PERSONAL INJURY CORNER
PEREMPTORY CHALLENGE BASED
UPON RELIGION
TED BABBITT
In Pacchiana v. State, 240 So.3d 803 (Fla.
4th DCA 2018), the Fourth District held that
a peremptory strike based upon religion
was constitutionally impermissible. The
Supreme Court, in State v. Pacchiana, 45
Fla. L. Weekly (Fla. 2020), reversed on
the basis that the issue was not properly
preserved in the Trial Court.
During jury selection in a criminal case,
the prospective juror was both black and
indicated she was a Jehovah's Witness.
Defense counsel asked for a race neutral
reason for a peremptory challenge exercise
by the State, and the response was that
she was a Jehovah's Witness and that
they believe they cannot sit in judgment.
Defense counsel then complained that that
was a religious-based strike.
The landmark case on race based peremp-
tory challenges is Batson v. Kentucky 476
U.S. 79 (1986) in which the United States
Supreme Court held that the Equal Protec-
tion Clause prohibits race-based peremp-
tory challenges. That case did not relate
to peremptory challenges based upon reli-
gion. The Fourth District extended the Bat-
son reasoning to peremptory challenges
based on religion on the basis that religion
is a cognizable class that is also protected
under both the United States and Florida
Constitutions.
The Supreme Court
overruled the Fourth District on the basis
that objections to peremptory strikes
based on constitutionally impermissible
grounds require both a contemporaneous
objection to the strike and the renewal
of the objection before the jury is sworn.
In this case, the defense attorney's
contemporaneous strike was based only
on race and, thus, the objection based on
religion was not preserved. The defense
attorney did specifically object to the
State's strike of the prospective juror based
on being a Jehovah's Witness five days
after the prospective juror had already
been excused but before the jury was
sworn. Nevertheless, the Supreme Court
found that the religion-based objection
was untimely.
This case is important for two reasons.
First, the Fourth District's reasoning
concerning a religion-based strike is not
challenged in the Supreme Court. While the
Supreme Court did not decide that issue,
it is certainly something that should be
considered for any peremptory challenge
based upon religion.
In addition, the
procedure for preserving a strike is clearly
stated by the Supreme Court in this case
and recognizes both the contemporaneous
objection and a renewal of that objection at
the time the jury is to be sworn and both
must be made to preserve the issue for
appeal.
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PBCBA BAR BULLETIN
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