Striking Potential Jurors Because They’re Men? North FL’s Highest Court Says No

April 20, 2026 Don Pumphrey, Jr. Criminal Defense Social Share

Florida’s 1st District Court of Appeal found a judge’s failure to evaluate the genuineness of the “gender-neutral” reasons for the State’s peremptory strikes on three male potential jurors during jury selection required reversal of the defendant’s convictions.

CASE: Tetreault v. State, 24 So.3d 1242 (Fla. 1st DCA 2009)

Charge(s): Sexual Battery, Lewd or Lascivious Molestation 

Outcome: Convictions REVERSED, as the judge failed to rule on the genuineness of the State’s “gender-neutral” reasons for peremptorily striking 4 male potential jurors.

Jury Selection in Florida

In Florida, jury selection (also known as voir dire) is a critical aspect of any criminal proceeding. During jury selection, each party to the case (e.g. the State and defense) are given the chance to question potential jurors (the venire) to determine if they will be able to fairly and impartially decide the case based on the evidence – or if their bias(es) may get in the way of this.

If a party to the case believes a potential juror is clearly biased and should not be serving on the jury as a result, they are likely to initiate a CAUSE CHALLENGE. A cause challenge occurs when the moving party argues to the trial judge that a potential juror should be excused for cause and explains why. 

Opposing counsel can either stipulate (agree), or reject the moving party’s argument and tell the judge why the potential juror should NOT be excused for cause. Examples of cases in which an experienced and aggressive Florida criminal defense attorney is likely to make a cause challenge to a potential juror include:

• A potential juror says they will “absolutely” hold a defendant’s silence against him if he decides not to testify
• A potential juror says they will value the testimony of law enforcement over all other witnesses
• A potential juror says they know the victim in the case and feel a tremendous sympathy for them

In the event that a trial judge hears a cause challenge of a potential juror, they have one of two options:

• Grant the cause challenge, sending the potential juror home (e.g. excusing them from further service)
• Deny the cause challenge, allowing the potential juror to remain seated in the venire (for now)

It is important to note that just because a potential juror indicates bias, this DOES NOT mean a cause challenge of that potential juror will automatically be granted. This is because they may be REHABILITATED by any party to the case (including the judge).

The objective of the rehabilitation process is to determine (via questioning) whether the potential juror can set aside their bias(es) and decide the case based on evidence and testimony – or if they are so “dug in” that they will be unable to truly do so. For more on rehabilitation, click here.

But even if a cause challenge is denied, this does not mean that the potential juror will inevitably be seated on the eventual jury. That’s because there is another form of “challenge” – peremptory challenges (usually referred to as “peremptory strikes”).

A peremptory strike occurs when a party to the case UNILATERALLY excuses a potential juror from service without having to justify this to the judge or opposing counsel. Most of the time, a peremptory strike goes unchallenged (e.g. there is no objection), and the potential juror is simply stricken and sent home.

Peremptory strikes, unlike cause challenges, are limited in number. Typically, both the State and defense are awarded THREE peremptory strikes in misdemeanor cases, SIX in non-capital and non-life felony cases, and TEN in capital/life felony cases. The trial judge has the discretion to award a requesting party one or more additional strikes. For more, click here.

Though peremptory strikes almost always occur without controversy, the discretion of a party to use one of these is not entirely unlimited. This is because the U.S. Supreme Court has made clear that a potential juror CANNOT be peremptorily stricken based on their 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)  

In the event that the opposing party (e.g. non-moving party) believes that a peremptory strike is being improperly exercised on this basis, they are likely to initiate a Neil challenge (otherwise known as a Neil inquiry). This involves the following three-step process:

• #1: The objecting party (e.g. the defense) announces they are performing a Neil challenge of the peremptory strike.
• #2: The State provides the trial judge a race-, sex-, or ethnicity-neutral reason (depending on the basis of the objection) for the peremptory strike
• #3: The trial judge either “buys” the State’s explanation (e.g. finds it is good-faith) and allows the strike – or finds the explanation is pretextual (e.g. B.S.) and denies the strike

It is important to note that when “Step 3” is reached (e.g. the trial judge rules on the validity or lack thereof) of the peremptory strike, they must explicitly or implicitly acknowledge why they find the “race-, sex-, or ethnicity-neutral” reason for the peremptory strike genuine (or not). If the trial judge fails to do so, this is REVERSIBLE ERROR if:

• The peremptory strikes are allowed to occur over the defense’s “Neil” objection, and
• The defendant objects to the composition of the jury before it is sworn

This principle was reinforced by Florida’s 1st District Court of Appeal (Tallahassee and North FL’s highest court) in a major case. There, the defendant was accused of sexual battery and lewd or lascivious molestation on a minor over 12, but under the age of 16.

During jury selection, the State moved to peremptorily strike three male jurors. Of the original 21 jurors in the venire, only 6 were male and 15 were female. The defense suspected the State was doing so because the State thought that female jurors would be more sympathetic to the alleged victim.

The defense initiated a challenge to the State’s strikes of the 3 male potential jurors, arguing that the State was attempting to send them home simply because they were men. The State provided a supposedly “sex-neutral” basis for each of the strikes (Step 2 of the Neil inquiry) for the judge to consider, but these were highly questionable.

