Back to the Future: How Rodriguez v. Lagomasino Got it Right in 2008 and Why Modern Voir Dire Should be Guided by 1929’s Johnson v. Reynolds
It is a fundamental1 notion of the American legal system that all matters tried to a jury, both civil and criminal,2 shall be heard by a panel of impartial jurors with no interest in the proceeding, who have formed no opinion about the matter being litigated, and who possess no bias or prejudice concerning any of the issues, parties, witnesses, or others involved in the litigation. Because it runs counter to human nature to be without any prejudice or bias, a juror will be deemed competent if he or she can lay aside any bias or prejudice and render a verdict solely upon the evidence presented and the instructions on the law.3 In turn, under Florida civil and criminal procedure, a prospective juror who appears unable or unwilling to set aside any biases or prejudices upon initial inquiry on voir dire may be challenged for cause and, if the presiding judge finds after further questioning that the venire member cannot be “rehabilitated,” the individual must be dismissed from the jury panel and replaced with another potential juror.4
Complicating the nobility of the pursuit of the unbiased juror is the reality that each litigant, while clearly intent upon ensuring that the jury will not be biased against their position, is not as determined to ensure that the jury will not be prejudiced in their favor. Added to that mix are the facts that the courts have said that parties have a right to rehabilitate potential jurors and that it is within the discretion of the trial court to determine whether a venire member is disqualified because of bias.5 Taken together, it is readily apparent that the search for an impartial jury is not as straightforward as it should be.
The key to this logical and legal lock is found in both old and new precedent. First, the old. In reversing a judgment due to the failure of the trial court to sustain a challenge for cause in the 1929 case of Johnson v. Reynolds, 121 So. 793, 796 (Fla. 1929), the Supreme Court of Florida questioned the usefulness of rehabilitating a potential juror, observing:
[R]efinements and distinctions between “bias” and “prejudice” can serve no useful purpose in the administration of justice. If the proposed juror is affected by either state of mind, it cannot be said that he is fair-minded and impartial, and, if accepted as a juror, that he would be of that standard of impartiality which is necessary to prevent an impairment of the right to jury trial. It is difficult, if not impossible, to understand the reasoning which leads to the conclusion that a person stands free of bias or prejudice who having voluntarily and emphatically asserted its existence in his mind, in the next moment under skillful questioning declares his freedom from its influence. what sort of principle is it to be determined that the last statement of the man is better and more worthy of belief than the former?
The Johnson v. Reynolds court got it right. While thorough follow-up questioning on voir dire can help in distinguishing between jurors who are truly biased from ones who may have been confused by initial inquiries, such questioning by the trial judge or counsel cannot “rehabilitate” a potential juror who is truly biased regarding any element of the suit. Only in those rare cases in which further questioning clarifies that a potential juror’s apparent bias is not a true bias should a trial court find that a potential juror has been rehabilitated. Conversely, an initial finding of bias can never be overcome merely by a potential juror’s statement that he or she can be fair or by an apparent change of mind. Those cases which hold otherwise, such as Whitby v. State, 933 So. 2d 557 (Fla. 3d DCA 2006),6 are irreconcilable with the decision of the Florida Supreme Court in Johnson v. Reynolds.
In a very recent case, Rodriguez v. Lagomasino, 972 So. 2d 1050 (Fla. 3d DCA 2008), the Third District Court of Appeal reversed a defense verdict because the trial judge declined to strike two jurors for cause. During voir dire, one prospective juror said he would not favor either side and would be “in the middle,” but his wife had been in an auto accident and his insurance company was doubling his premium. He was equivocal in his responses about fairness, blaming the insurance company, and he was not able to say unconditionally that he could lay aside his prejudice and base his verdict solely on the law and the evidence. Another venireman said he thought there should be caps on damages because of frivolous lawsuits. He said that he doubted his feelings about caps would play a role in this particular case but, like his colleague, he was not able to say unconditionally that he could lay aside his bias and base his decision only on the facts and the law.
