BILL ANALYSIS Ó
AB 1766
Page 1
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
AB 1766
Page 2
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
AB 1766
Page 3
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
AB 1766
Page 4
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
AB 1766
Page 5
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
AB 1766
Page 6
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
AB 1766
Page 7
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
AB 1766
Page 8
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.)
AB 1766
Page 9
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
AB 1766
Page 10
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
AB 1766
Page 11
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
AB 1766
Page 12
California Attorneys for Criminal Justice (opposed unless
amended)
Analysis Prepared by:Eric Dang / JUD. / (916) 319-2334