Key Cases a Lawyer Needs to Know to Select a Jury

by Rob Glass

When selecting a jury, there are certain key cases that a lawyer needs to know. The key cases govern strikes for cause, the right to backstrike jurors, preservation of error, and improper discriminatory challenges. The cases are summarized as follows:

Busby v. State, 894 So. 2d 88 (Fla. 2004): In Busby, the court reiterated prior precedent that a trial court’s refusal to excuse a potential juror for cause will be reversed only when the appellant shows both “error” and “prejudice.” Error refers to a juror’s competence to serve on a jury, and the “test for determining jury competency is whether the 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.” Prejudice requires a showing that the trial court’s error led to an objectionable juror actually sat on the jury. To preserve a claim of prejudice, an appellant must show that he or she expended a peremptory challenge “to cure the trial court’s improper denial of a cause challenge,” then exhausted all remaining peremptory challenges.

Further, the appellant must show that one of the jurors who actually sat on the jury was challenged for cause or that the appellant sought additional peremptory challenges and otherwise objected to that particular juror. Finally, the objection to that juror must be renewed before the jury panel is sworn. The juror, however, need not be legally objectionable: “[t]he harm suffered by the defendant under such a scenario is having been forced to accept a juror he or she would have peremptorily excused but for the need to remedy the trial court's error.” Busby is applicable in civil cases. See Somerville v. Ahuja, 902 So. 2d 930 (Fla. 5th DCA 2005).

Embleton v. Senatus, 993 So. 2d 593 (Fla. 4th DCA 2008): In Embleton, the Fourth DCA reviewed Florida jurisprudence regarding juror competency. The court explained that the “test for assessing a juror’s competency is ‘whether the juror can lay aside any bias or prejudice and render a verdict solely on the evidence presented and the court’s instructions.’” If any reasonable doubt exists as to the juror’s ability to be impartial, the juror must be excused. The test does not require that a juror have no preconceived notions about the case, which would “establish an impossible standard.” A prospective juror may serve “so long as the juror can lay aside preconceived notions or opinions and render a verdict based on the evidence.” The court further explained that a “juror should be excluded for cause when her statements confirm that she cannot set aside ‘the edge’ that she would give to one party at the beginning of the case.

Lottimer v. North Broward Hospital District, 889 So. 2d 165 (Fla. 4th DCA 2004): In Lottimer, the court addressed the timing and procedure for jury selection. The appeal involved a party’s attempt to exercise a backstrike after the alternates were selected but before the jury was sworn. The trial court denied the attempted backstrike. On appeal, the Fourth DCA noted that the “time and manner of challenging and swearing jurors” rests “within the sound discretion of the trial court,” a trial court cannot infringe on a party’s right to raise a challenge, either peremptorily or for cause, prior to the time the jury is sworn. The fact that alternates have been selected does not limit a party’s right to strike one of the members of the panel.

Melbourne v. State, 679 So. 2d 759 (Fla. 1996): Melbourne clarified the standards for challenges to discriminatory use of peremptory challenges under article 1, section 16, of the Florida constitution, which were first addressed in State v. Neil, 457 So. 2d 481 (Fla. 1984). Under Melbourne, the party objecting to another party’s use of a peremptory challenge must: 1) make a timely objection to the challenge; 2) show that the venire person is a member of a distinct racial classification; and 3) request that the court inquire of the striking party the reason for the strike. The burden then shifts to the striking party to come forward with a race-neutral explanation. If the explanation is facially race-neutral, then the court considers “all the circumstances surrounding the strike” to determine whether the explanation is genuine. If the explanation is not pretextual, the strike will be sustained. The principles of Neil have also been extended to strikes based on ethnic background and gender. Welch v. State, 992 So. 2d 206 (Fla. 2008) (gender discrimination); State v. Alen, 616 So. 2d 452 (Fla. 1993) (ethnic background). Neil and Melbourne apply in civil cases. Sch. Bd. Of Broward Cnty. v. Trintec Constr., Inc., 936 So. 2d 655 (Fla. 4th DCA 2006).

Conclusion: To select a jury and properly exercise challenges to potential jurors, there are certain key cases and propositions of law that a lawyer needs to know. The key cases relate to strikes for cause, the right to backstrike jurors, preservation of error, and improper discriminatory challenges. With a working knowledge of these cases, the lawyer will be able to spend more time focusing on selecting a fair and impartial jury.

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