The trial judge refused to strike the jurors for cause because he felt “they were rehabilitated.” The Third District reversed based on the progeny of Johnson v. Reynolds, Florida’s well settled “reasonable doubt” standard, discussed in Nash v. General Motors Corp., 734 So. 2d 437 (Fla. 3d DCA 1999),which held, “[W]hen any reasonable doubt exists as to whether a juror possesses the state of mind necessary to render an impartial verdict based solely on the evidence submitted and the instructions on the law given to [him or] her by the court, [he or] she should be excused.”
The Rodriguez court reached the correct conclusion, but it could and should have cited and discussed the seminal case, Johnson v. Reynolds en route to applying the more recent decision in Nash because Johnson explains the rationale of refusing to allow dubious rehabilitation so well.
The Scope of Voir Dire
All of this begs the question, how do lawyers conduct voir dire in order to identify those jurors who should be challenged for cause? First of all, the process takes some time. Although trial judges exercise considerable discretion in determining the appropriate scope of voir dire, that discretion is abused when the court unreasonably limits a meaningful voir dire. For that reason, the trial court may not impose arbitrary time constraints on voir dire.7 Although there is no minimum amount of time for voir dire in the rules, statutes, or cases, it is quite clear that the process will take several hours for a venire of 20-25 persons. It is an abuse of discretion to arbitrarily limit the time for voir dire when the questions are neither repetitive nor argumentative.8
“The purpose of voir dire is to ensure a fair and impartial jury. A trial court abuses its discretion when the imposition of unreasonable time limitations or limitations on the number of questions results in the loss of this fundamental right.”9 At a minimum, the parties must be allowed “to ascertain latent or concealed prejudgments by prospective jurors.”10 It is also an abuse of discretion to terminate voir direbefore counsel has had a fair opportunity to question all of the potential jurors individually.11 Furthermore, parties may propound hypothetical questions on voir dire, provided the questions correctly refer to the law and aid in determining whether challenges are proper.12 Additional matters that may be proper subjects of voir dire include:
Jurors’ feelings about a proposed legal theory.13
Jurors’ feelings concerning personal injury lawsuits and the award of non-economic damages, such as pain and suffering.14
Jurors’ bias or prejudice for or against insurance companies.15
Jurors’ views on recanted statements.16
Jurors’ understanding of the presumption of innocence, the state’s burden of proof in criminal matters, and defendants’ right not to testify.17
Jurors’ views on witnesses who accept plea bargains.18
Jurors’ assumptions concerning the testimony of police officers.19
Jurors’ feelings about the legal system based on their experiences or those of family members in other litigation.20
The Test for Juror Competency
“The test for determining juror competency is whether the juror can lay aside any bias or prejudice and render his [or her] verdict solely upon the evidence presented and the instructions on the law given to him [or her] by the court.”21 Generally, the decision whether to excuse a juror for cause involves a mixed question of law and fact, the resolution of which falls within the discretion of the trial court.22 However, the trial court’s discretion is not without limitation because the trial court must strike the potential juror if “‘there is basis for any reasonable doubt’ that the juror had ‘that state of mind which w[ould] not enable him to render an impartial verdict based solely on the evidence submitted and the law announced at the trial.’”23 Moreover, in exercising its discretion, the trial court “should evaluate all of the questions and answers posed to or received from the juror.”24 All ambiguities or uncertainties about a venire member’s impartiality must be resolved in favor of excusing the juror.25
Preserving the Appellate Record
In the event that the trial court denies a litigant’s motion to strike for cause, the competency of the juror will be preserved as an issue on appeal only if the party takes appropriate steps. Specifically, after objecting to the court’s ruling, the party must exhaust the available peremptory challenges and request additional peremptory challenges, as well as identify the jurors who would be stricken if additional challenges were granted. Then, following the court’s denial of the motion for additional peremptory challenges, and before the jury panel is sworn, the party must renew its objection to the jury.26
If a trial court commits error by denying a challenge for cause, that error is prejudicial to the litigant, meriting reversal and a new trial, only if the challenging party was required to exhaust all remaining peremptory challenges and can show that an objectionable juror served on the jury. The identified objectionable juror who served need not have been legally objectionable, in that he or she was excusable for cause. Rather, on appeal, the challenging party needs only demonstrate the same type of harm that peremptory challenges are meant to remedy, that is, the seating of a juror whom the party believes, but cannot prove, is biased.27 In short, if the trial court’s error in denying a challenge for cause required the challenging party to “waste” a peremptory challenge on that prospective juror, resulting in the seating of another juror for whom the litigant would have exercised a peremptory challenge, the error is harmful. Of course, the appellant would be unable to show prejudice if the trial court granted an additional number of peremptory challenges equal to the number of challenges for cause that were denied, as in Busby v. State, 894 So. 2d 88, 97 (Fla. 2004), cert. denied, 545 U.S. 1150 (2005).28
On appeal, the trial court’s decision is reviewed for manifest error, and the cases reveal that the trial court’s discretion is relatively narrow. Appellate courts will find error if the record demonstrates a reasonable doubt about a juror’s ability to be impartial.
