Jury Challenges: Cause and Peremptory Strikes 1

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1 Jury Challenges: Cause and Peremptory Strikes 1 DISQUALIFERS AND STATUTORY EXCUSES FROM JURY SERVICE Initially, Florida Statute specifically provides the criteria utilized to determine who is (1) disqualified from service on a jury, (2) those who must be excused, (3) those who must be excused upon request, and (4) those who may be excused in the discretion of the Court. See Appendix A attached. Generally, these matters will be handled in the jury room or by the judge in charge of jury excuses (jury judge). It would be rare for these matters to come up in jury selection, but they have and they can, so an attorney must be aware of these provisions. PLEASE NOTE: ALL CHALLENGES SHALL BE ADDRESSED TO THE COURT OUTSIDE THE HEARING OF THE JURY...SO THAT THE JURY IS NOT AWARE OF THE NATURE OF THE CHALLENGE, THE PARTY MAKING THE CHALLENGE, OR THE BASIS OF THE COURT S RULING ON THE CHALLENGE, IF FOR CAUSE. Fla. R. Civ. P (e), [Emphasis supplied] CAUSE CHALLENGES FLA. R. CIV. P (c)(1) Party must move to excuse for cause, a potential juror 1- who is related within 3 rd degree to: a) any party b) the attorney of any party c) any other person or entity against whom liability or blame is alleged d) any person who has any interest in the action 2- who has formed or expressed any opinion on this matter 3- who is sensible to any bias or prejudice concerning this case. PRACTICE TIP # 1: In 2005, this rule was amended to allow a cause challenge to be asserted against a potential juror who might have a bias against even a nonparty (person or entity) who may appear on a verdict form as a Fabre defendant. See, 2005 Committee Note on Amendment to rule. Authors have commented that a general bias may not be sufficient to excuse a juror for cause if the juror can set the bias aside and fairly decide that present case. Carrier v. Ramsey, 714 So.2d 657 (Fla. 5 th DCA 1998); Florida Civil Practice, Challenges for Cause, 17:2, FN 2, Philip J. Padovano. Conversely if the bias is aimed at a party, this case, or the subject of the case, the trial judge will probably have to excuse the juror for cause upon request. 1 Any cases or authorities cited in the outline should be confirmed before utilizing as to validity, or continued validity, of the citation and their application to the principle for which they are cited. -1-

2 Once a juror demonstrates, either overtly or covertly, a bias any attempts at rehabilitation must be significant. A demonstration of bias, while later denied, carries with it the stench of the stated bias. Club West, Inc. V. Tropigas of Florida, Inc., 514 So.2d 426 (Fla. 3 rd DCA 1987) The party seeking to rehabilitate the juror must demonstrate that juror will be able to lay aside the preformed bias, opinion or prejudice and decide this case solely on the evidence presented and the law as supplied by the Court. A juror s assurance or assertion to the Court that she/he could be fair is not in and of itself controlling. Longshore v. Fronrath Chevrolet, Inc., 527 So.2d 922 (Fla. 4 th DCA 1988). 4- who is or has been an employee of any party within 30 days before the trial 5- who has been a juror in the past year even though not selected from a jury list 1.431(c)(2) 6- who does not have the necessary reading, writing, or arithmetic knowledge required for this trial 2 7- who is incompetent. 8- if the juror can not render a fair and impartial verdict. See, Weinstein Design Group, Inc. v. Fielder, 884 So.2d 990 (Fla. 4 th DCA 2004); Highlands Ins. Co. V. Lucci, 423 So.2d 947 (Fla. 3 rd DC A 1982). A party can introduce...any other competent evidence to support its objection. Specific cause situations and attempted rehabilitation: Would wait to hear witness before considering credibility not sufficient where said would give more credibility to police officer. Ibarrondo v. State, 1 So.2d 226 (Fla. 5 th DCA 2008) Friendly relationship with trial counsel s law partner was sufficient for cause excuse. Sikes v. Seaboard Coast Line R. Co., 487 So.2d 1118 (Fla. 1 st DCA 1986) Negative attitude towards legal system resulting from bad personal experience filed against potential juror of his family is subject to cause excuse. Levy v. Hawk s Cay, Inc., 543 So.2d 1299 (Fla. 3 rd DCA 1989) Professed difficulty in following the law on pain and suffering is enough for cause strike. Pacot v. Wheeler, 758 So.2d 1141 (Fla. 4 th DCA 2000). Admitted bias against medical mal case even though tiny and that didn t think it would influence juror was sufficient for cause strike. Somerville v. Ahuja, 902 So.2d 930 (Fla. 5 th DCA 2005) Response such as I think I could be fair is not sufficient rehabilitation after saying disapproves of personal injury lawsuits. Not starting out on an even playing field. Both are 2 Under Fla. R. Civ. P (c)(3) it appears that the Court may be required to make a finding that a certain base level of ability is required of the potential jurors to serve on this particular case. -2-

