BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair S 2013-2014 Regular Session B 7 9 4 SB 794 (Evans) As Amended April 8, 2013 Hearing date: April 30, 2013 Code of Civil Procedure MK:jr JURIES: CRIMINAL TRIALS PEREMPTORY CHALLENGES HISTORY Source: California Judges Association Prior Legislation: AB 1557 (Feuer) 2007 AB 886 (Morrow) 1997-98, never heard by Assembly Judiciary AB 2003 (Goldsmith) 1996, Failed Assembly Floor AB 2060 (Bowen) 1996 never heard by Assembly Judiciary Support: Unknown Opposition:California District Attorneys Association; The California Public Defenders Association; Taxpayers for Improving Public Safety; California Attorneys for Criminal Justice KEY ISSUES SHOULD THE NUMBER OF PEREMPTORY CHALLENGES IN A MISDEMEANOR (More) SB 794 (Evans) Page 2 PUNISHABLE BETWEEN 90 DAYS AND ONE YEAR BE REDUCED FROM 10 TO 5 AND THE NUMBER OF EXTRA PEREMPTORIES WHEN DEFENDANTS ARE TRIED JOINTLY BE REDUCED FROM 5 TO 2? SHOULD THE NUMBER OF PEREMPTORY CHALLENGES IN A MISDEMEANOR PUNISHABLE BY 90 DAYS OR LESS BE REDUCED FROM 6 TO 5 AND THE NUMBER OF EXTRA PEREMPTORIES WHEN DEFENDANTS ARE TRIED JOINTLY BE REDUCDED FROM 4 TO 2? PURPOSE The purpose of this bill is to reduce the number of peremptory challenges the prosecution and defense get in misdemeanor trials. Existing law permits challenges to jurors under the following provisions A want of any of the qualifications prescribed by this code to render a person competent as a juror. The existence of any incapacity which satisfies the court that the challenged person is incapable of performing the duties of a juror in the particular action without prejudice to the substantial rights of the challenging party. (Code of Civil Procedure 228.) A peremptory challenge exercised by a party to the action. (Code of Civil Procedure Section 225(b)) Existing law specifies a challenge for cause based upon bias may be taken for one or more of the following causes: Consanguinity or affinity within the fourth degree to any party or to any alleged witness or victim in the case at bar. Having the following relationships with a party: parent, spouse, child, guardian, ward, conservator, employer, (More) SB 794 (Evans) Page 3 employee, landlord, tenant, debtor, creditor, business partners, surety, attorney, and client. Having served or participated as a juror, witness, or participant in previous litigation involving one of the parties. Having an interest in the outcome of the event or action. Having an unqualified opinion or belief as to the merits of the action founded on knowledge of its material facts or of some of them. The existence of a state of mind in the juror evincing enmity against, or bias towards, either party. That the juror is party to an action pending in the court for which he or she is drawn and which action is set for trial before the panel of which the juror is a member. If the offense charged is punishable with death, the entertaining of such conscientious opinions as would preclude the juror finding the defendant guilty; in which case the juror may neither be permitted nor compelled to serve. (Code of Civil Procedure § 229) Existing law permits each party (prosecution and defense) in criminal cases 10 peremptory challenges. There are an additional five peremptory challenges in criminal matters to each defendant and five additional challenges, per defendant, to the prosecution when defendants are jointly charged. (Code of Civil Procedure §231(a).) Existing law specifies 20 peremptory challenges per party in criminal matters when the offenses charged are punishable with death, or life in prison. There are an additional five peremptory challenges in criminal matters to each defendant and five additional challenges, per defendant, to the prosecution when defendants are jointly charged. (Code of Civil Procedure (More) SB 794 (Evans) Page 4 Section 231(a).) Existing law allows parties in criminal matters punishable with a maximum term of imprisonment of 90 days or less six peremptory challenges each. When two or more defendants are jointly tried, their challenges shall be exercised jointly, but each defendant shall be also entitled to two additional challenges which may be exercised separately, and the state shall also be entitled to additional challenges equal to the number of all the additional separate challenges allowed to the defendants. (Code of Civil Procedure §231(b).) This bill provides that in any criminal case where the offense is punishable with a maximum term of imprisonment of one year or less, the defendant is entitled to five preemptory challenges. If two or more defendants are jointly tried each defendant shall also be entitled to two additional challenges which may be exercised separately, and the state shall also be entitled to additional challenges equal to the number of all the additional separate challenges allowed the defendants. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION For the last several years, severe overcrowding in California's prisons has been the focus of evolving and expensive litigation relating to conditions of confinement. On May 23, 2011, the United States Supreme Court ordered California to reduce its prison population to 137.5 percent of design capacity within two years from the date of its ruling, subject to the right of the state to seek modifications in appropriate circumstances. Beginning in early 2007, Senate leadership initiated a policy to hold legislative proposals which could further aggravate the prison overcrowding crisis through new or expanded felony prosecutions. Under the resulting policy known as "ROCA" (which stands for "Receivership/ Overcrowding Crisis Aggravation"), the Committee held measures which created a new felony, expanded the scope or penalty of an existing felony, or otherwise increased the application of a felony in a manner which could exacerbate (More) SB 794 (Evans) Page 