BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 213 Hearing Date: April 21, 2015
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|Author: |Block |
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|Version: |February 11, 2015 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|MK |
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Subject: Juries: Criminal Trials: Peremptory Challenges
HISTORY
Source: California Judges Association
Prior Legislation:SB 794 (Evans) not heard in Assembly Public
Safety
AB 1557 (Feuer) - 2007, died on Assembly Floor
Inactive File
AB 886 (Morrow) - 1997-98,
never heard by Assembly Judiciary
AB 2003 (Goldsmith) - 1996, failed
Assembly Floor
AB 2060 (Bowen) - 1996, never heard
by Assembly Judiciary
Support: Unknown
Opposition:California Public Defenders Association; California
Public Defenders Association; Legal Services for
Prisoners with Children
PURPOSE
The purpose of this bill is to reduce the number of peremptory
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challenges the prosecution and defense get in misdemeanor
trials.
Existing law permits challenges to jurors under the following
provisions:
A want of any of the qualifications prescribed by this
code to render a person competent as a juror.
The existence of any incapacity which satisfies the
court that the challenged person is incapable of performing
the duties of a juror in the particular action without
prejudice to the substantial rights of the challenging
party. (Code of Civil Procedure § 228.)
A peremptory challenge exercised by a party to the
action. (Code of Civil Procedure
§ 225(b).)
Existing law specifies a challenge for cause based upon bias may
be taken for one or more of the following causes:
Consanguinity or affinity within the fourth degree to
any party or to any alleged witness or victim in the case
at bar.
Having the following relationships with a party: parent,
spouse, child, guardian, ward, conservator, employer,
employee, landlord, tenant, debtor, creditor, business
partners, surety, attorney, and client.
Having served or participated as a juror, witness, or
participant in previous litigation involving one of the
parties.
Having an interest in the outcome of the event or
action.
Having an unqualified opinion or belief as to the merits
of the action founded on knowledge of its material facts or
of some of them.
The existence of a state of mind in the juror evincing
enmity against, or bias towards, either party.
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That the juror is party to an action pending in the
court for which he or she is drawn and which action is set
for trial before the panel of which the juror is a member.
If the offense charged is punishable with death, the
entertaining of such conscientious opinions as would
preclude the juror finding the defendant guilty, in which
case the juror may neither be permitted nor compelled to
serve. (Code of Civil Procedure § 229.)
Existing law permits each party (prosecution and defense) in
criminal cases 10 peremptory challenges. There are an
additional five peremptory challenges in criminal matters to
each defendant and five additional challenges, per defendant, to
the prosecution when defendants are jointly charged. (Code of
Civil Procedure § 231(a).)
Existing law specifies 20 peremptory challenges per party in
criminal matters when the offenses charged are punishable with
death, or life in prison. There are an additional five
peremptory challenges in criminal matters to each defendant and
five additional challenges, per defendant, to the prosecution
when defendants are jointly charged. (Code of Civil Procedure §
231(a).)
Existing law allows parties in criminal matters punishable with
a maximum term of imprisonment of 90 days or less six peremptory
challenges each. When two or more defendants are jointly tried,
their challenges shall be exercised jointly, but each defendant
shall be also entitled to two additional challenges which may be
exercised separately, and the state shall also be entitled to
additional challenges equal to the number of all the additional
separate challenges allowed to the defendants. (Code of Civil
Procedure § 231(b).)
This bill provides that in any criminal case where the offense
is punishable with a maximum term of imprisonment of one year or
less, the defendant is entitled to six preemptory challenges.
If two or more defendants are jointly tried their challenges
shall be exercised jointly but each defendant shall also be
entitled to two additional challenges which may be exercised
separately, and the state shall also be entitled to additional
challenges equal to the number of all the additional separate
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challenges allowed the defendants.
This bill sunsets these changes on January 1, 2021.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight 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 February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 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).
While significant gains have been made in reducing the prison
population, the state now 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
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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 the bill
According to the author:
California currently ranks among the states with one
of the highest number of peremptory challenges in
misdemeanor trials. High number of peremptory
challenges cost more in terms of additional volumes of
jury summons as well as the need for high-capacity
jury rooms and infrastructure to support those jurors.
