An Overview of Current Law Impacting Jury Selection in Civil Cases
A proper voir dire examination should assist the parties in determining whether a prospective juror is subject to a peremptory or cause challenge.1 I t sounds pretty simple. However, for those who have had the pleasure of selecting a jury, the word “simple” never comes to mind.
For many lawyers, the process of “picking the jury” is the most stressful and uncomfortable part of a trial. It is not surprising that many lawyers find it difficult to lead a discussion on a variety of different topics with 20 to 40 strangers and, at the same time, analyze their strengths and weaknesses as potential jurors. Some of the topics can be very sensitive in nature. If you are the lawyer involved, questions floating around in your mind may include the following: “Is he hiding something?” “Does she hate me already?” “Is it hot in here or is it just me?”
To top it off, no sooner have you finished your questions and wiped the sweat from your brow when you hear the judge request your presence at the bench to “select the jury.” You are then expected to immediately decipher and digest the chicken scratch notes you have just written and then clearly, softly, and succinctly communicate your challenges to the judge. Usually within earshot of the jury, it is here that the lawyer is granted the opportunity to “persuade by whisper.”
Fortunately, there are books, tapes, and professional jury consultants available to assist lawyers with the jury interview process. This article does not discuss that part of voir dire. Rather, the purpose of this article is to discuss jury selection after the jury interview is completed — the part that takes place in front of the judge and involves the use of peremptory or cause challenges. This article examines the current law on challenges for cause, peremptory challenges, and the logistics of it all.
Challenges for Cause
Generally, a juror must be excused for cause if there is any reasonable doubt as to whether the juror possesses an impartial state of mind.2 K nown as the reasonable doubt standard, a potential juror should be dismissed when he or she cannot lay aside any bias or prejudice and render a verdict based solely on the evidence presented and the law given by the court.3 C lose cases should be resolved in favor of excusing the juror rather than leaving any uncertainty about the impartiality of the prospective juror.4
In analyzing the extent of a juror’s possible bias or prejudice, a general, abstract bias will usually not, by itself, disqualify a juror. This is particularly true when it appears that the bias can be set aside. For example, when a juror has a general negative feeling about personal injury lawsuits, and further states that he can set aside his feelings, a challenge for cause will usually be denied.5 W hen, however, the negative feelings are tangible and specific in nature, then a dismissal for cause may be proper.
In Goldenberg v. Regional Import and Export, 674 So. 2d 761 (Fla. 4th DCA 1996), a prospective juror exhibited bias against automobile minor impact cases. The trial court noted that these feelings were directed toward a particular type of personal injury action and were based on experiences of the juror’s father. Therefore, the juror was properly dismissed for cause. This decision was upheld on appeal, even though much effort was made by the nonobjecting party to “rehabilitate” the juror. On this point, the court noted that it is only human nature for jurors to think of themselves as fair-minded, and it is difficult for any person to admit that he or she is incapable of being able to judge fairly and impartially. A juror’s statements that she is a “fair person” and “I think that I can be fair” are generally insufficient to set aside biases.6
For appellate purposes, the trial lawyer must exhaust all peremptory challenges and be denied a request for additional peremptory challenges to preserve a preemptory cause objection for appeal.7 F urthermore, cause objections must be renewed before the jury is sworn.8 A cceptance of the panel without objection will waive any error that might exist.9
Peremptory Challenges
Peremptory challenges are generally available to strike a prospective juror for any reason. However, they cannot be used in a discriminatory manner.10 W hen a peremptory challenge is made toward a juror who is a member of a distinct class of people, the challenge may be discriminatory. A distinct class includes any population group large enough to be recognized by the general public as an identifiable segment of a community. The group is distinguished from the larger community by an internal cohesiveness of attitudes, ideas, or experiences that may not be adequately represented by other segments of society.11 C urrently, distinct groups include race,12 g ender,13 r eligion,14 a nd ethnicity.15
When it appears that a peremptory challenge is being used in a discriminatory way, the objecting party should: a) timely object and state that the challenge is used in a discriminatory manner; b) demonstrate that the venire person is a member of a distinct group; and c) request that the court ask the striking party its reason for the strike. Once these criteria are met, the focus of the inquiry shifts to the proponent of the strike to explain the reason for the strike. The proponent now has the burden of production, and must provide a nondiscriminatory or facially neutral basis for the challenge.16 T he stated explanation does not need to be persuasive or even plausible.17 R ather, the provided explanation will be deemed neutral as long as the reason stated has some basis in fact, supported by the record, and “no predominantly discriminatory intent is apparent on its face.18 T his process is sometimes called a Neil inquiry, named after the case State v. Neil, 457 So. 2d 481(Fla. 1984).
