Voir Dire

Race-Neutral Reason for Peremptory Challenge

Posted by David Adelstein on March 19, 2016
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During the voi dire / jury selection process, a party is entitled to 3 peremptory challenges. This means a party can strike prospective jurors for any race-neutral reason. There are times where a party uses a peremptory challenge to strike a juror and the opponent believes the peremptory challenge is being used for a racially motivated reason (i.e., to strike a particular prospective juror due to that juror’s race or ethnicity). Even when the proponent of the peremptory challenge explains the race-neutral reason for the challenge, the opponent believes that the race-neutral reason is merely a pretext.

The Second District Court of Appeal in Spencer, Jr. v. State of Florida, 41 Fla.L.Weekly D700c, a criminal matter, discussed the proper steps or procedure to follow when an opponent believes a peremptory challenge is being used for a racially motivated reason. In Florida, this is oftentimes called the Melbourne procedure or Melbourne hearing after the Florida Supreme Court case Melbourne v. State, 679 So.2d 759 (Fla. 1994).

 

It is helpful to think of the three “steps” as three decisions made by the trial judge during the Melbourne hearing. Phrased as questions, those decisions are:

  1. Has the opponent properly invoked the Melbourne procedure by (a) objecting, (b) demonstrating the venireperson’s protected classification, and (c) requesting the court to have the proponent of the challenge state a neutral reason for it?
  1. Has the proponent of the peremptory challenge provided a facially neutral explanation for the challenge?
  1. Has the opponent of the challenge, following the facially neutral explanation, met its burden of persuasion to establish that the facially neutral reason is a prextext?

In a case where the State’s peremptory challenge is ultimately granted and the defendant’s objection is overruled at the end of a full Melbourne hearing, the actual decision-making process involves more than three components. The three decisions seem to involve the following components:

In step 1:

(a) The State moves to exercise a peremptory challenge for venire person X [prospective juror].

(b) The defendant objects, showing that venireperson X falls within a protected class and requesting a neutral reason for the peremptory challenge.

(c) The court finds the defendant’s objection to be sufficient.

In step 2:

(a) The court asks the State for a neutral reason for the peremptory challenge.

(b) The State provides the reason or reasons that it claims are neutral.

(c) The defendant is given an opportunity to respond.

(d) The court determines that the reason is facially neutral.

In step 3:

(a) The court asks the defendant if he wishes to make a genuineness objection.

(b) If the defendant chooses to make that objection, the defendant is permitted to make an argument and explain the facts and circumstances that support the defendant’s claim that the facially neutral reason is a pretext.

(c) The State is given an opportunity to respond.

(d) The court makes its ruling that the facially neutral reason for the peremptory strike is genuine, explaining as necessary the basis for that ruling.

(e) Finally, if necessary, the defendant asks the court to provide any additional finding or clarity in the ruling to preserve the issue for appeal.

Spencer, Jr., supra.

Step 3 of the Melbourne procedure deals with the genuineness of the race-neutral reason given by the proponent of the peremptory challenge. In other words, the opponent has the burden of persuasion showing that the race-neutral reason was nothing more than a pretext for a racially motivated intent. The opponent will always have the burden of persuasion during this process including ensuring that the record is sufficient and his/her objection stated. The Second District in Spencer, Jr. explained:

Thus, the decision the trial court is called upon to make in step 3 has little to do with the substance of the reason given by the lawyer that requests to strike the venireperson; it has to do with the lawyer’s intent. The trial court is called upon to determine whether the lawyer presenting the explanation for the peremptory challenge, as an officer of the court, is concealing an improper motive. Ultimately, the question the trial court must answer is whether the lawyer has truthfully provided a neutral reason or whether the lawyer is either deceiving himself as a matter of subconscious prejudice or, even worse, simply lying to the court. “Genuineness,” thus, is really a question of whether a lawyer is being disingenuous.

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If it is truly presumed that lawyers exercise peremptory challenges in a nondiscriminatory manner, then the trial court should not be expected to initiate on its own a genuineness challenge of every facially neutral reason. This is particularly true when no party has responded to the neutral reason with a claim that it is a pretext. Given the seriousness of a charge that a lawyer is providing a pretextual reason for a challenge, the opponent should be expected to object to the facially neutral reason as a pretext. It is unquestionably the better practice for a trial court, having made a determination of neutrality under step 2 of the Melbourne analysis, to ask the opponent whether he or she wishes to challenge the genuineness of the proponent’s reason, but we see no reason to reverse a judgment and sentence following an entire trial when the trial court omits this step without objection from anyone.

