BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1766 Hearing Date: June 28, 2016
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|Author: |Mark Stone |
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|Version: |March 30, 2016 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|MK |
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Subject: Examination of Prospective Jurors
HISTORY
Source: San Diego County District Attorney
California District Attorneys Association
Prior Legislation: AB 310 (Leach) 1999 Failed Assembly Judiciary
Committee
SB 14 (Calderon) Juror anonymity portions
deleted. 1997
AB 886 (Morrow) Failed 1997-1998
AB 2922 (Hawkins) Failed 1996
SB 508 (Campbell) - Chapter 964, Stats. 1995
SB 1199 (Mountjoy) Failed 1995
Support: Association of Deputy District Attorneys; California
Police Chiefs Association
Opposition:California Attorneys for Criminal Justice; California
Newspaper Publishers Association
Assembly Floor Vote: 78 - 0
PURPOSE
The purpose of this bill is to require that jurors in criminal
cases be referred to by something other than their names.
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Existing law allows a court, in a criminal case, to conduct an
initial examination of prospective jurors. (Code of Civil
Procedure § 223)
Existing law 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.
(Code of Civil Procedure §223.)
Existing law says the court may, in the exercise of its
discretion, limit the oral and direct questioning of prospective
jurors by counsel. (Code of Civil Procedure § 223)
Existing law provides that the court may specify the maximum
amount of time that counsel for each party may question an
individual juror, or may specify an aggregate amount of time for
each party, which can then be allotted among the prospective
jurors by counsel. (Code of Civil Procedure § 223)
Existing law 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. (Code of
Civil Procedure § 223.)
Existing law provides that the trial court's exercise of its
discretion it the manner in which voir dire is conducted,
including any limitation on the time which will be allowed or
direct questioning of prospective jurors by counsel any
determination that a question is not in aid of the exercise of
challenges for cause, shall not cause any conviction to be
reversed unless the exercise of discretion has resulted in a
miscarriage of justice. (Code of Civil Procedure § 223)
Existing law provides that the names of qualified jurors drawn
from the qualified juror list for the superior court shall be
made available to the public upon request unless the court
determines that compelling interest requires that this
information should be kept confidential. (Code of Civil
Procedure § 237(a)(1))
Existing law provides that upon the recording of a jury's
verdict in a criminal jury proceeding, the court's record of
personal juror identifying information of trial jurors,
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consisting of names, addresses and telephone numbers shall be
sealed until further order of the court. (Code of Civil
Procedure § 237 (a)(2))
Existing law provides that a person may petition the court to
access sealed jury records with a petition that is supported by
a declaration that includes facts sufficient to establish good
cause for the release of juror's personal identifying
information. (Code of Civil Procedure § 237 (b))
This bill provides that, in a criminal case, the court shall
provide to counsel for each party the complete names of the
prospective jurors, both alphabetically and in the order in
which they will be called.
This bill provides that the court in each criminal trial shall
determine a uniform manner by which each prospective juror shall
be addressed by the court and counsel for each party according
to one of the following:
An identification number assigned by the court.
The prospective juror's first name and the first initial
of his or her last name.
The prospective juror's title and last name.
This bill provides that before examining prospective jurors, the
court shall advise them 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 jury selection and are required to address each
prospective juror by an identification number, by his or her
first name and the first initial of his or her last name, or by
his or her title and last name.
Existing law 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 § 222.5)
Existing law 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. (Code of Civil Procedure § 222.5.)
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Existing law provides that during any examination conducted by
counsel for the parties, the trial judge should permit liberal
and probing examination calculated to discover bias or prejudice
with regard to the circumstances of the particular case. (Code
of Civil Procedure § 222.5.)
Existing law 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. (Code of Civil
Procedure § 222.5.)
This bill provides that in a civil case, the court shall provide
to counsel for each party the complete names of the prospective
jurors, both alphabetically and in the order in which they will
be called.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
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capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
This commonsense and modest proposal provides privacy
protections to prospective jurors during the jury
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selection process. This bill simply provides that
during voir dire, a court or counsel in a criminal
matter must address a prospective juror by a jury
number, the jurors first name and last initial, or the
jurors title and last name.
