The Preservation of Error During Voir Dire.

• Author: Rock, Daniel A.

The purpose of voir dire is to ensure that each case is tried by impartial and fair-minded members of the community. If there are errors in that process, counsel can ultimately argue for a new trial on appeal. The success of such arguments, however, often depends on whether the alleged error was properly preserved.

Few juries have been empaneled since the courthouses shut down due to the pandemic, but courts are beginning to reopen. The Workgroup on the Continuity of Court Operations and Proceedings During and After COVID-19 has put together standards to guide the legal industry back into jury trials, (1) and the Florida Supreme Court has authorized a pilot program for virtual jury trials. (2) Jurors will be back.

As courts get ready to restart the jury selection process, it is a good time for a refresher on protecting the right to select an impartial jury. In Part I of this article, the focus is on the preservation of error when challenging jurors during voir dire. Part II provides a glimpse inside issues that might arise in post-pandemic voir dire.

Preservation of Error When Challenging Prospective Jurors

Generally, the concept of preservation requires parties to raise issues in the trial court before they can claim error on appeal. (3) Its purpose is to notify the trial court about any perceived errors and provide an opportunity to correct the error at the earliest possible point in the proceedings. (4) Thus, before the appellate court will reverse the trial court's decision to exclude a juror during voir dire, it will look at whether the objection was properly raised below.

* Preserving Cause Challenges --After examining the prospective jurors, an attorney may challenge for cause any juror who appears unable or unwilling to impartially decide the case. (5) The trial court must then evaluate all of the questions posed to the juror and all of the juror's answers. (6) The test for sustaining a cause challenge is whether that juror can set aside any bias or prejudice and render a verdict solely on the evidence presented and the instructions on the law given by the court. (7) If there is any reasonable doubt about the juror having that state of mind, then the juror should be excused. (8) If it is a close call as to a juror's impartiality, any doubt should be resolved in favor of excusing the juror. (9)

To obtain a reversal based on the trial court's denial of a cause challenge, a party must go through multiple steps. First, a party must challenge the prospective juror for cause in a timely and specific manner. A challenge for cause should be made before the jury is sworn, or else it is waived. (10) Specificity is important because a challenge to a juror on appeal must have been the same challenge raised as to that juror at the trial court level. (11) Moreover, it is not necessarily enough if the trial court improperly denies a challenge for cause. To obtain a reversal on appeal, there must be prejudice. (12)

To that end, during voir dire, counsel must preserve for the record on appeal proof that the error was prejudicial. A party demonstrates prejudice in this context if it is forced to use a peremptory challenge on the juror who should have been excused for cause. (13) Specifically, a party must exhaust all of its remaining peremptory challenges, ask for additional peremptory challenges, and assuming that the court denies the request for additional challenges, identify a specific juror who would have been excused with the additional challenge. 14 The requirement that a party request additional peremptory challenges makes sense. If the court were to provide the objecting party with an additional peremptory challenge that could be used to strike the objectionable juror, then any error would be harmless. (15) Also note that the appellant must be able to demonstrate that the objectionable juror was actually seated on the jury and participated in the deliberations leading to a verdict--the challenged juror cannot merely be an alternate. (16)

Even then, there is one final step. It is necessary to renew any objections to the jury before it is sworn. If you do not renew an objection, it is presumed to be abandoned. (17) The Florida Supreme Court in Carratelli v. State, 961 So. 2d 312, 319 (Fla. 2007), explained that this rule is not intended to be a mere technicality:

[R]enewing an objection before the jury is sworn gives the trial court one last chance to correct a potential error and avoid a possible reversal on appeal. It also allows counsel to reconsider the prior objection once a jury panel has been selected. Without such a requirement, the defendant "could proceed to trial before a jury he unqualifiedly accepted, knowing that in the event of an unfavorable verdict, he would hold a trump card entitling him to a new trial." (18) This easily overlooked requirement is often decisive in the appellate court's preservation analysis. There are rare exceptions to these general preservation rules where counsel timely objects and the jury is sworn moments later. (19) However, the safer and best practice is to renew all prior objections and give the trial court a clear final opportunity to correct any errors before the jury is sworn. (20)

* Preserving Challenges to Peremptory Challenges--Peremptory challenges may be used at any time before the jury is sworn. (21) Thus, the parties may use a peremptory challenge to "backstrike" a juror who was previously accepted any time before that juror is sworn. (22) To preserve the denial of the right to backstrike, a party must voice an objection, but it must also attempt to use a remaining...