The trial judge ultimately ruled for the State, allowing the peremptory strikes to occur. However, he FAILED to put his reasons for doing so on the record (e.g. did not engage in a “genuineness” analysis). The jury was ultimately sworn, and the defendant was tried and convicted.

Appealing to the 1st DCA, the defendant argued the judge’s failure to explain his justification for allowing the peremptory strikes was REVERSIBLE ERROR – requiring that he receive a new trial. The defendant cited Melbourne v. State, 679 So.2d 759 (Fla. 1996). 

The 1st DCA AGREED and REVERSED his convictions – remanding the matter to the lower court for a new trial. But why? Let’s take a look at the case – Tetreault v. State, 24 So.3d 1242 (Fla. 1st DCA 2009) – and discuss what it means for jury selection in Florida.

KEY CASE: Tetreault v. State, 24 So.3d 1242 (Fla. 1st DCA 2009)

In Tetreault, the defendant (Tetreault) was charged with sexual battery and lewd or lascivious molestation. He was convicted on all counts. During jury selection, the following occurred:

• A group of 21 jurors, 6 male and 15 female, were the original venire
• Originally, three men were slated to be picked for the jury (of six members)
• However, the State used peremptory strikes on all three male potential jurors
• The defense asked the State to provide gender-neutral reasons for 2 of the 3 strikes (Step 1 of the Neil inquiry)
• The State said that one was struck because he did not “contribute” to the voir dire – and the other was struck because State was uncomfortable with the fact that the potential juror “was a student, was not working, had worked with kids,” and more
• The trial judge immediately accepted the reasons for the strike as gender-neutral (“I’ll accept the State’s gender-reasons for gender-neutral selection.”)
• He DID NOT evaluate (pursuant to Step 3 of the Neil inquiry) if these justifications were genuine or pretextual (e.g. to hide the fact that the strike was truly being used on the basis of sex or gender)
• The jury was sworn (all-female) and the Tetreault was convicted

On appeal, Tetreault asserted that the judge’s failure to determine the genuineness of the State’s allegedly gender-neutral reason(s) for the peremptory strikes was reversible error. As the judge simply accepted the explanations without evaluating if they were legitimate or pretextual, there was potentially sex-based discrimination against men in the jury selection process.

The 1st DCA AGREED with Tetreault, REVERSING his convictions on this basis. Discussing the law surrounding challenges of peremptory strikes in Florida, the 1st DCA wrote:

“Florida follows a three-step procedure when one party objects to another’s use of a peremptory challenge on the basis of gender. See Melbourne v. State, 679 So.2d 759 (Fla.1996); Welch v. State, 992 So.2d 206 (Fla.2008). First, the objecting party must make a timely objection, requesting that the striking party provide its reason for the strike. Melbourne, 679 So.2d at 764. The defense made such objections here. Second, the burden shifts to the proponent of the strike to present a “gender-neutral explanation” for striking the disputed juror. Id. Here, the State responded with facially gender-neutral explanations for the use of the strikes. Third, the court must determine, given all the attendant circumstances, whether the proffered explanation is pretext for a discriminatory motive.”

Finding the judge’s failure to engage in a “genuineness” analysis on the record required reversal of Tetreault’s convictions as a matter of law, the 1st DCA concluded:

“Implicit in its allowance of peremptory strikes are findings that the explanations were genuine. See Fleming v. State, 825 So.2d 1027, 1029 (Fla. 1st DCA 2002) … In Simmons v. State, 940 So.2d 580 (Fla. 1st DCA 2006), however, this court held that the record did not indicate that the trial court reached the third step in the Melbourne analysis because when the defense challenged the prosecution’s reason for striking a potential juror, the trial court stated, “I will allow the challenge. That is a race-neutral reason. Whether or not we view it favorable for the State or favorable for the Defense, it is a race-neutral reason.” Simmons, 940 So.2d at 582. This court continued, “By focusing merely on the fact the State offered a seemingly race-neutral reason, and accepting that the prosecution’s reason for the strike may be solely for the benefit of the defense, it appears that the trial court bypassed the genuineness inquiry required in the Melbourne analysis.” 

“Like Simmons, the court below bypassed the third step in the Melbourne analysis and focused solely on the fact that the State’s reasons behind its peremptory strikes were gender-neutral. It did not make a finding, implicit or otherwise, that the gender-neutral reasons were genuine. Accordingly, because the record does not indicate that the trial court engaged in the required third step of the Melbourne analysis, we are required to reverse and remand for a new trial.”

In sum, Tetreault v. State, 24 So.3d 1242 (Fla. 1st DCA 2009) marks a major development in Florida’s corpus of case law surrounding discrimination in jury selection. The 1st DCA (North FL’s highest court) held that:

• The trial judge was required to evaluate not just whether the State’s justifications for their peremptory strikes (of 3 male jurors) were “gender-neutral,” but whether they were made in GOOD FAITH (e.g. genuine, not pretextual)
• The trial judge failed to do this, which was required as a matter of law when he simply accepted the State’s strikes after they offered a “gender-neutral” explanation for them
• This required REVERSAL of Tetreault’s convictions as a matter of law and a new trial in his case

Florida’s criminal defense community should take note of Tetreault v. State, 24 So.3d 1242 (Fla. 1st DCA 2009), as it makes clear that sex-based discrimination in jury selection – regardless of if it is against men or women – is impermissible.

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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