[I]f there is a reasonable doubt about a juror’s impartiality, then the juror should [be] dismissed for cause. . . Furthermore, as we have stated, “close cases should be resolved in favor of dismissing a juror.” We note that this strict standard, which is equally applicable to civil and criminal cases, does not appear to leave room for “broad” discretion in these circumstances.29
Reasonable doubt as to impartiality has been established by the following fact patterns.30
Inability or unwillingness to follow the law is a disqualifier. For instance, prospective jurors in an eminent domain trial stated that, because of their opposition to eminent domain, they would award damages in excess of fair market value; would award damages for inconvenience; or would simply award something extra regardless of the testimony or the instructions.31
A potential juror in a medical malpractice action arising out of an elective plastic surgery procedure stated that he owed his life to his surgeon and plastic surgeon and that, because of his experience, the plaintiffs would be starting out with a half strike against them; in addition, he believed that a person who undergoes elective cosmetic surgery is a “fool.”32
In another example of inability or unwillingness to follow the law, prospective jurors in a dog bite case stated that they would have difficulty awarding damages for pain and suffering unless the plaintiff would suffer damages for life.33
A potential juror in a criminal proceeding stated that, if the defendant did not testify, he might hold her lack of testimony against her.34
A prospective juror in a prosecution for possession of a controlled substance stated that she thought drug use was immoral and illegal and that it would be difficult for her to put her feelings aside and be fair to the defendant.35
A prospective juror’s statement in a criminal prosecution that he believed that the testimony of a police officer carried a little more weight than that of a lay person.36
A prospective juror in a criminal case stated that she believed it was not fair that only the state had to produce evidence and that she thought the defendant’s failure to put on a case would affect her judgment.37
A potential juror in a prosecution for being a felon in possession of a firearm stated that she was a trauma nurse who had a prejudice against people using guns because she had seen first hand the harm they do.38
The Myth of Rehabilitation
Whether a prospective juror who has been identified as biased can be “rehabilitated” plays an essential role in the trial judge’s determination of a challenge for cause. Rehabilitation of an unacceptable juror is essentially an urban legend. If a venire member gives a reason to doubt his or her impartiality, the fact that the trial judge or counsel extracts a subsequent promise to be fair and follow the law does not alter the need to excuse the juror for cause.
Because there is no definition of the term, trial judges face a major problem when asked to consider whether a potential juror has been “rehabilitated.” Furthermore, the term “rehabilitation” is not used in the rules of civil or criminal procedure or relevant statutes and, therefore, is not defined by either statute or rule. Indeed, while the Johnson court made it virtually impossible to rehabilitate a juror, over the years, appellate courts have identified a right for the parties to rehabilitate, emanating from the procedural rules and the due process clause.39 Moreover, the appellate courts have charged the trial courts with the obligation to rehabilitate a juror who has responded to voir dire questions in a manner that would sustain a challenge for cause if no party attempts to rehabilitate the prospective juror and the trial court seats the juror.40 Nevertheless, again, the case law does not define the term “rehabilitate.”
In turn, the dictionary defines “rehabilitate” as “1) To restore to good health or useful life, as through therapy and education. 2) To restore to good condition, operation, or capacity. 3) To reinstate the good name of. 4) To restore the former rank, privileges, or rights of.”41 Clearly, only the first two definitions, if any, apply to attempts by the trial court and counsel to restore a biased prospective juror to a useful, i.e., unbiased state. However, skilled questioning by the court or counsel cannot, in fact, remove the preconceived notions of the prospective jurors. The term “rehabilitation,” thus, is a misnomer. At best, further questioning can only ensure that the juror is aware of those prejudices and can attempt to lay them aside.
