BILL ANALYSIS Ó
SB 213
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Date of Hearing: July 14, 2015
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
SB
213 (Block) - As Amended April 28, 2015
SUMMARY: Reduces the number of peremptory challenges from ten
peremptory challenges to six peremptory challenges for both the
prosecution and the defense in misdemeanor criminal trials.
Specifically, 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
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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)States that The Judicial Council shall conduct a study, and on
or before January 1, 2020, shall submit a report to the public
safety committees of both houses of the Legislature, on the
reductions in peremptory challenges. The study shall include,
but not be limited to, an examination of the number of
peremptory challenges used by the defendant and the state in
misdemeanor jury trials, a representative sample of the types
of cases that go to jury trial, and the resulting cost savings
to the courts.
3)Imposes a sunset date of January 1, 2021.
EXISTING LAW:
1)Permits each party (prosecution and defense) in criminal cases
10 peremptory challenges. Grants 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 Civ.
Proc., § 231 subd. (a).)
2)Specifies 20 peremptory challenges per party in criminal
matters when the offenses charged are punishable with death,
or life in prison. Grants 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 Civ. Proc., § 231 subd.
(a).)
3)Allows parties in criminal matters punishable with a maximum
term of imprisonment of 90 days or less six peremptory
challenges each. Grants an additional four peremptory
challenges to defendants jointly charged, and four per
defendant to the prosecution. (Code Civ. Proc., § 231 subd.
(b).)
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4)Permits challenges to jurors under the following provisions
(Code Civ. Proc., § 225 subd. (b)):
a) Incompetency or incapacity to serve; (Code Civ. Proc.,
§ 228.)
b) A challenge for cause, for disqualification from
service, or a showing of bias against a party; and,
c) A peremptory challenge exercised by a party to the
action.
5)Specifies a challenge for cause based upon bias may be taken
for one or more of the following causes (Code Civ. Proc., §
229):
a) Consanguinity or affinity within the fourth degree to
any party or to any alleged witness or victim in the case
at bar;
b) 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;
c) Having served or participated as a juror, witness, or
participant in previous litigation involving one of the
parties;
d) Having an interest in the outcome of the event or
action;
e) 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;
f) The existence of a state of mind in the juror evincing
enmity against, or bias towards, either party;
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g) 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;
and,
h) 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.
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "Due to the
recent budget crisis, courts significantly cut their
operational budgets, laid off key personnel, and closed entire
courtrooms, resulting in a significant reduction in access to
justice. As a result the legislature and Governor asked our
judicial system to find efficiencies while preserving justice.
SB 213 is a modest measure that reduces the number of
peremptory challenges in misdemeanor cases from ten to sic and
when multiple parties are jointly tried from five to two
additional challenges per side. The measure will increase
efficiencies for the courts, community, and local economy
while ensuring that justice is not undermined.
"California currently ranks among the states with the highest
number of peremptory challenges in misdemeanor trials. This
costs 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 discriminated and
dismissed for improper reasons. The current jury selection
process has proven itself to be time consuming for potential
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jurors, burdensome and costly for employers, and inefficient
to our justice system.
"By modestly reducing the number of peremptory challenges from
ten to six and additional challenges from five to two when
there are multiple parties, California would continue to rank
above most states while making a significant impact on
reducing workload, increasing juror satisfaction, and
maximizing fairness. Reducing the number of challenges will
decrease the number of jurors who must maximizing fairness.
Reducing the number of challenges will decrease the number of
jurors who must be called for service. Fewer people appearing
for jury service will shorten trials as the jury selection
process often is the longest part of the misdemeanor trial.
This will permit judges and court personnel to be redeployed
to areas where layoffs and furloughs have severely hampered
court operations. Furthermore, a more efficient jury
selection process results in jurors returning to work faster,
significantly increasing community cost savings and juror
satisfaction. Finally, modestly reducing peremptory
challenges will decrease the number of potential jurors
dismissed for improper reasons, thereby increasing fairness in
the jury selection process, all while preserving justice."
