BILL ANALYSIS ACA 18 Date of Hearing: May 9, 1995 Counsel: David R. Shaw ASSEMBLY COMMITTEE ON PUBLIC SAFETY Paula L. Boland, Chair ACA 18 (Rainey) - As Introduced: February 23, 1995 ISSUE: SHOULD THE CALIFORNIA CONSTITUTION BE AMENDED TO ALLOW FOR A FIVE-SIXTHS' JURY VERDICT IN A CRIMINAL CASE FOR A MISDEMEANOR OR FELONY, EXCEPT IN A CASE IN WHICH THE DEATH PENALTY IS SOUGHT? DIGEST Constitutional Amendment. 2/3 vote required. Under current law: 1) Criminal defendants in California have a statutory right (Penal Code section 689) and a state constitutional right (Article I, Section 16) to a jury trial for both misdemeanor and felony offenses, unless waived by both parties. 2) The California Supreme Court has stated on numerous occasions that the right to a trial by jury described in Article I, Section 16 of the California Constitution includes the right to a unanimous verdict. ( People v. Wheeler (1978) 22 Cal.3d 258, 265.) 3) In a California civil cause of action, the California Constitution allows for three-forths of a jury to render a verdict. (Article I, Section 16) 4) In a California criminal case, in which a felony is charged, the California Constitution requires that the jury consist of - continued - ACA 18 Page 1 ACA 18 12 persons. In criminal actions in which a misdemeanor is charged, the jury shall consist of 12 or a lesser number agreed on by the parties. (Article I, Section 16). 5) A unanimous jury verdict is not required in a state prosecution by the United States Constitution. ( Johnson v. Louisiana (1972) 406 U.S. 356 and Apodaca v. Oregon (1972) 406 US 404.) This bill: 1) Provides that in a criminal action in which either a felony or a misdemeanor is charged, five-sixths of the jury may render a verdict, but if the death penalty is sought, only a unanimous jury may render the verdict. 2) Provides that a unanimous jury verdict is required in a misdemeanor case where the parties agreed to jury of nine or fewer members. COMMENTS 1) Purpose. According to the author: Five percent to fifteen percent of jury trials result in mistrials due to hung juries in criminal cases - most often because one or two jurors consciously elect to disregard the law or evidence. This necessitates costly, time-consuming retrial, or results in compromise dispositions that produce lower levels of punishment than the conduct warrants. Insistence on unanimity is unwise and unnecessary. Oregon, Louisiana, and even England, our historical benchmark for the unanimity requirement in criminal cases, allow for non-unanimous jury verdicts. 2) Unanimous Verdicts Are Not Required in State Cases by the United States Constitution. The Supreme Court of the United States clearly established that non-unanimous verdicts in state criminal prosecutions are constitutional in the cases of - continued - ACA 18 Page 2 ACA 18 Johnson v. Louisiana (1972) 406 U.S. 356 and Apodaca v. Oregon (1972) 406 U.S. 404. The Johnson case, the first of these two cases decided on May 22, 1972 that dealt with non-unanimous verdicts, approved a nine-to-three guilty verdict in state non-capital cases. The court held that a verdict based upon the concurrence of nine jurors out of 12 satisfied the constitutional requirement that guilt be proven beyond a reasonable doubt, and therefore did not violate the due process rights of the defendant. The court went on to state that the Louisiana statute which required unanimity of 12 jurors in capital cases and a unanimous vote by a five-person jury in the least serious crimes but only a nine-to-three vote of a 12-person jury for other crimes did not violate the equal protection clause, since the statutory scheme served a rational purpose in facilitating the administration of justice. The court found the statute intended to vary the difficulty of proving guilt with the gravity of the offense and the severity of the punishment. Apodaca involved the cases of three defendants who had been separately tried and convicted of criminal offenses in the state of Oregon, which allowed for a ten-to-two guilty verdict. Two of the criminals were convicted by eleven-to-one verdicts and one was convicted by a ten-to-two verdict. In an opinion by Justice White, the court held that a conviction by less than a unanimous jury does not violate the Sixth Amendment right to trial by jury in criminal cases which is made applicable to the states by the Fourteenth Amendment. The plurality reasoned that a jury that is representative of a cross-section of the community and that can deliberate freely, can fulfill its purpose of interposing the common sense judgment of a group of laymen between the defendant and the government, even though it is not required to reach a unanimous verdict. 3) Historical Precedent. The most frequently cited argument for the continuation of the unanimity requirement in jury verdicts is that England, which provided the roots of American - continued - ACA 18 Page 3 ACA 18 Jurisprudence, had a similar rule. In discussing the dangers of blindly applying such a historical argument to the unanimous verdict situation, Justice Denecke of the Supreme Court of Oregon, upholding the constitutionality of Oregon's non-unanimous ten-to-two jury verdicts, stated in pertinent part in State v. Gann (1969) 463 Pacific Reporter 2d, 570, 575, , the following: If the historical approach is to prevail and a decision rendered by a judge on the assizes in the reign of Edward III determines the fundamental rights of Americans in 1969, other English and colonial practices may rear up through the cobwebs and dust and claim similar recognition. [For example] In England, in the colonies, and in many of the states, a jury was to be composed only of white male property owners. If the historical focus approach is to prevail in this issue, it is instructive to note that Modern England has done away with the same rule that is oft cited for precedent. During the last 23 years, Johnson v. Louisiana and Apodaca v. Oregon have been repeatedly cited with approval, and appear to be in no danger of ever being overruled. The proposed amendment to the California Constitution is clearly lawful under the United States Constitution and a sensible approach to dealing with the unique problems California's criminal justice system faces in 1995. The Louisiana and Oregon experiences offer empirical evidence that the proposed legally acceptable solution will also prove to be both a workable and successful one. 4) Potential Effect. Will stop the effect of a one or two person veto of the jury process, which is often an expression of a dislike or bias against the criminal justice system as opposed to a decision on the law or evidence in a given case. Reduces court costs and court congestion due to retrials and speeds up the trial process. Does not alter the statndard of proof in a - continued - ACA 18 Page 4 ACA 18 criminal case nor will it subject defendants to a greater possibility of an incorrect verdict. 5) Other Legislation. ACA 28 (Richter) changes the size of civil juries to six persons; and changes the size of criminal juries to six persons, except when the United States Constitution requires a greater number. ACA 28 is also scheduled to be heard in committee today. SOURCE: The California District Attorneys Association SUPPORT: Jan Scully, Sacramento County District Attorney The Association of Los Angeles Deputy Sheriffs, Inc. California State Sheriffs' Association The Adam Walsh Center-California Doris Tate Crime Victims Bureau 3 Concerned Citizens California Peace Officers' Association/California Police Chiefs' Association - continued - ACA 18 Page 5 ACA 18 OPPOSITION: American Civil Liberties Union California Attorneys for Criminal Justice - continued - ACA 18 Page 6