BILL ANALYSIS                                                                                                                                                                                                    Ó






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                                   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.  








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             (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  







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             (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  







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             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:









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             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  







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            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  







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            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,  







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            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


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