Personal Injury Corner
“Unstriking” A Potential Juror
by Ted Babbitt
In McCray v State, 41 Fla. L. Weekly
D1514 (Fla. 4th DCA 2016) the defendant
appealed a trial court’s refusal to allow
him to “unstrike” a juror upon whom he
had used his last preemptory strike so that
he could use that strike on another juror after the State had
accepted the panel. The trial court denied the motion to unstrike
the juror and the Fourth District affirmed. The Fourth District
reasoned that since the State had revealed its strategy to accept
the juror whom the defendant wished to unstrike, allowing the
defendant to change the complexion of the jury once the State’s
strategy had been revealed would have prejudiced the State.
The Court in McCray relied upon its holding in Davis v.
State, 922 So. 2d 454 (Fla. 4th DCA 2006). In Davis at 455 the
District Court held:
Although it is clearly reversible error to deny a
challenge to a juror when the defendant has not
exhausted all of his peremptory challenges prior to the
jury’s being sworn, that is not the case where, as here,
a party has exhausted all of its peremptory challenges.
Under the facts of this case, we cannot say that the
trial court erred in denying [the defendant’s] request to
withdraw a peremptory [strike] and then backstrike a
previously accepted juror.
The Court in McCray relied on Davis to affirm the trial
court’s refusal to allow an “unstrike” once the panel had been
accepted. At 1515 the Court held:
Similar to Davis, we cannot say here that the trial court
erred in denying the defendant’s motion to “unstrike”
Juror 2.5, upon whom he used his last peremptory
strike, so that he could use his last peremptory strike
on Juror 3.9. The reason is because, as in Davis, after
the defendant used his last peremptory strike on Juror
2.5, the state accepted the panel, thereby revealing
the state’s strategy to accept Juror 3.9. Allowing the
defendant to reveal the state’s strategy to accept Juror
3.9, and then allowing the defendant to “unstrike”
Juror 2.5 in order to strike Juror 3.9, would have
prejudiced the state. (emphasis in original).
some of the peremptory challenges on the theory that
juror Blanco, having been stricken by the State, would
not serve on the jury, then it would be understandable
if the defense had requested an additional peremptory
challenge to strike juror Blanco. In that circumstance,
we would have a different case. Juror Blanco was,
however, acceptable to the defense and the request
instead was to strike a different juror. The claim of
harm here was entirely speculative and the objection
was properly overruled. (emphasis in original).
Thus, in essence, the Third District permitted the State
to “unstrike” a juror in order to obtain a jury. Based upon the
apparent potential for a conflict between the holding in McCray
and the holding in McIntosh, the Fourth District certified
conflict to the Supreme Court.
The Fourth District was unpersuaded by McIntosh and
instead held that a party does not have a right to “unstrike” a
juror previously stricken in order to strike another juror once
the opposing party has accepted the jury. At 1516 the Fourth
District held:
While we recognize that when a defendant has
peremptory strikes remaining, “the courts of this state
have uniformly held... that a defendant has the right
to retract his acceptance and object to a juror at any
time before the jur[y] is sworn,” Dobek v. Ans, 475
So. 2d 1266, 1267 (Fla. 4th DCA 1985) (emphasis
added), we are aware of no authority holding that a
party, who has exhausted their peremptory strikes, has
the right to retract a peremptory strike in order to use a
peremptory strike on another juror after the other party
has revealed their jury selection strategy but before
the jury is sworn. To recognize such a holding would
disrupt what should be an otherwise orderly jury
selection process.
It will be interesting to see what the Supreme Court
does with this conflict but for now, “unstriking” a juror after
exhausting peremptory challenges is not permitted.
In McIntosh v. State, 743 So. 2d 155 (Fla. 3rd DCA
1999) there is arguably a contrary holding. In this case the
venire panel was exhausted with only 11 jurors selected for
a 12 person jury. In order to obtain a jury, the State indicated
a willingness to withdraw a previous peremptory strike and
the defendant objected stating that the defendant’s decisions
in utilizing all of its strikes was made, in part, based on the
assumption that that juror had been stricken by the state. The
defendant requested an additional strike to utilize against
another juror. The trial court refused to permit the defense to
have another preemptory challenge and instead allowed the
State to withdraw its preemptory challenge. The Third District
at 156 reasoned as follows
We find no abuse of discretion in the trial court’