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Voir Dire Necessities: The Florida Supreme Court Clarifies When Trial Counsel’s Investigation of the Venire Must Be Undertaken

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It is axiomatic that absent an impartial jury, a fair jury trial—not necessarily a perfect jury trial—is impossible to achieve and will not result. In McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984), Justice Rehnquist, writing for the Supreme Court on this point, stated that:

[o]ne touchstone of a fair trial is an impartial trier of fact—“a jury capable and willing to decide the case solely on the evidence before it.” citing Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed. 2d 78 (1982). Voir dire examination serves to protect that right by exposing possible biases, both known and unknown, on the part of potential jurors. Demonstrated bias in the responses to questions on voir dire may result in a juror being excused for cause; hints of bias not sufficient to warrant a challenge for cause may assist parties in exercising their peremptory challenges. The necessity of truthful answers by prospective jurors if this process is to serve its purpose is obvious.

The Florida Supreme Court has long and similarly held that juror honesty and integrity during voir dire is an essential underpinning of the jury trial system. In Loftin v. Wilson, 67 So. 2d 185, 192 (Fla. 1953), the court, quoting Pearcy v. Michigan Mut. Life Ins. Co., 111 Ind. 59, 12 N.E. 98 (1887), held:

The examination of a juror on his voir dire has a two fold purpose, namely, to ascertain whether a cause for challenge exists, and to ascertain whether it is wise and expedient to exercise the right of peremptory challenge given to parties by the law.

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It is the duty of a juror to make full and truthful answers to such questions as are asked him, neither falsely stating any fact, nor concealing any material matter, since full knowledge of all material and relevant matters is essential to the fair and just exercise of the right to challenge either peremptorily or for cause. A juror who falsely misrepresents his interest or situation, or conceals a material fact relevant to the controversy, is guilty of misconduct, and such misconduct, is prejudicial to the party, for it impairs his right to challenge.

With those precepts in mind, it is likewise obvious that where “a juror fails to reveal lawsuit participation,” the juror is “not honestly perform[ing his] civic duty. . . , ” and, in that circumstance, trial counsel’s “[post-verdict] efforts to seek the truth” are entirely appropriate. Zequeira v. De La Rosa 627 So. 2d 531, 534 (Fla. 3d DCA 1993); see also Dyer v. Calderon, 151 F.3d 970, 983 (9th Cir. 1998) (“[A] juror who lies his way into the jury room is not really a juror at all.”). Trial counsel and their clients are entitled to assume, as they should, that a prospective juror will truthfully answer any and all questions posed by the court or by the parties’ counsel. Wilcox v. Dulcom, 690 So. 2d 1365, 1367 (Fla. 3d DCA 1997) (“[I]t was reasonable for the [litigants] to expect the juror to answer the questions posed by the trial judge truthfully and completely.”). But, when in the unfortunate and distasteful circumstance that a juror’s lack of impartiality, honesty, and integrity becomes known (through a formal juror interview, public statements, or through other means), a new trial may be obtained, provided a three-pronged test is satisfied.

In De La Rosa v. Zequeira, 659 So. 2d 239, 241 (Fla. 1995), the Florida Supreme Court held that a party is entitled to a new trial as a matter of law upon a showing that: 1) a juror concealed information during voir dire; 2) the information concealed was relevant and material to the jury service in the case; and 3) the nondisclosure was not attributable to the complaining party’s lack of diligence. While the basic right to challenge a juror based on his or her litigation history is basic to the jury trial right itself, Skiles v. Ryder Truck Lines, 267 So. 2d 379, 381 (Fla. 2d DCA 1972) (“When the right of challenge is lost or impaired [due to nondisclosure], the. . . conditions and terms for setting up an authorized jury are not met.”), a key question presented is when must the facts giving rise to the challenge be investigated. In other words, must the investigation commence before any facts are known or suspicion becomes reasonable?

