Back to the future: how Rodriguez v. Lagomasino got it right in 2008 and why modern voir dire should be guided by 1929's Johnson v. Reynolds.

• Author: Luhrsen, Jeffrey

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It is a fundamental (1) notion of the American legal system that all matters tried to a jury, both civil and criminal, (2) shall be heard by a panel of impartial jurors with no interest in the proceeding, who have formed no opinion about the matter being litigated, and who possess no bias or prejudice concerning any of the issues, parties, witnesses, or others involved in the litigation. Because it runs counter to human nature to be without any prejudice or bias, a juror will be deemed competent if he or she can lay aside any bias or prejudice and render a verdict solely upon the evidence presented and the instructions on the law. (3) In turn, under Florida civil and criminal procedure, a prospective juror who appears unable or unwilling to set aside any biases or prejudices upon initial inquiry on voir dire may be challenged for cause and, if the presiding judge finds after further questioning that the venire member cannot be "rehabilitated," the individual must be dismissed from the jury panel and replaced with another potential juror. (4)

Complicating the nobility of the pursuit of the unbiased juror is the reality that each litigant, while clearly intent upon ensuring that the jury will not be biased against their position, is not as determined to ensure that the jury will not be prejudiced in their favor. Added to that mix are the facts that the courts have said that parties have a right to rehabilitate potential jurors and that it is within the discretion of the trial court to determine whether a venire member is disqualified because of bias. (5) Taken together, it is readily apparent that the search for an impartial jury is not as straightforward as it should be.

The key to this logical and legal lock is found in both old and new precedent. First, the old. In reversing a judgment due to the failure of the trial court to sustain a challenge for cause in the 1929 case of Johnson v. Reynolds, 121 So. 793, 796 (Fla. 1929), the Supreme Court of Florida questioned the usefulness of rehabilitating a potential juror, observing:

[R]efinements and distinctions between "bias" and "prejudice" can serve no useful purpose in the administration of justice. If the proposed juror is affected by either state of mind, it cannot be said that he is fair-minded and impartial, and, if accepted as a juror, that he would be of that standard of impartiality which is necessary to prevent an impairment of the right to jury trial. It is difficult, if not impossible, to understand the reasoning which leads to the conclusion that a person stands free of bias or prejudice who having voluntarily and emphatically asserted its existence in his mind, in the next moment under skillful questioning declares his freedom from its influence. By what sort of principle is it to be determined that the last statement of the man is better and more worthy of belief than the former?

The Johnson v. Reynolds court got it right. While thorough follow-up questioning on voir dire can help in distinguishing between jurors who are truly biased from ones who may have been confused by initial inquiries, such questioning by the trial judge or counsel cannot "rehabilitate" a potential juror who is truly biased regarding any element of the suit. Only in those rare cases in which further questioning clarifies that a potential juror's apparent bias is not a true bias should a trial court find that a potential juror has been rehabilitated. Conversely, an initial finding of bias can never be overcome merely by a potential juror's statement that he or she can be fair or by an apparent change of mind. Those cases which hold otherwise, such as Whitby v. State, 933 So. 2d 557 (Fla. 3d DCA 2006), (6) are irreconcilable with the decision of the Florida Supreme Court in Johnson v. Reynolds.

In a very recent case, Rodriguez v. Lagomasino, 972 So. 2d 1050 (Fla. 3d DCA 2008), the Third District Court of Appeal reversed a defense verdict because the trial judge declined to strike two jurors for cause. During voir dire, one prospective juror said he would not favor either side and would be "in the middle," but his wife had been in an auto accident and his insurance company was doubling his premium. He was equivocal in his responses about fairness, blaming the insurance company, and he was not able to say unconditionally that he could lay aside his prejudice and base his verdict solely on the law and the evidence. Another venireman said he thought there should be caps on damages because of frivolous lawsuits. He said that he doubted his feelings about caps would play a role in this particular case but, like his colleague, he was not able to say unconditionally that he could lay aside his bias and base his decision only on the facts and the law.

The trial judge refused to strike the jurors for cause because he felt "they were rehabilitated." The Third District reversed based on the progeny of Johnson v. Reynolds, Florida's well settled "reasonable doubt" standard, discussed in Nash v. General Motors Corp., 734 So. 2d 437 (Fla. 3d DCA 1999), which held, "[W]hen any reasonable doubt exists as to whether a juror possesses the state of mind necessary to render an impartial verdict based solely on the evidence submitted and the instructions on the law given to [him or] her by the court, [he or] she should be excused."

The Rodriguez court reached the correct conclusion, but it could and should have cited and discussed the seminal case, Johnson v. Reynolds en route to applying the more recent decision in Nash because Johnson explains the rationale of refusing to allow dubious rehabilitation so well.

The Scope of Voir Dire

All of this begs the question, how do lawyers conduct voir dire in order to identify those jurors who should be challenged for cause? First of all, the process takes some time. Although trial judges exercise considerable discretion in determining the appropriate scope of voir dire, that discretion is abused when the court unreasonably limits a meaningful voir dire. For that reason, the trial court may not impose arbitrary time constraints on voir dire. (7) Although there is no minimum amount of time for voir dire in the rules, statutes, or cases, it is quite clear that the process will take several hours for a venire of 20-25 persons. It is an abuse of discretion to arbitrarily limit the time for voir dire when the questions are neither repetitive nor argumentative. (8)

"The purpose of voir dire is to ensure a fair and impartial jury. A trial court abuses its discretion when the imposition of unreasonable time limitations or limitations on the number of questions results in the loss of this fundamental right." (9) At a minimum, the parties must be allowed "to ascertain latent or concealed prejudgments by prospective jurors."10 It is also an abuse of discretion to terminate voir dire before counsel has had a fair opportunity to question all of the potential jurors individually. (11) Furthermore, parties may propound hypothetical questions on voir dire, provided the questions correctly refer to the law and aid in determining whether challenges are proper. (12) Additional matters that may be proper subjects of voir dire include:

* Jurors' feelings about a proposed legal theory. (13)

* Jurors' feelings concerning personal injury lawsuits and the award of non-economic damages, such as pain and suffering. (14)

* Jurors' bias or prejudice for or against insurance companies. (15)

* Jurors' views on recanted statements. (16)

* Jurors' understanding of the presumption of innocence, the state's burden of proof in criminal matters, and defendants' right not to testify. (17)

* Jurors' views on witnesses who accept plea bargains. (18)

* Jurors' assumptions concerning the testimony of police officers. (19)

* Jurors' feelings about the legal system based on their experiences or those of family members in other litigation. (20)

The Test for Juror Competency

"The test for determining juror competency is whether the juror can lay aside any bias or prejudice and render his [or her] verdict solely upon the evidence presented and the instructions on the law given to him [or her] by the court." (21) Generally, the decision whether to excuse a juror for cause involves a mixed question of law and fact, the resolution of which falls within the discretion of the trial court. (22) However, the trial court's discretion is not without limitation because the trial court must strike the potential juror if "'there is basis for any reasonable doubt' that the juror had 'that state of mind which w[ould] not enable him to render an impartial verdict based solely on the evidence submitted and the law announced at the trial.'" (23) Moreover, in exercising its discretion, the...