2)2014 Judicial Council Statistics on Misdemeanor Trials:
According to the most recent report on Statewide Caseload
Trends, published by the Judicial Council of California<1>,
there were a total of 319,376 misdemeanor cases in California
that were resolved prior to a trial. There were a total of
3,029 cases in the state of California that were resolved
after a trial. That means that roughly 1% of misdemeanor
cases in the State of California were resolved by a trial in
2014. Of that 1% of trials, only 56% of those cases (or 1,707
cases statewide) were resolved by a jury, the remaining 44% of
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<1>
http://www.courts.ca.gov/documents/2014-Court-Statistics-Report.pdf
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trials were resolved by a judge. That means that nearly
one-half of one percent of filed misdemeanor cases are
resolved by a jury after a trial.
According to the report, the following counties had the
following number of cases resolved by a jury trial<2>:
County Resolutions by Jury Trial in 2014
Alameda (no data provided)
Alpine 0
Amador 2
Butte 12
Calavares 2
Colusa 0
Contra Costa 122
Del Norte 2
El Dorado 14
Fresno 25
Glenn 0
Humbolt 10
Imperial 14
Inyo 1
Kern 43
Kings 6
Lake 5
Lassen 1
Los Angeles 449
Madera 3
Marin 7
Mariposa 0
Mendocino 4
Merced 7
Modoc 0
Mono 0
Monterey 45
Napa 9
--------------------------
<2> Alameda and Orange County failed to provide complete data
and are not included.
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Nevada 9
Orange (no data provided)
Placer 16
Plumas 0
Riverside 83
Sacramento 15
San Benito 1
San Bernardino 133
San Diego 146
San Francisco 82
San Joaquin 26
San Luis Obispo 15
San Mateo 22
Santa Barbara 15
Santa Clara 62
Santa Cruz 15
Shasta 9
Sierra 1
Siskiyou 5
Solano 48
Sonoma 23
Stanislaus 36
Sutter 1
Tehama 0
Trinity 3
Tulare 26
Toulumne 9
Ventura 92
Yolo 27
Yuba 4
3)Jury Selection Process: The current 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
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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 giving any reason, by exercising
peremptory challenges.
In general, the number of peremptory challenges<3> available to
each side is:
a) 20 in capital and life imprisonment cases;
b) 10 in criminal cases where the sentence may exceed 90
days in jail;
c) 6 in criminal cases with sentences less than 90 days in
jail; or,
d) 6 in civil cases
4)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
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<3> Additional peremptory challenges are awarded to all parties
when multiple defendants are involved. The prosecution gains a
proportionate number to the defense in such cases.
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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 decided Batson v.
Kentucky, recognizing 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 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.
5)Proponent Arguments: Proponents make a number of arguments
related to court efficiency for the need to cut the number of
peremptory challenges. In addition, the proponents argue that
peremptory challenges are often used in a discriminatory
manner to remove juries of a particular class from service.
a) 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.
b) 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.
c) Shorter trials: Fewer peremptory challenges will mean
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shorter jury selection and thus shorter trials, allowing
judges and overburdened staff to handle more matters.
d) 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.
e) More productive employees in the 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.
f) Impact of Proposition 47: Unlike previous versions of
this bill, the proponents are now arguing that the passage
of Proposition 47 has further "complicated" the judicial
process. However, the passage of Proposition 47 took cases
that were previously felonies and reduced them to
misdemeanors. In general, defendants are more likely to
plead to a misdemeanor than a felony due to the nature of
the consequences of a felony plea versus a misdemeanor
plea. Additionally, in terms of pressure on the courts,
the courts are facing far fewer potential felony trials as
a result of the passage of Proposition 47 and therefore the
need for this bill would be reduced.
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
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remove potential jurors who meet the legal definition, 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 of proof. Often, 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.
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.
