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The Preservation of Error During Voir Dire

Appellate Practice

The purpose of voir dire is to ensure that each case is tried by impartial and fair-minded members of the community. If there are errors in that process, counsel can ultimately argue for a new trial on appeal. The success of such arguments, however, often depends on whether the alleged error was properly preserved.

Few juries have been empaneled since the courthouses shut down due to the pandemic, but courts are beginning to reopen. The Workgroup on the Continuity of Court Operations and Proceedings During and After COVID-19 has put together standards to guide the legal industry back into jury trials,[1] and the Florida Supreme Court has authorized a pilot program for virtual jury trials.[2] Jurors will be back.

As courts get ready to restart the jury selection process, it is a good time for a refresher on protecting the right to select an impartial jury. In Part I of this article, the focus is on the preservation of error when challenging jurors during voir dire. Part II provides a glimpse inside issues that might arise in post-pandemic voir dire.

Preservation of Error When Challenging Prospective Jurors

Generally, the concept of preservation requires parties to raise issues in the trial court before they can claim error on appeal.[3] Its purpose is to notify the trial court about any perceived errors and provide an opportunity to correct the error at the earliest possible point in the proceedings.[4] Thus, before the appellate court will reverse the trial court’s decision to exclude a juror during voir dire, it will look at whether the objection was properly raised below.

Preserving Cause Challenges — After examining the prospective jurors, an attorney may challenge for cause any juror who appears unable or unwilling to impartially decide the case.[5] The trial court must then evaluate all of the questions posed to the juror and all of the juror’s answers.[6] The test for sustaining a cause challenge is whether that juror can set aside any bias or prejudice and render a verdict solely on the evidence presented and the instructions on the law given by the court.[7] If there is any reasonable doubt about the juror having that state of mind, then the juror should be excused.[8] If it is a close call as to a juror’s impartiality, any doubt should be resolved in favor of excusing the juror.[9]

To obtain a reversal based on the trial court’s denial of a cause challenge, a party must go through multiple steps. First, a party must challenge the prospective juror for cause in a timely and specific manner. A challenge for cause should be made before the jury is sworn, or else it is waived.[10] Specificity is important because a challenge to a juror on appeal must have been the same challenge raised as to that juror at the trial court level.[11] Moreover, it is not necessarily enough if the trial court improperly denies a challenge for cause. To obtain a reversal on appeal, there must be prejudice.[12]

To that end, during voir dire, counsel must preserve for the record on appeal proof that the error was prejudicial. A party demonstrates prejudice in this context if it is forced to use a peremptory challenge on the juror who should have been excused for cause.[13] Specifically, a party must exhaust all of its remaining peremptory challenges, ask for additional peremptory challenges, and assuming that the court denies the request for additional challenges, identify a specific juror who would have been excused with the additional challenge.[14] The requirement that a party request additional peremptory challenges makes sense. If the court were to provide the objecting party with an additional peremptory challenge that could be used to strike the objectionable juror, then any error would be harmless.[15] Also note that the appellant must be able to demonstrate that the objectionable juror was actually seated on the jury and participated in the deliberations leading to a verdict — the challenged juror cannot merely be an alternate.[16]

Even then, there is one final step. It is necessary to renew any objections to the jury before it is sworn. If you do not renew an objection, it is presumed to be abandoned.[17] The Florida Supreme Court in Carratelli v. State, 961 So. 2d 312, 319 (Fla. 2007), explained that this rule is not intended to be a mere technicality:

[R]enewing an objection before the jury is sworn gives the trial court one last chance to correct a potential error and avoid a possible reversal on appeal. It also allows counsel to reconsider the prior objection once a jury panel has been selected. Without such a requirement, the defendant “could proceed to trial before a jury he unqualifiedly accepted, knowing that in the event of an unfavorable verdict, he would hold a trump card entitling him to a new trial.”[18]

This easily overlooked requirement is often decisive in the appellate court’s preservation analysis. There are rare exceptions to these general preservation rules where counsel timely objects and the jury is sworn moments later.[19] However, the safer and best practice is to renew all prior objections and give the trial court a clear final opportunity to correct any errors before the jury is sworn.[20]

