BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1766


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          Date of Hearing:   March 29, 2016


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          AB 1766  
          (Mark Stone) - As Amended February 29, 2016


                              As Proposed to be Amended


          SUBJECT:  Examination of prospective jurors


          KEY ISSUE:  In order to PROVIDE PROSPECTIVE JURORS WITH  
          ADDITIONAL PRIVACY PROTECTIONS AND TO MAKE THEM FEEL MORE  
          COMFORTABLE during the jury selection process, should the court  
          and counsel IN CRIMINAL CASES, while examining a juror during  
          voir dire, BE REQUIRED TO identify and address the juror without  
          disclosing the juror's full name?

                                      SYNOPSIS


          To select a jury, the court engages in voir dire - the process  
          where the court and counsel for the parties ask prospective  
          jurors a series of questions to determine the qualifications,  
          competence, or the potential bias of jurors.  Under current  
          practice, the court or counsel may address a prospective juror  
          by his or her full name (ex. Good morning Juror #9, John  
          Roberts).  


          This bill limits the way in which a court or counsel may address  








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          a prospective juror during voir dire in a criminal case.  It  
          provides that a prospective juror must be addressed by either a  
          jury number, by the juror's first name and last initial, or by  
          title and last name.  This bill, co-sponsored by the California  
          District Attorneys Association and the San Diego County District  
          Attorney, also requires a court in criminal cases to provide to  
          each party's counsel a complete list of the full names of  
          prospective jurors, both in alphabetical and examination calling  
          order, similar to the lists often provided to counsel in civil  
          cases.  California Attorneys for Criminal Justice, who oppose  
          the bill, assert that addressing jurors without identifying  
          information will give jurors the impression that there is an  
          unknown public safety reason why it is necessary to conceal  
          their identities.  To address this concern, the bill, as  
          proposed to be amended, requires the court to advise prospective  
          jurors that California law prohibits the court and counsel in  
          criminal cases from addressing prospective jurors by their full  
          names during the jury selection process.


          Additionally, the California Newspaper Publisher Association  
          raises a concern about how this bill would affect existing law  
          which allows a process for the public to access juror  
          information.  The bill, as proposed to be amended, resolves this  
          concern.


          SUMMARY:  Provides how the court or parties' counsel may address  
          prospective jurors during voir dire in a criminal matter.   
          Specifically, this bill:  


          1)Requires the court to determine the manner in how the court  
            and counsel shall uniformly address each panel of prospective  
            jurors.  The court and counsel shall address a prospective  
            juror by either an identification number assigned by the  
            court, the first name and the first initial of the juror's  
            last name, or by a title and the juror's last name. 
          2)Requires the court, in criminal cases, to provide to counsel  








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            for each party the complete names of the prospective jurors,  
            both alphabetically and in the order in which they will be  
            called, similar to the information usually provided to parties  
            in civil cases. 


          3)Requires the court to advise prospective jurors that, in  
            accordance with state law, the court and counsel for each  
            party are prohibited, in all criminal cases, from addressing  
            prospective jurors by their full names during the jury  
            selection process, and are required to address them by either:  
            an identification number; their first name and the first  
            initial of their last name; or their last name.


          4)Provides that the bill, as it relates to voir dire in criminal  
            trials, shall not be construed as affecting existing law that  
            allows the public access to juror information.


          5)Makes other technical and conforming changes.  


          EXISTING LAW:  


          1)Allows a trial judge in civil cases to examine prospective  
            jurors in order to select a fair and an impartial jury.  (Code  
            of Civil Procedure Section 222.5 et seq.  All further  
            references are to this code unless otherwise stated.)


             a)   Provides that after a trial judge's initial examination,  
               counsel for each party may examine any of the prospective  
               jurors, by oral and direct questioning, so that counsel may  
               intelligently exercise both peremptory challenges and  
               challenges for cause.  (Section 222.5.)
             b)   Provides that during any examination conducted by  
               counsel for the parties, the trial judge should permit  








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               liberal and probing examination calculated to discover bias  
               or prejudice with regard to the circumstances of the  
               particular case.  (Section 222.5.)


             c)   Provides that to facilitate the jury selection process,  
               the trial judge should provide the parties with both the  
               alphabetical list and the list of prospective jurors in the  
               order in which prospective jurors will be called.  (Section  
               222.5.)


