Tuesday, March 25, 2014

Criminal Law: The End of the Biased Juror?

By Matt Luka

In September 2013, the Supreme Court of Florida confronted the practical “realties of human nature” that place potential jurors who express personal bias beyond rehabilitation through voir dire. See Matarranz v. State, ―So. 3d―, 2013 WL 5355117, *9 (Fla. 2013). The court recognized what many practitioners have long felt. “Any lawyer who has spent time in our courtrooms, whether civil or criminal, has experienced the frustration of prospective jurors expressing extreme bias against his or her client and then recanting upon expert questioning by the opposition, which generates such embarrassment as to produce a socially and politically correct recantation.” Id. at *15. To that end, the court determined that a juror’s assurances of impartiality after an announced prejudice “are neither determinative nor definitive” and are “questionable at best.” Id. at *9 (citations omitted).

After Matarranz, jurors who express fixed opinions and firmly held beliefs based on personal life experiences are considered essentially beyond rehabilitation. Id. at *10. The court found “preposterous” the notion “that ‘the human capacity for rational reflection’ is but a light switch that can be flipped on or off, and a trial court may thereby procure a juror who mere minutes before expressed unacceptable bias and partiality.” Id. at *13. To its credit, the court sought to redress firmly rooted ideas about the ability of jurors to put aside “unique biases, prejudices, predilections, predispositions and viewpoints.” Id. at *9. The court recognized that over time, “trial court discretion with regard to the removal of comprised jurors has at times become so broad that our courts have lost sight of the principles of law that undergird juror qualification determinations.” Id. at *10. 

However, the court did not entirely foreclose the possible rehabilitation of a juror. The court distinguished between jurors who hold biases rooted in life experiences or personal beliefs and those who merely express a misunderstanding of the law or judicial process. Id. at *10-11. The latter can be corrected through discussion with the court and attorneys, whereas the former cannot. Id.

Matarranz’s impact is significant, but the impact could be lost by failing to preserve jury selection errors for appellate review. Counsel should first object to a specific juror for cause. Id.  at *6. If the court overrules the objection, counsel should then exercise a peremptory challenge on the juror. Id. at *8 (reversible error for court to force a party to use peremptory challenge). Once peremptory challenges are exhausted, counsel must request additional peremptory challenges that are denied and identify a specific juror that he or she would have excused with the additional challenge. Id. at *7. Counsel is not required to list by specific name a second time the juror who should have been initially removed for cause but was not. Id. at *7. And, most importantly, counsel must renew the objection before the jury is sworn. Id. “Once counsel has noted that he or she would strike a specific juror for cause, and again renews the objection before the jury is sworn … a trial court [has] notice that counsel believes a juror has been retained in error … [and] a final opportunity to redress the situation.” Id. (citing Joiner v. State, 618 So. 2d 174, 176 (Fla. 1993)).