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  

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   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  

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    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  

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   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  

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   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 



















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  OPPOSITION:  American Civil Liberties Union
            California Attorneys for Criminal Justice     



































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