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c) Suspected Incapacity: Jurors are expected to be
physically and mentally capable of 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)Misdemeanors can be Serious Offenses Imposing a Criminal
Record: 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, assault,
battery, molestation and domestic violence would be covered
under this legislation.
8)Additional Cost and Strain upon the System/Danger of Retrials:
Prosecuting attorneys have the daunting burden of proving to
a unanimous jury that a defendant is guilty of the charges
beyond a reasonable doubt.<4> 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 thereby increasing the chances of costly retrials.
---------------------------
<4>The highest standard of proof in the legal system.
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9)Studies Conducted and Compiled by the "National Jury Project":
The National Jury Project (NJP) is a non-profit corporation
in Minnesota, with subsidiaries in California, Minnesota, and
New York. The NJP has found that numerous institutional and
societal norms make the selection of a fair, competent, and
unbiased jury difficult. Specifically, the process fails to
provide necessary safeguards or allow necessary inquiry into
the jury selection process.
a) Jurors' Opinions and Attitudes: A juror's
preconceptions can substantially impact his or her ability
to be fair or impartial.
i) Bias Against Criminal Defendants: One important
source of bias in any criminal case is the inability or
unwillingness of some potential jurors to apply
fundamental legal principles correctly. In every
jurisdiction, a substantial proportion of persons
eligible for jury service enters the courtroom
predisposed against any criminal defendant. This
predisposition is expressed in disagreement with legal
principles designed to protect the presumption of
innocence. Attitudinal surveys conducted by NJP in
jurisdictions throughout the country reveal that a
substantial proportion of persons eligible for jury
service believe the following.
(1) Persons eligible for jury service
who agree that defendants in criminal trials should be
required to testify despite the right against
self-incrimination:
Jurisdiction % Who
Agree
Northern District of California (1975) 66%
San Francisco County (1986) 64%
(2) Persons eligible for jury service
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expecting defendants to prove their innocence despite
judge's instructions to the contrary (burden of proof
and presumption of innocence):
County % Who Agree
Alameda (1989) 54%
Lake (1993) 53%
Los Angeles (1995) 50%
Marin (1990) 51%
Napa (1999) 48%
Orange (1991) 46%
Sacramento (2002) 51%
San Diego (1989) 52%
San Francisco (1986) 51%
San Joaquin (1990) 62%
San Mateo (1990) 57%
Santa Clara (1989) 54%
Shasta (1992) 52%
Solano (2003) 54%
Sonoma (1992) 47%
Tulare (2003) 64%
Ventura (1990) 53%
Yolo (1991) 41%
(3) Persons eligible for jury service
agreeing that "If the government brings someone to
trial, that person is probably guilty of some crime."
County % Who Agree
Contra Costa (1990) 27%
Marin (1990) 19%
Merced (1986) 35%
Orange (1984) 32%
Sacramento (1984) 32%
San Joaquin (1990) 21%
San Francisco (1986) 20%
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San Mateo (1984) 37%
Solano (1985) 34%
Sonoma (1980) 40%
Yolo (1980) 33%
ii) Prejudicial Attitudes: The ability to be fair and
impartial may be precluded by an individual's general
prejudicial attitudes or opinions. General attitudes may
preclude impartiality. For example, among those who know
or understand that under our system of jurisprudence a
defendant is presumed innocent unless proven guilty,
there are some who at the same time expect the defendant
to prove his or her innocence. Since an excuse for cause
requires a juror's explicit admission that she or he
cannot be fair in the specific case, some judges resist
inquiry into areas of general prejudice.
iii) Prejudgment: Jurors who already have opinions about
an individual in a case commonly form judgments about the
case before hearing any evidence. The number of
prospective jurors who will admit in the courtroom that
they have formed opinions about a case is generally
small. However, substantial evidence demonstrates that
the likely presence of bias and prejudgment exists.
b) Instructions Cannot Cure Bias: Research regarding the
effectiveness of judges' instructions strongly suggests
that instructions alone cannot compensate for the
prospective jurors' biases. Post-trial studies have
concluded that as many as 50% of instructed jurors did not
understand that the defendant did not have to present
evidence of innocence.<5> When asked whether "the fact
that the state decided to bring charges against a criminal
defendant" is no evidence, some evidence, or strong
evidence "that the defendant committed the charged
offense," 40% answered "some evidence" or "strong
--------------------------
<5>Strawn and Buchanan, Jury Confusion: A Threat to Justice, 59
Judicature 478, 481 (1976).
