BILL ANALYSIS Ó
-----------------------------------------------------------------
|SENATE RULES COMMITTEE | AB 1766|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
-----------------------------------------------------------------
THIRD READING
Bill No: AB 1766
Author: Mark Stone (D)
Amended: 8/2/16 in Senate
Vote: 27
SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/28/16
AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone
ASSEMBLY FLOOR: 78-0, 4/4/16 - See last page for vote
SUBJECT: Examination of prospective jurors
SOURCE: San Diego County District Attorney
DIGEST: This bill requires that jurors in criminal cases be
referred to by something other than their names.
ANALYSIS:
Existing law:
1) Allows a court, in a criminal case, to conduct an initial
examination of prospective jurors. (Code of Civil Procedure
§ 223)
2) 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.
AB 1766
Page 2
(Code of Civil Procedure § 223.)
3) 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)
4) 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)
5) 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.)
6) 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)
7) 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))
8) 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, consisting of
names, addresses and telephone numbers shall be sealed until
further order of the court. (Code of Civil Procedure § 237
AB 1766
Page 3
(a)(2))
9) 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))
10)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)
11)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.)
12)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.)
13)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.)
14)Sunsets on January 1, 2022.
This bill:
1) Provides that, in a criminal case, the court shall provide
to counsel for each party the complete names of the
AB 1766
Page 4
prospective jurors, both alphabetically and in the order in
which they will be called.
2) 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.
1) 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.
2) 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.
Background
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:
AB 1766
Page 5
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 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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified8/3/16)
San Diego County District Attorney (source)
Association of Deputy District Attorneys
California Police Chiefs Association
OPPOSITION: (Verified8/3/16)
California Attorneys for Criminal Justice
California Newspaper Publishers Association
ARGUMENTS IN SUPPORT: According to the San Diego County
District Attorney, a sponsor 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
AB 1766
Page 6
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.
ARGUMENTS IN OPPOSITION: The California Newspaper Publishers
Association (CNPA) 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 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
AB 1766
Page 7
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.
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.
ASSEMBLY FLOOR: 78-0, 4/4/16
AYES: Achadjian, Alejo, Travis Allen, Atkins, Baker, Bigelow,
Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos,
Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh,
Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher,
Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez,
Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger
Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey,
Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes,
McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte,
AB 1766
Page 8
O'Donnell, Olsen, Patterson, Quirk, Ridley-Thomas, Salas,
Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner,
Waldron, Weber, Wilk, Williams, Wood, Rendon
NO VOTE RECORDED: Rodriguez
Prepared by:Mary Kennedy / PUB. S. /
8/3/16 19:22:34
**** END ****