And while peremptory challenges are an important
aspect of our justice system, greater numbers of
peremptory challenges have been correlated with large
numbers of potential jurors being dismissed for
improper reasons. The current jury selection process
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has proven itself to be time consuming for potential
jurors, burdensome and costly for employers, and
inefficient to our justice system.
By modestly reducing the number of peremptory
challenges to six and additional challenges to two
when there is multiple parties, California would
continue to rank above most states while making a huge
impact on reducing workload, increasing juror
satisfaction, and maximizing fairness. Reducing the
number of challenges will reduce the number of jurors
who must be called for services. Fewer people
appearing for jury service will shorten trial
permitting judges and court personnel to be redeployed
in areas where layoffs and furloughs have severely
hampered court operations. Furthermore, a more
efficient jury selection process results in people
getting back to work faster, significantly increasing
community cost savings and juror satisfaction.
Finally, modestly reducing peremptory challenges will
decrease the number of potential jurors being
dismissed for improper reasons, increasing fairness in
the jury selection process and preserving justice.
2. The Jury Selection Process
The current jury selection process permits the parties to remove
jurors from the panel in a criminal case by exercising both
challenges for "cause" and "peremptory" challenges. These
challenges are made during the voir dire phase of the trial
during which the court, with the assistance of the attorneys,
inquires of the prospective jurors to determine the suitability
of individuals to render a fair judgment about the facts of the
case. At the commencement of voir dire, the jurors are asked to
reveal any facts which may show they have a disqualification
(such as hearing loss) or a relationship with one of the parties
or witnesses. Some of these facts (such as employment by one of
the parties) may amount to an "implied" bias which causes the
juror to be excused from service. Other facts (such as having
read about the case in the newspapers) may lead to questioning
of the juror to establish whether an actual bias exists. A
party usually demonstrates that a juror has an actual bias by
eliciting views which show the juror has prejudged some element
of the case.
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After any jurors have been removed from the panel for
disqualification and bias, the parties may remove jurors without
giving any reason by exercising peremptory challenges. In
general, the number of peremptory challenges available to each
side is:
20 in capital and life imprisonment cases;
10 in criminal cases where the sentence may exceed 90
days in jail;
6 in criminal cases with sentences less than 90 days in
jail; and
6 in civil cases.
In addition, if one or more defendant is tried, the peremptory
challenges shall be exercised jointly but each individual
defendant is given five additional challenges or four additional
challenges if the maximum term is less than 90 days, and the
prosecutor is entitled to a proportional number of challenges.
This bill would change the number of peremptory challenges in
misdemeanors punishable by one year or less to six with an
additional two per defendant in cases where two or more
defendants are tried together.
3. History of Peremptory Challenges
Peremptory challenges to jurors have been part of the civil law
of California since 1851 and were codified in the original Field
Codes in 1872. Their previous history in England dates back to
at least the Fifteenth Century when persons charged with
felonies were entitled to 35 peremptory challenges to members of
the jury panel. Peremptory challenges have permeated other
nations which have based their systems of justice on English
Common Law. Today, nations with roots in English law, such as
Australia, New Zealand, and Northern Ireland, continue to
utilize peremptory challenges in jury selection. In 1986, the
United States Supreme Court, in Batson v. Kentucky (1985) 471
U.S. 1052, 85 L. Ed. 2d 476, 105 S. Ct. 2111, recognized that
the peremptory challenge could be a vehicle for discrimination.
Subsequent cases have sought, with some difficulty, to define
the limits of inquiry into the motives of the parties in the
exercise of challenges which might be based on race or gender.
In California, under Civil Code Section 231.5, a party may not
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excuse a juror with a peremptory challenge based on race, color,
religion, sex, national origin, sexual orientation or similar
grounds. If questioned, the attorney who exercised the
potentially discriminatory challenge must provide the court with
a lawful and neutral reason for the use of the challenge.
4. Misdemeanors Included in This Bill
The types of cases included in this bill are comparatively
serious in nature compared to most civil matters. First, unlike
civil matters, the prosecution must convince a unanimous jury by
the highest legal standard under the law. Second, these cases
involve matters which can result in imprisonment for up to one
year. If multiple offenses are charged, a defendant could
potentially be sentenced to consecutive multi-year stints. In
addition to their liberty interests, criminal defendants must
also carry a criminal record. Misdemeanors, such as vehicular
manslaughter, DUI, assault, battery, molestation and domestic
violence would be covered under this legislation.
