Burdick v. Little Switzerland Realty, Inc., No. CA 08-1445.
At the jury trial of this slip-and-fall case, Linda Burdick’s counsel questioned three potential jurors during voir dire. Each juror explained that he or she would likely be biased for defendants and could not state with certainty that he or she would follow the trial court’s instructions. Burdick’s counsel moved to strike the juror for cause, but the trial court refused. Counsel then used Burdick’s three peremptory strike to remove the potential jurors. The jury returned a verdict for defendants at the conclusion of the jury trial, with eleven of the jurors signing the verdict form.
On appeal, Burdick argued that the trial court erred in denying her motion to strike the prospective jurors for cause because they could not state they could set aside their impartiality. Even though potential jurors are presumed to be impartial, Burdick asserted that the jurors noted their inability to be impartial during trial. The Arkansas Court of Appeals disagreed that the trial court had abused its discretion in denying the motion to strike. The court further held, relying on U.S. v. Ortiz, 315 F.3d 873 (8th Cir. 2003), that the use of peremptory strikes does not establish actual prejudice. Accordingly, even if error did occur, it was harmless error and not a ground for reversal.