          2)Allows a court, in a criminal case, to conduct an initial  
            examination of prospective jurors.  
             a)   Provides that after a court's initial examination,  
               counsel for each party shall have the right to examine, by  
               oral and direct questioning, any or all of the prospective  
               jurors.  (Section 223.)
             b)   Provides that voir dire of any prospective jurors shall,  
               where practicable, occur in the presence of other jurors in  
               all criminal cases, including death penalty cases.   
               (Section 223.)


          FISCAL EFFECT:  As currently in print this bill is keyed  
          non-fiscal.


          COMMENTS:  A hallmark of the American legal system is the right  
          to a jury trial.  "The purpose of a jury is to guard against the  
          exercise of arbitrary power - to make available the commonsense  
          judgment of the community as a hedge against the overzealous or  
          mistaken prosecutor?or perhaps [the] overconditioned or biased  
          response of a judge."  (Taylor v. Louisiana (1975) 419 U.S. 522,  
          530.)


          To ensure that a jury represents a cross-section of the  
          community, we bestow upon all citizens a duty to serve as  








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          jurors.  While some have strong feelings about jury service,  
          jury duty is important.  Indeed, jury duty "affords ordinary  
          citizens a valuable opportunity to participate in a process of  
          government, an experience fostering, one hopes, a respect for  
          law."  (Powers v. Ohio (1991) 499 U.S. 400, 407.)  For some,  
          jury duty is an honor and a privilege and represents a  
          significant opportunity to participate in the democratic process  
          outside of elections.  (Id.)


          Juries are selected by a court process (that is open to the  
          public) known as voir dire.  During voir dire, prospective  
          jurors are seated in the jury box and are asked-in front of  
          other prospective jurors and the public-a series of questions to  
          determine their competence and fitness to serve as jurors.   
          Usually, these questions help to ferret out bias; but sometimes,  
          these questions can touch on subjects that are very personal,  
          such as whether the juror lives alone, whether the juror has  
          children, and where the juror lives. 


          Author's Statement:  According to the author:


               It is not uncommon for prospective jurors to reveal their  
               full names during voir dire.  Prospective jurors are then  
               asked to provide extensive private information, including  
               their occupation, where they live, if they have children,  
               and if they live alone or with others.


               When prospective jurors reveal both their full name and  
               other personal information, they put themselves at-risk of  
               being potentially victimized.  It is true that a juror who  
               feels uncomfortable about answering a particularly personal  
               question during voir dire may ask the court to go into the  
               judge's closed chambers to answer the question; however,  
               jurors do not always invoke this privilege.  Jurors who  
               might already feel intimidated by the jury selection  








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               process (and who want to avoid interrupting the voir dire  
               proceedings) may feel pressure to answer the personal  
               question in open court rather than behind closed chambers.


               This bill will make jurors feel more comfortable during  
               voir dire if jurors are rest-assured that their full  
               identity will not be aired open to the entire public.


          The California District Attorneys' Association, a sponsor of the  
          bill, states, "[i]n today's technology driven world, where a  
          person's name can be searched on the internet in a matter of  
          seconds, requiring that jurors be identified without using their  
          full names would help minimize any potential undue influence by  
          others, as well as protect them against identify theft."


          This commonsense and modest proposal provides privacy  
          protections to prospective jurors during the jury selection  
          process.  This bill simply provides that during voir dire, a  
          court or counsel in a criminal matter must address a prospective  
          juror by either a jury number, the juror's first name and last  
          initial, or the juror's title and last name.  


          This bill might even put at ease those jurors who feel reluctant  
          about reporting to jury duty for privacy reasons.  To the extent  
          that voir dire contributes to instances of identity theft or  
          juror intimidation among prospective jurors, this bill could  
          curb those instances.


