JURY SELECTION IN FLORIDA CRIMINAL COURTS Eugene F. Zenobi Office of Regional Counsel 401 NW 2nd Avenue South Tower - Suite 310 Miami, Florida 33128 305-679-6550 November 2016 INTRODUCTION TO SEPTEMBER 2016 EDITION The following represents a substantial revision of the (two years ago) jury selection manual. As in the past edition, the case law sections have been extensively revised. The basic narrative defines general jury selection while the capital case matters require an entire separate section. Also, several additional (edited) transcripts from trials have been added. There are several new sections (i.e. jury note-taking, jury questions to witnesses) which are discussed with relevant case citations. Lastly, the situational voir dire questions have been extensively revised and expanded. Although the narrative section is for the reader’s convenience to peruse, the case law section and questions are specifically meant to be an in-court tool to be used for counsel’s immediate need and reference. This edition is dedicated to Public Defender Carlos Martinez and the Honorable Stan Blake , both of whom I deeply respect and have known professionally and personally for over three decades. ________________________________________________ My sincerest thanks to the multitude of defense lawyers, judges, and prosecutors from whom I’ve received advise and excellent ideas for this edition. Also, my special thanks to Kristen Kawass for her invaluable help in preparing this edition and making suggestions that proved invariably correct. SELECTING A JURY “What would you do if I sang out of tune Would you stand up and walk out on me Lend me your ear and I’ll sing you a song And I’ll try not to sing out of key” Lennon/McCartney Choosing a jury is preparation, understanding, patience, insight and a good amount of perspiration – knowing that you’ve chosen well and an acceptable jury still may not happen. It is at once the most simple and most perplexing part of the jury trial. Counsel is subjected to no evidentiary rules, unknown personalities, and the possibility of any interaction to help or hinder weeks of preparation. Thus, the primary objectives of Defense voir dire are three-fold: a. To get to know each venireperson as thoroughly as possible; (I. THE JURORS); b. To establish the advocate's role in the prospective trial; (II. THE LAWYERS); c. To alert the jurors as to the theory and nature of defense and the Defendant in the presentation of the evidence; (III. THE CAUSE). 1 I. THE JURORS Jurors must be at least 18 years of age, citizens of the United States, and legal residents of the State of Florida and the county where the juror is sitting. The juror must possess a driver’s license or identification card issued by the Department of Highway Safety or have executed an affidavit pursuant to this section. § 40.01, Fla. Stat. Twelve persons sit as jurors in capital cases, six persons in all other criminal cases in which a jury is permitted. § 913.10, Fla. Stat and Fla. R. Crim. P. 3.270. Furthermore, Fla. R. Crim. P. 3.281 provides that each party shall be furnished with a list of names and addresses of prospective jurors and copies of all questionnaires returned by prospective jurors. (It is suggested that Counsel request this list immediately along with the jurors' information sheets and request a reasonable amount of time to read this information.) Peremptory Challenges: § 913.08, Fla. Stat. and Fla. R. Crim. P. 3.350(a) 1. Offense punishable by Life or Capital: State 10 - Defense 10 (§ 913.08(1)(a), Fla. Stat.) 2. Offense punishable by imprisonment of more than 12 months but less than Life: a. State 6 - Defense 6 (§ 913.08(1)(b), Fla. Stat.) 3. All other offenses: b. State 3 - Defense 3 (§ 913.08(1)(c), Fla. Stat.) In joint trials, State has as many challenges as the aggregate of all defendants: e.g., two-defendant, Grand-theft joint trial, (Defense = 6 challenges each), (State = 12 challenges) --- § 913.08(2), Fla. Stat. and Fla. R. Crim. P. 3.350(b). 2 Rule 3.315 - Challenges shall be exercised outside the hearing of the jury "on the motion of any party." The rule provides this manner of selection "so that the jury panel is not aware of the nature of the challenge." Rule 3.320 - Although this rule does not provide a challenge for cause to be made outside the hearing of the jury, such practice is advisable. If cause exists, it may taint the rest of the panel. Secondly, the nature of some challenges for cause: i.e., language difficulties, hearing problems, may be sources of misunderstanding by the jury panel, where the Court should avoid anyone's embarrassment. Rule 3.310 - A juror may be challenged at any time before the juror is sworn to try the