PBCBA BAR BULLETINS PBCBA Bulletin - February 2020 | Page 13

PERSONAL INJURY CORNER
Time Limits on Voir Dire
TED BABBITT
Three recent cases in the Fourth District Court
of Appeals indicate a negative attitude in the
appellate court for a trial judge’s arbitrary
time limitations on voir dire examination. In
Hopkins v. State , 223 So. 3d 285 (Fla. 4th DCA
2017), the trial court set an arbitrary time
limit of three hours for each side for voir dire
examination. At the end of the defense lawyer’s
three-hour limit, he asked for an additional
20 minutes to question each remaining juror
whom he had not been able to reach. Defense
counsel gave his reasoning and his areas
of probable examination and the trial court
denied the request. After a finding of guilty of
first-degree murder with a firearm, the defense
appealed the imposition as an unreasonable
time limitation on voir dire. The District Court
reversed and remanded for a new trial.
At Page 286, the appellate court held:
Trial courts have considerable discretion
in determining the extent of counsel’s
examination of prospective jurors. This
include setting time limitations on voir
dire. Perry v. State, 675 So. 2d 976, 979 (Fla.
4th DCA 1996). However, limits that do not
“flex with the circumstances” can result
in unreasonable curtailment of counsel’s
efforts to obtain a “fair and impartial jury
to try the issues in this cause. Williams,
424 So.2d at 149.
The appellate court found that given the large
jury pool and the very few minutes with each
juror and three-four time limit permitted
counsel, the trial court abused its discretion in
refusing to grant the relatively small additional
time that defense counsel had requested.
In Thomany v. State , 252 So. 3d 256 (Fla. 4th
DCA 2018), the Fourth District affirmed a
conviction for first degree murder under very
different circumstances than Hopkins v. State,
supra. There the appellate court found that
counsel’s questions were primarily intended
to plant seeds in the juror’s mind about the
defendant’s theory of the case and concluded
that such pre-trying of the case was not the
purpose of voir dire and was a waste of the
preallotted time. However, the appellate court
held at Page 257:
. . . despite the fact that defense counsel
could have
made better use of the allotted time, the
trial court should not read this opinion
as suggesting that inflexibility in the
amount of time provided for voir dire is
a wise path upon which to continue to
travel. that would be necessary to try this case
again.” The Fourth District took the dim
view of the trial court’s refusal to allow the
defense lawyer’s requested additional time
to examine jurors on voir dire and states at
Page 1237
Citing O’Hara v. State , 642 So. 2d 592 at 593-94
(Fla. 4th DCA 1994), the Fourth District in the
Thomany case held: Even though trial judges may question
prospective jurors, their role in jury
selection must not impair counsel’s
right and duty to question the venire.
A trial court abuses its discretion
when the imposition of unreasonable
time limitations or limitations on the
number of questions results in the loss
of this fundamental right.
In Strachan v. State, 279 So. 3d 1231 (Fla. 4th
DCA 2019), the Fourth District reached a
different result and reversed and remanded
for a new trial a conviction for aggravated
battery as a lesser included offense of
attempted first degree murder based on an
unreasonable limitation on a defendant’s
voir dire of potential jurors. Unlike the
Thomany case, the Fourth District held:
. . . here defense counsel’s voir dire
was primarily intended to elicit
useful information for potential cause
challenges or peremptory strakes.
In short, defense counsel used the
ultimately-allotted fifty-five minutes
very wisely.
The Fourth District found at Page 1236
[A] trial judge cannot question prospective
jurors on such crucial areas as the
presumption of innocence, the State’s
burden of proof, and the defendant’s right
not to testify, and then prevent counsel
from further examination under the
guise that it would be repetitive.
The Fourth District cited with approval
the above quoted finding in Thomany that
“inflexibility in the amount of time provided
for voir dire is a wise path upon which to
continue to travel” and then admonished
counsel for the State and the trial judge that
“any extension of time would have been far
less then the many hours which both sides
appellate counsel spent on this appeal, and
many days less than the amount of time
PBCBA BAR BULLETIN
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Citing O’Hara v. State , 642 So. 2d 592, 593-94
(Fla. 4th DCA 1994).
The right to an adequate voir dire
examination is a fundamental right in any
trial, criminal or civil. This writer has never
understood the necessity of any arbitrary
limitation on voir dire examination
including any pre-determined time limit.
The trial judge has every right to consider
cutting off a lawyer from voir dire when
time is wasted in an unnecessary lengthy
voir dire examination but limiting counsel
in advance to an arbitrary voir dire
examination appears to be an invitation
to retrying a case and the above appellate
decisions seem to suggest that such an
arbitrary limit is indeed unwise.
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 [phone].