Florida Jury Selection: Preserving Error on Challenges for Cause

So you are in the midst of jury selection and a juror makes clear his or her inability to be fair to your client in your case. You jot down the statements wherein the juror announces this fact. Later, the Court asks for cause challenges. You read your notes to the Court, but the judge looks at you like you are from another planet. That is not what the juror said, and even if it is, says the trial judge, it is insufficient to strike the juror for cause. Motion denied. Your blood boils as you try to understand what is happening. You know that this juror cannot sit on this case. You are forced to use one of your three precious peremptory challenges. But you reassure yourself that you now have a free trial, the judge has committed reversible error. It is like an off sides penalty in football and you are the quarterback. You might as well throw the long ball because even if it is intercepted, the play is coming back and your team will get to play the down over. You have nothing to lose. Right? Not so fast... 

To properly preserve error during jury selection, a lot more has to happen other than the trial court making the wrong ruling. Florida law has developed a precise process for preserving error. You MUST follow each step or else the error is not preserved and you will not get the replay you are hoping for. 

Here are the steps: 

First, after a cause challenge is improperly denied, you must use a peremptory challenge on the juror who is the subject of the motion to strike. Second, you must exhaust your remaining peremptory challenges. Third, after exhausting your remaining challenges, you must ask the trial court for an additional peremptory (because you were forced to use a peremptory on a cause challenge that was improperly denied). Fourth, you must specifically identify the prospective juror on whom you would use the additional peremptory if it is given to you. Fifth, the court must deny your request for an additional peremptory. And finally, you must object to the jury before it is sworn, even if the trial court fails to ask you if you accept the jury. [Don't overlook this last step. It may seem counterintuitive to object again after all the objecting and arguing you have done to that point, but the appellate courts require one last objection to the jury, so be sure to repeat yourself that one last time. See, e.g., Millstein v. Mutual Security Life Ins. Co., 705 So.2d 639 (Fla. 3d DCA 1998).] 

Not as simple as the trial court making one incorrect ruling! If you plan to try cases to juries in Florida, you must commit the above steps to memory, and add the relevant case law to your trial notebook. The leading cases in Florida on this topic are Trotter v. State, 576 So. 2d 691 (Fla. 1990) and Joiner v. State, 618 So.2d 174 (Fla. 1993). Also, for cases specifically applying Trotter and Joiner in the civil context, see Couch v. Dunn Avenue Shell, Inc., 803 So.2d 803 (Fla. 1st DCA 2001) and Millstein v. Mutual Security Life Ins. Co., 705 So.2d 639 (Fla. 3d DCA 1998). Good luck in your next trial! 

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