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

Posted by David Adelstein on December 28, 2014
Appeal, Standard of Review, Voir Dire

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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