3 sufficient for cause strike. Nash v. General Motors Corp., 734 So.2d 437 (Fla. 3d DCA 1999) Juror who believes that in every slip and fall case, the party who fell would be at least partially responsible should be excused for cause. Algie v. Lennar Corp, 969 So.2d 1135 (Fla. 4 th DCA 2007) The Court Ruling: 1- A potential juror who does not stand indifferent to the action or meets one of the above criteria must be excused. 2- If a reasonable doubt exists as to whether the juror should be struck, the juror should be excused. Sommerville v. Ahuja, 902 So.2d 930 (Fla. 5 th DCA 2005) 3- If the issue is a close call the Court should err on the side of excusing the juror. Algie v. Lennar Corp., 969 So.2d 1135 (Fla.4th DCA 2007) 4- However, trial court is in the best position to observe the attitude and demeanor of the juror and therefore appellate court will generally defer to trial court. Dufour v. State, 660 So.2d 637 (Fla. 2005) There is no limit on the number of cause strikes that can be asserted. PRACTICE TIP #2: Different judges handle cause strikes in different manners. How the judge will handle the cause strikes should be discussed prior to the start of trial, preferably at either the pretrial conference or the case management conference if one was held. Some judges require all cause strikes to be exercised at one time; others will handle them in combination with the peremptory strikes. Knowing which jurors will be removed for cause prior to having to exercise your peremptory strikes is of great assistance to the trial lawyer. PROFESSIONALISM POINTER: Great trial lawyers understand the need to excuse jurors who are obviously not appropriate to serve as soon as possible. Getting these jurors off the panel (1) gets them back to the jury room sooner so they can be sent to other trials, (2) lessens the chance these jurors will say something that may contaminate the rest of the panel, (3) speeds up the voir dire process as there will be less jurors to question and (4) demonstrates to the Court the possible need for additional jurors. Consideration should be give at various stages of the voir dire, i.e. when breaks are taken, to see if all attorneys can agree that certain jurors should be excused for cause. Appellate Review: There appears to be a split of authority on how a practitioner goes about preserving an appellate issue for review on cause strikes. Some courts have suggested that the attorney must use up her/his peremptory challenges, identify the cause strike that should have been made, ask for an -3-

4 additional cause strike to strike the unwanted juror. See, Dardar v. Southard Distributors of Tampa, 563 So.2d 1112 (Fla. DCA 1990). Other courts, including the Fifth District Court of Appeals, seems to suggest that it is not necessary to request additional challenges after exhausting their peremptory strikes. Sommerville v. Ahuja, 902 So.2d 930 Still other cases suggest that you must identify the specific objectionable juror to the trial court. Griefer v. Di Pietro, 625 So.2d 1226 (Fla. 4 th DCA 1994). PRACTICE TIP #3: Until the law is clarified, it is probably a better practice to (1) lodge your cause challenge, (2) make a clear record of why the juror should be removed for cause, (3) identify the reason for the cause challenge, (4) if denied, once you exhaust your peremptory challenges, note that they have been exhausted, (5) request an additional peremptory challenge, (6) set forth that this is necessitated by the prior denial of the requested cause strike and (6) set forth how the strike would be used and why. In addition, just before the jury is sworn, it would be wise to re-assert your objection to the panel and specify the reason for the objection. Number of Strikes: PEREMPTORY CHALLENGES FLA. R. CIV. P (d) Generally, the number of peremptory challenges is equal for both plaintiffs 3 and all defendants. In other words, the plaintiff should have the number of challenges equal to the total of all the defense challenges. An exception can exist where parties on one side of the case have a common interest in the case. If two parties have a common interest and are not adverse to each other, the two defendants may be limited to a total of three peremptory challenges. Lemoine v. Cooney, 514 So.2d 391 (Fla. 4 th DCA 1987) What is a peremptory challenge? The right to a peremptory challenge is provided for in Fla. R. Civ. P (d). A peremptory challenge is the right to remove a specific juror from the venire which can be asserted without having to justify it with any reason except in one specific instance. Florida Rock Industries, Inc. v. United Bldg. Systems, Inc. 408 So.2d 630 (Fla. 5 th DCA 1981). See, supra, Discriminatory challenges. It is a fundamental right tied to the right to a fair trial. Tedder v. Video Electronics, Inc.,491 So.2d 633 (Fla. 1986) Exercise of Challenges: The making of peremptory challenges may vary from judge to judge. Counsel must be 3 While it is generally one plaintiff and multiple defendants, the rule does not distinguish. If there were multiple plaintiffs and only one defendant the same rational would apply. -4-