In other words, while the juror cannot be restored to a prebiased state, the juror’s ability and duty to evaluate the evidence and apply the law in spite of his or her prejudices can be clarified. For that reason, if a venire member initially demonstrates a bias which would prevent reaching an impartial verdict, courts should view a subsequent change in that opinion, prompted by further questioning by the attorneys or the judge, with some skepticism.
The question for the trial court is whether the potential juror is capable of removing the opinion, bias, or prejudice from his or her mind and deciding the case based solely on the evidence adduced at trial and the law announced by the court. Furthermore, a juror’s mere assurance that he or she is able to do so is not determinative of whether that juror has been rehabilitated or should be excused for cause if there is other evidence suggesting that the juror is not impartial.42 And all doubts should be resolved in favor of excusing the prospective juror.43 No other determination is possible if there is doubt “[b]ecause impartiality of the finders of fact is an absolute prerequisite to our system of justice.”44
To determine if a juror truly can lay aside biases and prejudices and reach a verdict based on the law and the facts, a court must examine all of the potential juror’s responses on voir dire, not just those given in response to leading questions on rehabilitation.45 The reason is simple. Statements uttered by a juror singled out for rehabilitation are more likely to be made to please the judge or counsel than to indicate a true change of heart.46 As the Supreme Court acknowledged almost 80 years ago in Johnson v. Reynolds, it is improbable that a person who has admitted a bias that would disqualify him or her from serving on the jury will be completely free from that bias merely due to the skillful questioning of counsel or the court. As one district court of appeal put it on review of a verdict in which the jury awarded past and future medical bills but no intangible damages, “[i]t is only human nature to think of oneself as fair-minded; such a statement is meaningless against a backdrop of clearly and strongly expressed negative opinions about individuals seeking damages for relatively minor injuries.”47
For these reasons, statements such as “I am a fair person” and “I think I could be fair” are not sufficient to disregard partiality suggested by other responses indicating strong reservations about awarding money damages for the death of a loved one and apparent disapproval of personal injury lawsuits.48 A juror’s assertion of being a fair person, in response to a direct inquiry by the trial judge as to whether the juror could be fair and reasonable in a personal injury suit in spite of a belief that people with minor injuries who sue for pain and suffering are often being dishonest under the circumstances, does not remove the taint of prejudice.49 Likewise, a juror’s assertion on rehabilitation that he believed he could be fair is not the equivalent of recanting or receding from an earlier expressed view that, in every slip-and-fall case, the person who falls is at least partially responsible. Instead, effective rehabilitation would have included an inquiry into whether the juror could set aside his belief and simply consider whether the plaintiff was comparatively negligent under the reasonably prudent man standard, as instructed by the court.50
The failure to distinguish between a prospective juror’s mere statement that he can be fair, as elicited on attempted rehabilitation, and his clear bias is illustrated by the following exchange during jury selection in a claim of fraud against an insurance company:
Mr. Taylor: Have any of you ever had any problems with health insurance coverage?
Juror Poole: Yes, I have, several years ago. . . . They were slow in paying and they give you a hard time. You get the runaround from them. They keep denying the form. You fill out the form and they would deny it and say they wouldn’t have to pay it.
. . . .
Mr. Taylor: Have you ever been involved in a lawsuit?
Juror Poole: Yes.
Mr. Taylor: What type of lawsuit?
Juror Poole: It was a boating accident and we were sued by the individual involved with it.
. . . .
Mr. Taylor: Is there anything about that experience that being in the judicial system that you bring with you today that you have maybe some ill feelings about?
Juror Poole: Well, it was having to deal with the insurance company again in the lawsuit.. . . We were insured and the other fellow was not insured and I don’t — I don’t believe we should have settled, you know. I thought we were in the right, but they went ahead and settled out of court anyway.
. . . .
Mr. Corso: Mr. Poole, you have expressed to us your experiences with insurance companies and I got the feeling that you have a strong opinion about insurance companies.
