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Litigation

The Florida Jury Selection Blog

The Cure For The Common Voir Dire
By Robert W. Kelley, Esq.

Post Frequency: 0.3/day

Last Entry: January 30, 2013 at 22:15:21

How to Save a Potentially Contaminated Jury Panel

Posted on January 30, 2013
During jury selection in a civil trial a prospective juror stated in open court that he was familiar with one of the defendant’s expert medical witnesses. The juror said the expert had “kind of screwed-up my dad’s back,” and that his dad had filed a lawsuit against the doctor...

Failure to Conduct Juror Background Check During Trial May Constitute Lack of Due Diligence

Posted on September 11, 2012
The Third District Court of Appeal recently held that the failure of trial counsel to perform background checks during trial on the members of the jury – as was suggested by the judge be done during this trial – may constitute a lack of due diligence, thereby precluding any right to a new trial based [...

Failure to Conduct Background Check on Jurors During Trial May Constitute Lack of Due Diligence

Posted on September 06, 2012
Last week the Third District Court of Appeal held that the failure of trial counsel to perform background checks during trial on the members of the jury – as was suggested by the judge be done during this trial - may constitute a lack of due diligence, thereby precluding any right to a new trial based on [...

Tweeting Jurors Will Face Jail In California

Posted on October 31, 2011
Going further than his predecessor was willing to go, California Governor Jerry Brown has criminalized juror tweeting. Under AB 141, which will go into effect on January 1, 2012, any juror who willfully disobeys the court admonishment against any form of communication or research about the case, including tweeting, may be sent to jail for [...

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E-Mail Your Problems To Me

Posted on October 24, 2011
As you all know, the annual FJA Jury Selection Seminar is this Friday in Miami. If you have a jury selection problem or a particular area of concern in an upcoming jury trial, send me an email by this Wednesday, and I will make sure one of our speakers addresses it during the program...

Don’t Miss This Program!

Posted on October 18, 2011
The once-a-year FJA Jury Selection Seminar is going to take place a week from this Friday at the Intercontinental Hotel in Miami. This year’s seminar is part of the two-day Masters of Justice Program. If you are a trial lawyer who understands the importance of voir dire in the outcome of your trial, you won’t [...

Have You Ever Been In Court?

Posted on August 01, 2011
Last week the Fourth District Court of Appeal reinstated a $4.9 million dollar jury verdict against State Farm Insurance Company in a UM case that had been set aside by the trial judge on the grounds of “juror non-disclosure” about the juror’s prior litigation history...

Court Errs In Blocking Peremptory Strike

Posted on November 02, 2010
A single mistake in jury selection can result in an entire new trial. Nowhere is that truer than in the area of “Neil Challenges” and peremptory strikes. A mistake there is usually reversible error per se. In Garcia v. State , 35 FLW D2328 (Fla 3rd DCA 2010), the Defense wanted to exercise a peremptory [...

Improper Timing of Peremptory Strikes Causes Mistrial

Posted on October 06, 2010
A civil trial on the West Coast of Florida ended in a “mistrial” today when both sides agreed that the Court committed error during the jury selection process by requiring the parties to exercise their peremptory strikes before having an opportunity to view the entire panel from which the jury would ultimately be selected...

Court Rejects “Confession of Error” in Voir Dire

Posted on September 30, 2010
Earlier this week the First District Court of Appeal, in a kafkaesque opinion, upheld a robbery conviction even though both the State and the Defense agreed on appeal that the trial judge had committed error during jury selection. In Hayes v. State, 35 FLW D2137A (Fla 1st DCA 2010), the defendant was charged with robbery [...

IPhone + Encarta = New Trial

Posted on September 20, 2010
A jury verdict was reversed earlier this month due to juror misconduct when the foreperson used his Iphone to look up the definition of “prudent” on Encarta during a break in the jury’s deliberations. In Tapanes v. State, 35 FLW D2031A (Fla 4 DCA 2010) the court wrote: “Although here we confront new frontiers in [...

Can A Potential Juror Be Asked To “Promise” A Verdict?

Posted on August 19, 2010
A common technique in voir dire, especially by defense attorneys, is to ask each prospective juror during jury selection whether the juror will “promise” to return a certain kind of verdict (e.g. guilty or not guilty) if it is supported by the evidence...

Don’t Let Sleeping Dogs Lie

Posted on February 25, 2010
Potential juror Sanders may have been sleeping during jury selection. Florida law is clear that “sleeping” during voir dire is a valid race-neutral reason for striking a juror — not to wake him up, but to remove him from the panel! See, Davis v...

U.S. Supreme Court Says Courtrooms Must Be Open To Public During Voir Dire

Posted on January 26, 2010
Last week, the United States Supreme Court held that trial judges should not exclude the public from courtrooms during jury selection. Eric Presley’s uncle came to court to watch jury selection in his nephew’s trial. He was the only spectator in the courtroom...