If the stated explanation is facially neutral, the Neil inquiry continues, and the trial court must then assess the genuineness of the reasons given and determine if they are merely a pretext. In examining the basis for the strike, the court may look at whether: 1) the alleged group bias was not shown to be shared by the juror in question; 2) the jury interview was simply a perfunctory examination; 3) the juror was singled out for special questioning designed to evoke a certain response; 4) the attorney’s reason for the strike was unrelated to the facts of the case; 5) the strike was based on reasons equally applicable to jurors who were not challenged; and 6) the racial make-up of the venire.19 I f the court believes that, given all of the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained. Examples of stated reasons that have not been accepted include: “I don’t like him,” or I have a “bad feeling” about a prospective juror.20 E xamples that have been accepted include a case in which the juror rolled his eyes and did not seem to like the objecting party’s questions raised during the interview process, or when the juror had a limited ability to speak or understand the English language.21
Peremptory strikes are presumed to be exercised in a nondiscriminatory manner,22 a nd throughout the inquiry, the burden of persuasion never leaves the opponent of the strike.23 A dditionally, since the trial court’s ruling on whether to sustain a strike turns primarily on an assessment of credibility, the decision will be affirmed on appeal unless clearly erroneous. The Florida Supreme Court in Rodriguez v. State, 753 So. 2d 295 (Fla. 2000), determined that the primary responsibility for deterring discrimination in the jury selection process rests with Florida’s trial judges. As stated in King v. Byrd, 716 So. 2d 831, 834 (Fla. 4th DCA 1998), “[a]s appellate judges, we are not at the trial. We did not see the expression, hear the tones of voices, or observe the general dynamics of the courtroom. That is why Melbourne left decisions with respect to peremptory challenges to the trial court.” Finally, as noted above, all objections relating to jury selection should be renewed before the jury is sworn to preserve any error for appeal. Accepting the panel without objection will waive any error.24
The Logistics of It All
As stated earlier, after the jury interview is completed, the selection of the jury usually takes place at the bench. It will usually take at least 10 to 15 minutes to complete. When objections are raised, the transcript may sometimes need to be reviewed. When there are multiple parties involved, the process can last even longer. One difficulty facing the lawyer at this point is successfully articulating challenges clearly to the court when the prospective juror “under attack” may be sitting in the same room, less than 15 feet away. Disaster will certainly strike if it becomes clear to a prospective juror that he is the one “under attack”; you are the one initiating the attack; and you are not successful.
Even if you prevail at trial, the possibility exists that you will have to do it all over again if a peremptory strike objection was not properly handled. This is precisely what happened in Michelin North America Inc. v. Lovett, 731 So. 2d 736 (Fla. 4th DCA 1999). During jury selection in Michelin, the defense attorney used a peremptory challenge on a prospective juror. The plaintiff objected and initiated a Neil inquiry. During the Neil inquiry, what was actually said by the juror in response to questions became the subject of much debate. After listening to argument of counsel, the court sustained the objection, and denied the peremptory strike. The case continued, and the jury returned a $30,000,000 verdict in favor of the plaintiff. However, the verdict was overturned on appeal when it was determined that the peremptory strike objection should have been denied, and the strike allowed.
The Michelin court noted that “[v]oir dire is a significant part of any trial, whether that trial is expected to last two days or four weeks. During a Neil inquiry, the court must make the important determination of whether the challenged juror is being treated differently than similarly situated jurors.”25 & #x201c;The trial court’s assessment of credibility resulting in its implied finding of a lack of genuineness was conducted in an atmosphere tainted by plaintiffs’ counsel’s inaccurate recollection of jurors’ responses to voir dire questioning.”26 A ccording to the Michelin court, a trial court’s ruling on the issue of genuineness during a Neil inquiry is assailable when it is based on a clearly erroneous assessment of credibility.27 T he court further noted that, “[i]n light of the import of this inquiry, rather than relying on recollections of voir dire responses, we believe the better practice would be to have the jurors’ voir dire responses read back by the court reporter.”28 I n a more recent case, the appellate court followed Michelin, and overturned a decision of the trial court in which the trial court’s assessment of the basis for the strike was “severely compromised by an inaccurate recollection of the questioning during voir dire.”29
Based on the foregoing, the trial lawyer may want to request that the second part of voir dire (picking the jury in front of the judge) be conducted in chambers, rather than in the courtroom. While this method may not allow continued “inspection” of prospective jury members, it will provide for the opportunity to speak freely and discuss issues openly with opposing counsel and more importantly, with the court. At a minimum, the lawyer should make sure that prospective juror statements are remembered accurately, and the actual transcript should be used whenever possible.
