BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 213|
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THIRD READING
Bill No: SB 213
Author: Block (D)
Amended: 4/28/15
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 6-1, 4/21/15
AYES: Hancock, Anderson, Liu, McGuire, Monning, Stone
NOES: Leno
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
SUBJECT: Juries: criminal trials: peremptory challenges
SOURCE: California Judges Association
DIGEST: This bill reduces the number of peremptory challenges
the prosecution and defense get in misdemeanor trials.
ANALYSIS:
Existing law:
1)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
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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).)
1)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.
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.)
1)Permits each party (prosecution and defense) in criminal cases
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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).)
2)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).)
3)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:
1)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
challenges allowed the defendants.
2)Sunsets these changes on January 1, 2021.
3)Requires Judicial Council to submit a report to the
Legislature on the reduction of peremptory challenges
resulting from this bill by January 1, 2020.
Background
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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
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.
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.
After any jurors have been removed from the panel for
disqualification and bias, the parties may remove jurors without
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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 changes 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. This bill also requires a report
in January 1, 2020 and will sunset on January 1, 2021.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
SUPPORT: (Verified 5/11/15)
California Judges Association (source)
Alameda County Superior Court Judges: Brick; Briggs; Desautels;
Hora; Jacobson; and Keller
California Appellate Court Justice Stewart
Contra Costa Superior Court Judge Mockler
Los Angeles Superior Court Judges: Sloan; and Stewart
Marin County Superior Court
Mendocino County Superior Court Judge Nelson
Monterey Superior Court Judge Panetta
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Riverside County Superior Court Judges: Counelis; and Hopp
San Bernardino Superior Court Judge Pacheco
San Diego District Attorney Bonnie Dumanis
San Diego Superior Court Judges: Dato; Elias; and Halgren
San Francisco Superior Court Judges: Bolanos; Haines; Humes;
Kelly; and Stewart
San Luis Obispo Superior Court Judge Tangeman
Santa Clara Superior Court Judge Bernal
Santa Cruz Superior Court
Sonoma County Superior Court Judges: Chouteau; Gnoss; Guillen;
Richey (retired); and Wick
OPPOSITION: (Verified 5/11/15)
California Public Defenders Association
Legal Services for Prisoners with Children
ARGUMENTS 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.
Shorter trials: Fewer peremptory challenges will mean shorter
jury selection and thus shorter trials, allowing judges and
overburdened staff to handle more matters.
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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 213 could result
in community and employer savings of between $30 million and
$60 million annually.
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
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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 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 213 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.
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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 213 - would work to further erode fairness
in our jury system. 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."
Prepared by:Mary Kennedy / PUB. S. /
5/15/15 10:36:51
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