The Neil Inquiry: Navigating The Peremptory Process
Illustration by Barbara Kelley
Serving on a jury “constitutes the most direct way citizens participate in the application of our laws.”[1] It is, thus, “self-evident” that discrimination — or even the appearance of discrimination — within the jury system is “reprehensible, since it is the complete antithesis of the court’s reason for being to insure equality of treatment and evenhanded justice.”[2] An individual’s right to serve on a jury free from discrimination is embedded in the state and federal constitutions. As the U.S. Supreme Court has observed:
Racial discrimination in selection of jurors harms not only the accused whose life or liberty they are summoned to try. Competence to serve as a juror ultimately depends on an assessment of individual qualifications and ability impartially to consider evidence presented at trial. A person’s race simply is unrelated to his fitness as a juror.. . . [T]herefore, the Court recognized that by denying a person participation in jury service on account of his race, the State unconstitutionally discriminated against the excluded juror.[3]
To protect this constitutional right, Florida courts have long recognized that a peremptory challenge must never be used in a way that precludes a prospective juror from serving based on his or her constitutionally-protected classification.[4] Historically, peremptory challenges allowed dismissal of a potential juror “based on no more than ‘sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another.’”[5] In stark contrast to for-cause challenges, peremptory challenges could be used for any reason — or no reason at all. “Unfortunately,” however, “the nature of the peremptory challenge makes it uniquely suited to masking discriminatory motives.”[6] Where these interests are incompatible, “constitutional principles must prevail.”[7]
Recognizing this principle, in 1984, the Florida Supreme Court in State v. Neil, 457 So. 2d 481 (Fla. 1984), held that peremptory challenges may not be used to exclude jurors based on their race, ethnicity, or gender.[8] This proclamation aligned Florida with then-nearly-century-old U.S. Supreme Court precedent holding that “the State denies a black defendant equal protection of the laws when it puts him on trial before a jury from which members of his race have been purposefully excluded.”[9] As the Supreme Court later explained, its “decision laid the foundation for the Court’s unceasing efforts to eradicate racial discrimination in the procedures used to select the venire from which individual jurors are drawn.”[10]
In Neil, the Florida Supreme Court articulated a three-step process when a party suspects that the other side is using a strike impermissibly: 1) the objecting party must state its objection and establish that the potential juror is a member of a cognizable class; 2) the striking party must state a neutral (non-discriminatory) explanation for its strike; and 3) the objecting party must demonstrate that the explanation offered by the striking party is pre-textual or not genuine.[11] Throughout the process, the striking party is entitled to a presumption of nondiscrimination, and the objecting party bears the burden of proving purposeful discrimination.
In the nearly four decades since the court articulated this test, trial courts have not always applied it consistently.[12] The test has evolved and takes many names after its numerous iterations: It is most commonly referred to as the Neil inquiry, the Neil-Slappy inquiry, or the Melbourne inquiry.[13]
When faced with a Neil challenge, merely invoking a “gut feeling” about a potential juror, without further explanation or record support, will not pass constitutional muster. Thus, whether responding to a Neil objection or advancing one during voir dire, understanding the inquiry, each side’s respective burdens, and how to preserve the issue is a critical first step.
The Neil Inquiry
• Step One — If a party suspects that the opposing side is using a peremptory strike in a discriminatory manner, the first step is to timely object, articulate that the venireperson is a member of a distinct, protected group, and request the court to ask the striking party to identify a non-discriminatory reason for the strike.[14] A simple objection and allegation of discrimination is sufficient: as the Florida Supreme Court has explained, for example, it is enough to say merely, “I object. The strike is racially motivated.”[15] Notably, the objecting party does not need to be of the same race, gender, or ethnicity as the venireperson who is challenged.[16]
While step one is arguably the most straightforward of the three Neil stages, questions can still arise as to what groups are protected. The Florida Supreme Court has only expressly extended Neil’s protections to challenges based on race, gender, and ethnicity.[17] But whether a juror is properly categorized as a member of a protected class is not always straightforward: The Florida Supreme Court has explained, for example, that a juror’s surname, without more, is insufficient to demonstrate ethnicity or trigger a Neil inquiry.[18]
Moreover, whether religion is a cognizable class remains unanswered. (The Florida Supreme Court had an opportunity to elucidate the rule on this issue, on review from the Fourth District, but it declined to do so, finding that the objection was waived in the trial court).[19] Decisions from the Third and Fourth districts nevertheless provide insight: the Third District has answered this question in the affirmative, finding that a juror could not be stricken for being Jewish.[20] And the Fourth District — before its decision was quashed by the Florida Supreme Court — also found that members of the Jehovah’s Witness religion were part of a cognizable, protected class.[21]
Regardless of whether religion, standing alone, is a protected class, it may also factor into analyzing whether a group is a protected “ethnicity.” In Olibrices v. State, 929 So. 2d 1176, 1178 (Fla. 4th DCA 2006), the Fourth District sought to define “ethnicity” — in what it called “at least partially” an issue of first impression — when faced with an argument that “Pakistani” was not a cognizable class for purposes of a Neil inquiry.
