TRIAL COURT DID NOT ERR IN GRANTING A NEW TRIAL BASED ON THE TRIAL COURT’S FAILURE TO ALLOW DEFENDANTS TO QUESTION SEVERAL MEMBERS OF THE VENIRE BEFORE THEY WERE EXCUSED FOR BIAS.
Irimi v. R.J. Reynolds, 43 Fla. L. Weekly D138 (Fla. 4th DCA January 10, 2018):
In this tobacco case, after the first round of questioning of the venire, the trial court advised the defense that he did not see how certain jurors could be rehabilitated. The defense agreed to that about some, but not about all of the potential jurors. Still, the court decided to excuse them.
The trial court then granted defendant’s motion for new trial, stating that it was error for him to eliminate 31 people without allowing defendant to attempt rehabilitation. The Fourth District deferred to the trial court’s unique perspective to reflect on its own decision, and agreed that a new trial was proper.
That said, the court said it disagreed with the tobacco defendants to the extent that their right to question the venire encompassed the use of that process to taint the entire venire.
The better procedure, the court noted, would have been to allow the defense to question the 31 venire members outside the presence of the entire venire once it became apparent that some or all of them might possess a bias that could not be undone. In that way, the court could ensure that biased members were excused without tainting the entire venire with the bias of those members.