Litigation

Court Errs In Blocking Peremptory Strike

By Robert W. Kelley, Esq.

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 strike on a prospective juror. The trial judge would not allow it. The prospective juror ended up on the jury and the Defendant was convicted. There was no indication the juror was prejudiced against the Defendant, but his lawyer had wanted to strike the juror because she had had prior jury experience. The appellate court reversed the conviction because the trial judge failed to follow the three-step procedure for Neil Challenges as set forth in Melbourne v. State, 679 So.2d 759 (Fla. 1996). There was no need to establish the Defendant was prejudiced by the court’s error. Prejudice is presumed.

The challenged juror was argued to be Hispanic. The State Attorney had asked for a race neutral reason for the strike. This was insufficient to trigger a Neil inquiry. The Court held “the proper means of testing the peremptory challenge would have been to object [which wasn't done], to show that the venire member is a member of a distinct racial group [which apparently was argued but never established], and then to request that the court ask a reason for the strike [which appears to have been the only thing done by the prosecutor].” Because this procedure was not followed, and because, on appeal, peremptory challenges are presumed to be exercised in a nondiscriminatory manner, the appellate court held it was not in a position to determine whether the strike was truly being exercised in a discriminatory manner by the defense attorney, and therefore the jury’s verdict was reversed.

Full post as published by The Florida Jury Selection Blog on November 02, 2010 (boomark / email).