BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 87 (Mark Stone)
Version: June 1, 2015
Hearing Date: June 9, 2015
Fiscal: No
Urgency: No
RD
SUBJECT
Jurors: peremptory challenge
DESCRIPTION
Existing law prohibits the use of a peremptory challenge to
remove a prospective juror on the basis of an assumption that
the prospective juror is biased merely because of his or her
race, color, religion, sex, national origin, sexual orientation,
or similar grounds. This bill would expand that protection
against discrimination by, instead, prohibiting the use of a
peremptory challenge to remove a prospective juror on the basis
of an assumption that the prospective juror is biased merely
because of a characteristic listed or defined in a specified
anti-discrimination statute under the Government Code (i.e.
race, national origin, ethnic group identification, religion,
age, sex, sexual orientation, color, genetic information, or
disability), or similar grounds.
BACKGROUND
In 1978, the California Supreme Court declared, "the use of
peremptory challenges to remove prospective jurors on the sole
ground of group bias denies plaintiffs the right to trial by a
jury drawn from a representative cross-section of the community
under article I, section 16, of the California Constitution."
(People v. Wheeler (1978) 22 Cal.3d 258.) This concept was
later adopted by the U.S. Supreme Court in Batson v. Kentucky
(1986) 476 U.S. 79, which held that the Equal Protection Clause
of the United States Constitution prohibits jury selection
based upon racial stereotyping. Eight years later, the Court
AB 87 (Mark Stone)
Page 2 of ?
decided J. E. B. v. Alabama ex rel. T. B. (1994) 511 U.S. 127,
extending the rationale of Batson to gender discrimination.
Additionally, in Rubio v. Superior Court, (1979) 24 Cal.3d 93,
the California Supreme Court held that a defendant's right to
trial by a jury drawn from a representative cross section of the
community is violated when any "cognizable group" within that
community is excluded from jury venire. Then, in People v.
Garcia (2000) 77 Cal.App.4th 1269, the appellate court
determined that lesbians and gay men met the two requirements in
Rubio and, thus, constitute a "cognizable group."
Subsequently, in 2000, AB 2418 (Migden, Ch. 43, Stats. 2000)
codified those cases as Section 231.5 of the Code of Civil
Procedure. The resulting section prohibits the use of a
peremptory challenge to remove a prospective juror on the basis
of an assumption that the prospective juror is biased merely
because of his or her race, color, religion, sex, national
origin, sexual orientation, or similar grounds.
This bill now seeks to expand this protection by prohibiting the
use of a peremptory challenge to remove a prospective juror on
the basis of any characteristic for which a state agency may not
discriminate (i.e. race, national origin, ethnic group
identification, religion, age, sex, sexual orientation, color,
genetic information, or disability), or similar ground.
CHANGES TO EXISTING LAW
Existing law provides that no person in the State of California
shall, on the basis of race, national origin, ethnic group
identification, religion, age, sex, sexual orientation, color,
genetic information, or disability, be unlawfully denied full
and equal access to the benefits of, or be unlawfully subjected
to discrimination under, any program or activity that is
conducted, operated, or administered by the state or by any
state agency, is funded directly by the state, or receives any
financial assistance from the state. (Gov. Code Sec. 11135(a).)
Existing law defines "sex" for the above purposes to include,
but not be limited to, a person's gender, pregnancy or medical
conditions related to pregnancy, childbirth or medical
conditions related to childbirth, as well as breastfeeding or
medical conditions related to breastfeeding. Existing law
AB 87 (Mark Stone)
Page 3 of ?
defines "gender" to mean sex, and include a person's gender
identity and gender expression, and defines "gender expression"
to mean a person's gender-related appearance and behavior
whether or not stereotypically associated with the person's
assigned sex at birth. (Gov. Code Secs. 11135, 12926(r).)
Existing law defines "sexual orientation" for the above purposes
to mean heterosexuality, homosexuality, and bisexuality. (Gov.
Code Secs. 11135, 12926(s).)
