(1)In civil trials, existing law requires a trial judge to examine prospective jurors, and, upon completion of the judges examination, grants counsel for each party the right to examine, by oral and direct questioning, any prospective juror in order to enable counsel to intelligently exercise peremptory challenges and challenges for cause. Existing law provides that the judge in civil trials should provide the parties with both the alphabetical list and the list of prospective jurors in the order in which they will be called.

This bill would make nonsubstantive changes to these provisions.

(2)Under existing law, which was enacted by initiative measure, in a criminal case, the court is required to conduct the examination of prospective jurors, except that the court may permit the parties, upon a showing of good cause, to conduct a further inquiry. The initiative measure provides that it may be amended by a measure enacted by a ²/₃ vote of each house.

This bill would, until January 1, 2022, in criminal trials, require the court to provide the complete names of prospective jurors to counsel for each party, as specified. The bill would also require the court and counsel for each party to address a prospective juror using a number assigned by the court, by the prospective jurors first name and first initial of his or her last name, or by his or her title and last name, as determined by the court in each criminal trial. The bill would also make nonsubstantive changes to these provisions.

(1)In civil trials, existing law requires a trial judge to examine prospective jurors, and, upon completion of the judges examination, grants counsel for each party the right to examine, by oral and direct questioning, any prospective juror in order to enable counsel to intelligently exercise peremptory challenges and challenges for cause. Existing law provides that the judge in civil trials should provide the parties with both the alphabetical list and the list of prospective jurors in the order in which they will be called.

This bill would make nonsubstantive changes to these provisions.

(2)Under existing law, which was enacted by initiative measure, in a criminal case, the court is required to conduct the examination of prospective jurors, except that the court may permit the parties, upon a showing of good cause, to conduct a further inquiry. The initiative measure provides that it may be amended by a measure enacted by a ²/₃ vote of each house.

This bill would, until January 1, 2022, in criminal trials, require the court to provide the complete names of prospective jurors to counsel for each party, as specified. The bill would also require the court and counsel for each party to address a prospective juror using a number assigned by the court, by the prospective jurors first name and first initial of his or her last name, or by his or her title and last name, as determined by the court in each criminal trial. The bill would also make nonsubstantive changes to these provisions.

(1)In civil trials, existing law requires a trial judge to examine prospective jurors, and, upon completion of the judges examination, grants counsel for each party the right to examine, by oral and direct questioning, any prospective juror in order to enable counsel to intelligently exercise peremptory challenges and challenges for cause. Existing law provides that the judge in civil trials should provide the parties with both the alphabetical list and the list of prospective jurors in the order in which they will be called.

(2)Under existing law, which was enacted by initiative measure, in a criminal case, the court is required to conduct the examination of prospective jurors, except that the court may permit the parties, upon a showing of good cause, to conduct a further inquiry. The initiative measure provides that it may be amended by a measure enacted by a 2/3 23 vote of each house.

This bill would, in criminal trials, require the court to provide the complete names of prospective jurors to counsel for each party, as specified. The bill would also, in civil and criminal trials, require the court and counsel for each party to address a prospective juror using a number assigned by the court or court, by the prospective jurors first name and last initial. first initial of his or her last name, or by his or her title and last name, as determined by the court in each criminal trial. The bill would also make nonsubstantive changes to these provisions.

In civil trials, existing law requires a trial judge to examine prospective jurors, and, upon completion of the judges examination, grants counsel for each party the right to examine, by oral and direct questioning, any prospective juror in order to enable counsel to intelligently exercise peremptory challenges and challenges for cause. Existing law provides that the judge in civil trials should provide the parties with both the alphabetical list and the list of prospective jurors in the order in which they will be called.

Under existing law, which was enacted by initiative measure, in a criminal case, the court is required to conduct the examination of prospective jurors, except that the court may permit the parties, upon a showing of good cause, to conduct a further inquiry. The initiative measure provides that it may be amended by a measure enacted by a 2/3 vote of each house.

This bill would, in criminal trials, require the court to provide the complete names of prospective jurors to counsel for each party, as specified. The bill would also, in civil and criminal trials, require the court and counsel for each party to address a prospective juror using a number assigned by the court or by the potential prospective jurors first name and last initial. The bill would also make nonsubstantive changes to these provisions.

In civil trials, existing law requires a trial judge to examine prospective jurors, and, upon completion of the judges examination, grants counsel for each party the right to examine, by oral and direct questioning, any prospective juror in order to enable counsel to intelligently exercise peremptory challenges and challenges for cause. Existing law provides that the judge in civil trials should provide the parties with both the alphabetical list and the list of prospective jurors in the order in which they will be called.

Under existing law, which was enacted by initiative measure, in a criminal case, the court is required to conduct the examination of prospective jurors, except that the court may permit the parties, upon a showing of good cause, to conduct a further inquiry. The initiative measure provides that it may be amended by a measure enacted by a 2/3 vote of each house.

This bill would, in criminal trials, require the court to provide the complete names of prospective jurors to counsel for each party, as specified. The bill would also, in civil and criminal trials, require the court and counsel for each party to address a prospective juror using a number assigned by the court or by the potential jurors first name and last initial. The bill would also make nonsubstantive changes to these provisions.

GOVERNOR'S VETO

GV Bill Id:AB 1766

Author:(Mark Stone)

As Enrolled Ver:August 16, 2016

2/3 vote

Original Committee Reference: JUD.

SUMMARY: Provides how the court or parties' counsel may address prospective jurors during voir dire in a criminal matter. Specifically, this bill:

1. Requires the court to determine the manner in how the court and counsel shall uniformly address each panel of prospective jurors. The court and counsel shall address a prospective juror by either an identification number assigned by the court, the first name and the first initial of the juror's last name, or by a title and the juror's last name.
2. Requires the court, in criminal cases, to provide to counsel for each party the complete names of the prospective jurors, both alphabetically and in the order in which they will be called, similar to the information usually provided to parties in civil cases.
3. Requires the court to advise prospective jurors that, in accordance with state law, the court and counsel for each party are prohibited, in all criminal cases, from addressing prospective jurors by their full names during the jury selection process, and are required to address them by either: an identification number; their first name and the first initial of their last name; or their last name.
4. Provides that the bill, as it relates to voir dire in criminal trials, shall not be construed as affecting existing law that allows the public access to juror information.
5. Specifies that the provisions under this bill shall remain in effect until January 1, 2022.
6. Makes other technical and conforming changes.

The Senate amendments provide for a five-year sunset.

FISCAL EFFECT: None

COMMENTS: Juries are selected by a court process (that is open to the public) known as voir dire. During voir dire, prospective jurors are seated in the jury box and are asked – in front of other prospective jurors and the public – a series of questions to determine their competence and fitness to serve as jurors. Usually, these questions help to ferret out bias; but sometimes, these questions can touch on subjects that are very personal, such as whether the juror lives alone, whether the juror has children, and where the juror lives.

To address these concerns, this bill provides that during voir dire in a criminal manner, a court or counsel must address a prospective juror by a jury number, the juror's first name and last initial, or the juror's title and last name. This bill also requires the court to advise prospective jurors that California law prohibits the court and counsel in criminal cases from addressing prospective jurors by their full names during the jury selection process.