Juror Poole: I do. It is negative.
Mr. Corso: Okay, I suppose you have held that opinion for quite a while?
Juror Poole: Yes.
Mr. Corso: Do you think there is anything that could be said to you that will make you change from that opinion?
Juror Poole: No. It is subconscious. It is there. . . . If they came down it would be real close. It would be negative, you know.
. . . .
Court: Mr. Poole, you had indicated earlier in your statement you could be fair and impartial in this case and try the case based on the evidence even though you have had some personal experience with insurance companies, but the question was at the end there then you said no, you couldn’t do that but the question is can you evaluate the facts as they come to your attention in this trial —
Juror Poole: Uh-huh —
Court: — and render a decision that is fair to both sides regardless of your previous situation there and just render a fair verdict in this case, that is the question?
Juror Poole: Yes, I believe so.
Court: Yes, because this is health insurance.
Juror Poole: Right.51
In reversing and remanding for a new trial, the district court of appeal noted that the prospective juror’s favorable responses to the trial court’s attempted rehabilitation came in the middle of the judge’s questioning and never clearly stated an ability to view the evidence impartially. The court attributed the juror’s answers to the structure of the judge’s questioning, which may have encouraged the juror “to respond affirmatively and in an agreeable manner rather than express his true feelings.”52
In addition to discriminating the venire member who has demonstrated an ability to lay aside his or her biases from the prospective juror who merely states that he or she can be fair, courts should be attentive to the vacillating juror, that is, the juror who expresses an intent to be fair while, at the same time, expressing hesitancy about the ability to carry out that intent.53 For example, in the medical malpractice case of Somerville v. Ahuja, 902 So. 2d 930, 936 (Fla. 5th DCA 2005), in which a potential juror admitted to prejudices and biases against plaintiffs bringing medical malpractice cases, her statements that “I don’t think so” and “I don’t believe so” in response to rehabilitative inquiries as to whether her biases would influence her verdict were later found to be too equivocal and vacillating to overcome her earlier admitted biases, such that she should have been excused for cause. Similarly, in a criminal case, Plair v. State, 453 So. 2d 917 (Fla. 1st DCA 1984), the court held that a juror’s statement that she would try to be fair, after stating that she would find it impossible not to prejudge the case because she knew the victims and she had read about the case in the paper, did not rehabilitate her, and she should have been dismissed for cause.
In fact, the right to a fair trial demands more than that a juror try to be impartial.54 If a potential juror is not 100 percent sure that he or she can be fair, then there is reasonable doubt as to whether the juror can be impartial, requiring dismissal from the venire.
In light of the forgoing, when, if ever, can a juror be rehabilitated? It is evident from the facts in cases where courts have upheld trial courts’ denials of challenges for cause that rehabilitation occurs, not by eliminating, or at least neutralizing, the prejudices of the challenged juror, but by clarifying that the juror’s articulated bias was not a true bias that would have disqualified him or her from participating in jury deliberations in the first place. Indeed, in at least one case, the district court of appeal referred to rehabilitation testimony that “clarified” the potential juror’s apparently biased statement. In Martinez v. Hertz Corp., 696 So. 2d 1212 (Fla. 3d DCA 1997), rev. denied, 703 So. 2d 476 (Fla. 1997), a wrongful death action against the agency that rented the vehicle involved in a fatal accident, the prospective juror initially expressed the opinion that he did not think he could be fair to the plaintiffs because he did not believe that a rental agency should be held liable for the acts of the driver. However, upon further questioning, the juror conceded that he would be able to award a financial recovery if entitlement to damages was proven; he would follow the law relayed to him by the judge; and he had in mind no set limits above which he would not award recovery.
