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Stephanie Aquila v. Brisk Transportation, L.P., Case No. 4D12-4498 (4th DCA)

In Aquila, the jury returned a verdict for the defense, and the plaintiff appealed. The Fourth District found that none of the issues on appeal were properly preserved, but wrote to address the issue of backstriking in jury selection. During jury selection, the parties had accepted six jurors, one of who later, but prior to being sworn, said he could not serve based on a pre-paid vacation. The trial court dismissed the juror, and the parties later decided to move the first proposed alternate into the jury panel. The parties both wanted the right to backstrike jurors, and the trial court adamantly refused. Despite continuing to insist on the right to backstrike, the plaintiff never named a particular juror she intended to backstrike.

The Fourth District found that while the trial court erred in refusing to allow backstriking of the panel originally selected, the issue was not preserved. The court noted that in Tedder v. Video, the Florida Supreme Court held that “the right to the unfettered exercise of a peremptory challenge includes the right to view the panel as a whole before the jury was sworn.” “A trial judge may not selectively swear individual jurors prior to the opportunity of counsel to view as a whole the entire panel from which challenges are to be made.” A party may use an unused peremptory challenge at any time prior to the jury being sworn.

Tedder also provides how the error must be preserved. There, the party preserved the issue of backstriking on appeal by appropriate objections at trial and by the attempted use of their last peremptory challenge on one of the sworn jurors. By attempting to backstrike and not being allowed to use their peremptory challenge to do so, the party showed prejudice and the point was properly preserved for appeal. The point of requiring the opponent of the prohibition of backstriking to identify a juror on the panel upon which an available peremptory challenge would have been used, had backstriking been allowed, is to alert the trial court that the party is not satisfied with the panel as it stands. The trial court may assume that the parties are satisfied with the panel members unless it is advised that there is still an objectionable juror on the panel.


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