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evidence."<6>
c) Psycho-Social Dynamics of the Courtroom: The impact of
the courtroom environment strongly influences the answers
jurors provide. The selection process is intended to
determine individuals' qualifications for a very important
job. Prospective jurors, like everyone else in the
courtroom, are aware of this fact. As the questioning
begins, jurors understand that they will be included on or
excluded from a jury based on their responses to questions.
The prospective jurors are aware they are being evaluated
by the judge, attorneys, and the audience (including fellow
potential jurors). As in any interview, a person's natural
reactions to stress, embarrassment, group pressure, and
public exposure will affect his or her responses to
questions. Responses of a prospective juror, like those of
the subject of any interview, are affected by these and
other factors that lie outside of the person's control, and
often, outside of his or her awareness.<7> Awareness of
the consequences of various responses can also affect the
way attitudes and beliefs are expressed.<8> People portray
themselves in socially desirable and politically correct
ways when publicly questioned (e.g., when questioned about
--------------------------
<6> Saxton, How Well Do Jurors Understand Jury Instructions? A
Field Test Using Real Juries and Real Trials in Wyoming, 33 Land
and Water Review 59 (1988) at 96. Based on responses from 181
jurors who had served on a criminal jury.
<7>Nisbett & Wilson, "Telling More Than We Can Know: Verbal
Reports on Mental Processes", 84 Psychol. Rev. 231 (1977).
<8>Collins and Hoyt, "Personal Responsibility for Consequences:
An Integration of the Forced Compliance Literature", 8 J.
Experimental Soc. Psychol. 558 (1972).
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racial attitudes).<9>
Most people naturally seek to present themselves in the most
positive light. They portray themselves as fair rather
than unfair, honest rather than dishonest, and so on.<10>
In the courtroom, the judge is the person of highest status
and authority, thus the status difference between judge and
potential jurors often inhibits juror candor. Features of
the courtroom such as high ceilings, judicial robes, and a
raised bench can be intimidating to lay people. In this
environment jurors are more likely to conceal rather than
reveal bias.
d) Lack of Candor during the Selection Process: The NJP
has found that there is a lack of truthful answers by
jurors in the selection process. As a result, the parties
and the judge rarely obtain sufficient information from the
voir dire process to intelligently exercise challenges for
cause. For most prospective jurors, the courtroom is an
unfamiliar and intimidating place. Potential jurors strive
to present themselves in the most positive light. The
message often communicated to prospective jurors during the
voir dire process is that fairness and impartiality mean
having no opinions. As a result, little is learned about
prospective jurors' attitudes and opinions. Bias and
prejudice are only infrequently revealed.
e) Judges Wield Great Authority in Limiting Inquiries of
Jurors: The NJP found that judges have great discretion in
limiting the questioning of jurors, and frequently do
exercise their authority to strictly limit questioning of
--------------------------
<9>Arkin, "Social Anxiety, Self Presentation and the
Self-Serving Bias in Casual Attribution", 38 J. Personality &
Soc. Psychol. 23 (1980).
<10>Marlow and Crown, Social Desirability and Responses to
Perceived Situational Demands, 25 J. Consulting Psychol. 109
(1968).
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jurors. Judges' decisions concerning areas to include in
jury questioning and latitude accorded counsel in
conducting the questioning are rarely reversed. [Mu'Min v.
Virginia (1991) 111 S. Ct. 1899, 1905; Patton v. Yount,
(1984) 467 U.S. 1025.]