In De La Rosa, the Florida Supreme Court expressly refused to “impose on counsel the onerous burden of investigating the venire during the trial.” Zequeira v. De La Rosa, 627 So. 2d 531, 534 (Fla. 3d DCA 1993) (Baskin, J., dissenting), adopted in full, De La Rosa, 659 So. 2d at 242. Notwithstanding that guidance, the vagary of the “diligence” prong of the De La Rosa three-prong test has spawned inconsistent appellate decisions, including decisions paying little or no attention to De La Rosa itself. One of those recent decisions, Tejada v. Roberts, 760 So. 2d 960 (Fla. 3d DCA 2000), temporarily changed the landscape on this issue. Criticizing the sometime practice of the nonprevailing party undertaking a posttrial investigation of the jurors, the court stated:

It appears to this court that in the wake of De La Rosa v. Zequeira, 659 So. 2d 239 (Fla. 1995), and this court’s subsequent cases, particularly Wilcox v. Dulcom, 690 So. 2d 1365 (Fla. 3d DCA 1997), there is a widespread misimpression that a losing litigant can obtain an automatic new trial if he or she can show that one of the jurors failed to disclose prior litigation history, regardless of the circumstances. The practice appears to be developing that when there is a loss in a large case, be it by plaintiff or defendant, the losing litigant scours the public record to try to find evidence of a litigation nondisclosure.


The Third District Court then zeroed in on the diligence requirement imposed by De La Rosa and concluded it was not satisfied, id. at 966, in that the civil lawsuit index maintained by the clerk of the circuit and county court was “freely available before, during, and after this trial.” Id. In noting that “the checking of the clerk’s lawsuit index was not done until after the trial was over, when it could have been done sooner,” the court retroactively imposed a requirement “that the time to check the jurors’ names against the clerk’s lawsuit index is at the conclusion of jury selection.” Id. Therefore, the court decided that “[i]f a party does not request the opportunity to make the record search, then the litigant will not be heard to complain later about a juror’s nondisclosure of information which could have been disclosed by reference to the clerk’s index.” Id.1 Following a motion for rehearing, clarification and certification, the court (Cope, J.) granted clarification only, and reaffirmed that “the time to consult readily available public records is before, not after, the fact.” Id. at 967.2

At that point, from Key West to the Miami-Dade/Broward County line, the Tejada recess requirement was at high tide and the litigation floodgates in those circuits and others opened on the issue of the timeliness of postverdict juror investigation. See, e.g., Vanderbilt Inn on the Gulf v. Pfenninger, 27 Fla. L. Weekly D356 (Fla. 2d DCA, February 8, 2002) (plaintiff having failed to check Collier County public records before unfavorable verdict precluded an attempt to set aside verdict, citing Tejada ); State Farm Fire and Casualty Company v. Levine, 791 So. 2d 591 (Fla. 3d DCA 2001) (juror verdict for plaintiff affirmed due to State Farm’s lack of due diligence in investigating juror nondisclosure, citing Tejada ); Bornemann v. Ure, 778 So. 2d 1077 (Fla. 4th DCA 2001) (defendant’s failure to check the clerk’s lawsuit index for jurors’ names showed lack of diligence that precluded grant of new trial for juror’s nondisclosure of information during voir dire, citing Tejada ); Silva v. Lazar, 766 So. 2d 341 (Fla. 4th DCA 2000) (“[W]e also agree with the conclusion in Tejada that in most instances, counsel should ‘check the jurors’ names against the clerk’s lawsuit index at the conclusion of jury selection,’ 760 So. 2d 966. Failure to make such a timely search where it would have uncovered the offending information, rather than waiting to do so after the verdict, may be at least some evidence of a lack of diligence.”); Birch v. Albert, 761 So. 2d 355 (Fla. 3d DCA 2000) (Sorondo, J. concurring) (defense counsel did not satisfy the diligence requirement of De La Rosa ; “the issue of jury nondisclosure has become the losing litigant’s trump card to be played immediately after the return of a trial jury’s adverse verdict.” “This practice has led to a serious undermining of the integrity of jury verdicts and the finality, at least at the trial level, which they are supposed to bring to the litigants.”); and Massey v. State, 760 So. 2d 956 (Fla. 3d DCA 2000) (unclear whether diligence requirement in Tejada applied prospectively or whether it should be applied to criminal, as well as civil cases, in light of differences both in the rights at stake and the facilities respectively now available for jury investigation).