          Federal Circuit Courts Have Developed a Doctrine to Determine  
          Whether Providing an Anonymous Jury Violates a Defendant's Fifth  
          Amendment Right to a Presumption of Innocence, or Sixth  
          Amendment Right to an Impartial Jury.  Federal circuit courts  
          have recognized that "empaneling an anonymous jury is an unusual  
          measure that is warranted only where there is a strong reason to  








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          believe the jury needs protection or to safeguard the integrity  
          of the justice system, so that the jury can perform its  
          factfinding function."  (United States v. Shryrock (9th Cir.  
          2003) 342 F.3d 948, 971.)  At issue is whether this bill, which  
          provides a little more anonymity to jurors, would violate a  
          criminal defendant's Fifth Amendment right to a presumption of  
          innocence, or a criminal defendant's Sixth Amendment right to an  
          impartial jury.


          Generally, a lower court's decision to empanel an anonymous jury  
          will be upheld if "(1) there is a strong reason for concluding  
          that it is necessary to enable the jury to perform its  
          factfinding function, or to ensure jury protection; and (2)  
          reasonable safeguards are adopted by the trial court to minimize  
          any risk of infringement upon the fundamental rights of the  
          accused."  (Shryrock, supra, at 971.)  A court's decision to  
          empanel an anonymous jury is reviewed under an abuse of  
          discretion review.  (United States v. Fernandez (9th Cir. 2004)  
          388 F.3d 1199, 1244.)  


          When a court seeks to provide anonymity to jurors for their  
          protection, a court considers several factors, including "(1)  
          the defendants' involvement with organized crime; (2) the  
          defendants' participation in a group with the capacity to harm  
          jurors; (3) the defendants' past attempts to interfere with the  
          judicial process or witnesses; (4) the potential that the  
          defendants will suffer a lengthy incarceration if convicted; and  
          (5) extensive publicity that could enhance the possibility that  
          jurors' names would become public and expose them to  
          intimidation and harassment."  (Ibid.)


          Even If a Federal Analysis Was Applicable, This Bill Likely  
          Meets Constitutional Muster Under the Federal Test.  Although  
          this bill prohibits a court or counsel from addressing a  
          prospective juror by his or her full name, this bill does not go  
          so far as establishing an anonymous jury.  First, this bill  








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          allows the court the discretion to address jurors by any one of  
          the following methods: (1) an identification number; (2) their  
          first name and first initial of their last name; or (3) a prefix  
          and their last name.  Second, the narrow scope of this bill is  
          limited to how a court addresses jurors during voir dire, and  
          not how the court addresses jurors during trial.   


          Although this bill limits some personal information of a  
          prospective juror, this bill provides several constitutional  
          safeguards to protect the rights of criminal defendants,  
          consistent with Shyrock.  As proposed to be amended, this bill  
          requires the court to provide to each counsel a complete list of  
          names of the prospective jurors.  Even if a court decides to  
          address jurors by an identification number, the complete list of  
          names guards against any constitutional danger of complete  
          anonymity.  Furthermore, this bill, as proposed to be amended,  
          requires the court to advise jurors that in accordance with  
          state law, the court and counsel are prohibited from addressing  
          jurors by their full names, and must identify jurors through a  
          different method.  Indeed, this neutral explanation has been  
          viewed by circuit courts as "adequate guards against the  
          possibility of prejudice." (Fernandez, supra, at 1245.; see also  
          Shryrock, supra, at 972-973 ("the trial court took reasonable  
          precautions by advising the jury that the use of anonymous  
          juries was commonplace in federal court").)


          This Bill Also Likely Meets Constitutional Muster Under a State  
          Analysis.  The California Supreme Court has recently considered  
          whether trial courts have the discretion to address jurors by a  
          number throughout a jury trial, rather than their full names.   
          In People v. Thomas (2012) 53 Cal. 4th 771, the trial court  
          ordered that prospective jurors and trial jurors be referred to  
          by number only.  There, the defendant contended, among other  
          things, that the use of the jury numbers violated his rights to  
          be presumed innocent and to a fair and public trial.  (Id.)