***

Again, it is the better practice for a trial court to affirmatively ask an opponent to state all of the circumstances the opponent believes support a claim of pretext, but if the trial court omits this step, it should be incumbent upon the opponent to object and ask to place into the record the circumstances that it wishes the trial court to consider and the appellate court to review. Often it may seem apparent to the trial court that the neutral reason is not a pretext. If the court jumps ahead because of the judge’s own thought process, it should be the opponent who has an obligation to slow the decision-making process and to make certain the record is adequate.

 

Under Melbourne, it is the opponent of the challenge that has the burden of persuasion from the beginning to the end

Spencer, Jr., supra.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Voir Dire and Reasonable Opportunity to Examine Prospective Jurors

Posted by David Adelstein on January 25, 2015
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Voir dire, as mentioned in prior postings, is a very important part of the jury trial process.   Voir dire is when the parties have an opportunity to examine and question prospective jurors in the context of their theme and case in order to determine which six jurors (and alternate) should be sworn in on the jury panel. The objective behind voir dire is to ensure that parties have a fair and impartial jury. Williams v. State, 424 So.2d 148 (Fla. 5th DCA 1982).

 The right of parties (and even the trial court) in civil dispute to engage in voir dire is set forth in Florida Rule of Civil Procedure 1.431 which provides in pertinent part:

(b) Examination by Parties. The parties have the right to examine jurors orally on their voir dire. The order in which the parties may examine each juror shall be determined by the court. The court may ask such questions of the jurors as it deems necessary, but the right of the parties to conduct a reasonable examination of each juror orally shall be preserved.”

The trial court has discretion to control voir dire including limiting argumentative or repetitive examination. Leamon v. Punales, 582 So.2d 8 (Fla. 3d DCA 1991); Allen v. Se-Go Industries, Inc., 510 So.2d 1097 (Fla. 3d DCA 1987) (trial court had discretion to conduct voir dire and then limit each party to 20 minutes to examine prospective jurors); but see Carver v. Niedermayer, 920 So.2d 123 (Fla. 4th DCA 2006) (trial court limiting parties voir dire to 30 minutes to examine 19 prospective jurors was arbitrary and constituted reversible error).

A trial court’s control or limitations imposed on voir dire will not be disturbed unless the trial court abused its discretion. Sisto v. Aetna Cas. and Sur. Co., 689 So.2d 438 (Fla. 4th DCA 1997). Hence, the standard of appellate review is abuse of discretion. A trial court will be deemed to abuse its discretion in controlling the voir dire process if it prevents a party of its right in conducting a reasonable examination to ensure a fair and impartial jury is selected.   A reasonable voir dire examination assists the parties “in determining whether a particular juror should be the subject of either a challenge for cause or a peremptory challenge.Carver, 920 So.2d at 124 (quotation and citation omitted). Thus, it would be an abuse of discretion to deprive a party of this right to reasonably identify prospective jurors to challenge. See id.

For instance, in the personal injury case Sisto, the trial court prevented the plaintiff from inquiring as to prospective jurors’ views concerning personal injury lawsuits and damage awards. This limitation prevented the plaintiff from going into prospective jurors’ views and feelings on non-economic damages that are largely the type of damages awarded in a personal injury case. Naturally, this is an important aspect of a personal injury case that impacted the plaintiff’s exercise of peremptory challenges or excusing a prospective juror for cause based on that juror’s feelings and views about non-economic damages awarded in the personal injury context. The jury found for the plaintiff but did not award the plaintiff any non-economic damages. The plaintiff appealed and the appellate court found that the trial court abused its discretion in limiting the plaintiff’s voir dire examination and remanded the case for a new trial.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Appealing the Granting or Denying of a Party’s Peremptory Challenge(s)

Posted by David Adelstein on December 28, 2014
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imagesPeremptory Challenge

 

Previously, I discussed the basics regarding peremptory challenges.

What if the court grants or denies a peremptory challenge and a party wants to appeal that ruling at the conclusion of the trial? A party will want to potentially appeal if (a) a party challenges its opponent’s use of a peremptory challenge arguing that the opponent wants to strike a juror for a racially motivated basis and the court still grants / sustains the peremptory challenge or, alternatively, (b) a party challenges its opponent’s use of a peremptory challenge arguing that the opponent wants to strike a juror for a racially motivated basis and the court agrees and prevents the opponent from using its peremptory challenge to strike the juror. 