The Third District Court’s decision in Tejada, while well-intentioned, was flawed inasmuch as the diligence requirement imposed was fraught with obvious logistical and practical problems, particularly if it was to receive statewide application.3 Some of these problems have resulted, not surprisingly, in sister courts receding from or distinguishing Tejada, by necessity. See, e.g., Humana Health Insurance Company of Florida, Inc. v. Chipps, 802 So. 2d 492 (Fla. 4th DCA 2001) (Palm Beach County trial court should have allowed Humana’s request for a juror interview under Fla. R. Civ. P. 1.431(h), where juror falsely claimed she was never a party to a lawsuit when, in fact, she had been sued in Broward County by a health care provider for allegedly failing to pay her daughter’s medical bills, distinguishing Tejada and Bornemann ).

Ultimately, on February 21, 2002, the Florida Supreme Court clearly recognized the wave of diligence-related cases, and appropriately reversed Tejada. Roberts v. Tejada, 814 So. 2d 334 (Fla. 2002).4 Citing some of the aforedescribed practical and logistical problems, the Supreme Court bemoaned the Tejada requirement of an in-trial, prompt index search, by making the following common-sense observations:

Often, a search of the index may impose a futile burden, because it may fail to disclose prior litigation history which only a more extensive search of court files (some of which may be located in storage) would uncover. Even if an index may disclose some information, access to that important information may take additional time.

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In a perfect world, access to the information would be immediately available in all courtrooms or actually provided as jury pool information. However, such circumstances do not presently exist in the diversity of resources available in our vast and diverse state to accomplish the task as ordered at this time creates an unacceptable burden that cannot have uniform application. Our court system does not yet have the uniform capacity to provide a readily accessible system for undertaking a review of the court index together with ready access to the court files. Under present circumstances, the burden of imposing such a prerequisite to a later valid challenge to juror non-disclosure would be onerous, most particularly to sole practitioners representing clients in litigation. Therefore, that portion of the Tejada decision is specifically disapproved. (footnote omitted)5

The Supreme Court also lamented Tejada’s rigid rule which could lead to the necessity of additional teams of investigative lawyers becoming involved as an ancillary activity to the trial process, unwarranted delays in the trial, and the inability to capture a juror’s involvement in matters involving federal or foreign state jurisdictions. Id.6

In light of Roberts, the Tejada floodgates have, fortunately, closed. Davis v. Cohen, 27 Fla. L. Weekly D643 (Fla. 3d DCA, March 20, 2002) (“what began as a complex appeal involving several difficult issues, has become a single issue appeal decided by the Florida Supreme Court’s recent decision in Roberts . . . . This being the case, we conclude that the numerous questions asked by both plaintiffs’ and defendants’ attorneys during voir dire examination concerning the prospective jurors’ prior litigation experience. . . were sufficient to satisfy this last step of the De La Rosa test.”). This right result not only lifts the burden from trial counsel about which Judge Baskin forewarned, but also properly squares with the basic principle of jurisprudence that attorneys and their clients should be entitled to assume at the outset: that a juror’s responses are honest.

Less than three months after deciding Roberts, the Supreme Court had another opportunity to visit the issue of jurors’ nondisclosure of litigation history in Kelly v. Community Hospital of the Palm Beaches, Inc., 2002 WL 991933 (Fla. May 16, 2002).7 In Kelly, the court quashed the per curiam decision of the Third District, 756 So. 2d 144 (Fla. 3d DCA 2000), which cited Tejada as controlling authority. After factually noting the “egregious concealment and active misrepresentation [that]. . . occurred here,” the Supreme Court also noted the error of the Third District in relying upon Tejada —contrary to De La Rosa —to require trial counsel to discover adverse juror information during trial. Id. In summing up and clarifying the court’s position on this issue, it held:

This case presents egregious behavior by jurors and demonstrates the complexity of attempting to preclude relief unless counsel stops the proceedings to search court records to discover juror concealment, because at least the federal court proceedings would not have been disclosed in the records of the Dade County courthouse. As we have previously expressed, in a perfect world, this type of circumstance should be corrected before a jury panel receives evidence, but such is not a sufficient reason, with current resources, to deny the fundamental right to a proper jury.

