www.rissman.com
TAMPA COMMONS
ONE NORTH DALE MABRY HIGHWAY
11TH FLOOR
TAMPA, FLORIDA 33609
TELEPHONE (813) 221-3114
TELECOPIER (813) 221-3033
TAMPA@RISSMAN.COM
201 EAST PINE STREET
15TH FLOOR
P.O. BOX 4940
ORLANDO, FLORIDA 32802-4940
TELEPHONE (407) 839-0120
TELECOPIER (407) 841-9726
ORLANDO@RISSMAN.COM
709 SEBASTIAN BOULEVARD
SUITE B
SEBASTIAN, FLORIDA 32958
TELEPHONE (772) 228-3228
TELECOPIER (772) 228-3229
SEBASTIAN@RISSMAN.COM

May 15, 2012

JURY SELECTION

PRESERVATION OF ERROR FOR APPEAL

 

The preservation of a challenge to a prospective juror requires more than a contemporaneous objection. In fact, if a reviewing court concludes that a juror who actually served on the jury should have been stricken for cause or that a peremptory challenge was improperly used, the court will not reverse for a new trial if the error was not properly preserved.

The test for determining juror competency is whether a potential juror can set aside any bias or prejudice and render his verdict solely upon the evidence presented and the instructions on the law given to him by the court. When a party seeks to strike a potential juror for cause, the court must allow the strike when there is any reasonable doubt the juror would be able to render an impartial verdict based solely on the evidence and law.

The Florida Supreme Court has established that an improper denial of a motion to excuse a juror for cause is reversible error provided the error is properly preserved. To obtain reversal on appeal, however, a party who has preserved a cause challenge must demonstrate both that the trial court erred in determining the juror's competency and that the denial of a challenge caused prejudice.

Where the record demonstrates a reasonable doubt about the juror's ability to be impartial, there is an abuse of discretion by the trial court in denying the cause challenge. Notwithstanding, if the trial court grants a same number of additional peremptory challenges as cause challenges erroneously denied, there is no prejudice.

The elements required to preserve challenges for cause can be summarized as follows:

  1. a timely motion to strike the juror for cause;

  2. the improper denial of the motion;

  3. the exhaustion of all peremptory challenges during the jury selection process;

  4. a request for additional peremptory challenges;

  5. an identification of the juror(s) to be stricken with the additional challenges;

  6. denial of the request for additional challenges; and

  7. service by the objectionable juror on the jury.

Jury selection objections must be renewed before the jury is sworn. Acceptance of the panel without objection will waive any error that may exist.

Peremptory challenges may be used for any reason. However, they cannot be used in a discretionary manner to exclude potential jurors based on race, ethnicity or gender. Such discriminatory use of peremptory challenges violates the right to trial by an impartial jury under the Florida Constitution.

If a litigant suspects an opposing counsel is using a peremptory challenge to improperly discriminate, he must follow the procedures set out by the Florida Supreme Court:

  1. make a timely objection
  2. stating that the challenge is being used in a discriminatory manner;
  3. show that the venire person is a member of a distinct racial or ethnic group; and

  4. request that the court ask the striking party its reason for the strike.

If these initial requirements are met, the court must ask the proponent of the strike to explain the reason for the strike. The burden of persuasion throughout the process is on the opponent of the strike who must prove purposeful discrimination against the protected class.

Determining whether a prospective juror is a member of a cognizable class is a matter of fact and the trial court has discretion in making such determination. Also, if the race-neutral explanation given by a litigant in support of peremptory strike is based upon erroneous facts, any challenge to the striking of that juror based on the factual inaccuracy will be waived unless the error is brought to the attention of the trial court.

Jury selection presents unique preservation issues because of the procedure that must be followed to properly preserve objections for review. Following the aforementioned rules when conducting voir dire helps make the process smooth and insures that there are no errors.

 

Jennings L. Hurt III
Managing Partner
Rissman, Barrett, Hurt,
Donahue & McLain, P.A.
201 E. Pine St.
15th Floor
P.O. Box 4940
Orlando, Florida 32802 - 4940
Off: 407 - 839 - 0120
Fax: 407 - 841 - 9726
Cell: 407 - 760 - 9000
Email: bucky.hurt@rissman.com
www.rissman.com

 

JLH/SBB/smm/tsr

*This is a summary of an article that appeared in the April 2012 edition of The Briefs.