Major FL Court: Reversible Error for Judge to Prevent Questioning Jury About Entrapment Defense

March 5, 2026 Don Pumphrey, Jr. Criminal Defense Social Share

Case Summary

Florida’s 4th District Court of Appeal reversed a defendant’s conviction for cocaine trafficking after the trial judge “abused his discretion” by prohibiting the defendant’s lawyer from asking potential jurors if they would accept an entrapment defense.

• CASE: Walker v. State, 724 So.3d 1232 (Fla. 4th DCA 1999)
• Charge(s): Trafficking in Cocaine
• Outcome: Conviction reversed, as trial judge impermissibly prevented the defendant’s lawyer from asking potential jurors about whether they would accept an entrapment defense.

In Florida, jury selection (also known as voir dire) is a critical part of criminal proceedings. Jury selection allows both parties (State and defense) to evaluate which potential jurors are likely to be fair and impartial – and which potential jurors are more likely to allow preexisting biases to influence their verdict. For more, click here.

If a party to the case believes that a potential juror has made one or more comments in response to questioning, they are likely to “cause challenge” that potential juror. A cause challenge occurs when a party tells the trial judge why they wish for that potential juror to be excused (e.g. citing concerns about their fairness/impartiality). Cause challenges are unlimited in number.

Examples of cases where an experienced and aggressive Florida criminal defense attorney would likely move for a cause challenge of a potential juror include:

• The potential juror announces they know the victim in the case and expresses that they have sympathy for them
• The potential juror declares they will trust the testimony of law enforcement over every other witness
• The potential juror believes the defendant is guilty because of the fact that he’s sitting in the courtroom

Once a cause challenge is made, the trial judge can either grant it, excusing the potential juror from service, or deny it. If a cause challenge is denied, the challenging party is likely to move for a peremptory challenge (e.g. “peremptory strike”) of that potential juror.

Peremptory strikes occur when a party excuses a potential juror from service without having to justify why to the trial judge or the opposing party. Most of the time, a peremptory strike is used with “no questions asked.” If a party to the case does not like the hairdo of one of the potential jurors, a peremptory strike may be exercised.

This discretion is not totally unlimited, however. Parties to the case cannot use a peremptory strike against a potential juror on the basis of that juror’s race, sex or ethnicity. Batson v. Kentucky, 476 U.S. 79 (1986); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994)  

Unlike cause challenges, peremptory challenges (strikes) are not unlimited in number. Each party to the case in Florida receives 3 in misdemeanor cases, 6 in non-capital/life felony cases, and 10 in capital/life felony cases. For more, click here.

During jury selection, it can be helpful to categorize potential jurors by “emojis” – a smiling face when the potential juror is desirable, a frowning face if the potential juror should be a top priority to strike, and a “neutral” face if unsure.

Once the objectionable jurors have been identified (e.g. jurors that are a priority to challenge), it is useful to separate them into two buckets:

• Group “A” jurors: Jurors that are likely to be successfully cause-challenged (e.g. due to the fact that they have made one or more remarks indicating impartiality)
• Group “B” jurors: Jurors that are “suspect” (e.g. likely not defense-friendly), but have not said anything that provides clear support for a cause challenge

Just because a potential juror indicates bias at the start of questioning, this does not automatically serve as the basis for a cause challenge. The trial judge or either party to the case may attempt to “rehabilitate” that potential juror. If they can clearly set aside their bias and be fair and impartial, a cause challenge may be denied. Melendez v. State, 700 So.2d 791 (Fla. 4th DCA 1997)

Though attorneys are generally not permitted to talk about the facts of the specific case during jury selection, they may ask general questions about issues that are likely to be relevant at the trial – or questions to gauge how a potential juror generally “feels” about certain things. Some examples include:

• Do you believe someone has a right to defend themselves when they’re scared?
• Do you believe that just because the police say someone did something, they actually did it?
• Do you believe if someone testifies in their own defense, they are inherently less credible than other witnesses?

At times, an experienced and aggressive Florida criminal defense attorney may attempt to ask potential jurors about a defense they are likely to rely upon. One such defense, depending on the facts of a case, is entrapment (e.g. if law enforcement was involved in “making a crime happen”) For more on entrapment, click here.

In one case involving alleged cocaine trafficking, a defense attorney attempted to ask potential jurors whether they were willing to “accept” (e.g. consider) a defense of entrapment – or if the allegation that law enforcement was involved in orchestrating the offense would automatically be dismissed by them. 

This was because the defendant intended to rely upon an entrapment defense. However, the trial judge cut off the attorney and instructed him that he was not permitted to question the potential jurors on the specific issues of whether they would consider an entrapment defense (or reject it outright).

