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  
          ---------------------------
          <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  
          ---------------------------
          <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  











                                                                     SB 213


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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,  











                                                                     SB 213


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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












                                                                     SB 213


                                                                     Page Z


          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