5 sure they understand how the judge who will be trying the case will handle jury challenges 4. The attorney must know, amongst other things, (1) which six jurors will be the first ones against whom challenges must be lodged, (2) will the court alternate between plaintiff and defense and/or various defendants in asking for peremptory challenges, (3) will additional cause strikes be permitted once peremptory challenges are commenced, (4) will there be additional challenges for any alternates, (5) will the Court allow back striking, (6) how will Neil/Slappy/Melbourne challenges be handled and (7) will the court allow back strikes after the alternates are selected and if so how. Procedure to be followed in exercising peremptory challenges: While it will vary from judge to judge, certain basic procedures can be addressed. 1- All asserted challenges are to be made outside the jury s presence. Fla. R. Civ. P (e). This can be done at the Bench or by having the venire panel outside the courtroom. 2- The Court will usually allow all counsel to confer with their clients and partners or assistants for a few minutes prior to requesting that they exercise the challenges. It is reasonable to need some time to confer and make decisions. If the Court moves directly to selection, counsel should ask the Court for time to confer prior to making their selections. 3- After the attorneys have had time to consider their options, the Court will usually identify the first juror by seat number, juror number, or name 5 and ask the Plaintiff whether they accept the juror or wish to assert a challenge to that juror. If no challenge is lodged by the plaintiff, the Court will ask the Defendant if he/she has any challenge as to that juror. If a challenge is not asserted by the Defendant, the juror will be considered tentatively accepted and the Court will move to the next juror. 4- The Court will usually alternate between Plaintiff and Defendant. Therefore, on the second juror, the Court will direct its question as to accepting the juror to the Defendant. If the Defendant does not challenge that juror, the Court will then ask the Plaintiff. If the Plaintiff accepts the juror the Court will continue on until they have a full panel Should either party challenge a juror, that juror will be struck and the Court will move on to the next juror until (1) six jurors have been chosen and neither party wishes to exercise any 4 Circuits as well as judges are different. Some circuits will have a different judge, other than the trial judge, pick the juries for the trial judges. Others will pick all the juries for the trial docket at one time and then call them back in when their specific case is called.. 5 When the venire panel is moved outside of the courtroom many jurists will identify the juror by name for ease of identification jury the selection process. 6 In most civil cases that will be six jurors; in eminent domain cases it will be twelve jurors. -5-