In direct contrast, in a personal injury suit in which over one-half of the jury panel initially indicated negative feelings about personal injury lawsuits and, upon further questioning, admitted that those prejudices would continue throughout the trial and might even affect deliberations, the district court of appeal held that it was within the discretion of the trial judge to seat the jury because the jurors had been rehabilitated by questioning by defense counsel which elicited assurances that none of the jurors would have difficulty applying the facts to the law, regardless of their feelings about personal injury suits.55
This conclusion runs directly counter to the admonition in Johnson v. Reynolds not to find a juror rehabilitated based upon an alleged change of mind after further questioning. The true rationale for the court’s ruling is found in the leading sentence in the appellate court’s analysis, i.e., “A general, abstract bias about a particular class of litigation will not, in itself, disqualify a juror where it appears that the bias can be set aside.”56 In short, because the jurors in this personal injury case did not express a true bias based on personal experience that would disqualify them from participating in deliberations, it was sufficient that they expressed an ability to apply the law to the facts.
And, unlike there, to the extent that the court in Whitby v. State held that a prospective juror, a DEA employee who stated initially that she would be biased in favor of a police officer, was rehabilitated by a subsequent statement that she would not give greater weight to a police officer’s testimony and that she would base her verdict on the evidence presented, that case was wrongly decided because it allowed rehabilitation based solely on the recanting of an articulated prejudice without any other evidence to support that retraction.
As trial judges and counsel work together to ensure a jury made up of individuals who have laid aside their prejudices and biases, they should heed the instruction of the Supreme Court in Johnson v. Reynolds. Rehabilitation of a biased juror never can be accomplished by eliciting a statement simply withdrawing the assertion of prejudice.
Conclusion
Courts and counsel should tailor their questions on rehabilitation to extract factual bases for the juror’s avowed change of heart or to clarify that a perceived prejudice was not a true bias. Both courts and counsel should be attentive to jurors who are not explicit in their denials of prejudice or who assert their impartiality while, at the same time, admitting to facts that indicate the existence of a prejudice. And, all doubts should be resolved in favor of removing the apparently biased juror. While probing voir dire may delay the start of trial and, for that reason, be frustrating in the short run, the pay-off comes in a fair trial that will not be reversed on appeal and remanded for a new trial.
1 U.S. Const. amends. VI, VII, XIV; Fla. Const. art. I, §§9, 16, 22.
2 Cf. Fla. Stat. §913.12 (“The qualifications of jurors in criminal cases shall be the same as their qualifications in civil cases.”).
3 Lusk v. State, 446 So. 2d 1038, 1041 (Fla. 1984).
4 Fla. Stat. §§40.013(3), 913.03(10); Fla. R. Civ. P. 1.431(c)(1); Fla. R. Crim. P. 3.300(c), 3.330.
5 Sanders v. State, 707 So. 2d 664 (Fla. 1998) (required by Fla. R. Crim. P. 3.300(b)); Willacy v. State, 640 So. 2d 1079 (Fla. 1994) (required by Fla. R. Crim. P. 3.300(b) and due process); Melendez v. State, 700 So. 2d 791 (Fla. 4th D.C.A. 1997); see also Fla. R. Civ. P. 1.431(b) (like Fla. R. Crim. P. 3.300(b), this rule preserves the right of each party to conduct oral examination of each juror on voir dire).
6 The trial court acted within its discretion in denying a challenge for cause concerning a juror who initially indicated that she would be biased in favor of a police officer’s credibility because of the juror’s employment with the Drug Enforcement Agency because, upon further questioning, she unequivocally stated that she would not give a police officer’s testimony more weight due to his/her status as a law enforcement officer and that she would evaluate the case on the evidence presented.
7 Miller v. State, 785 So. 2d 662 (Fla. 3d D.C.A. 2001).
8 See Carver v. Niedermayer, 920 So. 2d 123 (Fla. 4th D.C.A. 2006) (“We conclude from the record in this case that the trial judge abused his discretion in limiting voir direexamination as he did. There is no showing that counsel’s questioning during the time allotted was repetitive or cumulative. . . counsel was given little more than 2-3 minutes for each prospective juror”). See also Gosha v. State, 534 So. 2d 912 (Fla. 3d D.C.A. 1988) (“We hold that as a matter of law, it is unreasonable and an abuse of discretion to limit counsel’s voir dire examinationsof each potential juror to one-to-three minutes”).
