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LEFTOVER PEREMPTORY STRIKES? NO PROBLEM ON APPEAL

Posted by Christina Cribbs
Kerry Stolte sued her dentist for medical malpractice after her lingual nerve was severed during a wisdom tooth extraction. The case proceeded to trial and during the jury selection process, Plaintiff moved to strike several jurors for cause because they either favored medical professionals or were biased against medical malpractice plaintiffs. For example, one juror stated that she would believe a doctor over a patient. When the trial judge denied Plaintiff’s request to strike the jurors for cause, Plaintiff used some of her peremptory strikes to remove the prospective jurors from the jury panel. At the close of trial and after two days of deliberation, the jury returned a defense verdict and Plaintiff appealed the case on several grounds.

Plaintiff argued before the Court of Appeals that the trial judge erred when he refused to strike four jurors for cause. Stolte v. Fagan, 311 Ga. App. 123 (2011). In this case, the prospective jurors were removed from the panel but Plaintiff essentially argued that the judge should have struck the jurors for cause rather than requiring Plaintiff to use peremptory strikes to remove the jurors from the panel. In response, the Court cited a well-known rule that a party can only challenge a trial judge’s failure to strike a prospective juror for cause if the party used all of its peremptory strikes during jury selection. E.g., Sheffield v. Lewis, 246 Ga. 19 (1980). Because a party could cure any potential harm caused by the judge by exhausting its peremptory strikes, the party had no grounds for appeal if it failed to use these strikes. In Stolte, the Court held that because Plaintiff did not show that she used all her peremptory strikes, she did not show any reversible harm.

The Georgia Supreme Court took up the case and handed down its opinion in September 2012. Stolte v. Fagan, 291 Ga. 477 (2012). The Court adopted a new rule for civil cases which had already been widely applied in criminal cases. The Court held that a party does not have to use all its peremptory strikes in order to appeal a trial judge’s decision not to strike a prospective juror for cause. In its analysis, the Court relied heavily on Harris v. State, a 1986 criminal case. 255 Ga. 464. The Harris decision explained that the use of peremptory strikes should not be considered on appeal when the court determines whether the failure to strike a juror for cause constituted harmful error. In Stolte, the Court reasoned that there was no reason to limit this fundamental rule to criminal cases. Parties in criminal and civil cases have the right to strike a jury from a panel of qualified jurors. Thus, the Court held that parties “are entitled to the removal of unqualified jurors before they begin exercising their peremptory strikes.” The fact that a party did not use all its peremptory strikes is not proof that a failure to strike for cause was harmless. Because the Court of Appeals considered the use of peremptory strikes when making its decision in Stolte, the Supreme Court reversed and remanded the case. The Supreme Court instructed the lower court to consider the merits of Plaintiff’s claims that the trial judge should have struck four jurors for cause but failed to do so.

While Stolte represents a significant change in the relationship between jury selection, peremptory strikes and appeals, the effects of the decision may not be widespread, given that parties generally exhaust all allotted peremptory strikes while choosing a jury panel.