5. Additional Cost and Strain Upon the System/Danger of Retrials
Prosecuting attorneys have the burden of proving to a unanimous
jury that a defendant is guilty of the charges beyond a
reasonable doubt. When a criminal jury cannot reach a unanimous
verdict, the prosecution may retry the case and attempt to
achieve a unanimous verdict with another trial. There is no
limit to the number of trials the prosecution can bring. Every
retrial strains the system and requires the cost of a trial. By
reducing peremptory challenges available to the prosecution, the
likelihood of a non-unanimous jury increases because the
prosecutor cannot use their instincts to remove a juror the
prosecutor believes may prejudice the jury. Each non-unanimous
verdict increases the chances of costly retrials.
6. Peremptory Challenges as the Only Method of Eliminating
Suspected Bias, Suspected Incompetence, or Suspected
Incapacity
Under the present system, a potential juror may be excused for
cause under a number of specified circumstances (generally
incompetence, incapacity, and apparent implied or actual bias).
One common use of peremptory challenges is to remove potential
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jurors who meet the legal definition of unbiased, but who the
attorney suspects may be biased or incompetent.
a. Suspected Bias
In general, many jurors come into the jury selection process
with certain biases. Studies have shown that jury bias is
particularly prevalent in criminal cases. In fact, this is
one of the reasons we have the presumption of innocence. The
jury process is set up to divulge and eliminate these biases
through education in basic legal principles such as the
presumption of innocence, right against self-incrimination
and the burden or proof. Some jurors begin their jury
service with the belief that a defendant must prove his or
her innocence. Other jurors may expressly state that they
believe that it is incumbent upon the defendant to testify in
order to obtain a not guilty verdict. Still others commonly
state when questioned that they would vote guilty at the
beginning of the case, despite the fact that the defendant is
presumed innocent. Upon questioning, if the juror simply
states that they can fairly apply the instructions of the
judge they meet the legal standard of unbiased and thus won't
be dismissed for cause although an attorney may wish to
dismiss the juror with a peremptory challenge.
b. Suspected Incompetence
Jurors are expected to have basic competence in order to
adequately judge the facts and circumstances of a case. For
example, jurors are expected to have a basic understanding of
the English language. Minimal ability to understand the
language is generally accepted. One potential use of a
peremptory challenge would be to remove a juror who can
answer and communicate in yes and no responses, but who may
not have the ability to read and comprehend the jury
instructions. When a case depends on a complex understanding
of the jury instructions, a juror who is less literate may
not be sufficiently competent to decide the facts of the
case. While this juror is not removable for cause, an
attorney may choose to exercise a peremptory challenge.
c. Suspected Incapacity
Jurors are expected to be physically and mentally capable of
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service. For example, a juror who is so physically infirm
that they are unable to sit and comprehend the testimony and
courtroom presentation may not be capable of serving on a
jury.
In instances where the judge determines that the potential
juror's health is legally sufficient, an attorney may choose
to remove said juror through use of a peremptory challenge.
The attorney may feel that the potential juror's infirmity
may be so distracting that they could not devote sufficient
attention to the determination of the facts of the case.
7. Argument in Support
The sponsor believes that reducing the number of peremptory
challenges will save the courts money without reducing justice.
Specifically, the California Judges Association states that this
bill is important for the following reasons:
Cost savings: While savings are difficult to quantify
precisely, reducing peremptory challenges by one-half will
greatly reduce the number of jurors who must be called for
service. This is because sufficient potential jurors must be
present in case the full numbers of potential jurors are
dismissed. Fewer juror summons' result in less paper, less
postage, fewer jurors to pursue for not appearing, less
physical infrastructure to hold potential jurors, etc.
Personnel efficiencies: Fewer people appearing for jury
service will permit personnel resources involved in calling
jurors for service to be redeployed in areas where layoffs
and furloughs have severely hampered court operations.
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Shorter trials: Fewer peremptory challenges will mean
shorter jury selection and thus shorter trials, allowing
judges and overburdened staff to handle more matters.