9 See O’Hara v. State, 642 So. 2d 592 (Fla. 4th D.C.A. 1994).
10 Mendez v. State, 898 So. 2d 1141, 1143 (Fla. 5th D.C.A. 2005) (quotation and citation omitted).
11 Perry v. State, 675 So. 2d 976 (Fla. 4th D.C.A. 1996).
12 Moore v. State, 939 So. 2d 1116 (Fla. 3d D.C.A. 2006).
13 Lavado v. State, 492 So. 2d 1322 (Fla. 1986) (incorporating by reference Lavado v. State, 469 So. 2d 917, 919 (Fla. 3d D.C.A. 1985) (Pearson, J., dissenting) (voluntary intoxication)); Stevens v. State, 928 So. 2d 409 (Fla. 3d D.C.A. 2006) (necessity); Mosely v. State, 842 So. 2d 279 (Fla. 3d D.C.A. 2003) (misidentification).
14 Sisto v. Aetna Cas. & Sur. Co., 689 So. 2d 438 (Fla. 4th D.C.A. 1997).
15 Purdy v. Gulf Breeze Enters., Inc., 403 So. 2d 1325 (Fla. 1981) (whether jurors feel that there is a relationship between the verdict and the amount of their personal insurance premiums).
16 Ingrassia v. State, 902 So. 2d 357 (Fla. 4th D.C.A. 2005).
17 Mendez v. State, 898 So. 2d 1141 (Fla. 5th D.C.A. 2005).
18 Evans v. State, 808 So. 2d 92, 105 (Fla. 2001), cert. denied, 537 U.S. 951 (2002).
19 Smith v. State, 699 So. 2d 629, 636 (Fla. 1997), cert. denied, 523 U.S. 1008 (1998).
20 See Levy v. Hawk’s Cay, Inc., 543 So. 2d 1299 (Fla. 3d D.C.A.), rev. denied, 551 So. 2d 463 (Fla. 1989), 553 So. 2d 1165 (Fla. 1989).
21 Lusk, 446 So. 2d at 1041.
22 Carratelli v. State, 961 So. 2d 312, 318 (Fla. 2007) (citing numerous cases).
23 Id. at 318 (quoting Singer v. State, 109 So. 2d 7, 23-24 (Fla. 1959)).
24 Parker v. State, 641 So. 2d 369, 373 (Fla. 1994), cert. denied, 513 U.S. 1131 (1995).
25 Carratelli, 961 So. 2d at 318 (citing numerous cases).
26 Id.at 318-19; Milstein v. Mut. Sec. Life Ins. Co., 705 So. 2d 639 (Fla. 3d D.C.A. 1998); but see Gootee v. Clevinger, 778 So. 2d 1005, 1009 (Fla. 5th D.C.A. 2000) (the personal representative in a wrongful death action preserved a challenge to jurors for cause, even though the representative did not renew the objection immediately prior to the swearing of jury, because the initial objection was made moments prior to the swearing of the jury); City of Live Oak v. Townsend, 567 So. 2d 926, 928 (Fla. 1st D.C.A. 1990) (because the city was required to use its remaining peremptory challenges to excuse four prospective jurors who should have been dismissed for cause, the city’s renewed challenge for cause would be treated as a request for additional peremptory challenges, since, if the renewed challenges for cause had been granted, the city would have been permitted to use its peremptory challenges to challenge the objectionable jurors who were seated and who likewise should have been excused for cause).
27 Carratelli, 961 So. 2d at 319; Hill v. State, 477 So. 2d 553, 556 (Fla. 1985); Longshore v. Fronrath Chevrolet, Inc., 527 So. 2d 922, 924 (Fla. 4th D.C.A. 1988).
28 See also Frazier v. Wesch, 913 So. 2d 1216 (Fla. 4th D.C.A. 2005) (the plaintiff was not prejudiced by the trial court’s refusal to remove a prospective juror for cause because she used a peremptory challenge to remove the objectionable venire person, and, after being refused an additional peremptory challenge to strike another member of the panel, that panel member was seated as an alternate and was dismissed prior to deliberations).
29 Goldenberg v. Regional Import and Export Trucking Co., 674 So. 2d 761, 763 (Fla. 4th D.C.A. 1996) (quoting Montozzi v. State, 633 So. 2d 563, 565 (Fla. 4th D.C.A. 1994)).