Although this bill is limited to criminal cases, this bill does not prevent a civil court from addressing jurors in a manner it deems appropriate and that is in accordance with law.

This bill maintains the court's discretion in determining how the court and counsel shall address each panel of prospective jurors. This bill also ensures that within a particular panel, the court address each prospective juror uniformly. Given that a court's decision is still subject to abuse of discretion review, this does not change the existing practice which allows the attorneys to object a court's determination. This bill does not prevent the court or counsel from having access to the prospective juror's full name. Indeed, this bill requires a court in a criminal case to provide to each party's counsel a complete list of the names of prospective jurors, both in alphabetical and examination calling order - similar to lists usually provided to a party's counsel in civil cases. This fair approach allows attorneys, like prosecutors and defense attorneys, to continue to assess jurors for other conflicts without resorting to open questioning during voir dire.

The California Supreme Court has recently considered whether trial courts have the discretion to address jurors by a number throughout a jury trial, rather than their full names. In People v. Thomas (2012) 53 Cal.4th 771, the California Supreme Court held that a procedure to address jurors by a number does not violate a defendant's right to a public trial because "the trial was open and the jurors' faces were visible to anyone present." (Ibid.) In addition, the Court held that, "any risk that the jury would speculate that the use of numbers related to the defendant's dangerousness was diminished because the trial court indicated it would admonish the jury that the procedure was required in all criminal cases and had nothing to do with the defendant." (Id.)

Given the public nature of criminal trials, and the fact that this bill only applies to voir dire, allows courts and counsel to address prospective jurors by their first or last names, requires the court to provide counsel with access to the full names of prospective jurors, and requires the court to advise jurors about this new criminal procedure, this bill would certainly survive the test under People v. Thomas, supra, at 771.

Opponents to this bill assert that this bill is unconstitutional, and rely on Press-Enterprise Co. v. Superior Court of California, Riverside County (1984) 464 U.S. 501, a criminal case involving the murder and rape of a teenage girl which raised the issue of public access to court proceedings during voir dire. There, the Press-Enterprise newspaper moved to open the voir dire proceeding conducted in a closed courtroom to the public. The prosecutor opposed the newspaper's motion, asserting that jurors would be less candid with their answers if the press were present during juror questioning. The trial judge agreed and prohibited the press from attending the individual voir dire proceedings; the press then moved to obtain transcripts of the proceedings, but was similarly denied.

In its review of the case, the United States Supreme Court stated that criminal proceedings "held in secret…frustrate the broad public interest" and that "public proceedings vindicate the concerns of the victims and the community in knowing that offenders are being brought to account for their criminal conduct by jurors fairly and openly selected." (Id. at 509.) However, "[t]he jury selection process may, in some circumstances, give rise to a compelling interest of a prospective juror when interrogation touches on deeply personal matters that person has legitimate reason for keeping out of the public domain." (Id. at 511.) In such instances, voir dire may be conducted in a non-public setting (such as in the chambers of a trial court judge or in a closed courtroom).

Accordingly, in reversing the lower court, the Supreme Court established the following rule: "[t]he presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered." (Id. at 510.) Additionally, if a court limits public access to a voir dire proceeding, the constitution may still be satisfied if a "transcript of the closed proceeding [is made] available within a reasonable time," as long as a court determines that disclosure of a transcript safeguards "the juror's valid privacy interests." (Id. at 512.) If not, a "valid privacy right may rise to a level that part of the transcript should be sealed, or the name of a juror withheld, to protect the person from embarrassment." (Ibid.)

Although this case deals with voir dire, it is otherwise inapplicable to the legal issues raised by this bill. The Press-Enterprise case involved the public's ability to physically gain access to a voir dire proceeding which was denied when the lower trial court ordered certain questions of the voir dire proceedings to be closed to the public. The Press-Enterprise decision never addressed the issue of identifying jurors by name. This bill, on the other hand, does not require or even reference non-public voir dire proceedings. To the extent that current law allows voir dire to be conducted outside of public view, that law would be unaffected by this bill. In contrast to Press-Enterprise, this bill addresses the ability of a court to shield a juror's full name and identity and has nothing to do with the legally permissible grounds or means for a trial court to conduct voir dire proceedings in a non-public setting. Additionally, even if this bill were to trigger an analysis under Press-Enterprise, this bill does not affect the public's right to obtain a voir dire proceeding transcript or a juror's name, as authorized under existing law. Indeed, this bill specifically states that its provisions shall not limit public access to juror information provided under existing law. Accordingly, this bill appears to be constitutional.

GOVERNOR'S VETO MESSAGE:

"This bill would require that prospective jurors be referred to by either an identification number or abbreviation during voir dire in criminal trials.

The open nature of criminal trials preserves both the defendant's right to a fair and open trial, as well as the public's faith in the court's impartial application of the law. Under existing law, there are adequate remedies available if the court finds good cause to deny public access to the voir dire process or to specific juror information.

These situations are best addressed on a case by case basis, and I do not believe there is a demonstrated need for a wholesale change at this time."

Analysis Prepared by: Eric Dang / JUD. / (916) 319-2334 FN: 0004978

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 1766

Author:(Mark Stone)

As Amended Ver:August 2, 2016

2/3 vote

Original Committee Reference: JUD.

SUMMARY: Provides how the court or parties' counsel may address prospective jurors during voir dire in a criminal matter. Specifically, this bill:

1. Requires the court to determine the manner in how the court and counsel shall uniformly address each panel of prospective jurors. The court and counsel shall address a prospective juror by either an identification number assigned by the court, the first name and the first initial of the juror's last name, or by a title and the juror's last name.
2. Requires the court, in criminal cases, to provide to counsel for each party the complete names of the prospective jurors, both alphabetically and in the order in which they will be called, similar to the information usually provided to parties in civil cases.
3. Requires the court to advise prospective jurors that, in accordance with state law, the court and counsel for each party are prohibited, in all criminal cases, from addressing prospective jurors by their full names during the jury selection process, and are required to address them by either: an identification number; their first name and the first initial of their last name; or their last name.
4. Provides that the bill, as it relates to voir dire in criminal trials, shall not be construed as affecting existing law that allows the public access to juror information.
5. Specifies that the provisions under this bill shall remain in effect until January 1, 2022.
6. Makes other technical and conforming changes.

The Senate amendments provide for a five-year sunset.

FISCAL EFFECT: None

COMMENTS: Juries are selected by a court process (that is open to the public) known as voir dire. During voir dire, prospective jurors are seated in the jury box and are asked – in front of other prospective jurors and the public – a series of questions to determine their competence and fitness to serve as jurors. Usually, these questions help to ferret out bias; but sometimes, these questions can touch on subjects that are very personal, such as whether the juror lives alone, whether the juror has children, and where the juror lives.

To address these concerns, this bill provides that during voir dire in a criminal manner, a court or counsel must address a prospective juror by a jury number, the juror's first name and last initial, or the juror's title and last name. This bill also requires the court to advise prospective jurors that California law prohibits the court and counsel in criminal cases from addressing prospective jurors by their full names during the jury selection process.

