BILL ANALYSIS Ó
AB 1766
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CONCURRENCE IN SENATE AMENDMENTS
AB
1766 (Mark Stone)
As Amended August 2, 2016
2/3 vote
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|ASSEMBLY: |78-0 |(April 4, |SENATE: |37-0 |(August 11, |
| | |2016) | | |2016) |
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Original Committee Reference: JUD.
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
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.
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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)Specifies that the provisions under this bill shall remain in
effect until January 1, 2022.
6)Makes other technical and conforming changes.
The Senate amendments provide for a five-year sunset.
FISCAL EFFECT: None
COMMENTS: 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.
To address these concerns, this bill provides that during voir
dire in a criminal manner, a court or counsel must address a
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prospective juror by a jury number, the juror's first name and
last initial, or the juror's title and last name. This bill
also 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.
Although this bill is limited to criminal cases, 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 maintains the court's discretion in determining how
the court and counsel shall address each panel of prospective
jurors. This bill also ensures that within a particular panel,
the court address 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 does
not prevent the court or counsel from having access to the
prospective juror's full name. Indeed, 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. 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.
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 California Supreme
Court held that a procedure to address jurors by a number does
not violate a defendant's right to a public trial because "the
trial was open and the jurors' faces were visible to anyone
present." (Ibid.) 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
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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, allows courts and counsel
to address prospective jurors by their first or last names,
requires the court to provide counsel with access to the full
names of prospective jurors, and requires the court to advise
jurors about this new criminal procedure, this bill would
certainly survive the test under People v. Thomas, supra, at
771.
Opponents to this bill assert that this bill is
unconstitutional, and rely on Press-Enterprise Co. v. Superior
Court of California, Riverside County (1984) 464 U.S. 501, a
criminal case involving the murder and rape of a teenage girl
which raised the issue of public access to court proceedings
during voir dire. There, the Press-Enterprise newspaper moved
to open the voir dire proceeding conducted in a closed courtroom
to the public. The prosecutor opposed the newspaper's motion,
asserting that jurors would be less 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 press then moved to obtain
transcripts of the proceedings, but was similarly denied.
In its review of the case, the United States Supreme Court
stated that criminal proceedings "held in secret?frustrate the
broad public interest" and that "public proceedings vindicate
the concerns of the victims and the community in knowing that
offenders are being brought to account for their criminal
conduct by jurors fairly and openly selected." (Id. at 509.)
However, "[t]he jury selection process may, in some
circumstances, give rise to a compelling interest of a
prospective juror when interrogation touches on deeply personal
matters that person has legitimate reason for keeping out of the
public domain." (Id. at 511.) In such instances, voir dire may
be conducted in a non-public setting (such as in the chambers of
a trial court judge or in a closed courtroom).
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Accordingly, in reversing the lower court, the Supreme Court
established the following rule: "[t]he presumption of openness
may be overcome only by an overriding interest based on findings
that closure is essential to preserve higher values and is
narrowly tailored to serve that interest. The interest is to be
articulated along with findings specific enough that a reviewing
court can determine whether the closure order was properly
entered." (Id. at 510.) Additionally, if a court limits public
access to a voir dire proceeding, the constitution may still be
satisfied if a "transcript of the closed proceeding [is made]
available within a reasonable time," as long as a court
determines that disclosure of a transcript safeguards "the
juror's valid privacy interests." (Id. at 512.) If not, a
"valid privacy right may rise to a level that part of the
transcript should be sealed, or the name of a juror withheld, to
protect the person from embarrassment." (Ibid.)
Although this case deals with voir dire, it is otherwise
inapplicable to the legal issues raised by this bill. The
Press-Enterprise case involved the public's ability to
physically gain access to a voir dire proceeding which was
denied when the lower trial court ordered certain questions of
the voir dire proceedings to be closed to the public. The
Press-Enterprise decision never addressed the issue of
identifying jurors by name. This bill, on the other hand, does
not require or even reference non-public voir dire proceedings.
To the extent that current law allows voir dire to be conducted
outside of public view, that law would be unaffected by this
bill. In contrast to Press-Enterprise, this bill addresses the
ability of a court to shield a juror's full name and identity
and has nothing to do with the legally permissible grounds or
means for a trial court to conduct voir dire proceedings in a
non-public setting. Additionally, even if this bill were to
trigger an analysis under Press-Enterprise, this bill does not
affect the public's right to obtain a voir dire proceeding
transcript or a juror's name, as authorized under existing law.
Indeed, this bill specifically states that its provisions shall
not limit public access to juror information provided under
existing law. Accordingly, this bill appears to be
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constitutional.
Analysis Prepared by:
Eric Dang / JUD. / (916) 319-2334 FN: 0003727