Preserving Challenges to Peremptory Challenges — Peremptory challenges may be used at any time before the jury is sworn.[21] Thus, the parties may use a peremptory challenge to “backstrike” a juror who was previously accepted any time before that juror is sworn.[22] To preserve the denial of the right to backstrike, a party must voice an objection, but it must also attempt to use a remaining peremptory challenge on a juror.[23] By doing so, the trial court is notified that not only is the procedure objectionable, but the result of the procedure is the placement of an objectionable juror on the panel.[24]

Parties generally do not need to justify the use of a peremptory challenge.[25] There is an exception to this general rule where a party uses a peremptory challenge in a manner that might be deemed discriminatory against a protected class.[26] Although there is a presumption that peremptory challenges are exercised in a nondiscriminatory manner, if counsel suspects that a peremptory challenge is being used improperly, then he or she may object and initiate a Neil inquiry.[27] Preserving such an objection, however, is not always a simple matter.

In Melbourne v. State, 679 So. 2d 759, 764 (Fla. 1996), the Florida Supreme Court set forth a three-step analysis to be used when conducting a Neil inquiry. The trial court must abide by each of the three steps, and if it fails to do so, the remedy is a new trial.[28]

In the first step, the party must timely object to the use of a peremptory challenge, specifically show that the prospective juror is a member of a protected class, and request a neutral explanation from the proponent of the challenge.[29] As for timeliness, not only must there be an objection to the peremptory challenge, but any objection must also be renewed before the jury is sworn, or else the objection is waived.[30] As for specificity, note that precision matters. For example, in State v. Pacchiana, 289 So. 3d 857 (Fla. 2020), the defendant objected to the use of a peremptory challenge on the grounds that it was being used to discriminate on the basis of race. After trial, however, in its motion for mistrial, the defendant argued that the peremptory challenge improperly discriminated on the basis of religion. The court held that the argument was not preserved because it was not raised during voir dire.[31]

In the second step, the burden shifts and the trial court must ask the proponent of the peremptory challenge to come forward with a neutral explanation.[32] The neutral explanation, taken at face value, must show that there is no discriminatory intent; otherwise, the peremptory challenge must be denied.[33] If the opponent of the challenge intends to contest the neutral explanation as pretextual on appeal, it is necessary to specifically articulate to the trial court why it should not accept the proffered explanation.[34] As the Florida Supreme Court recently held in State v. Johnson, 295 So. 3d 710, 716 (Fla. 2020):

[T]he opponent of a peremptory strike cannot simply sit silent — failing to respond to a proffered facially 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 and the trial court’s ruling as insufficient for the first time on appeal. To hold otherwise would not only be inconsistent with the general law of preservation, it would also improperly relieve the opponent of the strike of the obligation to prove purposeful racial discrimination, in disregard of the presumption that peremptory strikes are nondiscriminatory.

In the third step, the trial court decides whether the proffered neutral explanation is non-pretextual. In other words, the court must decide based on all the circumstances surrounding the challenge whether the neutral explanation is “genuine.”[35] As the Melbourne court noted, relevant circumstances may include, “the racial make-up of the venire; prior strikes exercised against the same racial group; a strike based on a reason equally applicable to an unchallenged juror; or singling the juror out for special treatment.”[36] The focus here is on the credibility of the explanation, not the juror who is the subject of the strike.[37] For example, it is not enough for the attorney to say that he or she simply did not like the juror.[38] Although the trial court is not required to articulate its thought process in the genuineness analysis, it must be apparent from the record that the court did, in fact, perform the analysis.[39]

A Glimpse Inside Post-Pandemic Voir Dire

By necessity, post-pandemic voir dire will likely look different than pre-pandemic voir dire, but the fundamental rights of parties must be protected. Some changes have already happened. The Florida Supreme Court has ordered the automatic excusal of prospective jurors who meet certain pandemic-related criteria, which includes, for example, jurors who fail to meet health-screening requirements.[40] Those who have suffered pandemic-related hardships may also seek to postpone their service.[41]

Other changes are still being considered. Florida’s COVID-19 workgroup has developed best practice considerations for jury management issues when jury proceedings resume.[42] These include the use of enhanced questionnaires to identify at-risk jurors, implementation of various social distancing protocols, and the staggering of reporting times to achieve smaller groups of prospective jurors.[43] However, the workgroup emphasized that the recommendations are not binding, and differences in circumstances can affect the way a particular court resumes jury proceedings.[44]

These circumstantial differences make it difficult to predict if and how changes to voir dire will occur. However, Florida law has already provided litigants with a starting point when analyzing some procedural concerns that might arise because of the logistics surrounding jury service.