Although this bill is limited to criminal cases, this bill does not prevent a civil court from addressing jurors in a manner it deems appropriate and that is in accordance with law.

This bill maintains the court's discretion in determining how the court and counsel shall address each panel of prospective jurors. This bill also ensures that within a particular panel, the court address each prospective juror uniformly. Given that a court's decision is still subject to abuse of discretion review, this does not change the existing practice which allows the attorneys to object a court's determination. This bill does not prevent the court or counsel from having access to the prospective juror's full name. Indeed, this bill requires a court in a criminal case to provide to each party's counsel a complete list of the names of prospective jurors, both in alphabetical and examination calling order - similar to lists usually provided to a party's counsel in civil cases. This fair approach allows attorneys, like prosecutors and defense attorneys, to continue to assess jurors for other conflicts without resorting to open questioning during voir dire.

The California Supreme Court has recently considered whether trial courts have the discretion to address jurors by a number throughout a jury trial, rather than their full names. In People v. Thomas (2012) 53 Cal.4th 771, the California Supreme Court held that a procedure to address jurors by a number does not violate a defendant's right to a public trial because "the trial was open and the jurors' faces were visible to anyone present." (Ibid.) In addition, the Court held that, "any risk that the jury would speculate that the use of numbers related to the defendant's dangerousness was diminished because the trial court indicated it would admonish the jury that the procedure was required in all criminal cases and had nothing to do with the defendant." (Id.)

Given the public nature of criminal trials, and the fact that this bill only applies to voir dire, allows courts and counsel to address prospective jurors by their first or last names, requires the court to provide counsel with access to the full names of prospective jurors, and requires the court to advise jurors about this new criminal procedure, this bill would certainly survive the test under People v. Thomas, supra, at 771.

Opponents to this bill assert that this bill is unconstitutional, and rely on Press-Enterprise Co. v. Superior Court of California, Riverside County (1984) 464 U.S. 501, a criminal case involving the murder and rape of a teenage girl which raised the issue of public access to court proceedings during voir dire. There, the Press-Enterprise newspaper moved to open the voir dire proceeding conducted in a closed courtroom to the public. The prosecutor opposed the newspaper's motion, asserting that jurors would be less candid with their answers if the press were present during juror questioning. The trial judge agreed and prohibited the press from attending the individual voir dire proceedings; the press then moved to obtain transcripts of the proceedings, but was similarly denied.

In its review of the case, the United States Supreme Court stated that criminal proceedings "held in secret…frustrate the broad public interest" and that "public proceedings vindicate the concerns of the victims and the community in knowing that offenders are being brought to account for their criminal conduct by jurors fairly and openly selected." (Id. at 509.) However, "[t]he jury selection process may, in some circumstances, give rise to a compelling interest of a prospective juror when interrogation touches on deeply personal matters that person has legitimate reason for keeping out of the public domain." (Id. at 511.) In such instances, voir dire may be conducted in a non-public setting (such as in the chambers of a trial court judge or in a closed courtroom).

Accordingly, in reversing the lower court, the Supreme Court established the following rule: "[t]he presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered." (Id. at 510.) Additionally, if a court limits public access to a voir dire proceeding, the constitution may still be satisfied if a "transcript of the closed proceeding [is made] available within a reasonable time," as long as a court determines that disclosure of a transcript safeguards "the juror's valid privacy interests." (Id. at 512.) If not, a "valid privacy right may rise to a level that part of the transcript should be sealed, or the name of a juror withheld, to protect the person from embarrassment." (Ibid.)

Although this case deals with voir dire, it is otherwise inapplicable to the legal issues raised by this bill. The Press-Enterprise case involved the public's ability to physically gain access to a voir dire proceeding which was denied when the lower trial court ordered certain questions of the voir dire proceedings to be closed to the public. The Press-Enterprise decision never addressed the issue of identifying jurors by name. This bill, on the other hand, does not require or even reference non-public voir dire proceedings. To the extent that current law allows voir dire to be conducted outside of public view, that law would be unaffected by this bill. In contrast to Press-Enterprise, this bill addresses the ability of a court to shield a juror's full name and identity and has nothing to do with the legally permissible grounds or means for a trial court to conduct voir dire proceedings in a non-public setting. Additionally, even if this bill were to trigger an analysis under Press-Enterprise, this bill does not affect the public's right to obtain a voir dire proceeding transcript or a juror's name, as authorized under existing law. Indeed, this bill specifically states that its provisions shall not limit public access to juror information provided under existing law. Accordingly, this bill appears to be constitutional.

Analysis Prepared by: Eric Dang / JUD. / (916) 319-2334 FN: 0003727

 THIRD READING  

Bill No: AB 1766

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/28/16

AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone

ASSEMBLY FLOOR: 78-0, 4/4/16 - See last page for vote

SUBJECT:

SOURCE: San Diego County District Attorney

DIGEST: This bill requires that jurors in criminal cases be referred to by something other than their names.

ANALYSIS:

Existing law:

1. Allows a court, in a criminal case, to conduct an initial examination of prospective jurors. (Code of Civil Procedure § 223)
2. Provides that after a court’s initial examination, counsel for each party shall have the right to examine, by oral and direct questioning, any or all of the prospective jurors. (Code of Civil Procedure § 223.)
3. Says the court may, in the exercise of its discretion, limit the oral and direct questioning of prospective jurors by counsel. (Code of Civil Procedure § 223)
4. Provides that the court may specify the maximum amount of time that counsel for each party may question an individual juror, or may specify an aggregate amount of time for each party, which can then be allotted among the prospective jurors by counsel. (Code of Civil Procedure § 223)
5. Provides that voir dire of any prospective jurors shall, where practicable, occur in the presence of other jurors in all criminal cases, including death penalty cases. (Code of Civil Procedure § 223.)
6. Provides that the trial court’s exercise of its discretion it the manner in which voir dire is conducted, including any limitation on the time which will be allowed or direct questioning of prospective jurors by counsel any determination that a question is not in aid of the exercise of challenges for cause, shall not cause any conviction to be reversed unless the exercise of discretion has resulted in a miscarriage of justice. (Code of Civil Procedure § 223)
7. Provides that the names of qualified jurors drawn from the qualified juror list for the superior court shall be made available to the public upon request unless the court determines that compelling interest requires that this information should be kept confidential. (Code of Civil Procedure § 237(a)(1))
8. Provides that upon the recording of a jury’s verdict in a criminal jury proceeding, the court’s record of personal juror identifying information of trial jurors, consisting of names, addresses and telephone numbers shall be sealed until further order of the court. (Code of Civil Procedure § 237 (a)(2))
9. Provides that a person may petition the court to access sealed jury records with a petition that is supported by a declaration that includes facts sufficient to establish good cause for the release of juror’s personal identifying information. (Code of Civil Procedure § 237 (b))
10. Allows a trial judge in civil cases to examine prospective jurors in order to select a fair and an impartial jury. (Code of Civil Procedure § 222.5)
11. Provides that after a trial judge’s initial examination, counsel for each party may examine any of the prospective jurors, by oral and direct questioning, so that counsel may intelligently exercise both peremptory challenges and challenges for cause. (Code of Civil Procedure § 222.5.)
12. Provides that during any examination conducted by counsel for the parties, the trial judge should permit liberal and probing examination calculated to discover bias or prejudice with regard to the circumstances of the particular case. (Code of Civil Procedure § 222.5.)
13. Provides that to facilitate the jury selection process, the trial judge should provide the parties with both the alphabetical list and the list of prospective jurors in the order in which prospective jurors will be called. (Code of Civil Procedure § 222.5.)
14. Sunsets on January 1, 2022.