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 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.
Jurors who feel reluctant about reporting to jury duty
for privacy reasons should be put at ease. To the
extent that voir dire contributes to instances of
identity theft or juror intimidation among prospective
jurors, this bill could curb those instances.
2. Statutory History
In California the selection of trial jurors has traditionally
been by name, and qualified jurors' names are generally to be
made available to the public upon request. In 1995 the
Legislature passed, and the Governor signed, SB 508 (Campbell),
Ch. 964, Stats. 1995 to address legislators' growing desires to
protect juror privacy in criminal trials. Pursuant to SB 508,
as of January 1, 1996, all juror information in a criminal trial
in California is automatically sealed as soon as the jury
verdict is recorded. Any person may petition the court for
access to juror information. However, only if good cause for
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that information is shown on the face of the court pleadings
will a hearing on the release of that information even be
scheduled. Otherwise, the court will bar the release of such
personal information. (Code of Civil Procedure Section 237(b).)
Between the enactment of SB 508 in 1995 and 1999 a number of
bills were introduced in the Legislature to "move up" the
secrecy shield on juror identity information from the time of
the verdict to the beginning of the voir dire process in all
criminal trials. However, all constitutional questions were
raised about those legislative proposals calling for automatic
juror anonymity and no such proposals seeking automatic voir
dire anonymity were passed.
3. Press-Enterprise
According to the United States Supreme Court, the presumptive
openness of jury selection dates back to at least the 1500's in
England, and was common practice in America at the time the
Constitution was adopted. (Press-Enterprise v. Riverside (1984)
464 U.S. 501.) Allowing the public to observe the selection of
jurors has historically been believed to provide the public
needed confidence that the criminal justice system is fair and
unbiased. In the voir dire process, the court and the attorneys
involved in criminal cases have historically questioned
prospective jurors to try to ensure a fair and impartial jury.
Personal views have traditionally been elicited from the jurors
to determine whether they have the ability to be fair and
impartial in the case before them. Both prosecutors and defense
attorneys have consistently argued in the Legislature over the
years that access to such personal information about jurors is
absolutely necessary to determine whether prospective jurors
hold a potential bias.
In 1984, the United States Supreme Court considered this issue
in the Press-Enterprise case noted above. The Court held that
there are indeed clear constitutional constraints limiting the
degree to which access to juror information can be barred during
a criminal trial.
In that case, the Press-Enterprise newspaper moved to have the
voir dire examination of prospective jurors in a gruesome murder
case opened to the press. The State of California opposed the
newspaper's motion, asserting that the jurors in this trial
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would not be candid with their answers if the press were present
during juror questioning. The trial judge agreed and prohibited
the press from attending the individual voir dire proceedings.
The voir dire lasted six weeks, and all but three days of it
were closed to the public. When the press tried to get copies
of the transcript of the voir dire, the trial judge denied the
motion on the grounds that although most of the answers by the
jurors were routine, there were some questions and answers that
were of a personal nature, and release of the information would
violate the privacy rights of the jurors. (Press-Enterprise,
supra at 507.)
The Supreme Court rejected the trial court decision, finding
that, based on long historical precedent, trials, including voir
dire proceedings, are inherently public proceedings. The Court
reasoned that a defendant is entitled to a fair and open trial
under the First and Sixth Amendments. It found that openness in
trials enhances both the basic fairness of the criminal trial
and the appearance of fairness to the general public, thereby
giving the public confidence in the jury system. (Id. at 508.)
The Court cited Globe Newspaper Co. v. Superior Court (1982)
457 U.S. 596, for the important proposition that:
Closed proceedings, although not absolutely precluded,
must be rare and only for cause shown that outweighs
the value of openness. (Press-Enterprise, supra, at
509.)
The Court found that a state's justification for closure of a
public criminal proceeding must be a "weighty one." ( Id. )
The Court further held that trials may be held in secret only if
the trial court determines on a case-by-case basis that the
presumption of openness is overcome by an overriding interest
(e.g., the defendant's right to a fair trial). The Court
required that the overriding interest be based on the trial
court's specific and articulated findings that secrecy is
essential to meet the overriding interest that the secrecy is
narrowly tailored to meet the interest, and that alternatives to
secrecy have been clearly considered. In rejecting the trial
court's order of secrecy in Press-Enterprise, the Supreme Court
emphasized that, in that case, the trial court did not
articulate specific findings as to why it needed to close voir
dire; nor did it consider alternatives to closing it. ( Id.
