve appellate review because they did not use available peremptory challenges to strike the supposedly objectionable jurors from the panel, nor requested the trial court strike them for cause. More importantly, they never renewed their objection prior to the swearing in of the panel. Id. See also Wallace v. Holiday Isle Resort and Marina, Inc., 706 So.2d 346, 347 (Fla. 3rd DCA 1998) (based on appellants' failure to make and/or renew their objections being asserted on this appeal prior to the jury being sworn, we conclude they have not preserved the same for appellate review).

For peremptory challenges, the same applies, all objections relating to jury selection should be renewed before the jury is sworn to preserve any error for appeal. Accepting the panel without objection will waive any error.

Logistics

After the jury interview is completed, the selection of the jury usually takes place at the bench. When objections are raised, the transcript may need to be reviewed. When there are multiple parties involved, the process can take a significant amount of time. One difficulty facing the lawyer at this time is successfully articulating challenges to the court when the prospective juror is in the same room. If it becomes clear to a prospective juror that he is under attack, the lawyer initiating the attack may face the consequences if he does not successfully rid the panel of this juror. 76 APR Fla. B.J. at 43. The trial lawyer may want to request that the second part of voir dire be conducted in chambers, rather than in the courtroom.

In addition, every lawyer runs the risk of prevailing at trial, but having to do it all over again because a peremptory strike objection or challenge for cause was not handled properly. To avoid such problems, courts have noted that rather than relying on recollections of voir dire responses, the better practice would be to have the jurors' voir dire responses read back by the court reporter. 731 So.2d at 739. At a minimum, lawyers should make sure prospective juror statements are remembered accurately, and the actual transcript is used whenever possible. 76 APR Fla. B.J. at 44. In Brown v. State, 733 So.2d 1128 (Fla. 4 th DCA 1999), the appellate court overturned a decision of the trial court where the basis for the strike was severely compromised by an inaccuraterecollection of the questioning during voir dire.

Conclusion

Voir dire continues to be one of the most significant parts of a trial. Not knowing the applicable Florida law and procedure on jury selection can compromise a trial or leave you open to errors that can serve as a basis for appeal. Trial lawyers therefore should make every effort to possess a firm understanding of the law governing voir dire. By doing so, the trial lawyer is better prepared to handle the changing dynamics of jury selection and improve his chances of a favorable verdict.