This bill:

1. Provides that, in a criminal case, the court shall provide to counsel for each party the complete names of the prospective jurors, both alphabetically and in the order in which they will be called.
2. Provides that the court in each criminal trial shall determine a uniform manner by which each prospective juror shall be addressed by the court and counsel for each party according to one of the following:

• An identification number assigned by the court.
• The prospective juror’s first name and the first initial of his or her last name.
• The prospective juror’s title and last name.

1. Provides that before examining prospective jurors, the court shall advise them that, in accordance with state law, the court and counsel for each party are prohibited, in all criminal cases, from addressing prospective jurors by their full names during jury selection and are required to address each prospective juror by an identification number, by his or her first name and the first initial of his or her last name, or by his or her title and last name.
2. Provides that in a civil case, the court shall provide to counsel for each party the complete names of the prospective jurors, both alphabetically and in the order in which they will be called.

Background

This bill provides that in a criminal trial the court shall provide to counsel for each party the complete names of the prospective jurors, both alphabetically and in the order in which they were called. However, the court in each criminal trial, shall determine a uniform manner by which each prospective juror shall be addressed by the court and counsel for each party according to one of the following:

• An identification number assigned by the court.
• The prospective juror’s first name and the first initial of his or her last name.
• The prospective juror’s title and last name.

This bill prohibits the court and counsel for each party from addressing prospective jurors by their full names during jury selection and requires the court to inform the jury of the prohibition.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 8/3/16)

San Diego County District Attorney (source)

Association of Deputy District Attorneys

California Police Chiefs Association

OPPOSITION: (Verified 8/3/16)

California Attorneys for Criminal Justice

California Newspaper Publishers Association

ARGUMENTS IN SUPPORT: According to the San Diego County District Attorney, a sponsor of this bill:

A constituent brought this issue to our attention after experiencing the voir dire process in a local criminal case. While she waited her turn to be called, she witnessed a young lady, about the same age as her adult daughter, get called up by her full name. She sat in disbelief as the young lady divulged where she lived, that she lived alone, where she worked and other very personal information. The courtroom was filled with other prospective jurors. All hear the young lady’s full name and, after a few moments of questioning knew details many of us would consider very private. AB 1766 provides a simple fix that would protect that privacy in courtrooms up and down the state.

The measure simply requires the court and attorneys, in criminal and civil cases, to address prospective jurors by first name and last initial, rather than by the prospective juror’s full first and last names. AB 1766 still allows the court to provide the complete names of potential jurors to both counsels, but the court and counsel just would not use the full names when calling or questioning the prospective jurors during the voir dire process.

ARGUMENTS IN OPPOSITION: The California Newspaper Publishers Association (CNPA) opposes this bill stating:

By eliminating use of a juror’s full name, this legislation would remove important facts from the public process and make secret information that is readily available in a phone book — a person’s full name. This blanket rule of secrecy is contrary to the presumptive First Amendment right of public access that applies to all portions of a trial, particularly in a criminal case.

The United States Supreme Court recognized this presumption of openness in Press-Enterprise Co. v. Riverside County Superior Court (1984) 464 U.S. 501. The court held that voir dire proceedings in criminal trials are presumptively open to the public and can be closed only if a trial court determines that the presumption of openness is overcome by an overriding interest (i.e. the defendant's right to a fair trial).

This is a high burden: the presumption should be overcome only in unusual circumstances, on a fact specific, case-by-case basis. But AB 1766 would make all potential juror names in California unknowable in criminal court proceedings.

While the bill was amended to permit the public to access the qualified juror list upon request, pursuant to Code of Civ. Proc. Section 237, this amendment does not allay the constitutional concerns because it only permits access to the names of jurors who are actually empaneled. Thus, the public has no way of knowing which jurors were dismissed from the pool, information that could be essential to knowing whether there was bias in the jury selection process.

The open and public trial is a hallmark of the American legal system. It allows the public to oversee the courts, and fosters public trust that justice is being served. Hiding public information about those who may determine the status of another person’s life and liberty is tantamount to denying the public this fundamental access to the courts. If openness to the courts is cut-off, the public's confidence in the courts is undermined and trust in this political institution is lost.

The court in Press Enterprise got it right. The appropriate process for a potential juror to protect private information is by affirmative request. This permits the court to make the constitutionally-required, fact-specific finding that there is an overriding interest in nondisclosure in that instance. The court recognized that there are instances where the interrogation of a juror touches “deeply personal matters,” warranting nondisclosure, but a person’s identity cannot be captured in that consideration.

CNPA believes AB 1766 would be unconstitutional because it would foreclose public access to all potential juror names, without any analysis of the interests involved, in every case. Because AB 1766 falls short of the Press Enterprise standard, we must respectfully oppose.

ASSEMBLY FLOOR: 78-0, 4/4/16

AYES: Achadjian, Alejo, Travis Allen, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk, Ridley-Thomas, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Rendon

NO VOTE RECORDED: Rodriguez

Prepared by:

8/3/16 19:22:34

**** END ****

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Loni Hancock, Chair

2015 - 2016 Regular

Bill No: AB 1766 Hearing Date: June 28, 2016

Subject: Examination of Prospective Jurors

HISTORY

Source: San Diego County District Attorney

California District Attorneys Association

Prior Legislation: AB 310 (Leach) 1999 Failed Assembly Judiciary Committee

SB 14 (Calderon) Juror anonymity portions deleted. 1997

AB 886 (Morrow) Failed 1997-1998

AB 2922 (Hawkins) Failed 1996

SB 508 (Campbell) – Chapter 964, Stats. 1995

SB 1199 (Mountjoy) Failed 1995

Support: Association of Deputy District Attorneys; California Police Chiefs Association

Opposition: California Attorneys for Criminal Justice; California Newspaper Publishers Association

Assembly Floor Vote: 78 - 0

PURPOSE

The purpose of this bill is to require that jurors in criminal cases be referred to by something other than their names.

Existing law allows a court, in a criminal case, to conduct an initial examination of prospective jurors. (Code of Civil Procedure § 223)

Existing law provides that after a court’s initial examination, counsel for each party shall have the right to examine, by oral and direct questioning, any or all of the prospective jurors. (Code of Civil Procedure §223.)