The defendant was convicted and appealed to the 4th DCA, arguing that the trial judge erred by refusing to allow his attorney to question the jurors on entrapment. The 4th DCA agreed – and reversed the defendant’s conviction.

Let’s take a look at that case – Walker v. State, 724 So.3d 1232 (Fla. 4th DCA 1999) – and what it means for defendants concerned about jury selection when objective or subjective entrapment may be argued.

KEY CASE: Walker v. State, 724 So.3d 1232 (Fla. 4th DCA 1999)

In Walker, the defendant (Walker) was charged with and convicted of trafficking in cocaine and conspiracy to traffic in cocaine. The charges arose from a sting operation (e.g. law enforcement was involved in the drug transaction directly or through a confidential informant).

During jury selection, Walker’s attorney began to ask potential jurors about their understanding of what entrapment was under Florida law. This was permitted by the trial judge.

But when Walker’s attorney attempted to ask potential jurors if they would accept (e.g. consider) an entrapment defense if it was argued, the trial judge stopped him. The trial judge reasoned that the line of questioning “stepped over the line” (e.g. got into the facts of the case). 

Appealing his convictions, Walker argued that the trial judge erred as a matter of law in limiting the scope of voir dire in the manner he did. Walker asserted that his attorney did not try to ask potential jurors if they would believe or disbelieve the defendant based on the facts of the case – he asked them whether they would accept or outright reject an entrapment defense.

Because this questioning was “fair game” to ensure his jury was impartial (given Walker argued he was entrapped), he urged the 4th DCA to reverse his convictions and grant him a new trial. The 4th DCA agreed with Walker, writing:

“During the voir dire, the trial court abused its discretion in precluding defense counsel from fully inquiring of the jurors as to their understanding and their opinions as to the defense of entrapment. See Franqui v. State, 699 So.2d 1312, 1322 (Fla.1997). This case is controlled by Lavado v. State, 492 So.2d 1322 (Fla.1986), wherein the Florida Supreme Court held that the appellant was denied his right to a fair and impartial jury when the trial court improperly restricted defense counsel’s questioning on voir dire.”

“What is a meaningful voir dire which will satisfy the constitutional imperative of a fair and impartial jury depends on the issues in the case to be tried. The scope of voir dire therefore “should be so varied and elaborated as the circumstances surrounding the juror under examination in relation to the case on trial would seem to require …” (citations omitted). Thus, where a juror’s attitude about a particular legal doctrine (in the words of the trial court, “the law”) is essential to a determination of whether challenges for cause or peremptory challenges are to be made, it is well settled that the scope of the voir dire properly includes questions about and references to that legal doctrine even if stated in the form of hypothetical questions.”

As the trial judge prevented Walker’s attorney from asking “hypothetical questions” and making references to a legal doctrine (e.g. entrapment) that was at issue in the case during jury selection, a new trial was required in Walker’s case:

“In this case, it is evident from the record that although defense counsel was permitted to inquire as to the jurors’ understanding of the term entrapment in its ordinary sense, he was precluded from inquiring as to whether they were willing to accept that defense. As such questioning did not rise to a level of pretrying the facts or attempting to elicit a promise from the jurors as to how they would weigh that defense, the trial court’s denial of a proper inquiry denied appellant his constitutionally guaranteed right to a fair and impartial jury. … REVERSED AND REMANDED.”

Put simply, the 4th DCA found the judge unnecessarily restricted Walker’s ability to question the potential jurors, infringing upon his right to a fair and impartial jury. This required reversal of his convictions and a new trial.

In sum, Walker v. State, 724 So.3d 1232 (Fla. 4th DCA 1999) marks a significant development in Florida’s corpus of case law on jury selection (voir dire) and questioning potential jurors about entrapment. The 4th DCA held that:

• Walker’s attorney attempted to ask the potential jurors general questions about whether they would accept or outright reject an entrapment defense
• He was not attempting to get potential jurors to “promise” an outcome and did not tell them about the facts of the case
• Because the trial judge prevented this permissible questioning from occurring, Walker’s right to a fair and impartial jury was violated (since he argued entrapment at trial)
• As a result, his convictions were reversed and he received a new trial 

Florida’s criminal defense community should take note of Walker v. State, 724 So.3d 1232 (Fla. 4th DCA 1999), as it makes clear trial judges cannot outright prevent a defense attorney from asking potential jurors about their feelings towards an entrapment defense during jury selection.

If someone is arrested and formally charged in Florida and concerned about jury selection, it is critical to find experienced and trusted legal representation as soon as possible. This decision could make the difference in whether or not someone faces a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting criminal charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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