Thus, until the resources necessary to undertake a prompt multijurisdiction search of the venire’s litigation history become available to all of Florida’s judicial circuits, the diligence test laid down in De La Rosa applies.

1 The court footnoted a suggestion that the chief judges of the 11th and 16th judicial circuits should promptly investigate the feasibility of making the information concerning the jurors available at an earlier stage—such as online in the courtroom, or attached to the juror questionnaires (but, only if the litigants actually request it).
2 The court was not entirely unmindful that civil trials should not be held up for lengthy periods in jury selection, and further conceded that, in certain circumstances, a juror’s litigation history may be contained in the records of a foreign jurisdiction and, thus, certainly are not ascertainable in the clerk’s records where the case is being tried.
3 These problems include: whether each of Florida’s 67 counties is equally equipped to grant an attorney (and perhaps, multiple attorneys simultaneously) access to the clerk’s index at the precise moment the Tejada recess is granted by the trial judge; some of the litigation history is archived and unavailable; whether a search of the index will be meaningful, particularly where one or more of the jurors have relatively common surnames; the Tejada recess imposes a distracting and unfair burden upon trial counsel, particularly at the important trial juncture following voir dire, but immediately prior to opening statements; whether the index search is at all meaningful where one or more jurors are, or were, involved in litigation in an adjacent county, another state, or a foreign country; and whether the timing and length of the Tejada recess, on the whole, imposes an undesirable delay in the trial proceeding.
4 The court found jurisdiction under Fla. Const. art. VI, §3(b)(3), citing conflict with the court’s opinion in De La Rosa .
5 The Supreme Court similarly disapproved the diligence principle of Tejada adopted in Vanderbilt Inn, 27 Fla. L. Weekly D356 (Fla. 2d D.C.A., February 9, 2002); Bornemann, 778 So. 2d 1077 (Fla. 4th D.C.A. 2001); and Silva , 766 So. 2d 341 (Fla. 4th D.C.A. 2000).
6 At least one of the concerns of the Supreme Court ( i.e ., the difficulty of a public records search) has been discussed in another context by the Fourth District Court of Appeal. See, e.g., Azam v. M/I Schottenstein Homes, Inc. , 761 So. 2d 1195 (Fla. 4th D.C.A. 2000) (in homeowners’ suit against developer alleging fraud and negligence and seeking rescission based on developer’s false representation that parcel of land was permanent “nature preserve” when developer knew that county had planned to build school there, court held “[t]he law should not expect every potential homeowner in every case to root around the bowels of the courthouse for those surveys, plats, and records which would verify or contradict a seller’s representations about the property.”) (Gross, J., concurring specially ).
7 In Kelly , more than one juror failed to disclose significant litigation history. One juror, a former lawyer and the jury’s foreman, did not disclose he had once been suspended by the Florida Supreme Court and disbarred by the U.S. Supreme Court. Instead, he said he was a “retired” lawyer. The same juror also failed to reveal the nature of his extensive prior criminal charges and lawsuits. Another juror failed to reveal her then pending divorce action or that her husband (also a lawyer) had been indicted in federal court for participating in a conspiracy to commit Medicare fraud and launder the proceeds.

Glenn J. Waldman is a shareholder of Waldman Feluren & Trigoboff, P.A., Weston. He is a civil trial lawyer and a state and federal court mediator. Mr. Waldman’s practice includes complex commercial litigation, probate and estate litigation, intellectual property law, health care and insurance law, and entertainment and sports law. He received his bachelor’s degree in economics, magna cum laude , in 1980 and his law degree, cum laude , in 1983 from the University of Florida.

Craig J. Trigoboff is a civil trial lawyer with Waldman Feluren & Trigoboff, P.A., Weston. His practice includes complex commercial litigation, probate and estate litigation, health care and insurance law, and entertainment and sports law. Mr. Trigoboff received his bachelor’s degree from Emory University in 1987 and his law degree from the University of Miami in 1990.