Existing law says the court may, in the exercise of its discretion, limit the oral and direct questioning of prospective jurors by counsel. (Code of Civil Procedure § 223)

Existing law provides that the court may specify the maximum amount of time that counsel for each party may question an individual juror, or may specify an aggregate amount of time for each party, which can then be allotted among the prospective jurors by counsel. (Code of Civil Procedure § 223)

Existing law provides that voir dire of any prospective jurors shall, where practicable, occur in the presence of other jurors in all criminal cases, including death penalty cases. (Code of Civil Procedure § 223.)

Existing law provides that the trial court’s exercise of its discretion it the manner in which voir dire is conducted, including any limitation on the time which will be allowed or direct questioning of prospective jurors by counsel any determination that a question is not in aid of the exercise of challenges for cause, shall not cause any conviction to be reversed unless the exercise of discretion has resulted in a miscarriage of justice. (Code of Civil Procedure § 223)

Existing law provides that the names of qualified jurors drawn from the qualified juror list for the superior court shall be made available to the public upon request unless the court determines that compelling interest requires that this information should be kept confidential. (Code of Civil Procedure § 237(a)(1))

Existing law provides that upon the recording of a jury’s verdict in a criminal jury proceeding, the court’s record of personal juror identifying information of trial jurors, consisting of names, addresses and telephone numbers shall be sealed until further order of the court. (Code of Civil Procedure § 237 (a)(2))

Existing law provides that a person may petition the court to access sealed jury records with a petition that is supported by a declaration that includes facts sufficient to establish good cause for the release of juror’s personal identifying information. (Code of Civil Procedure § 237 (b))

This bill provides that, in a criminal case, the court shall provide to counsel for each party the complete names of the prospective jurors, both alphabetically and in the order in which they will be called.

This bill provides that the court in each criminal trial shall determine a uniform manner by which each prospective juror shall be addressed by the court and counsel for each party according to one of the following:

• An identification number assigned by the court.
• The prospective juror’s first name and the first initial of his or her last name.
• The prospective juror’s title and last name.

This bill provides that before examining prospective jurors, the court shall advise them that, in accordance with state law, the court and counsel for each party are prohibited, in all criminal cases, from addressing prospective jurors by their full names during jury selection and are required to address each prospective juror by an identification number, by his or her first name and the first initial of his or her last name, or by his or her title and last name.

Existing law allows a trial judge in civil cases to examine prospective jurors in order to select a fair and an impartial jury. (Code of Civil Procedure § 222.5)

Existing law provides that after a trial judge’s initial examination, counsel for each party may examine any of the prospective jurors, by oral and direct questioning, so that counsel may intelligently exercise both peremptory challenges and challenges for cause. (Code of Civil Procedure § 222.5.)

Existing law provides that during any examination conducted by counsel for the parties, the trial judge should permit liberal and probing examination calculated to discover bias or prejudice with regard to the circumstances of the particular case. (Code of Civil Procedure § 222.5.)

Existing law provides that to facilitate the jury selection process, the trial judge should provide the parties with both the alphabetical list and the list of prospective jurors in the order in which prospective jurors will be called. (Code of Civil Procedure § 222.5.)

This bill provides that in a civil case, the court shall provide to counsel for each party the complete names of the prospective jurors, both alphabetically and in the order in which they will be called.

RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

For the past several years this Committee has scrutinized legislation referred to its jurisdiction for any potential impact on prison overcrowding. Mindful of the United States Supreme Court ruling and federal court orders relating to the state’s ability to provide a constitutional level of health care to its inmate population and the related issue of prison overcrowding, this Committee has applied its “ROCA” policy as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress in reducing prison overcrowding.

On February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:

• 143% of design bed capacity by June 30, 2014;
• 141.5% of design bed capacity by February 28, 2015; and,
• 137.5% of design bed capacity by February 28, 2016.

In December of 2015 the administration reported that as “of December 9, 2015, 112,510 inmates were housed in the State’s 34 adult institutions, which amounts to 136.0% of design bed capacity, and 5,264 inmates were housed in out-of-state facilities. The current population is 1,212 inmates below the final court-ordered population benchmark of 137.5% of design bed capacity, and has been under that benchmark since February 2015.” (Defendants’ December 2015 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One year ago, 115,826 inmates were housed in the State’s 34 adult institutions, which amounted to 140.0% of design bed capacity, and 8,864 inmates were housed in out-of-state facilities. (Defendants’ December 2014 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)

While significant gains have been made in reducing the prison population, the state must stabilize these advances and demonstrate to the federal court that California has in place the “durable solution” to prison overcrowding “consistently demanded” by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14). The Committee’s consideration of bills that may impact the prison population therefore will be informed by the following questions:

• Whether a proposal erodes a measure which has contributed to reducing the prison population;
• Whether a proposal addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy;
• Whether a proposal addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction;
• Whether a proposal corrects a constitutional problem or legislative drafting error; and
• Whether a proposal proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy.

COMMENTS

1. Need for This Bill

According to the author:

This commonsense and modest proposal provides privacy protections to prospective jurors during the jury selection process. This bill simply provides that during voir dire, a court or counsel in a criminal matter must address a prospective juror by a jury number, the juror’s first name and last initial, or the juror’s title and last name.

It is not uncommon for prospective jurors to reveal their full names during voir
dire. Prospective jurors are then asked to provide extensive private information, including their occupation, where they live, if they have children, and if they live alone or with others.

When prospective jurors reveal both their full name and other personal information, they put themselves at-risk of being potentially victimized. It is true that a juror who feels uncomfortable about answering a particularly personal question during voir dire may ask the court to go into the judge’s closed chambers to answer the question; however, jurors do not always invoke this privilege. Jurors who might already feel intimidated by the jury selection process (and who want to avoid interrupting the voir dire proceedings) may feel pressure to answer the personal question in open court rather than behind closed chambers.

Jurors who feel reluctant about reporting to jury duty for privacy reasons should be put at ease. To the extent that voir dire contributes to instances of identity theft or juror intimidation among prospective jurors, this bill could curb those instances.

2. Statutory History

In California the selection of trial jurors has traditionally been by name, and qualified jurors' names are generally to be made available to the public upon request. In 1995 the Legislature passed, and the Governor signed, SB 508 (Campbell), Ch. 964, Stats. 1995 to address legislators' growing desires to protect juror privacy in criminal trials. Pursuant to SB 508, as of January 1, 1996, all juror information in a criminal trial in California is automatically sealed as soon as the jury verdict is recorded. Any person may petition the court for access to juror information. However, only if good cause for that information is shown on the face of the court pleadings will a hearing on the release of that information even be scheduled. Otherwise, the court will bar the release of such personal information. (Code of Civil Procedure Section 237(b).)

Between the enactment of SB 508 in 1995 and 1999 a number of bills were introduced in the Legislature to "move up" the secrecy shield on juror identity information from the time of the verdict to the beginning of the voir dire process in all criminal trials. However, all constitutional questions were raised about those legislative proposals calling for automatic juror anonymity and no such proposals seeking automatic voir dire anonymity were passed.