“Hearing About” Murder Case Not Enough for Cause Challenge

Posted on May 14, 2009
Yesterday the Fourth District Court of Appeal upheld the trial court’s denial of a challenge for cause directed at a potential juror in a case involving murder-for-hire. In Samuels v. State, __ So. 2d __ (Fla 4th DCA, May 13, 2009), the Court reaffirmed the longstanding rule that if there is any reasonable doubt about [...

Maximizing The Power of Peremptory Strikes

Posted on April 20, 2009
The law concerning the use of peremptory challenges in jury selection has been changing in recent years. There is a vast difference between Florida law and Federal law in this area. While “Cause is Still King,” the effective use of peremptory challenges can make or break the outcome of a trial...

SCOTUS Upholds Verdict of Improper Foreperson

Posted on April 15, 2009
Late last month the United States Supreme Court upheld the murder conviction of a man, Michael Rivera, who was convicted by a jury whose foreperson, Deloris Gomez, was improperly allowed to sit on the jury. Rivera v. Illinois, 556 U.S. __ (2009). During jury selection, Rivera’s attorney properly attempted to use one of his peremptory [...

A Wolf in Sheep’s Clothing

Posted on September 17, 2008
During jury selection in a car accident trial, the defense attorney (who had been hired by an insurance company to defend the case), told the jury panel: “I’m a consumer justice attorney, and I represent John Hooks, a merchant marine, not some fancy company, not some conglomerate...

Prospective Juror Not “Under Prosecution.”

Posted on June 23, 2008
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...

“Conflicting Views” Raise a Reasonable Doubt

Posted on June 18, 2008
Today the Fourth District Court of Appeal reversed a criminal conviction because the trial judge failed to strike for cause a juror who “held conflicting views” on the presumption of innocence. Initially, during jury selection the juror stated “he’s guilty until proven innocent,” but later said “I think it was a misunderstanding earlier…,” and then went on to [...

Update on Juror Pay

Posted on April 02, 2008
The section of The Florida Jury Selection blog dealing with juror pay has been updated thanks to the work of my brilliant law clerk, Kristin Bianculli. One of the most common concerns of potential jurors during voir dire is whether they will get paid while they are serving on a jury...

Update on Juror Pay

U.S. Supreme Court and Racially Discriminatory Strikes

Posted on March 20, 2008
The Supreme Court of the United States reversed a brutal murder conviction yesterday concluding that the prosecutor’s peremptory strike of a black college student appeared to be racially discriminatory. In Snyder v. Louisiana, 552 U.S. __ (2008) the Court held, in a 7 - 2 decision written by Justice Samuel Alito, that the trial court committed clear [...

Ban on Using Nationality to Exclude Jurors is Upheld

Posted on March 05, 2008
This Wednesday’s New York Times reports that a federal district court judge has concluded that allowing American-born blacks on a Bronx jury but systematically excluding West Indian-born blacks from the jury is discriminatory. Federal Judge William H...

Whitby Walks

Posted on February 19, 2008
Edgar Sylvester Whitby was prosecuted for permanently disfiguring his victim by throwing hot water on her. He was convicted of aggravated battery “by a clearly impartial jury” in an “otherwise error free” trial. But Edgar is a free man today, and the Supreme Court of Florida just turned down the State’s appeal of this case...

“Prudent Probing” During Jury Selection

Posted on February 12, 2008
A $900,000 plaintiff’s verdict in a rear-end collision case was reinstated last Friday by the Fifth District Court of Appeal even though two jurors had failed to disclose in voir dire that they had been injured and received medical treatment as a result of prior car accidents...

Cause Challenges for Caps On Damages and Rising Insurance Rates

Posted on January 26, 2008
This week, in Rodriguez v. Lagomasino, the Third District Court of Appeal reversed a defense verdict in an auto accident case because the trial judge failed to strike two questionable jurors for cause. During voir dire, prospective Juror Gutierrez said he would not favor either side and would be “in the middle,” but he had also said his wife had been in an auto accident and his insurance company was going double his rates...

Harris Releases Poll on Jury Duty

Posted on January 22, 2008
The Harris Corporation released a poll on jury duty yesterday. Harris Poll on Jury Duty. The poll contains some interesting findings on who is most likely to show up for jury duty and actually end up serving on a jury. It also shows that Americans, by a factor of 2 to 1, would trust a jury more than a judge to arrive at a fair verdict in a case...

“A Clear, Direct Question”

Posted on January 17, 2008
A jury in Miami awarded $3.9 million to the mother of a young woman who was killed by a drunk driver. After the verdict, the State Farm defense attorneys found out for the first time that the jury foreman’s father had been an alcoholic. They asked for a new trial alleging that the foreman had concealed this important information from them during jury selection...

Voir Dire and Comparative Fault

Posted on November 19, 2007
Last week, in Algie v. Lennar Corp., the 4th District Court of Appeal reversed a defense verdict in a slip and fall case. A juror had told the lawyers during jury selection that although he wouldn’t have any problem “serving fairly” if chosen, he believed that in every slip and fall case the person who slips and falls is at least partially responsible...

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