JURY TRIAL ISSUES March 2023 Judicial College - Benchbook: Quick Reference Outline
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
JURY TRIAL ISSUES
March 2023 Judicial College
Benchbook: Quick Reference Outline
Judge Linda Melendez
Miami-Dade County
lmelendez@jud11.flcourts.org
and
Judge GiuseppinaMiranda
Broward County
gmiranda@17th.flcourts.org
1Jury Trial Benchbook: Quick Reference Outline
I. Questionnaire
a. During Certification
i. Must be used AFTER names are selected.
ii. But, before certification and placing names of
prospective jurors in the jury box.
iii. Used to determine those who are not qualified to serve
as jurors under statutory grounds for disqualification.
b. During Voir Dire--Discretionary Use
i. If used, must use Supreme Court Approved Form
1.983.
ii. However, all parties may stipulate to non-standard
form.
c. A party can challenge the array (the makeup of the jury pool)
on the basis that the court has failed to follow established
procedures to call up the prospective jurors or that the array
fails to represent cognizable classes present in the community
from which it was drawn. Hoyt v. State, 119 So. 2d 691 (Fla.
1960); State v. Silva, 259 So. 2d 153 (Fla. 1972). (This
challenge must be timely or it is barred. Hoskins v. State,
702 So. 2d 202 (Fla. 1997)).
II. Examination by Parties
a. Parties have the RIGHT to orally examine prospective jurors.
i. “Reasonable examination” of each juror must be
preserved.
1. Reversible error.
ii. Purdy v. Gulf Breeze Enterprises, Inc., 403 So. 2d 1325
(Fla 1981)—Extent to which parties may examine
prospective jurors on voir dire lies within trial judge’s
discretion.
1. The court may interrupt questioning if the court
feels the attorneys are being insensitive to
2prospective jurors, are abusing their right to
question them, or are grossly exceeding the
appropriate or fair amount of time.
iii. Time Limits—Time limits are permitted. Cassaday v.
State, 45 FLW D101, D102-03 (Fla. 4th DCA Jan. 15,
2020) (list of factors to consider in limiting time
include number of jurors, nature of case, is attorney:
using time wisely, asking relevant questions, “pre-
trying” the case).
Court may not arbitrarily limit a Party’s time to
examine prospective jurors. Williams v. State, 424 So.
2d 148 (Fla. 5th DCA 1982); Allen v. Se-Go Industries,
Inc., 510 So. 2d 1097 (Fla. 3d DCA 1987); Knapp v.
Shores, 550 So. 2d 1155 (Fla. 3d DCA 1989); Watson
v. State, 693 So. 2d 69 (Fla. 2d DCA 1997)
b. Court MAY examine the jurors.
c. Order in which parties may examine each juror determined
by the Court.
i. Traditionally, Plaintiff goes first.
ii. Barker v. Randolph, 239 So. 2d 110 (Fla. 1st DCA
1970)—“Full exploration of a questionable juror by the
party who may be the receiver of the unfairness of the
juror should not be denied when his counsel fully and in
good faith previously interrogated the panel, but
prejudicial information was not forthcoming until his
adversary questioned the jury.”--Reversible error for
the court to deny Plaintiff the opportunity to resume
questioning of the panel after defense raised new issues
for the first time during defendant’s questioning.
d. McCauslin v. O’Conner, 985 So. 2d 558 (Fla. 5th DCA
2008)—Prospective jurors have a duty to give complete and
3truthful answers to the questions asked of them during voir
dire.
i. Smiley v. McCallister, 451 So. 2d 977 (Fla. 4th DCA
1984)—Concealment of material fact relevant to issues
in case by juror during voir dire examination is
prejudicial to interrogating party and impairs party’s
right to challenge jurors.
e. Examination must be in good faith
i. Smith v. State, 253 So. 2d 465 (Fla. 1st DCA 1971)—
Court should not permit questioning of perspective
jurors as to kind of verdict they would render under any
given state of facts or circumstances. (Pre-trying).
(Tampa Electric Co. v. Bazemore, 96 So. 297 (Fla.
1923)).