3. Press-Enterprise

According to the United States Supreme Court, the presumptive openness of jury selection dates back to at least the 1500's in England, and was common practice in America at the time the Constitution was adopted. (Press-Enterprise v. Riverside (1984) 464 U.S. 501.) Allowing the public to observe the selection of jurors has historically been believed to provide the public needed confidence that the criminal justice system is fair and unbiased. In the voir dire process, the court and the attorneys involved in criminal cases have historically questioned prospective jurors to try to ensure a fair and impartial jury. Personal views have traditionally been elicited from the jurors to determine whether they have the ability to be fair and impartial in the case before them. Both prosecutors and defense attorneys have consistently argued in the Legislature over the years that access to such personal information about jurors is absolutely necessary to determine whether prospective jurors hold a potential bias.

In 1984, the United States Supreme Court considered this issue in the Press-Enterprise case noted above. The Court held that there are indeed clear constitutional constraints limiting the degree to which access to juror information can be barred during a criminal trial.

In that case, the Press-Enterprise newspaper moved to have the voir dire examination of prospective jurors in a gruesome murder case opened to the press. The State of California opposed the newspaper's motion, asserting that the jurors in this trial would not be candid with their answers if the press were present during juror questioning. The trial judge agreed and prohibited the press from attending the individual voir dire proceedings. The voir dire lasted six weeks, and all but three days of it were closed to the public. When the press tried to get copies

of the transcript of the voir dire, the trial judge denied the motion on the grounds that although most of the answers by the jurors were routine, there were some questions and answers that

were of a personal nature, and release of the information would violate the privacy rights of the jurors. (Press-Enterprise, supra at 507.)

The Supreme Court rejected the trial court decision, finding that, based on long historical precedent, trials, including voir dire proceedings, are inherently public proceedings. The Court reasoned that a defendant is entitled to a fair and open trial under the First and Sixth Amendments. It found that openness in trials enhances both the basic fairness of the criminal trial and the appearance of fairness to the general public, thereby giving the public confidence in the jury system. (Id. at 508.) The Court cited Globe Newspaper Co. v. Superior Court (1982) 457 U.S. 596, for the important proposition that:

Closed proceedings, although not absolutely precluded, must be rare and only for cause shown that outweighs the value of openness. (Press-Enterprise, supra, at 509.)

The Court found that a state's justification for closure of a public criminal proceeding must be a "weighty one." ( Id. ) The Court further held that trials may be held in secret only if the trial court determines on a case-by-case basis that the presumption of openness is overcome by an overriding interest (e.g., the defendant's right to a fair trial). The Court required that the overriding interest be based on the trial court's specific and articulated findings that secrecy is essential to meet the overriding interest that the secrecy is narrowly tailored to meet the interest, and that alternatives to secrecy have been clearly considered. In rejecting the trial court's order of secrecy in Press-Enterprise, the Supreme Court emphasized that, in that case, the trial court did not articulate specific findings as to why it needed to close voir dire; nor did it consider alternatives to closing it. ( Id. at 513.)

The U.S. Court of Appeals for the Fourth Circuit, relying on Press-Enterprise, rejected jury anonymity in In re Baltimore Sun (4th Cir. 1988) 841 F.2d 74, stating :

We think it no more than application of what has always been the law to require a . . . court . . . to [make public] the names and addresses of those jurors who are sitting. . . .[W]e recognize the difficulties which may exist in highly publicized trials . . . and the pressure upon jurors. But we think the risk of loss of confidence in the judicial process is too great to permit a criminal defendant to be tried by a jury whose members may maintain anonymity. If . . . the attendant danger[s] of a highly publicized trial are too great, [the court] may always sequester the jury and change of venue is always possible. . . .(841 F.2d at 76-77.)

More recent cases also affirm the need to approach anonymous juries as “an unusual measure that is warranted only where there is a strong reason to believe the jury needs protection or to safeguard the integrity of the justice system, so that the jury can perform its factfinding function…” (United States v. Shryock, 342 F.3d 948, 971 (9th Cir. Cal. 2003)) In order to empanel an anonymous jury the court must find:

(1) there is a strong reason for concluding that it is necessary to enable the jury to perform its factfinding function, or to ensure juror protection; and (2) reasonable safeguards are adopted by the trial court to minimize any risk of infringement upon the fundamental rights of the accused." Id. (adopting the First Circuit's test from United States v. DeLuca, 137 F.3d 24, 31 (1st Cir. 1998)). Although these factors are neither exclusive nor dispositive, courts have recognized the need for jury protection based on a combination of factors, including:(1) the defendants' involvement with organized crime; (2) the defendants' participation in a group with the capacity to harm jurors; (3) the defendants' past attempts to interfere with the judicial process or witnesses; (4) the potential that the defendants will suffer lengthy incarceration if convicted; and (5) extensive publicity that could enhance the possibility that jurors' names would become public and expose them to intimidation and harassment. (citations omitted) (United States v. Fernandez, 388 F.3d 1199, 1244-1245 (9th Cir. Cal. 2004))

A California Supreme Court case found that the court did not abuse its discretion in identifying jurors by number stating:

We find no abuse of discretion in the trial court's decision to order that the jurors be identified by numbers. The prosecutor informed the court that two witnesses had been threatened and one had been offered a bribe. These incidents provided reasonable grounds for concern that an attempt might be made to unlawfully interfere with the jurors' performance of their duties. Any interference with defendant's right to conduct voir dire was minimized because the jurors were not completely anonymous—counsel had access to the names of the jurors. Defendant contends that the procedure interfered with his ability to assist his counsel in jury selection because he was not personally allowed access to the jurors' names. Defendant argues that he might not have recognized a juror's face but might have recognized a name and realized he knew something about the juror or the juror's family that might cause the juror to be biased. Defendant's contention is speculative and in any event any minor interference with the conduct of voir dire that may have occurred was justified by the court's legitimate concerns for the safety and integrity of the jury (People v. Thomas 53 Cal. 4th 771, 786-789 (Cal. 2012))

4. Identifying a Juror by Other Than Their Name

This bill provides that in a criminal trial the court shall provide to counsel for each party the complete names of the prospective jurors, both alphabetically and in the order in which they were called. However, the court in each criminal trial, shall determine a uniform manner by which each prospective juror shall be addressed by the court and counsel for each party according to one of the following:

• An identification number assigned by the court.
• The prospective juror’s first name and the first initial of his or her last name.
• The prospective juror’s title and last name.

This bill prohibits the court and counsel for each party from addressing prospective jurors by their full names during jury selection and requires the court to inform the jury of the prohibition.

5. Constitutional Issues?

Having every juror in a criminal case addressed by something other than his or her name during voir dire raises Constitutional questions.

As noted in the cases above, the right to a public jury is important not just to the right of the defendant to get a fair trial but to the right of the public to have confidence in the jury system. Cases that have allowed for an anonymous juries or juries where the jurors were referred to by a number have been upheld when the Appellate Court has found that the trial court had made a finding that the jury needed protection or that it was necessary to protect the ability of a jury to perform its fact-finding duty in a particular case. It is not clear that it will be Constitutional to allow this automatically in every case. It is also not clear whether each of the options would have the same Constitutional problems, for example identifying a person by a number only seems to give complete anonymity, maybe addressing a person by last name does not since it may give some indication as to a relationship with someone involved in the case.