case at hand. The Court may allow a challenge after the jury is sworn but before evidence is presented for good cause. Challenges For Cause - § 913.03, Fla. Stat. - Statutory grounds for challenge to individual jurors for cause. A challenge for cause to an individual juror may be made only on the following grounds: 1. The juror does not have the qualifications required by law; 2. The juror is of unsound mind or has a bodily defect that renders him incapable of performing the duties of a juror; except that in a civil action, deafness or hearing impairment shall not be the sole basis for a cause challenge. N.B. (Note the specific exception applying to “a civil action”); 3 3. The juror has conscientious beliefs that would preclude him from finding the Defendant guilty; N.B. (This section is misleading since it should read " . not guilty. .", particularly in capital cases.) See also Fla. Stat. §913.13, wherein that section provides a person “shall not be qualified as a juror in a capital case “if his or her “beliefs would preclude him or her from finding a Defendant guilty of an offense punishable by death”. This is similarly in error since the statute, by omission, misleads qualifications for jurors in a capital case; 4. The juror served on the grand jury that found the indictment or on a coroner's jury that inquired into the death of a person whose death is the subject of the indictment or information or affidavit; 5. The juror served on a jury formerly sworn to try the Defendant for the same offense; 6. The juror served on a jury that tried another person for the offense charged in the indictment, information, or affidavit. N.B. (This section is incomplete since the words "or related offense" should be included.); 7. The juror served as a juror in a civil action brought against the Defendant for the act charged as an offense; 8. The juror is an adverse party to the Defendant in a civil action, or has complained against or been accused by him in a criminal prosecution; 4 9. The juror is related by blood or marriage within the third degree to the Defendant, the attorney of either party, the person alleged to be injured by the offense charged, or the person on whose complaint the prosecution was instituted; 10. The juror has a state of mind regarding the Defendant, the case, the person alleged to have been injured by the offense charged, or the person on whose complaint the prosecution was instituted that will prevent him from acting with impartiality, but the formation of an opinion or impression regarding the guilt or innocence of the Defendant shall not be sufficient ground for challenge to a juror if he declares and the Court determines that he can render an impartial verdict according to the evidence. N.B. (This section has been virtually re-written by the appellate courts.); 11. The juror was a witness for the State or the Defendant at the preliminary hearing or before the grand jury or is to be a witness for either party at the trial; 12. The juror is a surety on Defendant's bail bond in the case. Additional Challenges: (in cases of multiple counts or multiple defendants) Fla. R. Crim. P. 3.350(c) - The Court may grant extra peremptory challenges "in the interest of justice . in extenuating circumstances" when there is a possibility that the State or the Defendant may be prejudiced. Each party shall receive equal additional challenges. 5 Additional Challenges: Fla. R. Crim. P. 3.350(e) - The Court may grant additional peremptory challenges when appropriate in the Court's discretion N.B. (This section is not limited by the multiple count requirements of Fla. R. Crim. P. 3.350(c), and may apply to only one party. It is suggested that if Counsel’s challenge for cause is deemed (and all peremptory challenges have been exhausted) that additional challenges are requested, the request be first made pursuant to section (e). If the request under section (e) is denied, another request be made pursuant to section (c)). Alternate Jurors: Fla. R. Crim. P. 3.280 - Alternate Jurors shall sit as directed by the Court. This rule is discretionary with the Court. Fla. R. Crim. P. 3.350 - Each party is entitled to one peremptory challenge for each alternate to be seated. These challenges can only be directed against the alternate prospective jurors. Regulating, Separating and/or Sequestrating the Jury During Trial – Fla. R. Crim. P. 3.370 provides that, once the jury is sworn, the Trial Court, at its discretion, may sequester the jury. The rule also allows the Trial Court, in capital cases, absent a showing of prejudice, to separate and then reconvene the jury at a fixed time between the first and second phases after submission of the case to the jury.