5 the prison overcrowding crisis. Under these principles, ROCA was applied as a content-neutral, provisional measure necessary to ensure that the Legislature did not erode progress towards reducing prison overcrowding by passing legislation which would increase the prison population. ROCA necessitated many hard and difficult decisions for the Committee. In January of 2013, just over a year after the enactment of the historic Public Safety Realignment Act of 2011, the State of California filed court documents seeking to vacate or modify the federal court order issued by the Three-Judge Court three years earlier to reduce the state's prison population to 137.5 percent of design capacity. The State submitted in part that the, ". . . population in the State's 33 prisons has been reduced by over 24,000 inmates since October 2011 when public safety realignment went into effect, by more than 36,000 inmates compared to the 2008 population . . . , and by nearly 42,000 inmates since 2006 . . . ." Plaintiffs, who opposed the state's motion, argue in part that, "California prisons, which currently average 150% of capacity, and reach as high as 185% of capacity at one prison, continue to deliver health care that is constitutionally deficient." In an order dated January 29, 2013, the federal court granted the state a six-month extension to achieve the 137.5 % prisoner population cap by December 31st of this year. In an order dated April 11, 2013, the Three-Judge Court denied the state's motions, and ordered the state of California to "immediately take all steps necessary to comply with this Court's . . . Order . . . requiring defendants to reduce overall prison population to 137.5% design capacity by December 31, 2013." The ongoing litigation indicates that prison capacity and related issues concerning conditions of confinement remain unresolved. However, in light of the real gains in reducing the prison population that have been made, although even greater reductions are required by the court, the Committee will review each ROCA bill with more flexible consideration. The following questions will inform this consideration: (More) SB 794 (Evans) Page 6 whether a measure erodes realignment; whether a measure addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction; whether a bill corrects a constitutional infirmity or legislative drafting error; whether a measure proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy; and whether a bill addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy. COMMENTS 1. Need for the Bill According to the author: SB 794 seeks to increase efficiency in the jury selection process and to potentially save the state millions of dollars by reducing the number of peremptory challenges allotted to both the prosecution and the defense. Current law requires that in criminal cases, if the offense charged is punishable by death, or with imprisonment in state prison for life, the defense and the prosecution are entitled to 20 peremptory challenges. Additionally, under current law, subject to exceptions, the defense and the prosecution are each entitled to 10 peremptory challenges in criminal misdemeanor cases. The number of peremptory challenges mandated under California law consistently ranks among the highest in the country in all categories. In misdemeanor cases, the majority of states allot half the amount of those required in California. SB 794 would reduce the number of peremptory challenges (More) SB 794 (Evans) Page 7 allotted to both the prosecution and the defense, in misdemeanor cases, from 10 to 5. 2. The Jury Selection Process The current jury selection process permits the parties to remove jurors from the panel in a criminal case by exercising both challenges for "cause" and "peremptory" challenges. These challenges are made during the voir dire phase of the trial, during which the court, with the assistance of the attorneys, inquires of the prospective jurors to determine the suitability of individuals to render a fair judgment about the facts of the case. At the commencement of voir dire, the jurors are asked to reveal any facts which may show they have a disqualification (such as hearing loss) or a relationship with one of the parties or witnesses. Some of these facts (such as employment by one of the parties) may amount to an "implied" bias which causes the juror to be excused from service. Other facts (such as having read about the case in the newspapers) may lead to questioning of the juror to establish whether an actual bias exists. A party usually demonstrates that a juror has an actual bias by eliciting views which show the juror has prejudged some element of the case. After any jurors have been removed from the panel for disqualification and bias, the parties may remove jurors without giving any reason, by exercising peremptory challenges. In general, the number of peremptory challenges available to each side is: 20 in capital and life imprisonment cases; 10 in criminal cases where the sentence may exceed 90 days in jail; 6 in criminal cases with sentences less than 90 days in jail; and 6 in civil cases. In addition, if one or more defendant is tried, the peremptory challenges shall be exercised jointly but each individual defendant is given five additional challenges, or four (More) SB 794 (Evans) Page 8 additional challenges if the maximum term is less than 90 days, and the prosecutor is entitled to a proportional number of challenges. This bill would change the number of peremptory challenges in misdemeanors punishable by one year or less to five with an additional two per defendant in cases where two or more defendants are tried together. 