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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