In the last post, we looked at errors in granting or denying a jury trial. Today we will look at preserving errors in jury selection.
Most of us are familiar with the jury-selection process. A group of prospective jurors is sworn to answer questions truthfully. Then the judge and the parties’ lawyers ask the prospective jurors questions about their qualifications and ability to serve on the jury and about their possible biases. After they are questioned, the judge and the lawyers convene outside the jury’s hearing to decide which prospective jurors to exclude. A juror may be challenged for cause, for one of the reasons listed in La. Code Civ. P. art. 1765. If the court denies the challenge for cause, one or the other party may exercise a peremptory challenge to exclude the juror. The process continues until the parties have run out of peremptory challenges and the requisite number of jurors has survived any challenges. See La. Code Civ. P. arts. 1762, 1763, and 1766.
A party who fails to challenge a particular juror for cause at trial cannot argue on appeal that the particular juror should have been excused for cause. Nichols v. U.S. Rentals, Inc., 556 So. 2d 600, 607 (La. App. 5 Cir. 1990); Dawson v. Mazda Motors of Am., Inc., 517 So. 2d 283 (La. App. 1 Cir. 1987).
Ordinarily a party need not give any reason for exercising a peremptory challenge. But under the U.S. Supreme Court’s decisions in Batson v. Kentucky and Edmonson v. Leesville Concrete Co., a party may not use peremptory challenges to exclude prospective jurors because of their race. In the criminal arena, the Louisiana Supreme Court has held that, to preserve the complaint of the prosecutor’s Batson violation, the defense must make an objection before the entire jury panel is sworn. State v. Williams, 524 So. 2d 746 (La. 1988). The court’s reasoning in Williams suggests that the same rule would apply in civil cases. The ruling on the Batson objection must be made when the trial judge can correct the error. Id. at 746. This purpose is defeated when the objection and ruling are deferred until after trial. See id. at 747 n. 4.
Of course, a party who fails to make a Batson objection at trial cannot raise the issue for the first time on appeal. See State v. Wilson, 524 So. 2d 1251, 1252 (La. App. 3 Cir. 1988); State v. President, 715 So. 2d 745, 753–54 (La. App. 3 Cir. 1998). Likewise, a party who raises a Batson objection but later acquiesces in the composition of the jury may be held to have waived the Batson issue for appeal. See Schexnayder v. Mathews, 898 So. 2d 616, 618 (La. App. 3 Cir. 2005).