3. History of Peremptory Challenges Peremptory challenges to jurors have been part of the civil law of California since 1851, and were codified in the original Field Codes in 1872. Their previous history in England dates back to at least the Fifteenth Century when persons charged with felonies were entitled to 35 peremptory challenges to members of the jury panel. Peremptory challenges have permeated other nations which have based their systems of justice on English Common Law. Today, nations with roots in English law, such as Australia, New Zealand, and Northern Ireland, continue to utilize peremptory challenges in jury selection. In 1986, the United States Supreme Court decided Batson v. Kentucky (1985) 471 U.S. 1052, 85 L. Ed. 2d 476, 105 S. Ct. 2111 recognizing that the peremptory challenge could be a vehicle for discrimination. Subsequent cases have sought, with some difficulty, to define the limits of inquiry into the motives of the parties in exercise of challenges which might be based on race or gender. In California, under Civil Code Section 231.5, a party may not excuse a juror with a peremptory challenge based on race, color, religion, sex, national origin, sexual orientation or similar grounds. If questioned, the attorney who exercised the potentially discriminatory challenge must provide the court with a lawful and neutral reason for the use of the challenge. 4. Misdemeanors Included in this Bill The types of cases included in this bill are comparatively serious in nature compared to most civil matters. First, unlike (More) SB 794 (Evans) Page 9 civil matters, the prosecution must convince a unanimous jury by the highest legal standard under the law. Second, these cases involve matters which can result in imprisonment for up to one year. If multiple offenses are charged, a defendant could potentially be sentenced to consecutive multi-year stints. In addition to their liberty interests, criminal defendants must also carry a criminal record. Misdemeanors such as vehicular manslaughter, DUI, assault, battery, molestation and domestic violence would be covered under this legislation. 5. Additional Cost and Strain upon the System/Danger of Retrials Prosecuting attorneys have the burden of proving to a unanimous jury that a defendant is guilty of the charges beyond a reasonable doubt. When a criminal jury cannot reach a unanimous verdict, the prosecution may retry the case and attempt to achieve a unanimous verdict with another trial. There is no limit to the number of trials the prosecution can bring. Every retrial strains the system and requires the cost of a trial. By reducing peremptory challenges available to the prosecution, the likelihood of a non-unanimous jury increases because the prosecutor cannot use their instincts to remove a juror the prosecutor believes may prejudice the jury. Each non-unanimous verdict increases the chances of costly retrials. 6. Peremptory Challenges as the Only Method of Eliminating Suspected Bias, Suspected Incompetence, or Suspected Incapacity Under the present system, a potential juror may be excused for cause under a number of specified circumstances (generally incompetence, incapacity, and apparent implied or actual bias). One common use of peremptory challenges is to remove potential jurors who meet the legal definition, but who the attorney suspects may be biased or incompetent. (More) SB 794 (Evans) Page 10 a. Suspected Bias In general, many jurors come into the jury selection process with certain biases. Studies have shown that jury bias is particularly prevalent in criminal cases. In fact, this is one of the reasons we have the presumption of innocence. The jury process is set up to divulge and eliminate these biases through education in basic legal principles such as the presumption of innocence, right against self-incrimination and the burden or proof. Some jurors begin their jury service with the belief that a defendant must prove his or her innocence. Other jurors may expressly state that they believe that it is incumbent upon the defendant to testify in order to obtain a not guilty verdict. Still others commonly state when questioned that they would vote guilty at the beginning of the case, despite the fact that the defendant is presumed innocent. Upon questioning, if the juror simply states that they can fairly apply the instructions of the judge they meet the legal standard of unbiased and thus won't be dismissed for cause although an attorney may wish to dismiss the juror with a peremptory challenge. b. Suspected Incompetence Jurors are expected to have basic competence in order to adequately judge the facts and circumstances of a case. For example, jurors are expected to have a basic understanding of the English language. Minimal ability to understand the language is generally accepted. One potential use of a peremptory challenge would be to remove a juror who can answer and communicate in yes and no responses, but who may not have the ability to read and comprehend the jury instructions. When a case depends on a complex understanding of the jury instructions, a juror who is less literate may not be sufficiently competent to decide the facts of the case. While this juror is not removable for cause, an attorney may choose to exercise a peremptory challenge. (More) SB 794 (Evans) Page 11 c. Suspected Incapacity Jurors are expected to be physically and mentally capable of service. For example, a juror who is so physically infirm that they are unable to sit and comprehend the testimony and courtroom presentation may not be capable of serving on a jury. In instances where the judge determines that the potential juror's health is legally sufficient, an attorney may choose to remove said juror through use of a peremptory challenge. The attorney may feel that the potential juror's infirmity may be so distracting that they could not devote sufficient attention to the determination of the facts of the case. 8. Argument in Support The sponsor believes that reducing the number of peremptory challenges will save the courts money without reducing justice. Specifically the