BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              S
                             2013-2014 Regular Session               B

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          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  




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          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,  




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               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  




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          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  




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          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:





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                 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  




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               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  




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          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  




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          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. 





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               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. 




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               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.




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                 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  




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               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.











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          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  




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               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."  

                

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