Improved juror satisfaction: Judges report that potential
jurors frequently express frustration when they watch
otherwise eligible jurors be dismissed for no apparent
reason. The willingness of potential jurors to serve is
critical to the constitutional right to jury, and judges are
convinced that this simple change will help improve juror
attitudes.
More productive employees in work force: Calling fewer
potential jurors means that more people will be working
productively in their jobs, benefitting private businesses
which we ask to pay for jury service and public agencies as
well. In the public sector, for example, having police
officers in court for shorter periods of time while jury
selection unfolds will permit officers to spend more
productive time in police work. The Judicial Council
estimates that the one change proposed in SB 794 could result
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in community and employer savings of between $30 million and
$60 million annually.
8. Arguments in Opposition
The California Public Defenders Association opposes this bill
stating:
For one accused of a crime, the Sixth Amendment
guarantees the right to a fair and impartial jury. This
is a fundamental right not only for those facing
serious charges, but those accused of misdemeanors as
well. Peremptory challenges are a critical tool used by
prosecutors and defense attorneys and give both the
opportunity to weed out biased jurors and protect this
constitutional guarantee.
The Supreme Court has often held that peremptory
challenges are an essential means for ensuring
fairness. The purpose of the peremptory challenge,
the Court said, is "to assure the parties that the
jurors before whom they try the case will decide on the
basis of the evidence placed before them, and not
otherwise." In Holland v. Illinois, Justice Scalia
wrote that "peremptory challenges, by enabling each
side to exclude those jurors it believes will be most
partial toward the other side, are a means of
eliminating extremes of partiality on both sides,
thereby assuring the selection of a qualified and
unbiased jury."
Prior to the passage of Proposition 115 in 1990, both
attorneys and judges conducted the questioning of
jurors, commonly referred to as "voir dire."
Sections 6 and 7.5 of Proposition 115 repealed then
existing code provisions governing the conduct of voir
dire in criminal cases so that attorney-conducted voir
dire was essentially eliminated unless there was a
showing of good cause. What seemed to be a key
rationale for the changes was that it would achieve
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some economy in time. While it is unclear whether this
objective was achieved, what is clear is that the
measure has affected trial counsel's ability in
criminal cases to effectively assess the prospective
jurors' capacity for fairness and the absence of bias.
In 2000, the Legislature realized the excesses of
Proposition 115 and passed
AB 2406 (Migden). AB 2406 amended the Proposition 115
to instead require the court to conduct an initial
examination and thereafter give the counsel for each
party the right to examine, by oral and direct
questioning, any or all of the prospective jurors. But
since AB 2406 did not specify any particular length of
time to be accorded to counsel to conduct their
examination, while some judges accord a reasonable
length of time for the examination of jurors, empirical
evidence suggests that the time accorded for the
examination of jurors in many misdemeanor cases is
still very brief.
SB 749 again attempts yet another assault on the
effective selection of jurors by counsel. As noted in
the Assembly Public Safety Committee analysis of AB
2406 for the hearing on that legislation on April 4,
2000, the authors of that bill noted, among other
things, "Judges are not in a position to know the
nuances of a case or case-specific issues related to
juror bias. The attorneys are." Yet, as noted, AB
2406 did not truly restore the right to
attorney-conducted voir dire in a meaningful way,
because time constraints often lead to the perfunctory
acknowledgement of the right sought to be granted by
that legislation.
The fact is, given the contraction of the voir dire
process in California, attorneys in criminal cases are
left with little recourse but to use peremptory
challenges in doubtful situations where a fuller
examination of a prospective juror might have
unquestionably qualified the juror or disqualified the
juror "for cause." Thus a reduction in the number of
peremptory challenges - as proposed by SB 749 - would
work to further erode fairness in our jury system.
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Experienced criminal lawyers know that one result of
truncating the juror selection process in the wake of
Proposition 115 has been an increase in the number of
mistrials occasioned by "hung juries," which is really
no time savings at all. As noted by Alexander Hamilton
during the drafting of our fundamental charter, "The
friends and adversaries of the plan of the convention .
. . concur . . . in the value they set upon the trial
by jury; the former regard it as a valuable safeguard
to liberty; the latter represent it as the very
palladium of free government."
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