The court examined whether the group’s “culture, language, history[,. . . and] religion ma[d]e it objectively and discernibly large, distinct and homogenous enough to be deemed an ethnic group capable of identification” — and concluded that it did, so it was entitled to Neil protections.[22] The Olibrices court also explained that such protections apply to “oppressed” minorities and “dominant social groups” alike: It reasoned that “a party to litigation may also seek to use race, sex, or ethnicity to remove members of the dominant social group from a proposed jury.”[23]
If the objecting party can satisfy its burden in step one to show that the venireperson is a member of a protected class, the inquiry proceeds to step two.
• Step Two — At step two, the striking party must explain the basis for its strike. Critically, this is different than a for-cause challenge, and the reason does not need to be as compelling.[24] In fact, the explanation need only be facially neutral — meaning that the strike is based on something other than race, gender, or ethnicity — but it does not need to be reasonable, persuasive, or even plausible.[25]
This has been described as a “minimal” burden.[26] For example, striking a medical professional in a case involving review of medical records is a valid, neutral reason.[27] So is a chef’s expression of “a devotion to policies and procedures in the context of her employment” where “policies and procedures would feature heavily during trial.”[28] A juror’s experiences or relationships may also be facially neutral. In a criminal case, the fact that a potential juror was the victim of a crime is a valid explanation.[29] Familial relationships — such as a relationship to a law enforcement agent[30] — can constitute a valid reason. Prior jury service also passes step two.[31] And the juror’s responses during voir dire, which indicate disagreement or a lack of understanding of the legal standards, burdens, or theories of the case, also support a strike, even if the juror also indicates that he or she will follow the law.[32]
Notwithstanding the low bar to satisfy step two, certain reasons are not facially neutral as a matter of law. An attorney’s subjective “feeling” about a juror, “general dislike” of the juror, or the “rapport” the attorney felt with the juror during voir dire will not pass scrutiny.[33]
Moreover, while nonverbal behavior like inattentiveness, lack of interest, or general demeanor can be neutral, such conduct is often subject to more than one interpretation — so, to support a peremptory strike challenged as discriminatory, the nonverbal conduct must be either 1) undisputed by the opposing party; 2) witnessed by the trial judge; or 3) otherwise supported in the record.[34] If none of these factors confirming counsel’s explanation of the conduct is present, then the behavior is not a proper basis under step two.[35]
If the striking party provides a facially neutral explanation for its strike — meaning that there is no “discriminatory intent . . . inherent in the explanation”[36] — then the inquiry proceeds to step three, which carries “particular importance.”[37]
• Step Three — At step three, the trial court must evaluate all relevant circumstances to determine whether it believes that the striking party’s facially neutral explanation is genuine or a pretext for discrimination.[38] At this stage, the burden rests with the objecting party to prove purposeful discrimination by pointing to facts that cast doubt upon the genuineness of the explanation.[39] The trial court should consider factors such as the racial makeup of the venire, prior strikes exercised against the same racial group, the failure to examine the juror or a perfunctory examination (if neither the trial court nor opposing counsel examined the juror), whether the strike is based on a reason equally applicable to an unchallenged juror, or whether there was disparate questioning of similarly situated jurors.[40]
For example, even though a juror’s occupation is generally a facially neutral explanation that will survive step two scrutiny, courts have rejected it as a genuine reason where counsel did not question the juror or establish any apparent reason that the occupation would influence the juror’s reasoning or impartiality in the case.[41] Likewise, a trial court may find pretext if the objecting party shows that the explanation also applies to a non-challenged juror.[42] A pattern of exercising peremptory challenges on members of the same protected class may also support a finding of pretext,[43] although that is not always enough.[44]
However, the trial court’s decision at step three cannot be based on whether it agrees with the striking party; the focus must be on the party’s genuinely held belief.[45]
At bottom, the inquiry is fact-intensive and case-specific and requires the trial court to make a credibility assessment. If the court believes that the explanation is genuine, it should allow the strike; if it believes that the explanation is pretextual, it should not.