Questionnaires: The trial court’s authority to issue questionnaires derives from Fla. R. Civ. P. 1.431(a). Given the reasonable pressure to limit in-person contact during voir dire, courts might try to explore using questionnaires more extensively to pare down the pool of prospective jurors who need to show up at the courthouse. The questionnaire is intended as a timesaving measure, which is particularly relevant when determining whether prospective jurors are disqualified from jury service.[45] However, it is the function of voir dire examination to assist lawyers in determining whether a juror can be fair and impartial.[46] The mere fact that the court has asked prospective jurors some questions as to critical issues in the case cannot justify preventing counsel from further examination on those critical issues under the guise that it would be repetitive.[47] Indeed, under Rule 1.431(b), “[t]he parties have the right to examine jurors orally on their voir dire.” In the end, while questionnaires may be useful to assist with narrowing the jury pool, they cannot be a substitute for orally questioning the jurors.

Propriety of Imposing Time Limits — With the backlog of cases caused by the pandemic, courts might feel pressure to shorten the voir dire process, which could occur at the expense of the litigants’ right to question the prospective jurors. While courts generally have discretion when limiting the amount of time allotted for voir dire, this discretion does not extend to unreasonable time limitations.[48] For example, it has been held to be reversible error for a court to limit counsel to one-to-three minutes for questioning prospective jurors.[49] The issue of timing is case specific,[50] but courts are often encouraged to be flexible.[51] Indeed, given the current environment, more questioning might be appropriate. If a party intends to challenge the trial court’s imposition of a time limit on appeal, it is important to object and create a record with a proffer of the significant questions counsel would have asked if given more time.[52]


Voir dire is a time-honored right, intended to ensure that jury trials are fair. Although there might be changes to post-pandemic voir dire, a balance must be struck, and the parties must be permitted a reasonable examination of prospective jurors.[53] To paraphrase the Florida Supreme Court, trial courts are encouraged to explore new ways of increasing trial court efficiency, but they must be careful that the methods they employ are not used to defeat a litigant’s right to intelligently and effectively participate in voir dire.[54]

No matter how the courts change post-pandemic voir dire, the responsibility remains the same for post-pandemic litigants. If there is bias in the jury box or error in the process, it is the obligation of counsel to bring it to the trial court’s attention in a timely and proper manner.

[1] See generally Fla. Admin. Order No. AOSC20-32 (Amendment 3).

[2] See generally Fla. Admin. Order No. AOSC20-31 (Amendment 1).

[3] Harrell v. State, 894 So. 2d 935, 939-40 (Fla. 2005).

[4] Id. (quoting Castor v. State, 365 So. 2d 701, 703 (Fla. 1978)).

[5] The right to challenge jurors for cause has been codified in Rule 1.431(c). Also note that certain persons are automatically disqualified from jury duty. For example, certain executive branch officials, judges, and persons with an interest in the subject matter of a case may not serve as jurors. See generally Fla. Stat. §40.013(2). Additionally, jurors may be excused from jury duty upon a showing of hardship. §40.013(6).

[6] Banks v. State, 46 So. 3d 989, 995 (Fla. 2010).

[7] Kearse v. State, 770 So. 2d 1119, 1128 (Fla. 2000); Vega v. State, 781 So. 2d 1165, 1168 (Fla. 3d DCA 2001).

[8] Matarranz v. State, 133 So. 3d 473, 484 (Fla. 2013); see also James v. State, 731 So. 2d 781 (Fla. 3d DCA 1999)
 (“If prospective juror’s statements raise a reasonable doubt regarding his ability to be impartial, the prospective juror should be excused.”).

[9] Four Wood Consulting, LLC v. Fyne, 981 So. 2d 2, 5 (Fla. 4th DCA 2007).

[10] Denmark v. State, 656 So. 2d 166, 166 (Fla. 1st DCA 1995) (party waived his for-cause challenge on appeal by failing to raise it before the jury was sworn); see also Jackson v. State, 464 So. 2d 1181, 1183 (Fla. 1985) (“A trial judge has no authority to infringe upon a party’s right to challenge any juror, either peremptorily or for cause, prior to the time the jury is sworn.”).