Existing law prohibits the exemption of any eligible person from
service as a trial juror by reason of occupation, economic
status, or any characteristic listed or defined in the
Government Code Section above (i.e. race, national origin,
ethnic group identification, religion, age, sex, sexual
orientation, color, genetic information, or disability), or for
any other reason. Existing law provides that an eligible person
may be excused from jury service only for undue hardship, upon
themselves or upon the public, as defined by the Judicial
Council. (Code Civ. Proc. Sec. 204.)
Existing law specifies procedures governing the selection of a
fair and impartial jury in civil trials, including that counsel
for each party shall have the right to examine any of the
prospective jurors, as specified, in order to enable counsel to
intelligently exercise both peremptory challenges and challenges
for cause. (Code Civ. Proc. Sec. 222.5.)
Existing law specifies procedures governing the selection of a
jury in criminal trials, including that counsel for each party
shall have the right to examine any or all of the prospective
jurors, as specified, in aid of the exercise of challenges for
cause. (Code Civ. Proc. Sec. 223.)
Existing law provides that a challenge is an objection made to
the trial jurors that may be taken by any party to the action,
and is of specified classes and types, including (1) a challenge
to the trial jury panel for cause, as specified, and (2) a
challenge to a prospective juror by either:
a challenge for cause, for one of the following reasons:
o general disqualification-that the juror is disqualified
from serving in the action on trial;
o implied bias-as, when the existence of the facts as
ascertained, in judgment of law disqualifies the juror; or
o actual bias-the existence of a state of mind on the part
AB 87 (Mark Stone)
Page 4 of ?
of the juror in reference to the case, or to any of the
parties, which will prevent the juror from acting with
entire impartiality, and without prejudice to the
substantial rights of any party; or
a peremptory challenge to a prospective juror. (Code Civ.
Proc. Sec. 225(b).)
Existing law enumerates the sole statutory challenges for cause
on grounds of general disqualification or implied bias, as
specified. (Code Civ. Proc. Secs. 228, 229.)
Existing law provides that after any jurors have been removed
from the panel for cause, the parties may remove a specified
number of jurors peremptorily (without giving any reason), and
provides a specified number of peremptory challenges to which
each party is entitled depending on the number of parties in the
litigation and whether the case is criminal or civil in nature.
(Code Civ. Proc. Sec. 231.)
Existing case law provides that a defendant's right to trial by
a jury drawn from a representative cross section of the
community, as guaranteed by the Sixth Amendment of the federal
Constitution and article I, section 16, of the California
Constitution, is violated when a "cognizable group" within that
community is excluded from jury venire. In order for a group to
be considered cognizable, two requirements must be met: (1) the
group's members must share a common perspective arising from
their life experience in the group; and (2) it must be shown by
the party seeking to prove a violation of the representative
cross section rule that no other members of the community are
capable of adequately representing the perspective of the group
assertedly excluded. (Rubio v. Superior Court, (1979) 24
Cal.3d 93, 97-98, citing People v. Wheeler (1978) 22 Cal.3d 258,
272; see also People v. Garcia (2000) 77 Cal.App.4th 1269,
1274.)
Existing law provides that a party may not use a peremptory
challenge to remove a prospective juror on the basis of an
assumption that the prospective juror is biased merely because
of his or her race, color, religion, sex, national origin,
sexual orientation, or similar grounds. (Code Civ. Proc. Sec.
231.5.)
This bill would align the list of protected classifications for
purposes of non-discriminatory peremptory challenges with the
AB 87 (Mark Stone)
Page 5 of ?
list of classifications protected under Government Code Section
11135, above, thereby prohibiting the use of a peremptory
challenge to remove a prospective juror on the basis of an
assumption that the prospective juror is biased merely because
of his or her ethnic group identification, age, genetic
information, or disability, in addition to race, color,
religion, sex, national origin, sexual orientation, or similar
grounds, as provided under existing law.
COMMENT
1. Stated need for the bill
According to the author:
This bill seeks to update current law to ensure that
peremptory challenges may not be used to discriminate against
prospective jurors based on gender identity, gender
expression, ethnic group identification, genetic information
or disability.
