Litigation

Prospective Juror Not “Under Prosecution.”

By Robert W. Kelley, Esq.

On the day the jury was sworn - after a week of voir dire - a prospective juror got a traffic ticket. The ticket was for the “crime” of knowingly driving on a suspended license, a second-degree misdemeanor. No one in the courtroom on that day asked her about it. She didn’t tell anyone about it. And she ended up serving on the jury that convicted Jason Tucker of premeditated first-degree murder. Tucker appealed his conviction on the grounds that Florida Statute 40.013(1) states: “No person who is under prosecution for any crime…shall be qualified to serve as a juror.” On Friday, the Fifth District Court of Appeal, while recognizing the undisputed nature of the “crime,” rejected his argument and affirmed the conviction. Tucker v. State 33 FLW D1617d (Fla 5th DCA, June 20, 2008).

The Appellate Court affirmed the conviction for two reasons: 1) this prospective juror was not “under prosecution” for this crime in this scenario (as used in the jury qualification statute) because  the state attorney had not exercised his discretion to pursue the charges against her through formal judicial proceedings (i.e. merely getting the ticket was not enough), and 2) even if this juror was “under prosecution” during jury service, a new trial was not warranted because there was no showing of prejudice by Tucker.

Full post as published by The Florida Jury Selection Blog on June 23, 2008 (boomark / email).