6 other challenges or (2) six jurors have been chosen and the parties have run out of peremptory strikes. 6- If a party exercises a challenge, and an objection is made that the challenge is discriminatory under Neil/Slappy/Melbourne, the Court must rule on whether to allow the peremptory challenge to stand or will deny the right to challenge the juror in that manner as the Court finds that it is a pre-text and is discriminatory. 7- If the Court determines that alternate jurors are to be selected, the Court will determine how many. Pursuant to Fla. R. Civ. P (g) each party will be given one additional strike for each alternate to be used only on the alternate. These additional strikes can only be used against the prospective alternate(s). Further, any remaining peremptory challenges from the main panel may not be used against an alternate. 8- Prior to the swearing in of the jury panel, any party may assert any remaining peremptory challenge as to a prospective jurors. This procedure is referred to as backstriking and is authorized by case law. Tedder v. Video Electronics, Inc., 491 So.2d 533 (Fla. 1986) PRACTICE TIP #4: Some judges may not be aware that backstriking is permitted. This matter should be addressed with the Court prior to the start of trial to eliminate any issue. See, Florida Rock Industries, Inc. V. United Bldg Systems, Inc., 408 So.2d 630 (Fla. 4 th DCA 1981) Case law should be submitted to the Court to support your position. Should the Court not permit backstriking, an objection must be made prior to the jury being sworn to preserve the matter for appellate review. Gonzalez v. Martinez, 897 So.2d 525 (Fla. 3d DCA 2005) PROFESSIONALISM POINTER: Many times attorneys will complete their strikes and the judge will start the selection process of the alternate juror(s). At that point a party may seek to utilize a remaining strike on one of the six jurors previously accepted. While annoying to the Court and opposing counsel, it is not illegal or improper and within the party s right to assert a strike until the jury is actually sworn. The remaining strike, however, can not be used on an alternate. A more professional manner of handling the peremptory strikes would be to complete the assertion of strikes by all parties prior to moving to the alternates. Discriminatory Challenges: The one exception to the unbridled use of peremptory challenges occurs when a challenge appears to be discriminatory. A peremptory strike may not be used as a pretext to exclude a juror on the sole basis of the juror s race [Neil, infra], ethnic background [State v. Alen, 616 So.2d 452 (Fla. 1993)] or gender [Abshire v. State, 642 So.2d 542 (Fla. 1994]. 7 Several cases have served as the starting ground for raising the objection and establishing 7 While race, ethnic background and gender have been set forth, it may well be that other classifications may come into play in the future. -6-

7 the procedures that the Court must employ in making the appropriate inquiry and eventual ruling. See: State v. Neil, 457 So.2d 481 (Fla. 1984); State v. Slappy, 522 So.2d 18 (Fla. 1988); Melbourne v. State, 679 So.2d 759 (Fla. 1996) While these are criminal cases, the law is clear that this rule applies in civil cases as well. City of Miami v. Cornett, 463 So.2d 399 (Fla. 3 rd DCA 1985) PRACTICE TIP #5: The time to learn and understand Neil challenges is well before you walk in the courtroom. Things happen quickly during jury selection; when a Neil challenge is made or needs to be asserted, counsel must be able to respond immediately to meet the challenge or assert it. Counsel should read and understand each of these cases prior to the start of any trial. An over simplistic outline is attached to serve as a general guide to the practitioner. The Neil Test: The Neil Court and subsequently the Melbourne Court established a procedure to be followed when there is a suspected or allegedly discriminatory strike being offered. The test sometimes referred to as a Neil Hearing or a Melbourne Hearing is in three parts: Part I 1- A timely objection must be made by the party seeking to challenge the strike, and 2- It must be shown that the potential juror is a member of a distinct group and 3- The party must request that the court inquire as to the reason for the strike. Part II 4- The Court must inquire of the proponent of the strike to explain the reason for the strike. 5- The proponent of the strike must present a race neutral explanation for the strike. Part III 6- The Court must determine if the explanation is indeed race neutral, and if so 7- Is the explanation genuine (not just reasonable) and is it not just a pretext The objection must be timely made during the selection process and generally at the time, or near the time, of the alleged discriminatory challenge. Blackshear v. State, 521 So.2d 1083 (Fla. 1988) Case law also seems to suggest that an objection must be renew or restated before the jury is sworn to preserve an appellate issue. Anderson v. State, 750 So.2d 741, 742 (Fla. 3 rd DCA 2000); Milstein v. Mutual Sec. Life Ins., 705 So.2d 639 (Fla. 3 rd DCA 1998) The most effective and thorough voir dire is useless if the attorney can not effectively eliminate from the venire panel persons whose bias, prejudice, or preconceived notions would not allow them to render a fair and impartial verdict in the case. In addition, other jurors who for whatever reason would appear to be unfavorable to your client must be removed from consideration by effective utilization of the peremptory strikes. If one or more of those attempted peremptory strikes happens to be directed towards members of a distinct group, the attorney must, -7-

8 depending on who he/she is representing, be able to either demonstrate to the Court that the reason for the strike is genuine and is not a pretext, or that it is discriminatory and should be disallowed. Revised Judge John Marshall Kest June 21, Copyrighted 1 Comments, recommendations, practice tips and professionalism pointers are solely those of Judge John Kest. When appearing in front of a specific judge, each attorney should check with that judge for the individual procedures, policies and requirements of that judicial division or judge. -8-