BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 213| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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 SB 213 Page 2 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 SB 213 Page 3 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 SB 213 Page 4 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 SB 213 Page 5 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 SB 213 Page 6 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. SB 213 Page 7 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 SB 213 Page 8 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. SB 213 Page 9 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 **** END ****