30 Examples of this topic, and many others related to jury selection, are covered in masterful detail at the free Web site www.juryblog.com, which is edited and maintained by Robert W. Kelley.
31 City of Live Oak v. Townsend, 567 So. 2d 926 (Fla. 1st D.C.A. 1990).
32 Jaffe v. Applebaum, 830 So. 2d 136 (Fla. 4th D.C.A. 2002).
33 Pacot v. Wheeler, 758 So. 2d 1141 (Fla. 4th D.C.A. 2000).
34 James v. State, 736 So. 2d 1260, 262 (Fla. 4th D.C.A. 1999).
35 Carratelli, 961 So. 2d at 319; Hill v. State, 477 So. 2d 553, 556 (Fla. 1985); Longshore v. Fronrath Chevrolet, Inc., 527 So. 2d 922, 924 (Fla. 4th D.C.A. 1988).
36 Slater v. State, 910 So. 2d 347 (Fla. 4th D.C.A. 2005).
37 Cottrell v. State, 930 So. 2d 827 (Fla. 4th D.C.A. 2006).
38 Hill v. State, 839 So. 2d 883 (Fla. 3d D.C.A. 2003).
39 Carratelli, 961 So. 2d at 318 (citing numerous cases).
40 Bryant v. State, 601 So. 2d 529, 532 (Fla. 1992).
41 The American Heritage Dictionary of the English Language (4th ed. 2000), available at www.bartleby.com/61/91/R0129100.html.
42 Club West, Inc. v. Tropigas of Fla., 514 So. 2d 426 (Fla. 3d D.C.A. 1987), rev. denied, 523 So. 2d 579 (Fla. 1988). See also Singer, 109 So. 2d at 24; cf. Graham v. State, 470 So. 2d 97 (Fla. 1st D.C.A. 1985) (trial judge properly excused a prospective juror, despite her assertion of continued impartiality, based on his belief that the juror would not have taken steps to inform the court had she felt concern that her acquaintance with the defendant’s mother would adversely affect the performance of her jury duty).
43 Carratelli, 961 So. 2d at 318; Goldenberg v. Reg’l Imp. & Exp. Trucking Co., 674 So. 2d 761, 764 (Fla. 4th D.C.A. 1996); Straw v. Associated Doctors Health & Life, 728 So. 2d 354, 356 (Fla. 5th D.C.A. 1999).
44 Williams v. State, 638 So. 2d 976, 978 (Fla. 4th D.C.A. 1994), rev. denied, 654 So. 2d 920 (Fla. 1995).
45 Lewis v. State, 931 So. 2d 1034, 1039 (Fla. 4th D.C.A. 2006).
46 Straw v. Associated Doctors Health & Life, 728 So. 2d 354, 356 (Fla. 5th D.C.A. 1999).
47 Goldenberg, 674 So. 2d at 764.
48 Nash v. Gen. Motors Corp., 734 So. 2d 437 (Fla. 3d D.C.A. 1999).
49 Goldenberg, 674 So. 2d at 763-64.
50 Algie v. Lennar Corp., 969 So. 2d 1135 (Fla. 4th D.C.A. 2007).
51 Straw, 728 So. 2d at 355, 356-57.
52 Id. at 357.
53 Club West v. Tropigas of Fla., 514 So. 2d 426 (Fla. 3d D.C.A. 1987), rev. denied, 523 So. 2d 579 (Fla. 1988) (trial court should have excused prospective juror for cause, even though she asserted she could be impartial, because she volunteered that her husband owned stock in one of the defendants; she and her husband were pleased with its financial performance; and she admitted that the plaintiff might be starting out with one strike against him).
54 Robinson v. State, 506 So. 2d 1070 (Fla. 5th D.C.A. 1987).
55 Fazzolari v. City of West Palm Beach, 608 So. 2d 927 (Fla. 4th D.C.A. 1992), rev. denied, 620 So. 2d 760 (Fla. 1993).
56 Id. at 928.
Jeffrey Luhrsen did undergraduate work at the University of Tampa, graduated with honors from Stetson University College of Law, and received an LL.M. in trial advocacy from Temple University. Luhrsen Law Group, P.L., is based in Sarasota and represents victims of negligence throughout Florida.