[11] Gonzalez v. State, 143 So. 3d 1171, 1176 (Fla. 3d DCA 2014).

[12] See, e.g., Longshore v. Fronrath Chevrolet, Inc., 527 So. 2d 922, 923 (Fla. 4th DCA 1988) (“Unless the error infects the ultimate fairness of the trial so that the litigant is thereby deprived of trial by a jury of his or her peers, the error will be considered harmless.”).

[13] See Hill v. State, 477 So. 2d 553, 553 (Fla. 1985).

[14] Kearse v. State, 770 So. 2d 1119, 1128 (Fla. 2000).

[15] Guzman v. State, 238 So. 3d 146 (Fla. 2018) 
(court did not need to consider whether the trial court erred by denying the cause challenge because the trial court provided an additional peremptory challenge to the objecting party).

[16] Frazier v. Wesch, 913 So. 2d 1216 (Fla. 4th DCA 2005).

[17] Carratelli v. State, 961 So. 2d 312, 318 (Fla. 2007); see also Millstein v. Mut. Sec. Life Ins. Co., 705 So. 2d 639 (Fla. 3d DCA 1998) (parties are required to renew objection — even if they did not make a statement affirmatively accepting the jury).

[18] Carratelli v. State, 961 So. 2d at 312 (quoting Joiner v. State, 618 So. 2d 174, 176 n. 2 (Fla. 1993)).

[19] See, e.g., Sanchez v. GEICO Indem. Co., 278 So. 3d 157, 165 (Fla. 1st DCA 2019) (counsel not required to request additional peremptory challenges where the objection was clearly presented to the court moments before the jury was sworn); Gootee v. Clevinger, 778 So. 2d 1005, 1009 (Fla. 5th DCA 2000) (counsel not required to renew objection that it made three minutes before the jury was sworn; “It would have been futile for the lawyer to repeat what he had just told the judge.”).

[20] Spencer v. State, 162 So. 3d 224, 229 (Fla. 4th DCA 2015) (“[A] trial judge should not have to speculate about whether counsel is maintaining a prior objection before swearing in the jury. To avoid an unintended waiver of the issue, counsel should apprise the court of her continued objection to peremptory challenges before the jury is sworn and give the court “one final opportunity to correct any possible errors before the jury is sworn.”).

[21] Lottimer v. N. Broward Hosp. Dist., 889 So. 2d 165 (Fla 4th DCA 2004); Michelin N. Am., Inc. v. Lovett, 731 So. 2d 736, 740 (Fla. 4th DCA 1999) (“The 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.”).

[22] Dobek v. Ans, 475 So. 2d 1266 (Fla 4th DCA 1985).

[23] Aquila v. Brisk Transp., L.P., 170 So. 3d 924, 926 (Fla. 4th DCA 2015).

[24] Id.

[25] Busby v. State, 894 So. 2d 88, 99 (Fla. 2004) (“[U]se of a peremptory challenge need not be supported by a reason, so long as the challenge is not used to discriminate against a protected class of venireperson.”).

[26] See, e.g., Hall v. Daee, 602 So. 2d 512, 515 n.5 (Fla. 1992) (race); Olibrices v. State, 929 So. 2d 1176, 1177-78 (Fla. 4th DCA 2006) (ethnicity).

[27] This hearing is named after the landmark case State v. Neil, 457 So. 2d 481 (Fla. 1984), in which the Florida Supreme Court first set forth a procedure for evaluating whether peremptory challenges were racially motivated.

[28] Travelers Home and Marine Ins. Co. v. Gallo, 246 So. 3d 560 (Fla. 5th DCA 2018) (reversing where the trial court failed to conduct the third step); Streeter v. State, 979 So. 2d 428 (Fla. 3d DCA 2008) (reversing where the trial court failed to ask proponent of the peremptory strike to articulate a neutral justification under Melbourne).

[29] See id.; Smith v. State, 59 So. 3d 1107, 1115 (Fla. 2011) (discussing burden to demonstrate that juror was a member of a protected class).