Appellate Review
Because the trial court’s determination turns on credibility, and the trial court has a superior vantage point to consider factors like the demeanor and tone of those involved, its decision to allow or disallow a peremptory strike based on a Neil challenge is reviewed for clear error.[46]
But deference to the trial court does not provide insulation from judicial review.[47] If the trial court does not engage in the correct analysis, Florida appellate courts “fairly consistently” reverse for a new trial.[48] In fact, the improper denial of a peremptory challenge has been held to constitute per se reversible error.[49] This is in line with the historical purpose of peremptory challenges: to preserve the right to an impartial jury and fair trial.[50] Thus, an error in the Neil process “generally requires a new trial even if the rest of the trial is flawless.”[51]
Preserving the Issue
Before a reviewing court reaches the issue, it must be properly preserved. While an error in jury selection can present a strong appellate issue because it affects the fundamental fairness of the trial, cases abound that find that an issue relating to the allowance or disallowance of a peremptory strike was not properly preserved. So, it is imperative for practitioners to understand — and be able to successfully navigate — the preservation pitfalls in the trial court.
Identify the Class and Establish That the Juror Is a Member of That Class
At the outset, the objecting party must be specific and identify the precise basis for its objection when initiating the Neil inquiry.[52] An argument that a peremptory strike is impermissibly based on race, for example, will not preserve a later argument that the strike was improperly based on religion.[53] In Franqui v. State, 699 So. 2d 1332, 1335 (Fla. 1997), the Florida Supreme Court afforded some leeway to this rule where, although the objecting party did not specifically identify the protected class, it was clear to the trial court and all parties that the objection was based on the fact that the juror was Cuban, and there was never a contention that the juror “was not a member of a cognizable minority.” Nonetheless, the Franqui decision was narrow, and counsel should take care to clearly identify and show that a prospective juror is a member of a cognizable class to preserve the issue.[54]
Ensure the Accuracy of the Inquiry
The striking party is entitled to a presumption of non-discriminatory intent, so throughout the Neil inquiry, the burden is on the objecting party to show that a facially-neutral reason is pre-textual.[55] Because of this burden, “the opponent of a peremptory strike cannot simply sit silent — failing to respond to a proffered race-neutral reason and failing to object as to why the trial court should not accept that explanation — yet challenge that reason as a pretext for discrimination for the first time on appeal.”[56] A bare assertion of pretext, without specifically articulating a basis for such an accusation, is insufficient.[57] As the Second District explained in Spencer:
A lawyer should not lightly claim that another lawyer’s explanation for his peremptory challenge is pretextual. But when the circumstances and the interest of the client require this claim, the lawyer objecting to the peremptory challenge should be prepared to make this claim and should expect to make a complete argument demonstrating both to the trial court and, if need be, to the appellate court that the proponent of the peremptory challenge is engaging in impermissible discrimination.[58]
Thus, to preserve the issue, the objecting party must present the trial court with a specific reason to doubt the genuineness of the explanation: “[W]as it, for example, a consideration that would have applied to other members of the venire, some of whom were seated? Or was it a consideration that would not bear on the juror’s ability to weigh the evidence as required?”[59] A failure to put the trial court on notice of the specific basis for the allegation of pretext will waive the argument in the appellate court.[60]
The objecting party should also consider that, in conducting the step three genuineness inquiry, the trial court does not need to incant a perfect script or utter any “magic words.”[61] The Second District has recognized that this rule is based, in part, on the fact that it is a less-than-pleasant “task for the trial court to make an affirmative finding of pretext” and it may be “reluctan[t] to” do so.[62] But the lack of a clear rationale from the trial court can further complicate appellate review. Thus, counsel seeking to preserve an objection must establish an adequate record of the arguments and, if possible, the trial court’s rationale and consideration (or lack of consideration) of specific factors.