III. Challenges for Cause
a. NO Limit.
b. On motion of any party, Court must examine to determine
whether the juror:
i. Is related, within the third degree, to:
1. Any party
2. The attorney of any party
3. Any other person or entity against whom liability
or blame is alleged in the pleadings
4. Any person alleged to have been wronged or
injured by the commission of the wrong
ii. Has any interest in the action.
iii. Has formed any or expressed opinion about the action.
iv. Is sensible of any bias or prejudice concerning the
action.
v. Is an employee or has been an employee of any party or
any other person or entity against whom liability or
4blame is alleged in the pleadings, within 30 days before
the trial.
c. Must excuse juror for cause if:
i. It appears that the juror does not stand indifferent to the
action.
ii. Any of the grounds above exist.
iii. The juror is otherwise incompetent.
iv. (Probably only applicable to small counties). The juror
was not selected from a jury list (selected from
bystanders or the body of the county) and that person
has been previously called within 1 year of the trial.
v. When the nature of any civil action requires the
knowledge of reading, writing, and arithmetic, or any of
them, to enable a juror to understand the evidence to be
offered, that fact that any prospective juror does not
possess the qualifications is ground for a challenge for
cause.
d. Henry v. State, 576 So. 2d170 (Fla. 4th DCA 2000)—The
applicable test is whether a juror can lay aside any bias or
prejudice and render a verdict solely on the evidence
presented and the instructions on the law given by the court.
e. Somerville v. Ahuja, 902 So. 2d 930 (Fla. 5th DCA 2005)—A
juror should not serve if he or she is not indifferent to the
action and should be excused if there is a reasonable doubt as
to the juror’s ability to render an impartial verdict, and if it is
a close call, the juror should be excused. Four Wood
Consulting LLC v. Fryne, 981 So. 2d 2 (Fla. 4th DCA 2007).
f. Minnis v. Jackson, 330 So. 2d 874 (Fla. 3d DCA 1976)—
Failure of juror to honestly answer material questions
propounded to him on voir dire examination constitutes bad
faith requiring his disqualification from serving on the jury.
5g. Morales v. State, 768 So. 2d 475 (Fla. 2d DCA 2000)—
Financial and time concerns expressed by potential jurors are
not a sufficient basis to excuse jurors for cause.
h. Four Wood Consulting, LLC v. Fryne, 981 So. 2d 2 (Fla. 4th
DCA 2007)—New trial is mandated where a juror’s
responses on a question of bias are conditional or
unequivocal and the juror is not rehabilitated, and where
there is a reasonable doubt as to whether the juror stands
impartial.
i. Somerville v. Ahuja, 902 So. 2d 930 (Fla. 5th DCA 2005)—
Potential jurors’ responses to questions by the court or
counsel in an effort to rehabilitate him or her, after having
admitted to harboring some bias or prejudice, that they can
set aside those prior admitted feelings is not determinative of
whether the juror should be excused for cause, and it is NOT
sufficient if their responses are vacillating or couched with “I
think” or “I would try.”
j. Montecristi Condominium Assn. v. Hickey, 408 So. 2d 671
(Fla. 4th DCA 1981)—General, abstract bias or prejudice
entertained by a juror regarding a particular class of litigation
will not in itself disqualify him when it appears that the
abstract bias can be set aside and the juror will fairly and
impartially decide the particular case solely on the evidence
and instructions of the court.
k. Carrier v. Ramsey, 714 So. 2d 657 (Fla. 5th DCA 1998)—
Refusal to strike for cause prospective jurors was not abuse
of discretion, though jurors’ answers to voir dire questions
indicated that they would “relate more closely with the
plaintiffs,” where jurors stated that there was “no doubt” that
they would be fair to both sides.
6l. Martinez v. State, 795 So. 2d 279 (Fla. 3d DCA 2001)—Even
where some doubt exists as to the juror’s ability to remain
impartial, Florida law allows a juror to be rehabilitated.
m. Dadar v. Southard Distributors of Tampa, 563 So. 2d 1112
(Fla. 2d DCA 1990)—In order to preserve error in court’s
denial of challenge for cause, additional challenge must first
be sought and denied; it is insufficient for counsel to simply
take exception to court’s ruling on request to strike for cause.
