BILL ANALYSIS �
SB 794
Page A
Date of Hearing: June 24, 2014
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 794 (Evans) - As Amended: January 21, 2014
SUMMARY : Provides that in any criminal case where the offense
is punishable with a maximum term of imprisonment of on > (>) -
As Amended: >
e 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.
Specifies a sunset date of January 1, 2017.
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.
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.
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.
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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, "SB 794 seeks to
increase efficiency in the jury selection process and to
potentially save the state millions of dollars by reducing the
number of peremptory challenges allotted to both the
prosecution and the defense.
"Current law requires that in criminal cases, if the offense
charged is punishable by death, or with imprisonment in state
prison for life, the defense and the prosecution are entitled
to 20 peremptory challenges. Additionally, under current law,
subject to exceptions, the defense and the prosecution are
each entitled to 10 peremptory challenges in criminal
misdemeanor cases. The number of peremptory challenges
mandated under California law consistently ranks among the
highest in the country in all categories. In misdemeanor
cases, the majority of states allot half the amount of those
required in California.
"SB 794 would reduce the number of peremptory challenges
allotted to both the prosecution and the defense, in
misdemeanor cases, from 10 to 5."
2)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
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
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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<1> 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
3)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
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
---------------------------
<1> 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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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.
4)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
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 work force: Calling fewer
potential jurors means that more people will be working
productively in their jobs, benefitting private businesses
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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 794 could
result in community and employer savings of between $30
million and $60 million annually.
5)Misdemeanors Included in this Bill are Relatively 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.
6)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.<2> 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.
7)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.
---------------------------
<2>The highest standard of proof in the legal system.
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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
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%
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San Francisco (1986) 51%
San Joaquin (1990) 62%
San Mateo (1990) 57%
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County % Who Agree
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%
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
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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.<3> 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
evidence."<4>
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
--------------------------
<3>Strawn and Buchanan, Jury Confusion: A Threat to Justice, 59
Judicature 478, 481 (1976).
<4> 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.
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often, outside of his or her awareness.<5> Awareness of
the consequences of various responses can also affect the
way attitudes and beliefs are expressed.<6> People portray
themselves in socially desirable and politically correct
ways when publicly questioned (e.g., when questioned about
racial attitudes).<7>
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.<8>
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.
--------------------------
<5>Nisbett & Wilson, "Telling More Than We Can Know: Verbal
Reports on Mental Processes", 84 Psychol. Rev. 231 (1977).
<6>Collins and Hoyt, "Personal Responsibility for Consequences:
An Integration of the Forced Compliance Literature", 8 J.
Experimental Soc. Psychol. 558 (1972).
<7>Arkin, "Social Anxiety, Self Presentation and the
Self-Serving Bias in Casual Attribution", 38 J. Personality &
Soc. Psychol. 23 (1980).
<8>Marlow and Crown, Social Desirability and Responses to
Perceived Situational Demands, 25 J. Consulting Psychol. 109
(1968).
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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
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.]
8)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
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
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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.
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.
9)Argument in Support : According to the California Judges
Association , "SB 794 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 five per side
for additional parties. For misdemeanors with sentences of
three months or less, present law grants 6 peremptory
challenges, plus four per side for multiple parties. SB 794
standardizes and reduces the number for all misdemeanors to 5
per side, with two additional for multiple parties. SB 794 was
last amended in the Senate Public Safety Committee to add a
two-year sunset provision.
"Please note that SB 794 proposes no changes in felony trials,
in the size or majority required for conviction, and most
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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.
"In addition to modest cost savings to the courts, savings to
communities, particularly to both public and private
employers, will be significant. 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.
"Overall, a reduction in the number of misdemeanor peremptory
challenges is expected to reduce costs and to increase juror
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satisfaction, with no reduction in justice for anyone. In
fact, greater numbers of peremptory challenges have been
correlated with more potential jurors dismissed for improper,
discriminatory reasons, such as race?
"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.
"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.
California's judges strongly support SB 794, and we would
respectfully request your 'AYE' vote."
10)Argument in Opposition : The Alameda County District Attorney
and Alameda County Public Defender jointly write, "we want to
express our strong opposition to Senate Bill 794, which would
reduce the number of peremptory challenges allotted to both
the prosecution and the defense in misdemeanor cases from ten
to five.
"A fair and impartial jury is the cornerstone of our criminal
courts. Challenges are an essential tool for safeguarding the
integrity of the jury system. There are two types of
challenges, and they are inextricably linked: challenges for
cause and peremptory challenges. Challenges for cause are
exercised at the judge's discretion and are used to weed out
jurors who exhibit clear and obvious bias; often, these are
jurors who openly state that they cannot be fair or cannot set
aside a particular prejudicial belief or experience. However,
there are many jurors who do not rise to the level of a
challenge for cause but nonetheless exhibit impartiality or
bias. For these jurors, the litigants are expected to
exercise peremptory challenges.
"The purpose of the peremptory challenge is to help ensure the
selection of a fair and unbiased jury as well as a jury that
represents a broad cross-section of the affected community. A
reduction in the number of peremptory challenges available to
both prosecutors and defense counsel increases the difficulty
in meeting these important guarantees of due process.
"While a reduction in the number of peremptory challenges may,
at first, appear to save a modest amount of time and money for
the court system, a closer analysis of the unintended
consequences of this bill belies that argument. If peremptory
challenges are limited, litigants on both sides will
inevitably put greater emphasis on cause challenges.
Challenges for cause take a greater amount of time to develop,
which will lengthen the voir dire process. There will also be
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more appellate litigation over whether or not requests for
challenges for cause were properly granted or denied. In
order to preserve such issues for appeal, a litigant must
exercise all their peremptory challenges - something that
would begin happening more and more frequently, further
delaying the jury selection process.
"More importantly, a reduction in the number of peremptory
challenges, as proposed by SB 794, would erode fairness in our
jury system. It would increase the chance or ' luck of the
draw' for both sides. It would increase the chances of jurors
deciding cases based on prejudice or other improper
motivations. More jurors with subtle or unconscious biases
would serve and would render decisions in misdemeanor cases,
which, though they are not as consequential as felony cases,
still involve serious public safety, due process, and liberty
interests. Moreover, it is unacceptable to argue that a
greater level of arbitrariness is tolerable in the judicial
system based on the seriousness of the charge.
"We understand that the judicial system has been plagued by
budget cuts and we appreciate efforts to identify efficiencies
that will soften the blow of those spending reductions. But,
what little savings will come from this bill is greatly
outweighed by the risks to the integrity of the jury system.
"Simply put, this bill jeopardizes just outcomes."
REGISTERED SUPPORT / OPPOSITION :
Support
California Judges Association
Judicial Council of California
Riverside Superior Court
United Educators of San Francisco
Opposition
Alameda County Board of Supervisors
Alameda County District Attorney
Alameda County Public Defender
California Association of Black Lawyers
California Attorneys for Criminal Justice
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California District Attorneys Association
California DUI Lawyers Association
California Public Defenders Association
Judge Quentin L. Kopp (Ret.)
Legal Services for Prisoners with Children
Los Angeles County Public Defenders Association
Los Angeles District Attorney's Office
Marin County Public Defender
San Francisco Public Defender
Taxpayers for Improving Public Safety
2 private individuals
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744