[30] State v. Pacchiana, 289 So. 3d 857, 861 (Fla. 2020); Watson v. Gulf Power, 695 So. 2d 904 (Fla. 1st DCA 1997) (“In order to preserve a Neil issue for review, it is necessary to call to the court’s attention before the jury is sworn, by renewed motion or by accepting the jury subject to the earlier objection, the desire to preserve the issue.”) (quoting Joiner v. State, 618 So. 2d 174 (Fla. 1993)).

[31] See also Harper v. State, 549 So. 2d 1121, 1122 (Fla. 1st DCA 1989) (objection not preserved where defendant never argued that the challenge was being used for gender discrimination).

[32] Melbourne v. State, 679 So. 2d 759, 764 (Fla. 1996).

[33] Id. at 764 n.7.

[34] See Hall v. State, 768 So. 2d 1212 (Fla. 4th DCA 2000).

[35] Melbourne, 679 So. 2d at 764.

[36] Id. at 764 n. 8.

[37] Young v. State, 744 So. 2d 1077 (Fla. 4th DCA 1999); Allstate v. Thornton, 781 So. 2d 416 (Fla. 4th DCA 2001).

[38] Risech v. State, 293 So. 3d 618, 623 (Fla. 1st DCA 2020) (quoting Nowell v. State, 998 So. 2d 597, 604 (Fla. 2008)).

[39] Compare Cook v. State, 104 So. 3d 1187, 1190 (Fla. 4th DCA 2012) (“[W]e are unable to satisfy ourselves that the trial court determined whether the state’s reason…was either genuine or a pretext by considering any relevant circumstances surrounding the strike.”), with R.J. Reynolds Tobacco Co. v. Enochs, 226 So. 3d 872, 874 (Fla. 4th DCA 2017) (The court did not use the word “genuine,” but the “record overall” reflected that the court did in fact determine the reasons were genuine.).

[40] Fla. Admin. Order No. AOSC20-23 at 9-10 (Amendment 6).

[41] Id. It remains to be seen how these changes will affect jury demographics.

[42] Workgroup on the Continuity of Court Operations and Proceedings During and After COVID-19, Jury Management Considerations: Recommendations from the Court Operations Subgroup.

[43] Id. at 2-4.

[44] Id. at 1.

[45] Sisto v. Aetna Cas. & Sur. Co., 689 So. 2d 438, 440 (Fla. 4th DCA 1997).

[46] Id.

[47] Carver v. Niedermayer, 920 So. 2d 123, 124 (Fla. 4th DCA 2006).

[48] Thomany v. State, 252 So. 3d 256 (Fla. 4th DCA 2018); O’Hara v. State, 642 So. 2d 592 (Fla. 4th DCA 1994). However, note that if the court is going to set a time limit, it must do so at the outset. Rodriguez v. State, 675 So. 2d 189 (Fla. 3d DCA 1996); Carver v. Niedermayer, 920 So. 2d 123 (Fla. 4th DCA 2006).

[49] Gosha v. State, 534 So. 2d 912 (Fla. 3d DCA 1988).

[50] Guy v. State, 287 So. 3d 620, 624 (Fla. 4th DCA 2019).

[51] Strachan v. State, 279 So. 3d 1231, 1237 (Fla. 4th DCA 2019); Thomany, 252 So. 3d at 257.

[52] Watson v. State, 693 So. 2d 69 (Fla. 2d DCA 1997) (noting that counsel did not object to the court’s imposition of a 30-minute per side time limit, and the proffered questions were of minimal significance).

[53] See Ferrer v. State, 718 So. 2d 822 (Fla. 4th DCA 1998) (reversing for a new trial where the court forced counsel to begin voir dire examination at night, after counsel pleaded with the court that he was exhausted after a full day of litigation and that his performance would be affected).

[54] Tedder v. Video Elecs., Inc., 491 So. 2d 533, 535 (Fla. 1986).


Photo of Daniel A. RockDaniel A. Rock is an appellate attorney in the Miami office of Bowman and Brooke LLP, where he works on cases involving product liability, insurance law, and professional liability. Before joining the firm, he clerked at the Third District Court of Appeal. Rock earned his J.D. from FIU College of Law.

This column is submitted on behalf of the Appellate Practice Section, Christopher Dale Donovan, chair, and Heather Kolinsky, editor.

Appellate Practice