avoidingdiscriMination: the‘ genuinenessinquiry’ forpereMptorychaLLenges
Diversity Committee
continuedfrompage28
strike’ s opponent to prove purposeful discrimination by the striking party. Id.
A strike survives an objection when the proponent articulates a genuine and facially neutral reason. Examples can include jurors’ nonverbal behavior such as inattentiveness or non-responsiveness, see Dean v. State, 703 So. 2d 1180, 1182( Fla. 3d DCA 1997), or hesitancy in answering questions, see Wynn v. State, 99 So. 3d 986, 990( Fla. 3d DCA 2012)( finding a strike race-neutral where a Haitian-American juror was hesitant in answering and two other Haitian-Americans were empaneled). Courts have likewise accepted peremptory strikes premised on a juror’ s background, experience, occupation, or beliefs. See Betancourt v. State, 650 So. 2d 1021, 1024( Fla. 3d DCA 1995)( finding a juror’ s prior service as
a foreman was a neutral reason such that the trial court abused its discretion by seating him); Carillo v. State, 962 So. 2d 1013, 1016( Fla. 3d DCA 2007)( allowing a peremptory strike where a juror questioned why the death penalty was not sought and said a convicted felon would be unreliable).
Carballo and Hernandez reinforce that denying a peremptory strike must be supported by the record, even where the judge believes the articulated reason to be pretextual. Supportive record evidence can include the venire’ s makeup, prior strikes against the same group, a reason equally applicable to an unstruck juror, or singling out a juror for special treatment. Melbourne, at 764, n. 8; Carballo, at 828. In Carballo, for instance, the court noted that the record might have supported the finding of pretext had an unchallenged juror shared the same prior-service trait, or in Hernandez, the State might have defeated the gender-neutral explanation by showing the defense retained male jurors with the same failure to understand the aspect of conflicting evidence, exposing why it was tolerated in men but not women. Hernandez, at 1179. Carballo and Hernandez emphasize that the objector bears the burden of persuasion; the proffered explanation by the challenger stands unless there is record support for pretext. n
Authors: Naomi Robertson & Samantha Archer – Butler Weihmuller Katz Craig LLP
HCBA Goes to the Rays
hcBahostedafun nightatthetampaBay rays, attendingagame onaugust15thagainst theBaltimoreorioles. themembersandtheirfamiliesthatattendedenjoyedagreatnightofbaseball, foodandcamaraderie.
N O V- D E C 2 0 2 6 | H C B A L A W Y E R
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