10)Argument in Support: According to the California Judges
Association and the Judicial Council of California, "The
California Judges Association (CJA) and the Judicial Council
of California are writing in support and respectfully request
your AYE vote.
"SB 213 proposes modest yet significant reductions in the
number of peremptory challenges available in misdemeanor
trials. Present law grants each side 10 peremptory challenges
on misdemeanors with sentences of greater than three months up
to one year, and 5 per side for additional parties. For
misdemeanors with sentences of three months or less, present
law grants 6 peremptory challenges, plus 4 per side for
multiple parties.
"SB 213 standardizes and reduces the number for all
misdemeanors to 6 per side, with 2 additional for multiple
parties. SB 213 contains a five-year sunset provision.
"Please note that SB 213 proposes no changes in felony trials,
in the size or majority required for conviction, and most
importantly, no limitations on challenges for cause. The bill
affects only peremptory challenges, which are available to
counsel for any reason, or for no reason, as long as
challenges are not being exercised for impermissible reasons,
such as race.
"The need for economies and efficiencies in our court system
has never been greater. Legislators have repeatedly asked the
courts to identify measures which can save time and resources.
Reducing peremptory challenges in misdemeanor is one
commonsense proposal which can assist the courts. This is why
all 58 presiding judges have voted to support the bill.
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"Fewer peremptory challenges will reduce the time spent by law
enforcement officers who remain on standby during jury
selection, returning those officers to patrol duty sooner.
Jurors likewise could return to productive work sooner. In
addition to modest cost savings to the courts, savings to
communities, particularly to both public and private
employers, will be significant.
"Overall, a reduction in the number of misdemeanor peremptory
challenges is expected to increase juror satisfaction, with no
reduction in justice for anyone. In fact, greater numbers of
peremptory challenges could carry the risk of dismissing more
potential jurors dismissed for improper, discriminatory
reasons, such as race.
"SB 213 offers the following benefits:
"An expedited jury selection phase will shorten
misdemeanor trials resulting in more misdemeanor trials
conducted within existing trial departments.
"Law enforcement officers will spend less
non-productive time in the courtroom while jury selection
is conducted.
"More jurors will be available for service on higher
stakes felony cases.
"Juror satisfaction will increase as fewer jurors
are called to misdemeanor courtrooms to sit through
extended jury selection on lesser crimes.
"Millions of dollars annually will be saved by
public and private employers alike with fewer people
being called to jury duty.
"Personnel efficiencies: Fewer people appearing for
jury service will permit personnel resources involved in
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calling jurors for service to be redeployed in areas
where layoffs and furloughs have severely hampered court
operations.
"California presently allows more peremptory challenges for
misdemeanors than 47 other states. Only New Jersey and New
York presently permit the same number as California, and even
in those states, fewer challenges are permitted for additional
parties. California also allows far more challenges than the
federal system. A review of 50-state data reviews that even
with the proposed reduction in peremptory challenges, 36
states would still offer fewer peremptory challenges than
California. Even the federal system offers only 6 peremptory
challenges (3 per side). We are aware of no allegation that
the ability to effectively prosecute or defend criminal cases
in those states or in the federal system are impaired by fewer
available peremptory challenges.
"An excessive number of misdemeanor peremptory challenges
unnecessarily extends the jury selection process often making
jury selection the longest part of the misdemeanor trial and
reducing the number of misdemeanor trials that can be heard
with existing resources. Oversized misdemeanor panels also
encumber large numbers of jurors rendering them unavailable
for service on higher stakes felony cases. With the recent
passage of Proposition 47, these problems will soon increase
significantly.
"Finally, unused or poorly used jurors express that jury
service is a waste of valuable time, souring their perception
of the criminal justice system and reducing the likelihood of
future jury service.
"With budget cutbacks forcing dramatic changes in many areas
of civil law, it is time for California to adopt modest,
commonsense changes in criminal misdemeanor jury selection.
California's judges make it their life-work to insure the fair
administration of justice, and if there was any serious
suggestion that reducing peremptory challenges would impair
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that critical objective, we would not be proposing the
change."