The jury system provides the foundation for the California
justice system. We rely upon an impartial jury to yield fair
and just results. The jury, by law, should be a cross section
of the population in a community. Without specific protection
from peremptory challenges made on the assumption of bias
because of gender identity, gender expression, ethnicity, age,
genetic information, and disability, it is possible for many
community members to be excluded from prospective jury
service. If certain members of a community are denied from
the prospect of jury service, it is possible to deny victims
and defendants the right to a truly fair trial.
The need for fair trials is especially important in the
transgender and gender non-conforming community, because a
disproportionate amount of these individuals come into contact
with the criminal justice system. At least 16 [percent] of
transgender individuals have been incarcerated at some point
in their lives, with the percentage of transgender women even
higher at 21 [percent.] (The National Transgender
Discrimination Survey Report:
http://endtransdiscrimination.org/report.html).
Furthermore, by aligning the jury code with the government's
non-discrimination laws, California can continue to be a
AB 87 (Mark Stone)
Page 6 of ?
leader in ensuring that transgender people and others are
protected from discrimination and are treated equally under
law.
The National Center for Lesbian Rights and the Transgender Law
Center write in support that "[a] jury, by law, must represent a
cross section of the population in a community in order to
ensure that a defendant is tried by his or her peers. This
philosophy underpins the foundation of California's jury system,
and we rely upon it to conform the selection of an impartial
jury that will yield fair and just results. Without specific
protection from peremptory challenges made on the assumption of
bias because of gender identity, gender expression, ethnicity,
age, genetic information, and disability, it is possible for
many community members to be excluded from prospective jury
service. If these individuals are denied from the prospect of
jury service, then it is possible to deny victims and defendants
the right to a truly fair trial."
The American Civil Liberties Union notes in support that:
Section 204 of the Code of Civil Procedure currently provides
that no eligible person shall be exempt from jury service by
reason of any characteristic listed or defined in Section
11135 of the Government Code-the statute that prohibits
discrimination in state programs and activities on the basis
of enumerated characteristics. Similarly, the peremptory
challenge statute, CCP section 231.5, currently provides that
an individual may not be removed from jury service based on an
assumption that the prospective juror is biased merely because
of his or her race, color, religion,, sex, national origin,
sexual orientation, or "similar grounds." Unfortunately, the
list of expressly protected characteristics has not bene
updated to reflect changes in the state's non-discrimination
policies, including Section 11135 of the Government Code,
which arguably governs peremptory challenges. While the
existing catch-all provision prohibiting discrimination in the
exercise of peremptory challenges on "similar grounds" might
be interpreted to cover all characteristics within section
11135 this bill would make the point explicitly and therefore
give helpful guidance to courts, parties and their counsel.
2. The voir dire process
Under California law, every citizen over 18 years of age is
AB 87 (Mark Stone)
Page 7 of ?
eligible and qualified to be a prospective juror unless they
fail to meet certain minimal requirements. For example, they
must be a resident of the jurisdiction they are summoned to
serve, be possessed of sufficient knowledge of the English
language, and not be subject to a conservatorship. Aside from
these threshold qualification requirements that must be met for
a person to be eligible to serve on a jury, California law
prohibits any person from being excluded from eligibility for
jury service. While otherwise eligible persons may be excused
by the courts on a case-by-case basis for hardship, be
challenged for cause (such as for express or implied bias), or
otherwise be subject to a peremptory challenge, California law
prohibits the exemption of any eligible person from service by
reason of occupation, economic status, or any characteristic
listed or defined under Government Code Section 11135 (i.e.
race, national origin, ethnic group identification, religion,
age, sex, sexual orientation, color, genetic information, or
disability), or for any other reason. (See Code Civ. Proc. Sec.
204.)
Existing law allows the parties in criminal and civil cases to
remove jurors from the panel by exercising challenges for cause
and peremptory challenges. Challenges are made during the voir
dire process 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.
Challenges for cause are statutory and include: incapacity;
consanguinity or affinity; fiduciary, domestic or business
relationship; serving as a juror or witness in previous trial
involving parties; interest in the action; opinion on the
merits; bias or prejudice; or being a party to another
action. (Code Civ. Proc. Sec. 129; see also 7 Witkin Cal. Proc.