Renew the Objection
A final step in preserving this issue for review generally requires more than one objection: first, when the strike is made, and second, before the jury is sworn.[63] The purpose of renewing an earlier-overruled objection is to allow the trial court a final opportunity to correct its error.[64] Failure to renew the objection — or unequivocal acceptance of the jury without reservation of an earlier-made objection — constitutes a waiver.[65]
However, some courts have found that, if the jury is sworn only minutes after the initial objection, a renewal would be futile and is, thus, unnecessary.[66] In Gootee v. Clevinger, 778 So. 2d 1005, 1009 (Fla. 5th DCA 2000), for example, the jury was sworn “within a matter of a couple of minutes (three pages later in the transcript),” so the Fifth District found that the error was preserved even though there was no second objection. But the outer limits of the rule are undefined, thus, in an abundance of caution, counsel should renew their objection before the jury is sworn, regardless of how much time passes between the trial court’s initial ruling and the swearing-in.
Conclusion
While peremptory challenges allow attorneys to use their experience and instinct to select a fair and impartial jury, that right cannot infringe upon the right to serve on a jury free from discrimination. The process is regimented, and, to protect a client’s interests and the integrity of jury selection, it is imperative for practitioners — regardless of which side of the inquiry they are on — to be vigilant.
[1] State v. Slappy, 522 So. 2d 18, 20 (Fla. 1988), receded from on other grounds, Melbourne v. State, 679 So. 2d 759 (Fla. 1996).
[2] Id.
[3] Batson v. Kentucky, 476 U.S. 79, 87 (1986) (internal citations and quotations omitted).
[4] State v. Neil, 457 So. 2d 481 (Fla. 1984), receded from on other grounds, State v. Johans, 613 So. 2d 1319 (Fla. 1993).
[5] Slappy, 522 So. 2d at 20 (quoting 4 William Blackstone, Commentaries 353 (1807)).
[6] Id.
[7] Id.
[8] Neil, 457 So. 2d at 481.
[9] Batson, 476 U.S. at 85 (citing Strauder v. West Virginia, 100 U.S. 303 (1880)).
[10] Id.
[11] Neil, 457 So. 2d at 486-87; Melbourne, 679 So. 2d at 764.
[12] Melbourne, 679 So. 2d at 763 (“Because trial courts had difficulty applying Neil, this Court refined the procedure in subsequent cases.”); Johans, 613 So. 2d at 1321 (Fla. 1993) (noting that “the case law that has developed in this area does not clearly delineate what constitutes a ‘strong likelihood’ that venire members have been challenged solely because of their race,” and “find[ing] it appropriate to establish a procedure that gives clear and certain guidance to the trial courts in dealing with peremptory challenges”); see also Spencer v. State, 196 So. 3d 400, 404 (Fla. 2d DCA 2016) (noting “that some confusion exists about the three steps explained in Melbourne” and that “[t]here is little question” that the trial courts sometimes do not fully perform the requisite steps), approved 238 So. 3d 708 (Fla. 2018), disapproved on other grounds, State v. Johnson, 295 So. 3d 710 (Fla. 2020).
[13] For consistency, this article refers to the test as the Neil inquiry.
[14] Melbourne, 679 So. 2d at 764.
[15] Id. at 764 n.2.
[16] Kibler v. State, 546 So. 2d 710, 712 (Fla. 1989). However, this factor “may. . . be relevant in the determination of whether the challenges are being unconstitutionally exercised. . . . ” Id. For example, “a defendant of a different race than the jurors being challenged may have more difficulty [in Step Three] convincing the trial court that” the jurors were challenged solely because of their race. Id.
[17] Dorsey v. State, 868 So. 2d 1192, 1202 n.8 (Fla. 2003).
[18] Smith v. State, 59 So. 3d 1107, 1113 (Fla. 2011) (fact that juror’s surname “sounded like a German name” was not enough to establish that he was a member of a cognizable class subject to Neil protections).
[19] State v. Pacchiana, 289 So. 3d 857, 858 (Fla. 2020) (“[W]e do not decide the issue of the constitutionality of a religion-based strike.”).