1)Argument in Opposition: According to the Los Angeles District
Attorney's Office, "SB 213 reduces the number of peremptory
challenges in misdemeanor cases from 10 to 6 and reduces the
number of additional peremptory challenges provided to each
defendant from 5 to 2 when defendants are tried jointly
thereby reducing the number of peremptory challenges available
to the prosecution in multi-defendant cases. SB 213 also
contains language that provides the reduced number of
peremptory challenges shall sunset on 1/1/2021 unless
subsequent legislation extends this date.
"Prior to the passage of Proposition 115 in 1990, both
attorneys and judges conducted the questioning of jurors,
commonly referred to as 'voir dire.' Proposition 115
eliminated attorney conducted voir dire excepted in limited
circumstances. Ten years after the passage of Proposition
115, the Legislature recognized that the elimination of
attorney conducted voir dire negatively impacted both the
prosecutors and defense counsel's ability to effectively
assess a prospective jurors' capacity for fairness and the
absence of bias. In 2000, AB 2406 (Chapter 192, Statutes of
2000) was approved by the Legislature and signed into law. AB
2406 amended Proposition 115 to require courts conduct an
initial examination of prospective jurors and thereafter give
both the prosecution and defense counsel the right to examine,
by oral and direct questioning, any or all of the prospective
jurors. However AB 2406 did not specify the amount of time
that attorneys for each side would have to conduct their
examinations which has resulted in a very limited examination
of jurors for bias and fairness in many misdemeanor cases.
"Even with this limited voir dire many judges believe that
prosecutors and defense counsel spend too much time ensuring
that a fair and unbiased jury panel is selected. According to
the sponsor, SB 213 is supposed to result in both cost savings
and reduce the length of misdemeanor trials. Neither of these
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goals will be achieved by SB 213.
"Simply reducing the number of peremptory challenges will have
the unintended consequence of increasing both the defense
attorney and prosecution request for challenges for cause.
While the number of peremptory challenges is limited, both the
defense and prosecution have an unlimited number of challenges
for cause. Prosecutors and defense counsel use peremptory
challenges more frequently in California because of the
limited attorney conducted voir dire which forces each side to
use their peremptory challenges in situations where a more
thorough voir dire could have determined whether a juror was
fit to serve or should be disqualified 'for cause.'
"The time and resources needed to challenge a prospective
juror for cause greatly exceed the time and resources used
when a prosecutor or defense counsel use a peremptory
challenge. With the number of peremptory challenges reduced
under SB 213, there will be demands for additional attorney
conducted voir dire to ensure that both the People's and
defendant's constitutional right to a fair and unbiased trial
is protected.
"The sponsors of SB 213 argue that a blue ribbon report
recommended that the number of peremptory challenges be
reduced. However the sponsors have chosen to selectively pick
and choose the recommendations from the report for inclusion
in SB 213. The report did in fact recommend a reduction in
the number of peremptory challenges in misdemeanor cases, but
it linked the reduction in peremptory challenges to a
reduction in the size of misdemeanor juries which is not
contained in SB 213. The sponsors note that California is one
of 3 states that allow for up to 10 peremptory challenges,
however states like Indiana, Minnesota, New Mexico, and Texas
which limit the number of peremptory challenges to 5 also have
6 person juries.
"Prosecuting attorneys have the burden of proving to a
unanimous jury that a defendant is guilty of the charges
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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.
"The inclusion of a sunset clause in SB 213 all but guarantees
that there will be lengthy and costly appellate challenges to
any and all guilty verdicts rendered by a jury with limited
peremptory challenges if it's provisions sunset. Defense
counsel will challenge a guilty verdict reached by a jury on
constitutional equal protection grounds that their client was
not provided the same opportunity to eliminate potentially
biased jurors as a similarly situated defendant tried before
or after the provisions of SB 213 sunsetted.