Trial Sec. 130.) In contrast, peremptory challenges are made
without need to state a cause. "The purpose of the peremptory
challenge is to insure an impartial jury by allowing a specific
number of jurors to be excused even though no statutory
challenge for cause can be made; e.g., where a juror is believed
to be biased but the bias cannot be proved." (7 Witkin Cal.
Proc. Trial Sec. 125.) That being said, while peremptory
challenges are permitted without initially stating a reason, "it
has long been made clear in criminal cases that those challenges
may not be made for the purpose of excluding a cognizable group.
[ . . . ] More recently this principle, grounded on the
AB 87 (Mark Stone)
Page 8 of ?
guaranties of equal protection and trial by a jury drawn by a
fair cross-section of the community, has been applied in civil
cases as well." (7 Witkin Cal. Proc. Trial Sec. 127.) In that
light, the Code of Civil Procedure expressly prohibits the
exercise of a peremptory challenge "on the basis of an
assumption that the prospective juror is biased merely because
of his or her race, color, religion, sex, national origin,
sexual orientation, or similar grounds." (Code Civ. Proc. Sec.
231.5.)
This bill would now align the list of classifications protected
against discriminatory peremptory challenges with Section 11135
of the Government Code, which additionally protects against
discrimination on the basis of ethnic group identification, age,
genetic information, or disability, as well as race, color,
religion, sex, national origin, and sexual orientation. By
incorporating not just the list, but also the definitions of the
Government Code's non-discrimination statute, this bill would
protect against the use of peremptory challenges to remove a
prospective juror on the basis of an assumption that the
prospective juror is biased merely because of the person's race,
national origin, ethnic group identification, religion, age,
sex, sexual orientation, color, genetic information, disability,
or similar grounds, as well as the use of a peremptory challenge
on the basis of an assumption that the prospective juror is
biased merely because of his or her gender (including a person's
gender identity and gender expression, as defined), or the
person's heterosexuality, homosexuality, or bisexuality, among
other things.
As a matter of public policy, given that the existing section
prohibiting the use of discriminatory peremptory challenges has
not been updated since its enactment over 15 years ago, and
other anti-discrimination statutes under California law have
been updated over the years to protect additional cognizable
groups such as age or disability from discrimination for various
purposes, the statute should arguably be made consistent and
harmonized with those more recently updated statutes.
Furthermore, by incorporating the classifications listed and
defined by Government Code Section 11135 (i.e. race, national
origin, ethnic group identification, religion, age, sex, sexual
orientation, color, genetic information, or disability), this
bill would conform this section to existing jury selection law,
which prohibits the exemption of any eligible person from
service by reason of a characteristic listed or defined in that
same section. (See Code Civ. Proc. Sec. 204.)
AB 87 (Mark Stone)
Page 9 of ?
Support : American Civil Liberties Union of California; American
Federation of State, County and Municipal Employees, AFL-CIO;
California Communities United Institute;
California Public Defenders Association; Consumer Attorneys of
California; National Center for Lesbian Rights; Transgender Law
Center
Opposition : None Known
HISTORY
Source : Equality California
Related Pending Legislation : SB 213 (Block, 2015) would reduce
the number of peremptory challenges in misdemeanor trials and
includes a January 1, 2021, sunset. The bill is currently in
the Assembly Public Safety Committee.
Prior Legislation :
AB 2646 (Ting, Ch. 912, Stats. 2014) was identical to this bill
in its introduced form but subsequently gutted and amended in
the Senate into a different topic.
AB 2418 (Migden, Ch. 43, Stats. 2000) was enacted to, among
other things, provide that a party may not use a peremptory
challenge to remove a prospective juror on the basis of an
assumption that the prospective juror is biased merely because
he or she is a member of an identifiable group distinguished on
racial, religious, ethnic, sexual orientation, gender, or
similar grounds.
Prior Vote :
Assembly Floor (Ayes 68, Noes 2)
Assembly Judiciary Committee (Ayes 9, Noes 1)
**************