[20] Joseph v. State, 636 So. 2d 777 (Fla. 3d DCA 1994); see also Nunez v. State, 664 So. 2d 1109, 1111 (Fla. 3d DCA 1995) (including religion in the group of cognizable classes protected under Neil).
[21] Pacchiana v. State, 240 So. 3d 803 (Fla. 4th DCA 2018), decision quashed, 289 So. 3d at 857.
[22] Olibrices, 929 So. 2d at 1179; see also State v. Alen, 616 So. 2d 452 (Fla. 1993) (finding that “Hispanic” or “Latin” was a cognizable class entitled to protection under Neil despite that they encompassed a “distinct and far from homogeneous group”).
[23] Olibrices, 929 So. 2d at 1179.
[24] Cunningham v. State, 838 So. 2d 627, 630 (Fla. 5th DCA 2003).
[25] It is important to note, however, that, if the explanation is unreasonable, that may affect the trial court’s genuineness analysis at step three.
[26] State v. Johans, 613 So. 2d at 1321.
[27] Hialeah Hospital Inc. v. Hayes Boursiquot, 316 So. 3d 754, 758 (Fla. 3d DCA 2021); Estate of Youngblood v. Halifax Convalescent Ctr., Ltd., 874 So. 2d 596, 600 (Fla. 5th DCA 2004); Mitchell v. CAC-Ramsay Health Plans, Inc., 719 So. 2d 930, 931 (Fla. 3d DCA 1998).
[28] Hialeah Hospital, 316 So. 3d at 758.
[29] Collier v. State, 134 So. 3d 1042, 1043 (Fla. 1st DCA 2013) (citing Symonette v. State, 778 So. 2d 500, 502 (Fla. 3d DCA 2001)).
[30] Id. at 1044 (citing Hayes v. State, 94 So. 3d 452, 456 (Fla. 2012), disapproved on other grounds, Johnson, 295 So. 3d at 712).
[31] Garcia v. State, 75 So. 3d 871, 874 (Fla. 3d DCA 2011)
[32] Soto v. State, 751 So. 2d 633, 637 (Fla. 4th DCA 1999).
[33] Risech v. State, 293 So. 3d 618, 623 (Fla. 1st DCA 2020); Nowell v. State, 998 So. 2d 597, 604 (Fla. 2008); Gibson v. State, 313 So. 3d 831, 835 (Fla. 2d DCA 2021); cf. Jones v. State, 229 So. 3d 834, 836 (Fla. 4th DCA 2017) (Klingensmith, J., concurring) (noting that “uncovering a juror’s bias depends not only on skillful voir dire questioning, but also the ability to interpret body language, voice inflections, facial responses, and to draw upon knowledge gleaned from past experiences,” and “[s]ometimes, prospective jurors will give an experienced attorney nothing more than a ‘bad vibe’ that cannot be reduced to the record”).
[34] Travelers Home and Marine Ins. Co. v. Gallo, 246 So. 3d 560, 563 (Fla. 5th DCA 2018); see also Gibson, 313 So. 3d at 834 (verbal acknowledgment that juror was nodding her head during questioning was enough to support strike).
[35] Gallo, 246 So. 3d at 563.
[36] Sharp v. State, 789 So. 2d 1211, 1213 (Fla. 5th DCA 2001).
[37] Lafayette v. Moody, 316 So. 3d 708, 715 (Fla. 4th DCA 2021).
[38] Id.
[39] Id. (quoting Melbourne, 679 So. 2d at 764).
[40] Id. (quoting Melbourne, 679 So. 2d at 764 n.8); Craven v. State, 310 So. 3d 891, 900 (Fla. 2020); Poole v. State, 151 So. 3d 402, 410 (Fla. 2014); Lenz v. State, 245 So. 3d 795, 801-02 (Fla. 4th DCA 2018).
[41] Landis v. State, 143 So. 3d 974, 979 (Fla. 4th DCA 2014) (collecting cases and explaining that “[i]n many cases, courts have invalidated peremptory challenges as pretextual where the challenged juror was not questioned and shown to have the same alleged group bias”).
[42] Id. at 980-81.
[43] See Hialeah Hospital, 316 So. 3d at 757-58.