While this bill gives the prosecution and defense access to the prospective jurors names and thus may not infringe on one aspect of a defendant’s right to a fair trial, by not making a case by case determination it appears as if it may violate the open jury requirement in Press Enterprise. This bill does not eliminate Code of Civil Procedure Section 237 which provides access by the public to the names of qualified jurors until a verdict has been reached so is that enough to comply with Press Enterprise’s requirement that trials be “inherently public” proceedings?

6. Support

According to the San Diego County District Attorney, a sponsor of this bill:

A constituent brought this issue to our attention after experiencing the voir dire process in a local criminal case. While she waited her turn to be called, she witnessed a young lady, about the same age as her adult daughter, get called up by her full name. She sat in disbelief as the young lady divulged where she lived, that she lived alone, where she worked and other very personal information. The courtroom was filled with other prospective jurors. All hear the young lady’s full name and, after a few moments of questioning knew details many of us would consider very private. AB 1766 provides a simple fix that would protect that privacy in courtrooms up and down the state.

The measure simply requires the court and attorneys, in criminal and civil cases, to address prospective jurors by first name and last initial, rather than by the prospective juror’s full first and last names. AB 1766 still allows the court to provide the complete names of potential jurors to both counsels, but the court and counsel just would not use the full names when calling or questioning the prospective jurors during the voir dire process.

7. Oppose

The California Newspaper Publishers Association opposes this bill stating:

By eliminating use of a juror’s full name, this legislation would remove important facts from the public process and make secret information that is readily available in a phone book — a person’s full name. This blanket rule of secrecy is contrary to the presumptive First Amendment right of public access that applies to all portions of a trial, particularly in a criminal case.

The United States Supreme Court recognized this presumption of openness in Press-Enterprise Co. v. Riverside County Superior Court (1984) 464 U.S. 501. The court held that voir dire proceedings in criminal trials are presumptively open to the public and can be closed only if a trial court determines that the presumption of openness is overcome by an overriding interest (i.e. the defendant's right to a fair trial).

This is a high burden: the presumption should be overcome only in unusual circumstances, on a fact specific, case-by-case basis. But AB 1766 would make all potential juror names in California unknowable in criminal court proceedings.

While the bill was amended to permit the public to access the qualified juror list upon request, pursuant to Code of Civ. Proc. Section 237, this amendment does not allay the constitutional concerns because it only permits access to the names of jurors who are actually empaneled. Thus, the public has no way of knowing which jurors were dismissed from the pool, information that could be essential to knowing whether there was bias in the jury selection process.

The open and public trial is a hallmark of the American legal system. It allows the public to oversee the courts, and fosters public trust that justice is being served. Hiding public information about those who may determine the status of another person’s life and liberty is tantamount to denying the public this fundamental access to the courts. If openness to the courts is cut-off, the public's confidence in the courts is undermined and trust in this political institution is lost.

The court in Press Enterprise got it right. The appropriate process for a potential juror to protect private information is by affirmative request. This permits the court to make the constitutionally-required, fact-specific finding that there is an overriding interest in nondisclosure in that instance. The court recognized that there are instances where the interrogation of a juror touches “deeply personal matters,” warranting nondisclosure, but a person’s identity cannot be captured in that consideration.

CNPA believes AB 1766 would be unconstitutional because it would foreclose public access to all potential juror names, without any analysis of the interests involved, in every case. Because AB 1766 falls short of the Press Enterprise standard, we must respectfully oppose.

-- END –

ASSEMBLY THIRD READING

ATR Bill Id:AB 1766

Author:(Mark Stone)

As Amended Ver:

2/3 vote

SUMMARY: Provides how the court or parties' counsel may address prospective jurors during voir dire in a criminal matter. Specifically, this bill:

1. Requires the court to determine the manner in how the court and counsel shall uniformly address each panel of prospective jurors. The court and counsel shall address a prospective juror by either an identification number assigned by the court, the first name and the first initial of the juror's last name, or by a title and the juror's last name.
2. Requires the court, in criminal cases, to provide to counsel for each party the complete names of the prospective jurors, both alphabetically and in the order in which they will be called, similar to the information usually provided to parties in civil cases.
3. Requires the court to advise prospective jurors that, in accordance with state law, the court and counsel for each party are prohibited, in all criminal cases, from addressing prospective jurors by their full names during the jury selection process, and are required to address them by either: an identification number; their first name and the first initial of their last name; or their last name.
4. Provides that the bill, as it relates to voir dire in criminal trials, shall not be construed as affecting existing law that allows the public access to juror information.
5. Makes other technical and conforming changes.

EXISTING LAW:

1. Allows a court, in a criminal case, to conduct an initial examination of prospective jurors.
   1. Provides that after a court's initial examination, counsel for each party shall have the right to examine, by oral and direct questioning, any or all of the prospective jurors.
   2. Provides that voir dire of any prospective jurors shall, where practicable, occur in the presence of other jurors in all criminal cases, including death penalty cases.

FISCAL EFFECT: None

COMMENTS: Juries are selected by a court process (that is open to the public) known as voir dire. During voir dire, prospective jurors are seated in the jury box and are asked – in front of other prospective jurors and the public – a series of questions to determine their competence and fitness to serve as jurors. Usually, these questions help to ferret out bias; but sometimes, these questions can touch on subjects that are very personal, such as whether the juror lives alone, whether the juror has children, and where the juror lives.

To address these concerns, this bill simply provides that during voir dire in a criminal manner, a court or counsel must address a prospective juror by a jury number, the juror's first name and last initial, or the juror's title and last name.

Additionally, the author has taken a number of amendments to address concerns raised by the California Attorneys for Criminal Justice by requiring the court to advise prospective jurors that California law prohibits the court and counsel in criminal cases from addressing prospective jurors by their full names during the jury selection process.

To address concerns raised by the Judicial Council and others, the bill is limited to criminal cases only. However, this bill does not prevent a civil court from addressing jurors in a manner it deems appropriate and that is in accordance with law.

This bill maintains the court's discretion in determining how the court and counsel shall address each panel of prospective jurors. This bill also ensures that within a particular panel, the court address each prospective juror uniformly. Given that a court's decision is still subject to abuse of discretion review, this does not change the existing practice which allows the attorneys to object a court's determination.

This bill does not prevent the court or counsel from having access to the prospective juror's full name. This bill requires a court in a criminal case to provide to each party's counsel a complete list of the names of prospective jurors, both in alphabetical and examination calling order - similar to lists usually provided to a party's counsel in civil cases. This fair approach allows attorneys, like prosecutors and defense attorneys, to continue to assess jurors for other conflicts without resorting to open questioning during voir dire.

The California Supreme Court has recently considered whether trial courts have the discretion to address jurors by a number throughout a jury trial, rather than their full names. In People v. Thomas (2012) 53 Cal. 4th 771, the trial court ordered that prospective jurors and trial jurors be referred to by number only. There, the defendant contended, among other things, that the use of the jury numbers violated his rights to be presumed innocent and to a fair and public trial. (Id.)