Conclusion
Over the course of the last several years, the trend in jury selection appears to allow for greater use of cause challenges, while continuing to narrow the scope of permitted peremptory strikes. Now, more than ever, the trial lawyer must possess a firm understanding of the law governing voir dire. With this understanding in place, the trial lawyer will be better prepared to handle the changing dynamics of the jury selection process, and ultimately serve the client well.
1 Sisto v. Aetna Casualty and Surety Company, 689 So. 2d 438 (Fla. 4th D.C.A. 1997).
2 Smith v. State, 699 So. 2d 629 (Fla. 1997).
3 Montozzi v. State, 633 So. 2d 563 (Fla. 4th D.C.A. 1994); Pacot v. Wheeler, 758 So. 2d 1141 (Fla. 4th D.C.A. 2000).
4 Goldenberg v. Regional Import and Export Trucking Co., 674 So. 2d 761 (Fla. 4th D.C.A. 1996).
5 Fazzolari v. West Palm Beach, 608 So. 2d 927 (Fla. 4th D.C.A. 1992).
6 Goldenberg, 674 So. 2d 761. See also Straw v. Associated Doctors Health and Life, 728 So. 2d 354 (Fla. 5th D.C.A. 1999) (Challenge upheld when juror manifested bias against insurance companies based on the juror’s personal experience).
7 Metropolitan Dade County v. Sims Paving Corp. , 576 So. 2d 766 (Fla. 3d D.C.A. 1991).
8 Ter Keurst v. Miami Elevator Co., 486 So. 2d 547 (Fla. 1986).
9 Melara v. Cicione, 712 So. 2d 429
(Fla. 3d D.C.A.1998); Wallace v. Holiday Isle Resort and Marina Inc., 706 So. 2d 346 (Fla. 3d D.C.A. 1998).
10 State v. Neil, 457 So. 2d 481 (Fla. 1984); City of Miami v. Cornett, 463 So. 2d 399 (Fla. 3d D.C.A. 1985) , rev. dismissed, 469 So. 2d 748 (Fla. 1985); Powell v. Allstate Ins. Co., 652 So. 2d 354 (Fla. 1995). See Joseph A. Tringali, The Challenge of Peremptory Challenges: A Brief Study of the Evolution of the Law 71
Fla. B.J. 100 (June 1997) .
11 State v. Alen, 616 So. 2d 452 (Fla. 1993).
12 State v. Neil, 457 So. 2d 481 (Fla. 1984).
13 Abshire v. State, 642 So. 2d 542 (Fla. 1994).
14 Joseph v. State, 636 So. 2d 777 (Fla. 3d D.C.A. 1994).
15 State v. Alen, 616 So. 2d 452 (Fla. 1993).
16 Melbourne v. State, 679 So. 2d 759 (Fla. 1996).
17 Johnson v. State, 706 So. 2d 401 (Fla. 3d D.C.A. 1998); Purkett v. Elem, 514 U.S. 765 (1995).
18 Melbourne v. State, 679 So. 2d 759 (Fla. 1996). Note that failure by the court to conduct an inquiry after it is properly triggered is error. See State v. Johans, 613 So. 2d 1319 (Fla. 1993).
19 State v. Slappy, 522 So. 2d 18 (Fla. 1988).
20 Franqui v. State, 699 So. 2d 1332 (Fla. 1997); Bullock v. State, 670 So. 2d 1171 (Fla. 3d D.C.A. 1996).
21 English v. State, 740 So. 2d 589 (Fla. 3d D.C.A. 1999).
22 Rodriquiz v. State, 753 So. 2d 29 (Fla. 2000); Farina v. State, 26 Fla. L. Weekly Supp. 527 (Fla. Aug. 24, 2001).
23 Melbourne v. State, 679 So. 2d 759 (Fla. 1996).
24 See supra note 9.
25 Michelin, 731 So. 2d at 739.
26 Id. at 742.
27 Id. at 742.
28 Id. at 739.
29 Brown v. State, 733 So. 2d 1128 (Fla. 4th D.C.A. 1999).
David D. Neiser is a partner in the firm of Neiser & Meoser, P.A., St. Petersburg. He is a board-certified civil trial lawyer and his practice includes personal injury, insurance, and business-related disputes. Mr. Neiser graduated with a B.A. from Furman University in 1984 and received his J.D. from Stetson University College of Law in 1987.
This column is submitted on behalf of the Trial Lawyers Section, Thomas P. Scarritt, Jr., chair, and Thomas P. Barber, editor.