[44] See Symonette, 778 So. 2d at 503-04 (although prosecution struck five African Americans, all were supported by neutral explanations and trial court did not abuse its discretion in finding those explanations genuine).
[45] Wimberly v. State, 118 So. 3d 816, 822 (Fla. 4th DCA 2012); see also Lenz, 245 So. 3d at 801 (finding error where the trial court’s “focus should have been on the genuineness of counsel’s belief, not the reasonableness of the assumption”); Hernandez v. State, 264 So. 3d 358, 360 (Fla. 2d DCA 2019) (“It is improper for a trial judge to deny a peremptory challenge merely because the judge disagrees with the reason offered for dismissing a prospective juror.”).
[46] Dabbs v. State, 330 So. 3d 50, 53-54 (Fla. 4th DCA 2021).
[47] Ellis v. State, 152 So. 3d 683, 689 (Fla. 3d DCA 2014).
[48] Id. (quoting Hayes v. State, 94 So. 3d 452, 462 (Fla. 2012)).
[49] Peacher v. Cohn, 786 So. 2d 1282, 1283 (Fla. 5th DCA 2001); see also Lottimer v. N. Broward Hosp. Dist., 889 So. 2d 165, 167 (Fla. 4th DCA 2004); but see Seadler, 341 So. 3d at 1146, review granted, No. SC22-984, 2022 WL 16543867 (Fla. Oct. 31, 2022) (accepting conflict jurisdiction to determine whether a trial court’s error by disallowing a strike constitutes reversible error even if the challenged juror does not ultimately serve on the panel).
[50] See Somerville v. Ahuja, 902 So. 2d 930 (Fla. 5th DCA 2005)
[51] Spencer, 196 So. 3d at 408.
[52] Melbourne, 679 So. 2d at 763.
[53] Pacchiana, 289 So. 3d at 862.
[54] Smith, 59 So. 3d at 1111 (“Franqui did not eliminate the necessity of establishing that the juror was a member of a cognizable class.”).
[55] Lafayette, 316 So. 3d at 715 (quoting Melbourne, 679 So. 2d at 763).
[56] Johnson, 295 So. 3d at 716.
[57] See Gordon v. State, 350 So. 3d 25, 34 (Fla. 2022); Poole, 151 So. 3d at 413.
[58] Spencer, 196 So. 3d at 407.
[59] Gordon, 305 So. 3d at 34.
[60] Id. at 35.
[61] See Smith, 59 So. 3d at 1111.
[62] Spencer, 196 So. 3d at 406.
[63] Cannon v. State, 310 So. 3d 1259, 1268-69 (Fla. 2020); see Joiner v. State, 618 So. 2d 174, 176 (Fla. 1993).
[64] Castor v. State, 365 So. 2d 701, 703 (Fla. 1978).
[65] Cannon, 310 So. 3d at 1268 (quoting Zack v. State, 911 So. 2d 1190, 1204 (Fla. 2005)).
[66] Gootee v. Clevinger, 778 So. 2d 1005, 1009 (Fla. 5th DCA 2000) (quoting Joiner v. State, 618 So. 2d 174, 176 (Fla. 1993)); Smith v. State, 143 So. 3d 1194, 1196 (Fla. 1st DCA 2014) (citing Romero v. State, 105 So. 3d 550, 552 (Fla. 1st DCA 2012)); Johnson v. State, 27 So. 3d 761, 763-64 (Fla. 2d DCA 2010); Sparks v. Allstate Const., Inc., 16 So. 3d 161, 164 (Fla. 3d DCA 2009).
Jack Reiter is board certified in appellate practice and leads GrayRobinson’s nationally ranked Tier 1 Appellate and Trial Support Team. Reiter is a former chair of The Florida Bar Appellate Court Rules Committee, Appellate Practice Section, and Dade County Bar Appellate Court Committee.
Sydney Feldman is an associate at GrayRobinson, and a member of the firm’s nationally ranked Appellate and Trial Support Team. A skilled writer and advocate, Feldman has extensive experience in state and federal courts across a wide variety of practice areas.
This column is submitted on behalf of the Appellate Practice Section, Kansas Gooden, chair, and Sarah Roberge and Benjamin Paley, editors.