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at 513.)
The U.S. Court of Appeals for the Fourth Circuit, relying on
Press-Enterprise, rejected jury anonymity in In re Baltimore
Sun (4th Cir. 1988) 841 F.2d 74, stating :
We think it no more than application of what has always
been the law to require a . . . court . . . to [make
public] the names and addresses of those jurors who are
sitting. . . .[W]e recognize the difficulties which may
exist in highly publicized trials . . . and the
pressure upon jurors. But we think the risk of loss of
confidence in the judicial process is too great to
permit a criminal defendant to be tried by a jury whose
members may maintain anonymity. If . . . the attendant
danger[s] of a highly publicized trial are too great,
[the court] may always sequester the jury and change of
venue is always possible. . . .(841 F.2d at 76-77.)
More recent cases also affirm the need to approach anonymous
juries as "an unusual measure that is warranted only where there
is a strong reason to 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.
Shryock, 342 F.3d 948, 971 (9th Cir. Cal. 2003)) In order to
empanel an anonymous jury the court must find:
(1) there is a strong reason for concluding that it is
necessary to enable the jury to perform its factfinding
function, or to ensure juror protection; and (2)
reasonable safeguards are adopted by the trial court to
minimize any risk of infringement upon the fundamental
rights of the accused." Id. (adopting the First
Circuit's test from United States v. DeLuca, 137 F.3d
24, 31 (1st Cir. 1998)). Although these factors are
neither exclusive nor dispositive, courts have
recognized the need for jury protection based on a
combination of 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 lengthy
incarceration if convicted; and (5) extensive publicity
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that could enhance the possibility that jurors' names
would become public and expose them to intimidation and
harassment. (citations omitted) (United States v.
Fernandez, 388 F.3d 1199, 1244-1245 (9th Cir. Cal.
2004))
A California Supreme Court case found that the court did not
abuse its discretion in identifying jurors by number stating:
We find no abuse of discretion in the trial court's
decision to order that the jurors be identified by
numbers. The prosecutor informed the court that two
witnesses had been threatened and one had been offered
a bribe. These incidents provided reasonable grounds
for concern that an attempt might be made to unlawfully
interfere with the jurors' performance of their duties.
Any interference with defendant's right to conduct voir
dire was minimized because the jurors were not
completely anonymous-counsel had access to the names of
the jurors. Defendant contends that the procedure
interfered with his ability to assist his counsel in
jury selection because he was not personally allowed
access to the jurors' names. Defendant argues that he
might not have recognized a juror's face but might have
recognized a name and realized he knew something about
the juror or the juror's family that might cause the
juror to be biased. Defendant's contention is
speculative and in any event any minor interference
with the conduct of voir dire that may have occurred
was justified by the court's legitimate concerns for
the safety and integrity of the jury (People v. Thomas
53 Cal. 4th 771, 786-789 (Cal. 2012))
4. Identifying a Juror by Other Than Their Name
This bill provides that in a criminal trial the court shall
provide to counsel for each party the complete names of the
prospective jurors, both alphabetically and in the order in
which they were called. However, the court in each criminal
trial, shall determine a uniform manner by which each
prospective juror shall be addressed by the court and counsel
for each party according to one of the following:
An identification number assigned by the court.
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The prospective juror's first name and the first initial
of his or her last name.
The prospective juror's title and last name.
This bill prohibits the court and counsel for each party from
addressing prospective jurors by their full names during jury
selection and requires the court to inform the jury of the
prohibition.
5. Constitutional Issues?
Having every juror in a criminal case addressed by something
other than his or her name during voir dire raises
Constitutional questions.
