The Neil Inquiry: Navigating The Peremptory Process.

• Author: Reiter, Jack,Feldman, Sydney
• Date: 01 November 2023

Serving on a jury "constitutes the most direct way citizens participate in the application of our laws." (1) It is, thus, "self-evident" that discrimination--or even the appearance of discrimination--within the jury system is "reprehensible, since it is the complete antithesis of the court's reason for being to insure equality of treatment and evenhanded justice." (2) An individual's right to serve on a jury free from discrimination is embedded in the state and federal constitutions. As the U.S. Supreme Court has observed:

Racial discrimination in selection of jurors harms not only the accused
                whose life or liberty they are summoned to try. Competence to serve as
                a juror ultimately depends on an assessment of individual
                qualifications and ability impartially to consider evidence presented
                at trial. A person's race simply is unrelated to his fitness as a
                juror.... [T]herefore, the Court recognized that by denying a person
                participation in jury service on account of his race, the State
                unconstitutionally discriminated against the excluded juror. (3)
                

To protect this constitutional right, Florida courts have long recognized that a peremptory challenge must never be used in a way that precludes a prospective juror from serving based on his or her constitutionally-protected classification. (4) Historically, peremptory challenges allowed dismissal of a potential juror "based on no more than 'sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another.'" (5) In stark contrast to for-cause challenges, peremptory challenges could be used for any reason--or no reason at all. "Unfortunately," however, "the nature of the peremptory challenge makes it uniquely suited to masking discriminatory motives." (6) Where these interests are incompatible, "constitutional principles must prevail." (7)

Recognizing this principle, in 1984, the Florida Supreme Court in State v. Neil, 457 So. 2d 481 (Fla. 1984), held that peremptory challenges may not be used to exclude jurors based on their race, ethnicity, or gender. (8) This proclamation aligned Florida with then-nearly-century-old U.S. Supreme Court precedent holding that "the State denies a black defendant equal protection of the laws when it puts him on trial before a jury from which members of his race have been purposefully excluded." (9) As the Supreme Court later explained, its "decision laid the foundation for the Court's unceasing efforts to eradicate racial discrimination in the procedures used to select the venire from which individual jurors are drawn." (10)

In Neil, the Florida Supreme Court articulated a three-step process when a party suspects that the other side is using a strike impermissibly: 1) the objecting party must state its objection and establish that the potential juror is a member of a cognizable class; 2) the striking party must state a neutral (non-discriminatory) explanation for its strike; and 3) the objecting party must demonstrate that the explanation offered by the striking party is pre-textual or not genuine. (11) Throughout the process, the striking party is entitled to a presumption of nondiscrimination, and the objecting party bears the burden of proving purposeful discrimination.

In the nearly four decades since the court articulated this test, trial courts have not always applied it consistently. (12) The test has evolved and takes many names after its numerous iterations: It is most commonly referred to as the Neil inquiry, the Neil-Slappy inquiry, or the Melbourne inquiry. (13)

When faced with a Neil challenge, merely invoking a "gut feeling" about a potential juror, without further explanation or record support, will not pass constitutional muster. Thus, whether responding to a Neil objection or advancing one during voir dire, understanding the inquiry, each side's respective burdens, and how to preserve the issue is a critical first step.

The Neil Inquiry

* Step One--If a party suspects that the opposing side is using a peremptory strike in a discriminatory manner, the first step is to timely object, articulate that the venireperson is a member of a distinct, protected group, and request the court to ask the striking party to identify a non-discriminatory reason for the strike. (14) A simple objection and allegation of discrimination is sufficient: as the Florida Supreme Court has explained, for example, it is enough to say merely, "I object. The strike is racially motivated." (15) Notably, the objecting party does not need to be of the same race, gender, or ethnicity as the venireperson who is challenged. (16)

While step one is arguably the most straightforward of the three Neil stages, questions can still arise as to what groups are protected. The Florida Supreme Court has only expressly extended Neil's protections to challenges based on race, gender, and ethnicity. (17) But whether a juror is properly categorized as a member of a protected class is not always straightforward: The Florida Supreme Court has explained, for example, that a juror's surname, without more, is insufficient to demonstrate ethnicity or trigger a Neil inquiry. (18)

Moreover, whether religion is a cognizable class remains unanswered. (The Florida Supreme Court had an opportunity to elucidate the rule on this issue, on review from the Fourth District, but it declined to do so, finding that the objection was waived in the trial court). (19) Decisions from the Third and Fourth districts nevertheless provide insight: the Third District has answered this question in the affirmative, finding that a juror could not be stricken for being Jewish. (20) And the Fourth District--before its decision was quashed by the Florida Supreme Court--also found that members of the Jehovah's Witness religion were part of a cognizable, protected class. (21)

Regardless of whether religion, standing alone, is a protected class, it may also factor into analyzing whether a group is a protected "ethnicity." In Olibrices v. State, 929 So. 2d 1176, 1178 (Fla. 4th DCA 2006), the Fourth District sought to define "ethnicity"--in what it called "at least partially" an issue of first impression--when faced with an argument that "Pakistani" was not a cognizable class for purposes of a Neil inquiry.

The court examined whether the group's "culture, language, history[,... and] religion ma[d]e it...