whosE linE is it anyway: prEsErving Batson oBJEctions
Appellate Practice Section
Chairs:JoeEagleton–Brannock&HumphriesandChanceLyman–BuchananIngersoll&Rooney
the burden of
persuasion never
leaves the opponent
F
lorida appellate courts
have long strived to
assist trial judges and
litigators in “conforming
with article I, section 16, Florida
Constitution, and the equal
protection provisions of our state
and federal constitutions,” with
the laudable goal of eliminating
“discrimination in the exercise
of peremptory challenges.” 1
In Melbourne v. State, the supreme
court refined the procedure for
Batson 2 objections, with the proviso
that the right to an impartial jury
“is best safeguarded not by an
arcane maze of reversible error
traps, but by reason and common
sense.” 3 In Step 1, the opponent
of the peremptory challenge must
object, show the venireperson
belongs to a protected class,
request the court ask the proponent
its reason for the challenge. 4
In Step 2, the proponent must
provide a non-discriminatory
explanation. In Step 3, the court
must determine whether that
explanation is genuine; if it is, the
strike will be sustained. Critically,
the burden of persuasion never
leaves the opponent to prove
purposeful discrimination. The
opponent must renew the objection
before the jury is sworn. 5
Twenty years later, the Second
District provided a comprehensive
roadmap for preserving Melbourne
issues. 6 Addressing Step 3, the
24
to prove purposeful
discrimination.
Second District concluded that trial
courts do not have an “automatic
burden” to perform a genuineness
analysis every time an opponent
objects and the proponent provides
a facially neutral explanation. 7
To preserve the issue, the opponent
must expressly make a claim of
pretext, proffer circumstances
supporting the claim, and object
to deficiencies in the procedure.
Although it is “unquestionably the
better practice” for the trial court
to ask the opponent whether he or
she wishes to raise a genuineness
challenge and what circumstances
support the claim, the Second
District saw no reason to reverse
for the “drastic” new-trial remedy
when the trial court omits Step 3
without objection and the opponent
fails to ensure the record is adequate
for review. 8
A plurality of the Supreme
Court approved the Second
District’s decision but not its
analysis. 9 The plurality explained
that a trial court “has a duty to
perform the correct legal analysis
independent of trial counsel’s
duty.” 10 Below, the trial judge
performed this duty by requesting
a response from defense counsel
following the State’s purported
non-discriminatory explanation
and before ruling on genuineness.
The plurality found the issue
preserved but determined the trial
court did not err in overruling
the objection in light of defense
counsel’s failure to respond to
the State’s explanation. 11
Despite the disapproval of the
Second District’s preservation
analysis by a plurality of the
supreme court, the takeaway is
clear: litigants should ensure the
trial court proceeds through each
step of the Melbourne procedure
and confirm the record contains
the basis of the objection for
appellate review. n
Melbourne v. State, 679 So. 2d 759,
764 (Fla. 1996).
2 Batson v. Kentucky, 476 U.S. 79
(1986).
3 Melbourne, 679 So. 2d at 765.
4 Id. at 764.
5 Id. at 765.
6 Spencer v. State, 196 So. 3d 400
(Fla. 2d DCA 2016).
7 Id. at 401.
8 Id. at 407.
9 Spencer v. State, 238 So. 3d 708,
711 (Fla. 2018).
10 Id. at 716.
11 Id. at 717.
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Author: Chance Lyman - Buchanan
Ingersoll & Rooney PC
NOV - DEC 2019
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HCBA LAWYER