IV. Peremptory Challenges
a. Both sides get the same number.
b. “Each party is entitled to 3 peremptory challenges of jurors,
but when the number of parties on opposite sides is unequal,
the opposing parties are entitled to the same aggregate
number of peremptory challenges to be determined on the
basis of 3 peremptory challenges to each party on the side
with the greater number of parties.”
i. Lemoine v. Cooney, 514 So. 2d 391 (Fla. 4th DCA
1987)—“When several persons whose interests are
common are joined on either side of a civil action, they
should be treated as but one party within the meaning of
the rule. The interest of persons on the same side of an
action must be essentially or potentially different or
hostile to give each litigant the number of peremptory
challenges allowed to a party.”
1. Ie.: An insurer’s interests are not different or
hostile from the party it is insuring.
c. Additional peremptory challenges must be divided equally
among parties on either side.
i. If not capable of equal division, the challenge must be
exercised separately or jointly as determined by the
Court.
7ii. Example: 2 parties for Plaintiff, 3 parties for
Defendant. 9 Peremptory challenges on each side.
Each Plaintiff gets 4 Peremptory challenges, with the
9th Challenge to be utilized as determined by the Court
(separately or jointly).
d. Kopsho v. State, 959 So. 2d 168 (Fla. 2007)—Party should
never be required to use a peremptory challenge to strike a
juror who should have been stricken by the court for cause.
e. Busby v. State, 894 So. 2d 88 (Fla. 2004)—Peremptory
challenges are intended to cure the seating of a juror whom
counsel suspects, but cannot prove, is biased.
f. Batson/Neil-Slappy/Melbourne Challenges
i. City of Miami v. Cornett, 463 So. 2d 399 (Fla. 3d DCA
1985)—Use of peremptory challenges in civil case to
exclude from jury service prospective jurors solely on
basis of race was improper.
ii. Harrison v. Emanuel, 694 So. 2d 759 (Fla. 4th DCA
1997)—Trial Court’s prompting of personal injury
plaintiff’s counsel to at least raise objection to
potentially racially motivated peremptory strike was
proper.
iii. Dilorenzo v. State, 711 So. 2d 1362 (Fla. 4th DCA
1998)—An individual does NOT have a right to serve
as a juror, rather, one has a right not to be excluded
from jury service on the basis of racial, gender, or
ethnic discrimination.
V. Exercise of Challenges
a. All challenges must be addressed to the court outside of the
presence of the jury, so that the jury panel is not aware of the
nature of the challenge, the party making the challenge, or
the basis of the court’s ruling of the challenge.
8b. Tedder v. Video Electronics, Inc., 491 So. 2d 533 (Fla.
1986)—A litigant has a “right to view the panel as a whole in
order to use his peremptory challenges intelligently and
effectively.”
c. Ter Keurst v. Miami Elevator Company, 486 So. 2d 547 (Fla.
1986)—“The only fair scheme is to allow the parties to
exercise their challenges singularly, alternately and orally so
that, before a party exercises a peremptory challenge, he has
before him the full panel from which the challenge is to be
made.” “This is not only the ‘better practice’ but should be
the rule.”
d. Preacher v. Cohn, 786 So. 2d 1282 (Fla. 5th DCA 2001)—
Right to exercise peremptory challenges is a fundamental
part of a right to a fair trial and the denial of that right should
be treated as reversible error and the cause remanded for a
new trial.
e. Parties have the right to “backstrike”—See Van Sickle v.
Zimmer, 807 So. 2d 182 (Fla. 2d DCA 2002).
f. Young v. State, 96 So. 381 (Fla. 1923)—Right to Peremptory
challenges may be waived.
VI. Swearing of Jurors
a. “No one shall be sworn as a juror until the jury has been
accepted by the parties or until all challenges have been
exhausted.”
i. Alternates must also be selected PRIOR to the jury
being sworn.
b. Van Sickle v. Zimmer, 807 So. 2d 182 (Fla. 2d DCA 2002)—
Though time and manner of challenging and swearing jurors
rests within the sound discretion of the trial court, a party
may peremptorily challenge a juror until the juror is sworn.
