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 ****