As noted in the cases above, the right to a public jury is
important not just to the right of the defendant to get a fair
trial but to the right of the public to have confidence in the
jury system. Cases that have allowed for an anonymous juries or
juries where the jurors were referred to by a number have been
upheld when the Appellate Court has found that the trial court
had made a finding that the jury needed protection or that it
was necessary to protect the ability of a jury to perform its
fact-finding duty in a particular case. It is not clear that it
will be Constitutional to allow this automatically in every
case. It is also not clear whether each of the options would
have the same Constitutional problems, for example identifying a
person by a number only seems to give complete anonymity, maybe
addressing a person by last name does not since it may give some
indication as to a relationship with someone involved in the
case.
While this bill gives the prosecution and defense access to the
prospective jurors names and thus may not infringe on one aspect
of a defendant's right to a fair trial, by not making a case by
case determination it appears as if it may violate the open jury
requirement in Press Enterprise. This bill does not eliminate
Code of Civil Procedure Section 237 which provides access by the
public to the names of qualified jurors until a verdict has been
reached so is that enough to comply with Press Enterprise's
requirement that trials be "inherently public" proceedings?
6. Support
According to the San Diego County District Attorney, a sponsor
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of this bill:
A constituent brought this issue to our attention after
experiencing the voir dire process in a local criminal
case. While she waited her turn to be called, she
witnessed a young lady, about the same age as her adult
daughter, get called up by her full name. She sat in
disbelief as the young lady divulged where she lived,
that she lived alone, where she worked and other very
personal information. The courtroom was filled with
other prospective jurors. All hear the young lady's
full name and, after a few moments of questioning knew
details many of us would consider very private. AB 1766
provides a simple fix that would protect that privacy
in courtrooms up and down the state.
The measure simply requires the court and attorneys, in
criminal and civil cases, to address prospective jurors
by first name and last initial, rather than by the
prospective juror's full first and last names. AB 1766
still allows the court to provide the complete names of
potential jurors to both counsels, but the court and
counsel just would not use the full names when calling
or questioning the prospective jurors during the voir
dire process.
7. Oppose
The California Newspaper Publishers Association opposes this
bill stating:
By eliminating use of a juror's full name, this
legislation would remove important facts from the
public process and make secret information that is
readily available in a phone book - a person's full
name. This blanket rule of secrecy is contrary to the
presumptive First Amendment right of public access that
applies to all portions of a trial, particularly in a
criminal case.
The United States Supreme Court recognized this
presumption of openness in Press-Enterprise Co. v.
Riverside County Superior Court (1984) 464 U.S. 501.
The court held that voir dire proceedings in criminal
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trials are presumptively open to the public and can be
closed only if a trial court determines that the
presumption of openness is overcome by an overriding
interest (i.e. the defendant's right to a fair trial).
This is a high burden: the presumption should be
overcome only in unusual circumstances, on a fact
specific, case-by-case basis. But AB 1766 would make
all potential juror names in California unknowable in
criminal court proceedings.
While the bill was amended to permit the public to
access the qualified juror list upon request, pursuant
to Code of Civ. Proc. Section 237, this amendment does
not allay the constitutional concerns because it only
permits access to the names of jurors who are actually
empaneled. Thus, the public has no way of knowing which
jurors were dismissed from the pool, information that
could be essential to knowing whether there was bias in
the jury selection process.
The open and public trial is a hallmark of the American
legal system. It allows the public to oversee the
courts, and fosters public trust that justice is being
served. Hiding public information about those who may
determine the status of another person's life and
liberty is tantamount to denying the public this
fundamental access to the courts. If openness to the
courts is cut-off, the public's confidence in the
courts is undermined and trust in this political
institution is lost.
The court in Press Enterprise got it right. The
appropriate process for a potential juror to protect
private information is by affirmative request. This
permits the court to make the
constitutionally-required, fact-specific finding that
there is an overriding interest in nondisclosure in
that instance. The court recognized that there are
instances where the interrogation of a juror touches
"deeply personal matters," warranting nondisclosure,
but a person's identity cannot be captured in that
consideration.
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CNPA believes AB 1766 would be unconstitutional because
it would foreclose public access to all potential juror
names, without any analysis of the interests involved,
in every case. Because AB 1766 falls short of the Press
Enterprise standard, we must respectfully oppose.
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