Preservation of Error Occurring During Voir Dire

October 31, 2019 by on News

This article is one in a continuing series that will focus on preservation of error for appeal. Each month, Boyd & Jenerette’s appellate attorneys will analyze a specific topic and advise how to properly preserve any issues or arguments for appeal.

If you have any questions about a topic, would like to discuss any article, or would like to refer a case, please feel free to reach out to our appellate attorneys. We would also be happy to provide continuing education courses on any of the topics to adjusters or attorneys.


Trial errors generally must be properly preserved for appellate review; otherwise they are subject only to “fundamental error” review, which is significantly more difficult to overcome.  See, e.g., Carratelli v. State, 961 So. 2d 312, 318 (Fla. 2007) (“On direct appeal, to obtain a new trial a defendant alleging the erroneous denial of a cause challenge must show only that preserved error occurred.”); see also, Kendle v. State, 255 So. 3d 400 (Fla. 3d DCA 2018) (“Unpreserved challenges regarding comments made during voir dire, on the other hand, are reviewed for fundamental error.”).  The Florida Supreme Court explained in Aills v. Boemi that:

Proper preservation of error for appellate review generally requires three components.  First, the party must make a timely, contemporaneous objection at the time of the alleged error.  Second, the party must state a legal ground for that objection.  Third, in order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.

29 So. 3d 1105, 1108 (Fla. 2010) (internal quotations, citations, and alteration omitted).  The Court continued that “[w]hile no magic words are required to make a proper objection, we reiterate here that the concern articulated in the objection must be sufficiently specific to inform the court of the perceived error.”  Id. at 1109.

Errors in jury selection are no exception to this preservation requirement.  “The purpose of voir dire is to secure an impartial jury.”  Judah v. State, 654 So. 2d 994, 997 (Fla. 1st DCA 1995).  To that end, objections to the jury selection process or individual jurors must be preserved by (1) contemporaneous objection and (2) renewing the objection prior to the jury having been sworn; such objections should also be raised post-trial by way of a motion for new trial.  In addition, “to preserve challenges for cause to prospective jurors, the objecting party must object to the jurors, show that he or she has exhausted all peremptory challenges and requested more that were denied, and identify a specific juror that he or she would have excused if possible.”  Sanchez v. GEICO Indem. Co., 44 Fla. L. Weekly D 1870 (Fla. 1st DCA July 22, 2019) (alterations and internal quotations omitted) (quoting Matarranz v. State, 133 So. 3d 473, 482 (Fla. 2013)).

The Fifth District’s opinion in Szymanski v. Cardiovascular Assocs. of Lake Cty., P.A., provides an example in which the plaintiff’s counsel followed the correct procedure to preserve for appellate review an error in the jury selection process itself.  62 So. 3d 649 (Fla. 5th DCA 2011).  Counsel contemporaneously objected to the court’s utilization of an illegal procedure for back-striking potential jurors, explained the basis for the objection, but followed the court’s ruling against him.  Before the jury was sworn, he renewed his objection, but again abided by the court’s ruling against him.  After a verdict was rendered against his client, he filed a motion for new trial arguing, in part, that the jury selection process was improper, and again abided by the court’s ruling against him.  The Fifth District ultimately agreed that an improper process had been employed to select the jury, reversed the jury verdict, and remanded the case for a new trial.

However, failure to properly preserve the trial court’s error is often devastating on appeal.  For example, in Milstein v. Mutual Sec. Life Ins. Co., the Third District held that a trial court’s erroneous denial of the plaintiff’s cause challenge to a juror and subsequent denial of his resultant request for an additional peremptory challenge was unreviewable because counsel failed to renew his objection prior to the jury having been sworn.  705 So. 2d 639 (Fla. 3d DCA 1998).  The court reasoned that precedent made clear that “it is a severe step to overturn an otherwise error-free trial based solely on a jury selection error” and that “the claimed error [must] be called to the trial court’s attention once more prior to the swearing of the jury, so that the court will be made aware that the objecting party is insisting on the objection, and so that the court will have a last clear chance to take corrective action if needed.”  Id. at 640.  It also explained that such reasoning is “applicable to jury selection generally,” and has been applied to a wide range of jury selection issues. Id.

Proper preservation of error is crucial to success on appeal.  Fully-explained, contemporaneous objection to error, and renewal of any objections prior to the jury having been sworn, will ensure that it can be reviewed and corrected on appeal.  If the need arises, our appellate practice group is always available to provide advice regarding preservation of error.

If you have any questions about this article, preservation of error, or would like to refer a matter, please contact our appellate attorneys.

Ian E. Waldick
Direct: 904.520.7803

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