“Unstriking” A Potential Juror

By Ted Babbitt
Published December 2016

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).

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’s seating of juror Blanco over defense objection.  If defense counsel predicated
the exercise of at least 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.

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