BILL ANALYSIS                                                                                                                                                                                                    Ó






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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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