Voir dire necessities: the Florida Supreme Court clarifies when trial counsel's investigation of the venire must be undertaken.

• Author: Waldman, Glenn J.

It is axiomatic that absent an impartial jury, a fair jury trial--not necessarily a perfect jury trial--is impossible to achieve and will not result. In McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984), Justice Rehnquist, writing for the Supreme Court on this point, stated that:

[o]ne touchstone of a fair trial is an impartial trier of fact--"a jury capable and willing to decide the case solely on the evidence before it." citing Smith v. Phillips, 455 U.S. 209, 217,102 S.Ct. 940, 946, 71 L.Ed. 2d 78 (1982). Voir dire examination serves to protect that right by exposing possible biases, both known and unknown, on the part of potential jurors. Demonstrated bias in the responses to questions on voir dire may result in a juror being excused for cause; hints of bias not sufficient to warrant a challenge for cause may assist parties in exercising their peremptory challenges. The necessity of truthful answers by prospective jurors if this process is to serve its purpose is obvious. The Florida Supreme Court has long and similarly held that juror honesty and integrity during voir dire is an essential underpinning of the jury trial system. In Loftin v. Wilson, 67 So. 2d 185, 192 (Fla. 1953), the court, quoting Pearcy v. Michigan Mut. Life Ins. Co., 111 Ind. 59, 12 N.E. 98 (1887), held:

The examination of a juror on his voir dire has a two fold purpose, namely, to ascertain whether a cause for challenge exists, and to ascertain whether it is wise and expedient to exercise the right of peremptory challenge given to parties by the law. It is the duty of a juror to make full and truthful answers to such questions as are asked him, neither falsely stating any fact, nor concealing any material matter, since full knowledge of all material and relevant matters is essential to the fair and just exercise of the right to challenge either peremptorily or for cause. A juror who falsely misrepresents his interest or situation, or conceals a material fact relevant to the controversy, is guilty of misconduct, and such misconduct, is prejudicial to the party, for it impairs his right to challenge. With those precepts in mind, it is likewise obvious that where "a juror fails to reveal lawsuit participation," the juror is "not honestly perform[ing his] civic duty ...," and, in that circumstance, trial counsel's "[post-verdict] efforts to seek the truth" are entirely appropriate. Zequeira v. De La Rosa 627 So. 2d 531,534 (Fla. 3d DCA 1993); see also Dyer v. Calderon, 151 F.3d 970, 983 (9th Cir. 1998) (" [A] juror who lies his way into the jury room is not really a juror at all."). Trial counsel and their clients are entitled to assume, as they should, that a prospective juror will truthfully answer any and all questions posed by the court or by the parties' counsel. Wilcox v. Dulcom, 690 So. 2d 1365, 1367 (Fla. 3d DCA 1997) ("[I]t was reasonable for the [litigants] to expect the juror to answer the questions posed by the trial judge truthfully and completely."). But, when in the unfortunate and distasteful circumstance that a juror's lack of impartiality, honesty, and integrity becomes known (through a formal juror interview, public statements, or through other means), a new trial may be obtained, provided a three-pronged test is satisfied.

In De La Rosa v. Zequeira, 659 So. 2d 239, 241 (Fla. 1995), the Florida Supreme Court held that a party is entitled to a new trial as a matter of law upon a showing that: 1) a juror concealed information during voir dire; 2) the information concealed was relevant and material to the jury service in the case; and 3) the nondisclosure was not attributable to the complaining party's lack of diligence. While the basic right to challenge a juror based on his or her litigation history is basic to the jury trial right itself, Skiles v. Ryder Truck Lines, 267 So. 2d 379, 381 (Fla. 2d DCA 1972) ("When the right of challenge is lost or impaired [due to nondisclosure], the ... conditions and terms for setting up an authorized jury are not met."), a key question presented is when must the facts giving rise to the challenge be investigated. In other words, must the investigation commence before any...