There’s a Right Way to Preserve a Juror Challenge

By: Adam L. Bantner, II, B.C.S.

Jury selection is the beginning of your trial. Some believe that a case can be won or lost at jury selection. While I don’t necessarily believe that a trial can be won at this stage, I certainly believe that it can be lost before the first word of testimony is delivered.

As such, if someone is taking their case to trial, whether a criminal or personal injury matter, you need an attorney skilled in trial practice and jury selection. With over 30 trials under my belt, I’ve honed my trial skills more than most attorneys.

In jury selection, we are trying to accomplish two things: 1) get rid of jurors predisposed to rule against your client, and 2) start planting the seeds of persuasion for your case. Successfully fulfilling both of these objectives is more art than science and the scope of this article is not expansive enough to cover the “how-to” on accomplishing these goals. Suffice to say, at this point, a necessary skill to get this done is getting your jurors to speak. Getting a person, who probably doesn’t want to be there in the first place, to open up about who they are, their beliefs, and their life in general, is difficult. However, it is possible and completely necessary to getting a good jury.But what do you do if you find a juror who, to you, is undesirable for service on your jury?

In any trial, counsel has unlimited “cause” challenges. A cause challenge can be utilized whenever a juror has indicated that they can’t do the job as instructed by the court and according to the law. For example, if a juror says that he/she would need to hear testimony from a criminal defendant and he/she would hold it against the defendant should he/she desire to exercise his or her right to remain silent, that juror should be stricken for cause by the court upon motion by counsel. These types of challenges are unlimited because you can’t have an unqualified juror serving on a case.

The other type is “peremptory” challenges. These can be used for any reason not forbidden by law. For example, you can’t use a peremptory against someone for simply being black, for being a woman, for being old, etc. However, if you believe that the court improperly denied a cause challenge, you can use one of your peremptory challenges on that person. Peremptory challenges are limited in number. The number is set by law depending on the type of case being tried.

However, if a judge denies both a cause and peremptory challenge to a juror, certain steps must be taken to ensure that the issue is preserved for appeal. They are relatively simple, but necessary.

First, make the challenge. You can’t appeal a denial if you never asked for the juror to be excused. If the cause challenge was denied but the court allowed you to use a peremptory challenge on that person, you must ask for an additional peremptory challenge. If you don’t, the denial of the cause challenge will not be appealable. The theory is that if the court gives you an extra peremptory to use, no harm no foul because the litigant essentially got what he or she desired anyway.

Finally, if the court denies both the cause and peremptory challenges (or just the peremptory if no cause challenge was made), you must renew the objection before the jury, as a whole, is sworn in to hear the case. Failure to renew the objection will act as a waiver of any previous objections to denials by the court for cause.

In Hernandez v. State, the Second DCA indicated that it would have reversed and remanded for a new trial had the trial lawyer properly preserved the denial of a peremptory challenge. In that case, Hernandez’s lawyer moved to remove a juror for cause because a juror had stated he would have a problem if Hernandez failed to testify. The juror later stated that he would not have a problem. As such, the Court denied the cause challenge.

The Court, improperly, also denied the peremptory challenge made by counsel. The Court unfortunately applied the “cause” standard to a “peremptory” challenge. This was error. However, counsel failed to renew the objection prior to the swearing in of the jury. As such, the District Court of Appeal had to affirm the judgment and sentence of the trial court and did not grant Hernandez a new trial.

As you can see, having a skilled trial attorney is essential to having a fair trial while also preserving any appellate issues that may arise during the trial. Adam Bantner is a board certified criminal trial law attorney in Hillsborough County. Call us today to see how we can help!