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September 28, 2005
THE DISCRIMINATORY EXERCISE OF PEREMPTORY CHALLENGES IN FLORIDA
January 2000
Richard C. Alvarez
Prospective jurors may be eliminated through challenges for cause or peremptory challenges. Challenges for cause are unlimited in number, subject to the court's approval, and defined by the rules of civil procedure. See Fla. R. Civ. P. 1.431(c). Peremptory challenges are limited typically to three per party and are subject to the court's review when discriminatory.
Peremptory challenges may be deemed discriminatory if they are directed towards prospective jurors of a cognizable class. Hall v. Daee, 602 So.2d 512 (Fla. 1992). A cognizable class is defined generally as a group of persons with a significant population and "an internal cohesiveness of attitudes, ideas, or experience" that are unique. State v. Alen, 616 So.2d 452, 454 (Fla. 1993). Cognizable classes have been identified in regards to race, gender and ethnicity.
For example, in State v. Slappy, 522 So.2d 18 (Fla. 1988), the Florida Supreme Court found that a party's peremptory challenges were used discriminatorily to exclude four black jurors who otherwise indicated an ability to serve fairly and impartially. Id. at 24. As noted by the court, "the striking of a single black juror for a racial reason violates the Equal Protection Clause, even where other black jurors are seated[.]" Id. at 21 (quoting U.S. v. Gordon, 817 F.2d 1538, 1541 (11th Cir. 1987)).
In J. E. B. v. Alabama, 511 U.S. 127 (1994), the United States Supreme Court held that "gender, like race, is an unconstitutional proxy for juror competence and impartiality." Id. at 129. "All persons, when granted the opportunity to serve on a jury, have the right not to be excluded summarily because of discriminatory and stereotypical presumptions that reflect and reinforce patters of historical discrimination." Id. at 141-42.
The Florida Supreme Court abided by similar principles in State v. Alen, 616 So.2d 452 (Fla. 1993), so as to extend the constitutional protection of prospective jurors and to prohibit the jurors' exclusion solely on the basis of ethnicity. Id. at 454. Under Florida law, ethnic groups constitute cognizable classes of persons regardless of distinctive subgroups or labels which may exist in their community. Id. at 455 (labels such as "Hispanic" or "Latin" do not preclude the recognition of persons of Spanish decent as a cognizable class). Id. at 455; see also Joseph v. Florida, 636 So.2d 777, 780 (Fla. 3rd DCA 1994)("Jews are a cognizable class under Alen.").
While the discriminatory use of peremptory challenges is not permitted, it may go unnoticed by the court and unpreserved for appellate purposes if an objection is not made timely. Peremptory challenges are presumptively nondiscriminatory. As a result, a party may overcome this presumption only by objection and then the identification of the pertinent jurors as members of a cognizable class. See State v. Johans, 613 So.2d 1319, 1322 (Fla. 1993). Once an objection of this nature has been made, the court must decide whether there is a substantial likelihood that the peremptory challenges have been exercised discriminatorily. See Neil v. State, 457 So.2d 481, 486 (Fla. 1984). If no such likelihood exists, no inquiry of the opposing party is conducted. Id. If such likelihood exists, a Neil inquiry is conducted. Id.at 486-87. A Neil inquiry essentially shifts the burden of production to the opposing party to show that it did not exercise the questioned challenges for discriminatory reasons. See Melbourne v. Florida, 679 So.2d 759, 764 (Fla. 1996).
Should the court determine that the challenges were discriminatory and such discrimination pervaded the process of voir dire, the court must dismiss the entire jury pool and start the process anew. Neil, 457 So.2d at 487 ("[I]f the party has actually been challenging prospective jurors solely on the basis of race, then the court should dismiss that jury pool and start voir dire over with a new pool."); but cf. Hall v. Daee, 602 So.2d 512, 515 (Fla. 1992)("Even where just one prospective black juror is struck for racially motivated reasons, a Neil violation has occurred."). Short of a pervasive effect, practicality and fairness to the objecting party suggest that a lone juror or few jurors who were stricken discriminatorily be returned to the jury panel.
In the event the court determines that a substantial likelihood of discrimination did not exist or that the challenge was not discriminatory after its Neil inquiry, objection must again be made. Failure to object prior to the swearing of the jurors constitutes a waiver for appellate purposes. See Watson v. Gulf Power Co., 695 So.2d 904, 905 (Fla. 1st DCA 1997); see also Mitchell v. State, 620 So.2d 1008, 1009 (Fla. 1993)("In order to preserve a Neil issue for review, it is necessary to call to the court's attention before the jury is sworn, by renewed motion or by accepting the jury subject to the earlier objection, the desire to preserve the issue.").
Posted by alvarezgarcia at September 28, 2005 04:30 PM
