In the last few months, Florida has made significant strides in improving its jury system. Earlier this year, it enacted a law to allow jurors to take notes and ask questions, which I previously discussed here. Last week, the Florida Supreme Court upheld its peremptory challenge standard in Florida v. Whitby. The timing of Whitby could not be more apropos as the SCT is considering Snyder v. Louisiana, which I previously discussed here.
As most know, peremptory challenges may not be used to strike a prospective juror because of race or gender. Most state and federal courts follow a three part test to discover improper peremptory challenges: (1) the party contesting the exercise of the peremptory must make a prima facie showing that all or most of the venire members of a racial, ethnic, or gender group were peremptorily challenged by the opposing party; (2) the party then exercising the peremptory must offer a basis for striking the prospective juror that does not implicate one of the three prohibited bases (a very low standard); and (3) the party contesting the peremptory then must show purposeful discrimination, which is difficult to do. According to Justice Breyer, "the use of race-and gender based stereotypes in the jury selection process seems better organized and more systemized than ever before."
In contrast, Florida in Whitby upheld its state standard that only requires the lawyer challenging a peremptory strike to make a timely objection, show the prospective juror is a member of a distinct racial group and ask the judge to request that the other side provide a reason for the removal. Thus, it is much easier in Florida to ensure that neither party is basing their peremptory challenges on either race or gender.
Monday, February 11, 2008
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There is another plausible explanation for the action by the Florida Supreme Court in Whitby v. State. The Court had jurisdiction over the matter using Article 5, Section 3(b)(4) which authorizes the Court to hear certified questions of "great public importance". The majority in this case "denied review and discharged jurisdiction." The dissent indicates that the parties submitted briefs and the Court heard argument on the issue. This is accurate. It is conceivable that the Court reached the conclusion that they did not have jurisdiction as it was not a matter of "great public importance." Rather, that it was a matter that could come up on direct appeal if the issue became ripe. In any event, it is a stretch to say that it upheld its peremptory challenge standard.
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