An overview of current law impacting jury selection in civil cases.

• Author: Neiser, David D.
• Position: Florida

A proper voir dire examination should assist the parties in determining whether a prospective juror is subject to a peremptory or cause challenge. (1) It sounds pretty simple. However, for those who have had the pleasure of selecting a jury, the word "simple" never comes to mind.

For many lawyers, the process of "picking the jury" is the most stressful and uncomfortable part of a trial. It is not surprising that many lawyers find it difficult to lead a discussion on a variety of different topics with 20 to 40 strangers and, at the same time, analyze their strengths and weaknesses as potential jurors. Some of the topics can be very sensitive in nature. If you are the lawyer involved, questions floating around in your mind may include the following: "Is he hiding something?" "Does she hate me already?" "Is it hot in here or is it just me?"

To top it off, no sooner have you finished your questions and wiped the sweat from your brow when you hear the judge request your presence at the bench to "select the jury." You are then expected to immediately decipher and digest the chicken scratch notes you have just written and then clearly, softly, and succinctly communicate your challenges to the judge. Usually within earshot of the jury, it is here that the lawyer is granted the opportunity to "persuade by whisper."

Fortunately, there are books, tapes, and professional jury consultants available to assist lawyers with the jury interview process. This article does not discuss that part of voir dire. Rather, the purpose of this article is to discuss jury selection after the jury interview is completed -- the part that takes place in front of the judge and involves the use of peremptory or cause challenges. This article examines the current law on challenges for cause, peremptory challenges, and the logistics of it all.

Challenges for Cause

Generally, a juror must be excused for cause if there is any reasonable doubt as to whether the juror possesses an impartial state of mind. (2) Known as the reasonable doubt standard, a potential juror should be dismissed when he or she cannot lay aside any bias or prejudice and render a verdict based solely on the evidence presented and the law given by the court. (3) Close cases should be resolved in favor of excusing the juror rather than leaving any uncertainty about the impartiality of the prospective juror. (4)

In analyzing the extent of a juror's possible bias or prejudice, a general, abstract bias will usually not, by itself, disqualify a juror. This is particularly true when it appears that the bias can be set aside. For example, when a juror has a general negative feeling about personal injury lawsuits, and further states that he can set aside his feelings, a challenge for cause will usually be denied. (5) When, however, the negative feelings are tangible and specific in nature, then a dismissal for cause may be proper.

In Goldenberg v. Regional Import and Export, 674 So. 2d 761 (Fla. 4th DCA 1996), a prospective juror exhibited bias against automobile minor impact cases. The trial court noted that these feelings were directed toward a particular type of personal injury action and were based on experiences of the juror's father. Therefore, the juror was properly dismissed for cause. This decision was upheld on appeal, even though much effort was made by the nonobjecting party to "rehabilitate" the juror. On this point, the court noted that it is only human nature for jurors to think of themselves as fair-minded, and it is difficult for any person to admit that he or she is incapable of being able to judge fairly and impartially. A juror's statements that she is a "fair person" and "I think that I can be fair" are...