The Litigant’s Absolute Right to Backstrike Until the Panel is Sworn

While the law on backstriking has been settled for over three decades, some judges still resist the right of a party to exercise unused peremptory challenges against members of the panel after conditionally accepting the panel and moving to the selection of alternates. Any practice, including piecemeal swearing-in of the jury panel, which seeks to limit or impair a party’s ability to backstrike (including with the opportunity to “view as a whole the entire panel from which challenges are to be made”) is improper and impermissible. Tedder v. Video Electronics, Inc., 491 So. 2d 533, 535 (Fla. 1986); Florida Rule of Civil Procedure 1.431(f).

The prohibition against the piecemeal swearing of jurors also prohibits the swearing of the jurors selected to serve on the main panel prior to the selection of alternates. In the case of Szymanski v. Cardiovascular Assocs. of Lake County, P.A., 62 So. 3d 649 (Fla. 5th DCA 2011), the Fifth District Court of Appeal reversed a trial judge who compelled a litigant to choose between having the first 6 jurors sworn before proceeding to the selection of alternates or waiving the right to backstrike during the process of selecting alternates. The Fifth District wrote:

Here, at Appellee’s instance, the court adopted a procedure that deprived Appellants of a valuable right by offering them only two choices, neither of which was proper. One of these choices required Appellants not to exercise a challenge of any of the first six jurors. The other required a piecemeal swearing of the jury. While objecting volubly and consistently, Appellants did as was required by the court by selecting one of the only two objectionable options they were given…

Szymanski v. Cardiovascular Assocs. of Lake Cty., P.A., 62 So. 3d 649, 655 (Fla. 5th DCA 2011)

A party’s right to backstrike against the main panel before the jurors are sworn is absolute even if alternate strikes have been used during the selection of alternates for the jury. Lottimer v. N. Broward Hosp. Dist., 889 So. 2d 165, 167 (Fla. 4th DCA 2004) (“A party may exercise an unused peremptory challenge at any time prior to the jury being sworn. This is so even if the main panel has been accepted, the parties are selecting alternates, and one party chooses to exercise an unused peremptory to a juror on the main panel.”). The right to backstrike at any time and with a view of the panel as a whole also precluded a trial court from forcing a party with two remaining peremptory challenges to choose between not exercising a backstrike or accepting the removal of the individual sought to be stricken contingent upon the replacement of that individual with the first selected alternate. Van Sickle v. Zimmer, 807 So. 2d 182 (Fla. 2d DCA 2002).

In order to preserve appellate review of a trial court’s failure to permit the use of an available peremptory challenge as a backstrike, the party must identify the prospective juror sought to be stricken and assert or re-assert the party’s objection to the panel prior to the swearing of the jury. Aquila v. Brisk Transp., L.P., 170 So. 3d 924 (Fla. 4th DCA 2015).