California Judges Association states that this bill is important for the following reasons: Cost savings: While savings are difficult to quantify precisely, reducing peremptory challenges by one-half will greatly reduce the number of jurors who must be called for service. This is because sufficient potential jurors must be present in case the full numbers of potential jurors are dismissed. Fewer juror summons' result in less paper, less postage, fewer jurors to pursue for not appearing, less physical infrastructure to hold potential jurors, etc. (More) SB 794 (Evans) Page 12 Personnel efficiencies: Fewer people appearing for jury service will permit personnel resources involved in calling jurors for service to be redeployed in areas where layoffs and furloughs have severely hampered court operations. Shorter trials: Fewer peremptory challenges will mean shorter jury selection and thus shorter trials, allowing judges and overburdened staff to handle more matters. Improved juror satisfaction: Judges report that potential jurors frequently express frustration when they watch otherwise eligible jurors be dismissed for no apparent reason. The willingness of potential jurors to serve is critical to the constitutional right to jury, and judges are convinced that this simple change will help improve juror attitudes. More productive employees in work force: Calling fewer potential jurors means that more people will be working productively in their jobs, benefitting private businesses which we ask to pay for jury service, and public agencies as well. In the public sector, for example, having police officers in court for shorter periods of time while jury (More) SB 794 (Evans) Page 13 selection unfolds will permit officers to spend more productive time in police work. The Judicial Council estimates that the one change proposed in SB 794 could result in community and employer savings of between $30 million and $60 million annually. 9. Argument in Opposition The California District Attorneys Association opposes this bill, stating: The peremptory challenge has been a lasting feature of legal systems for hundreds of years. The purpose of the peremptory challenge is to help ensure the selection of a fair and unbiased jury as well as a jury that represents a broad cross-section of the affected community. A reduction in the number of peremptory challenges available to both prosecutors and defense counsel increases the difficulty in meeting these important guarantees of due process. We understand that the judicial system has been plagued by budget cuts and we appreciate efforts to identify efficiencies that will soften the blow of those spending reductions. That said, we cannot support the change contemplated by SB 794 because it jeopardizes just outcomes. (More) California Public Defenders Association opposes this bill, stating: Prior to the passage of Proposition 115 in 1990, both attorneys and judges conducted the questioning of jurors, commonly referred to as "voir dire". Sections 6 and 7.5 of Proposition 115 repealed then existing code provisions governing the conduct of voir dire in criminal cases so that attorney-conducted voir dire was essentially eliminated unless there was a showing of good cause. What seemed to be a key rationale for the changes was that it would achieve some economy in time. While it is unclear whether this objective was achieved, what is clear is that the measure has affected trial counsel's ability in criminal cases to effectively assess the prospective jurors' capacity for fairness and the absence of bias. In 2000, the Legislature realized the excesses of Proposition 115 and passed AB 2406 (Migden.) AB 2406 amended the Proposition 115 to instead require the court to conduct an initial examination and thereafter give the counsel for each party the right to examine, by oral and direct questioning, any or all of the prospective jurors. But since AB 2406 did not specify any particular length of time to be accorded to counsel to conduct their examination, while some judges accord a reasonable length of time for the examination of jurors, empirical evidence suggests that the time accorded for the examination of jurors in many misdemeanor cases is still very brief. SB 749 again attempts yet another assault on the effective selection of jurors by counsel. As noted in the Assembly Public Safety Committee analysis of AB 2406 for the hearing on that legislation on April 4, 2000, the authors of that bill noted, among other (More) SB 794 (Evans) Page 15 things, "Judges are not in a position to know the nuances of a case or case-specific issues related to juror bias. The attorneys are." Yet, as noted, AB 2406 did not truly restore the right to attorney-conducted voir dire in a meaningful way, because time constraints often lead to the perfunctory acknowledgement of the right sought to be granted by that legislation. The fact is, given the contraction of the voir dire process in California, attorneys in criminal cases are left with little recourse but to use peremptory challenges in doubtful situations where a fuller examination of a prospective juror might have unquestionably qualified the juror or disqualified the juror "for cause." Thus a reduction in the number of peremptory challenges - as proposed by SB 749 - would work to further erode fairness in our jury system. Experienced criminal lawyers know that one result of truncating the juror selection process in the wake of Proposition 115 has been an increase in the number of mistrials occasioned by "hung juries," which is really no time savings at all. As noted by Alexander Hamilton during the drafting of our fundamental charter, "The friends and adversaries of the plan of the convention . . . concur . . . in the value they set upon the trial by jury; the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government." *************** SB 794 (Evans) Page 16