"Jury selection is viewed as the most critical portion of the
criminal trial process by a large majority of prosecutors and
defense attorneys. Selecting a jury is a skill that must be
learned by all new criminal attorneys at the beginning of
their careers which is when most criminal attorneys conduct
misdemeanor trials. SB 213 will interfere with a new
attorney's ability to learn this critical skill. If new
criminal attorneys fail to properly learn this skill during
their misdemeanor rotation it will result in unfair results
for either the People or the defendant in felony trials which
is an injustice to California's criminal justice system which
is viewed as a model by many criminal justice professionals.
"The notion that misdemeanors are less serious than felony
crimes is well founded. However just because a misdemeanor is
considered less serious than a felony does not mean that it is
a trivial matter. Defendants convicted of misdemeanor crimes
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can be incarcerated for up to 1 year per offense in a county
jail. There are also misdemeanor crimes that result in a
defendant having to register for life as a sex offender under
California law. Unlike civil matters, there are real liberty
interests at stake in criminal cases. Shouldn't California
provide both the prosecution and defense counsel with every
opportunity to ensure a fair and unbiased jury is selected to
make such potentially life altering decisions?
"The purpose of peremptory challenges is to provide
prosecutors and defense counsel the ability to select a fair
and unbiased jury that provides each side with an opportunity
to select a jury that represents the diversity of their
community. The reduction of peremptory challenges will make
it far more difficult to select a fair and unbiased jury that
reflects a community's diversity. By limiting the use of
peremptory challenges, SB 213 has the real potential to result
in less diverse and more biased juries because of the
prosecutors or defense counsel's inability to remove a juror
they believe is biased and therefore unqualified to serve as a
juror but cannot prove to the satisfaction of the judge that
the potential juror should be removed 'for cause.'
"As prosecutors, it is both our goal and responsibility to
ensure that justice prevails in every criminal case that is
filed. Verdicts reached by juries that are biased or that are
not selected from a proper cross-section of the community
cannot be viewed as just.
"SB 213 will not result in the cost savings it claims will
result, nor will it improve the quality of California's
criminal justice system. A fair and unbiased jury is the
right of the People and every defendant in our justice system.
SB 213 will make ensuring justice is carried out more
difficult."
2)Prior Legislation:
a) SB 794 (Evans), of the 2013-2014 legislative session,
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provided 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 five preemptory
challenges. If two or more defendants are jointly tried
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. SB 794 failed passage in the
Assembly Public Safety Committee.
b) AB 1557 (Feuer) of the 20017-2008 legislative session,
reduced the number of peremptory challenges available to
the prosecution and defense in all misdemeanor criminal
matters punishable by up to one year in custody from ten to
six challenges. AB 1557 failed passage on the Assembly
Floor.
c) AB 886 (Morrow), of the 1997-98 Legislative Session,
would have reduced the number of peremptory challenges in
misdemeanor cases from 10 to 6 and made various changes to
the jury system. AB 886 was never heard by the Assembly
Judiciary Committee.
d) AB 2003 (Goldsmith), of the 1995-96 Legislative Session,
would have reduced the number of "peremptory challenges"
available to each side in criminal cases during the jury
selection process. AB 2003 failed passage on Assembly
Floor.
e) AB 2060 (Bowen), of the 1995-96 Legislative Session,
would have eliminated peremptory challenges. AB 2060 was
never heard by the Assembly Judiciary Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
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Alameda County District Attorney's Office
California Judges Association
Judicial Council of California
San Diego County District Attorney's Office
San Francisco County District Attorney's Office
San Mateo County District Attorney's Office
Santa Cruz Superior Court
28 private individuals
Opposition
California Attorneys for Criminal Justice
California Public Defenders Association
Criminal Defense Lawyers Club of San Diego
Legal Services for Prisoners with Children
Los Angeles County Public Defenders Association
Los Angeles District Attorney's Office
Riverside County Public Defender
6 private individuals
Analysis Prepared by:Gabriel Caswell / PUB. S. / (916)
319-3744