VII. Alternate Jurors
a. One or more alternate jurors MAY be selected.
9i. If selected, MUST:
1. Be drawn in the same manner
2. Have the same qualifications
3. Be subject to the same examination
4. Take the same oath
5. Have the same functions, powers, facilities and
privileges.
b. Must replace jurors who have become unable or disqualified
to perform duties in the order in which they are called
BEFORE the jury retires to consider its verdict.
c. An alternate who does not replace a principal juror MUST be
discharged when the jury retires.
d. Each party is entitled to one peremptory challenge in the
selection of alternate jurors, with both sides getting the same
aggregate number of challenges depending on the number of
parties in the case.
e. “The additional peremptory challenges allowed pursuant to
this subdivision may be used only against the alternate jurors.
The peremptory challenges allowed pursuant to subdivision
(d) of this rule shall not be used against the alternate jurors.”
f. Ortiz v. State, 835 So. 2d 1250 (Fla. 4th DCA 2003)—
Whether to remove a sleeping juror and substitute him or her
with an alternate is within the discretion of the trial court.
g. Eickmeyer v. Dunkin Donuts of America, Inc., 507 So. 2d
1193 (Fla. 3d DCA 1987)—Alternate juror’s being present
during and taking active part in jury deliberations in civil
action created fundamental, reversible error, requiring new
trial, notwithstanding jurors’ claiming to have been
unaffected by alternate’s presence.
VIII. Post-Verdict Interviews of Jurors:
10a. Procedure for challenging a jury’s verdict and interviewing
jurors based on juror concealment or misconduct. Post-
verdict challenges to jurors.
b. Wilson v. State, 608 So. 2d 842 (Fla. 3d DCA 1992)—If the
Court becomes aware of juror misconduct or concealment
during a trial, the proper procedure is to replace the juror
with an alternate juror, or alternatively, declare a mistrial if
no alternate juror is available.
c. Children’s Medical Center, P.A. v. Kim, 221 So. 3d 664 (Fla.
4th DCA 2017)—In determining whether a party is entitled to
interview a juror post-trial, nondisclosure is considered
material if it is substantial and important so that if the facts
were known, the moving party may have been influenced to
peremptorily challenge the juror from the jury. Post-trial
juror interviews should be rarely granted and the sanctity of
the jury process as well as the privacy rights of the jurors
themselves should be closely guarded and protected. This
rule is a shield to prevent disgruntled parties and attorneys
from harassing jurors after a verdict.
IX. Communication with the Jury
a. Communication to be on the Record
i. Court must notify the parties of any communication
from the jury pertaining to the action as promptly as
practicable and in any event BEFORE responding to the
communication.
ii. (Except for exceptions set out in the Rule) All
communications between the court or courtroom
personnel and the jury MUST be on the record in open
court or must be in writing and filed in the action.
1. Court or Courtroom personnel MUST note on any
written communication to or from the jury the
date and time it was delivered.
11iii. EXCEPTION:
1. Court MUST, by pretrial order or by statement on
the record with opportunity for objection, set forth
the scope of routine ex parte communication to be
permitted and the limits imposed.
a. Limited to juror comfort and safety
b. Between bailiff or other courtroom
personnel and the jurors
c. SHALL NOT extend to matters that may
affect the outcome of the trial
i. Statements containing any fact or
opinion concerning
1. A party
2. A attorney
3. Procedural matter
4. Relating to any legal issue or
lawsuit.
2. Court MUST instruct the jurors and courtroom
personnel regarding the limitations on
communication between the court or courtroom
personnel and jurors in jury instructions during
voir dire.
3. Court MUST instruct empaneled jury that their
questions are to be submitted in writing to the
court, which will review them with the parties and
counsel before responding.
4. Courtroom personnel MUST immediately notify
the court of any communication to or from a juror
or among jurors in contravention of the court’s
orders or instructions, including all
communication contrary to the rule.
12You can also read
