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