The standard of appellate review for peremptory challenges is abuse of discretion. The School Board of Broward County, FL v. Trintec Construction, Inc., 936 So.2d 655 (Fla. 4th DCA 2006). (Please see this posting for more on the abuse of discretion standard of appellate review.) In a nutshell, when an opposing party believes that a peremptory challenge is being used in a discriminatory fashion, they must timely object demonstrating the prospective juror is a member of a distinct racial group. The party using the peremptory challenge must then provide its race-neutral reason for striking the juror; if the court believes that reason is genuine and not pretextual, the challenge should be sustained and should be affirmed on appeal unless it is clearly erroneous. See Trintec, 936 So.2d at 657 (relying on the Florida Supreme Court’s decision in Melbourne v. State, 679 So.2d 759 (Fla. 1996) to affirm trial court’s sustaining of a peremptory challenge).

However, “[t]he denial of a party’s right to exercise peremptory challenges, so long as those challenges are not exercised in a racially improper manner, constitutes error.” See Michelin North America, Inc. v. Lovett, 731 So.2d 736, 740 (Fla. 4th DCA 1999) (granting defendant in civil case new trial when trial court denied defendant’s peremptory challenge); see also Smith v. Florida, 662 So.2d 1336 (Fla. 2d DCA 1995) and Hamilton v. State, 642 So.2d 817 (Fla. 3d DCA 1994) (granting criminal defendant new trial because court prevented defendant from exercising peremptory challenge). Stated differently, if a trial court denies a peremptory challenge when a party provides a race-neutral basis for that challenge will likely constitute an abuse of discretion entitling that party to the right to a new trial.  The reason being is that a party’s use of peremptory challenges is to allow that party to have a fair and impartial trial; thus, preventing this right constitutes reversible error.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Civil Jury Trials and the Basics of Peremptory and Cause Juror Challenges

Posted by David Adelstein on December 27, 2014
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Civil Jury Trials

Civil jury trials in a Florida state court require 6 jurors. See Fla.Stat. s. 69.071. The court also generally directs for 1 or 2 alternate jurors to be selected. See Fla.R.Civ.P. 1.431(g).

During jury selection in civil trials, or the voir dire process, parties have peremptory challenges and challenges for cause that are used to strike a prospective juror(s) from being sworn on the jury panel.   These challenges are a very important component of the jury trial process designed to not only prevent biased or partial jurors from being sworn to the jury panel (challenges for cause), but to allow a party to strike a certain number of prospective jurors that are not preferable to their trial themes / strategies for reasons other than a discriminatory basis (peremptory challenges).

PEREMPTORY CHALLENGES

 

Each party is entitled to 3 peremptory challenges. See Fla.R.Civ.P. 1.431(d). Peremptory challenges entitle a party to strike a prospective jury for any reason although that reason CANNOT be discriminatory / racially motivated. See Melbourne v. State, 679 So.2d 759 (Fla. 1996). Let’s say a plaintiff sues a defendant. During jury selection, each party will have 3 peremptory challenges. But, let’s say a plaintiff sues 2 different defendants. Under Florida law, each side is entitled to the same number of peremptory challenges. Since there are 2 defendants and each defendant is entitled to 3 peremptory challenges, this means that the entire defense has 6 peremptory challenges.   In this scenario, it would be unfair for the plaintiff to have an unequal number than the defendants’ total so the plaintiff is entitled to have 6 peremptory challenges. See Fla.R.Civ.P. 1.431(d).

If the court directs alternate jurors, each party is entitled to 1 peremptory challenge but the same rule applies that each side is entitled to an equal number of peremptory challenges. See Fla.R.Civ.P. 1.431(g).

CAUSE CHALLENGES

 

There is not a cap on the number of cause challenges but the basis for the cause challenge MUST be stated with specificity and determined by the judge. A challenge for cause is moving to strike a juror because that juror cannot be fair or impartial. See Fla.R.Civ.P. 1.431(c) (explaining cause challenges in civil trials); Fla.Stat. s. 913.03 (factors that allow a juror to be stricken for cause in criminal trials). “[I]f there is reasonable doubt about the juror’s ability to be fair and impartial, the juror should be dismissed for cause.” Four Wood Consulting, LLC v. Fyne, 981 So.2d 2, 4-5 (Fla. 4th DCA 2007).

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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