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          The California Supreme Court held that the trial court did not  
          err, and that "the procedure did not violate the defendant's  
          right to a public trial because the trial was open and the  
          jurors' faces were visible to anyone present."  (Id.)  In  
          addition, the Court held that:


               Any risk that the jury would speculate that the use of  
               numbers related to the defendant's dangerousness was  
               diminished because the trial court indicated it would  
               admonish the jury that the procedure was required in all  
               criminal cases and had nothing to do with the defendant.   
               (Id.)


          Given the public nature of criminal trials, and the fact that  
          this bill only applies to voir dire and allows courts and  
          counsel to address prospective jurors by their first or last  
          names, and requires not only that the court provide counsel with  
          access to the full names of prospective jurors, but also that  
          the court advise jurors about this new criminal procedure, this  
          bill would certainly survive the test under People v. Thomas,  
          supra, at 771.


          Adverse Consequences?  The California Attorneys for Criminal  
          Justice (CACJ), the opponents of the bill, claim that this bill  
          would give jurors the false impression that jurors need  
          protection because the defendant is, in fact, a dangerous  
          person.  In opposition, CACJ writes: 


               The bill could inadvertently give the impression to  
               prospective jurors that there is an unknown public safety  
               reason that their true identities must be concealed. The  
               proposal further perpetuates a stigma attached to a  
               criminal defendant, whereby a juror's identity needs to be  
               kept secret and not spoken in a public courtroom, adding to  
               the already unjust and existing bias against the defendant  








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               as a dangerous person.


          Additionally, CACJ is opposed because it is unaware of any  
          specific problem that has arisen as a result of addressing  
          prospective jurors by their full names. 


          As mentioned above, to address concerns raised by CACJ, the  
          author has agreed to take amendments to require the court to  
          advise prospective jurors that California law prohibits the  
          court and counsel in criminal cases from addressing prospective  
          jurors by their full names during the jury selection process.   
          This advisory is similar to the notice that survived the court's  
          scrutiny United States v. Shryrock, and in People v. Thomas.


          The Scope of the Bill is Limited to Criminal Cases Only.  To  
          address concerns raised by the Judicial Council, the bill, as  
          proposed to be amended, is limited to criminal cases only.   
          However, of course, this bill does not prevent a civil court  
          from addressing jurors in a manner it deems appropriate and that  
          is in accordance with law.


          This Bill Ensures that Each Panel of Prospective Jurors Are  
          Uniformly Addressed in the Same Manner.  As previously  
          mentioned, this bill, as proposed to be amended, provides the  
          court the discretion to determine how the court and counsel  
          shall address each panel of prospective jurors.  While the court  
          may decide, from case to case, how it wants to address the  
          jurors, this bill ensures that within a particular panel, the  
          court addresses each prospective juror uniformly.  Given that a  
          court's decision is still subject to abuse of discretion review,  
          this does not change the existing practice which allows the  
          attorneys to object a court's determination.


          This Bill Would Still Allow the Court and the Parties' Counsel  








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          to Have Access to a Prospective Juror's Full Name.  Although  
          this bill limits the way the court or counsel can address a  
          prospective juror during voir dire, this bill does not prevent  
          the court or counsel from having access to the prospective  
          juror's full name.  This fair approach allows attorneys, like  
          prosecutors and defense attorneys, to continue to assess jurors  
          for other conflicts without resorting to open questioning during  
          voir dire.  Indeed, to ensure that attorneys continue to have  
          access to this information, this bill requires a court in a  
          criminal case to provide to each party's counsel a complete list  
          of the names of prospective jurors, both in alphabetical and  
          examination calling order - similar to lists usually provided to  
          a party's counsel in civil cases.


          REGISTERED SUPPORT / OPPOSITION:




          Support


          California District Attorneys' Association (sponsor)


          San Diego County District Attorney (sponsor)


          Association of Deputy District Attorneys


          California Police Chiefs Association




          Opposition









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          California Attorneys for Criminal Justice (opposed unless  
          amended)




          Analysis Prepared by:Eric Dang / JUD. / (916) 319-2334