PBCBA BAR BULLETINS MAY 2020 BULLETIN - Page 15

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. NOTE: BECAUSE A NUMBER OF PEOPLE HAVE REQUESTED COPIES OF PAST ARTICLES, A COMPILATION OF THESE ARTICLES IS NOW AVAILABLE TO MEMBERS OF THE PALM BEACH COUNTY BAR ASSOCIATION, FREE OF CHARGE, BY CALLING (561) 684-2500. Stay updated on all of our upcoming PBCBA events by visiting www. PalmBeachBar.org/calendar. Please note that event dates are subject to change. If an event is being displayed, it is still currently scheduled to take place on the event date listed on the advertisement or posting. Thank you to all of our Palm Beach County Bar Association Members for your continued support. PBCBA BAR BULLETIN 15