The California Supreme Court held that the trial court did not err, and that, "the procedure did not violate the defendant's right to a public trial because the trial was open and the jurors' faces were visible to anyone present." (Id.) In addition, the Court held that, "any risk that the jury would speculate that the use of numbers related to the defendant's dangerousness was diminished because the trial court indicated it would admonish the jury that the procedure was required in all criminal cases and had nothing to do with the defendant." (Id.)

Given the public nature of criminal trials, and the fact that this bill only applies to voir dire, allows courts and counsel to address prospective jurors by their first or last names, requires the court to provide counsel with access to the full names of prospective jurors, and requires the court to advise jurors about this new criminal procedure, this bill would certainly survive the test under People v. Thomas, supra, at 771.

Analysis Prepared by: Eric Dang / JUD. / (916) 319-2334 FN: 0002673

Date of Hearing: March 29, 2016

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 1766

Author:(Mark Stone) – As Amended Ver:February 29, 2016

As Proposed to be Amended

SUBJECT: Examination of prospective jurors

KEY ISSUE: In order to PROVIDE PROSPECTIVE JURORS WITH ADDITIONAL PRIVACY PROTECTIONS AND TO MAKE THEM FEEL MORE COMFORTABLE during the jury selection process, should the court and counsel IN CRIMINAL CASES, while examining a juror during voir dire, BE REQUIRED TO identify and address the juror without disclosing the juror’s full name?

SYNOPSIS

To select a jury, the court engages in voir dire - the process where the court and counsel for the parties ask prospective jurors a series of questions to determine the qualifications, competence, or the potential bias of jurors. Under current practice, the court or counsel may address a prospective juror by his or her full name (ex. Good morning Juror #9, John Roberts).

This bill limits the way in which a court or counsel may address a prospective juror during voir dire in a criminal case. It provides that a prospective juror must be addressed by either a jury number, by the juror’s first name and last initial, or by title and last name. This bill, co-sponsored by the California District Attorneys Association and the San Diego County District Attorney, also requires a court in criminal cases to provide to each party’s counsel a complete list of the full names of prospective jurors, both in alphabetical and examination calling order, similar to the lists often provided to counsel in civil cases. California Attorneys for Criminal Justice, who oppose the bill, assert that addressing jurors without identifying information will give jurors the impression that there is an unknown public safety reason why it is necessary to conceal their identities. To address this concern, the bill, as proposed to be amended, requires the court to advise prospective jurors that California law prohibits the court and counsel in criminal cases from addressing prospective jurors by their full names during the jury selection process.

Additionally, the California Newspaper Publisher Association raises a concern about how this bill would affect existing law which allows a process for the public to access juror information. The bill, as proposed to be amended, resolves this concern.

SUMMARY: Provides how the court or parties’ counsel may address prospective jurors during voir dire in a criminal matter. Specifically, this bill:

1. Requires the court to determine the manner in how the court and counsel shall uniformly address each panel of prospective jurors. The court and counsel shall address a prospective juror by either an identification number assigned by the court, the first name and the first initial of the juror’s last name, or by a title and the juror’s last name.
2. Requires the court, in criminal cases, to provide to counsel for each party the complete names of the prospective jurors, both alphabetically and in the order in which they will be called, similar to the information usually provided to parties in civil cases.
3. Requires the court to advise prospective jurors that, in accordance with state law, the court and counsel for each party are prohibited, in all criminal cases, from addressing prospective jurors by their full names during the jury selection process, and are required to address them by either: an identification number; their first name and the first initial of their last name; or their last name.
4. Provides that the bill, as it relates to voir dire in criminal trials, shall not be construed as affecting existing law that allows the public access to juror information.
5. Makes other technical and conforming changes.

EXISTING LAW:

1. Allows a trial judge in civil cases to examine prospective jurors in order to select a fair and an impartial jury. (Code of Civil Procedure Section 222.5 et seq. All further references are to this code unless otherwise stated.)
   1. Provides that after a trial judge’s initial examination, counsel for each party may examine any of the prospective jurors, by oral and direct questioning, so that counsel may intelligently exercise both peremptory challenges and challenges for cause. (Section 222.5.)
   2. Provides that during any examination conducted by counsel for the parties, the trial judge should permit liberal and probing examination calculated to discover bias or prejudice with regard to the circumstances of the particular case. (Section 222.5.)
   3. Provides that to facilitate the jury selection process, the trial judge should provide the parties with both the alphabetical list and the list of prospective jurors in the order in which prospective jurors will be called. (Section 222.5.)
2. Allows a court, in a criminal case, to conduct an initial examination of prospective jurors.
   1. Provides that after a court’s initial examination, counsel for each party shall have the right to examine, by oral and direct questioning, any or all of the prospective jurors. (Section 223.)
   2. Provides that voir dire of any prospective jurors shall, where practicable, occur in the presence of other jurors in all criminal cases, including death penalty cases. (Section 223.)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: A hallmark of the American legal system is the right to a jury trial. “The purpose of a jury is to guard against the exercise of arbitrary power – to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor…or perhaps [the] overconditioned or biased response of a judge.” (Taylor v. Louisiana (1975) 419 U.S. 522, 530.)

To ensure that a jury represents a cross-section of the community, we bestow upon all citizens a duty to serve as jurors. While some have strong feelings about jury service, jury duty is important. Indeed, jury duty “affords ordinary citizens a valuable opportunity to participate in a process of government, an experience fostering, one hopes, a respect for law.” (Powers v. Ohio (1991) 499 U.S. 400, 407.) For some, jury duty is an honor and a privilege and represents a significant opportunity to participate in the democratic process outside of elections. (Id.)

Juries are selected by a court process (that is open to the public) known as voir dire. During voir dire, prospective jurors are seated in the jury box and are asked—in front of other prospective jurors and the public—a series of questions to determine their competence and fitness to serve as jurors. Usually, these questions help to ferret out bias; but sometimes, these questions can touch on subjects that are very personal, such as whether the juror lives alone, whether the juror has children, and where the juror lives.

Author’s Statement: According to the author:

It is not uncommon for prospective jurors to reveal their full names during voir dire.  Prospective jurors are then asked to provide extensive private information, including their occupation, where they live, if they have children, and if they live alone or with others.

When prospective jurors reveal both their full name and other personal information, they put themselves at-risk of being potentially victimized.  It is true that a juror who feels uncomfortable about answering a particularly personal question during voir dire may ask the court to go into the judge’s closed chambers to answer the question; however, jurors do not always invoke this privilege.  Jurors who might already feel intimidated by the jury selection process (and who want to avoid interrupting the voir dire proceedings) may feel pressure to answer the personal question in open court rather than behind closed chambers.

This bill will make jurors feel more comfortable during voir dire if jurors are rest-assured that their full identity will not be aired open to the entire public.

The California District Attorneys' Association, a sponsor of the bill, states, “[i]n today’s technology driven world, where a person’s name can be searched on the internet in a matter of seconds, requiring that jurors be identified without using their full names would help minimize any potential undue influence by others, as well as protect them against identify theft.”

This commonsense and modest proposal provides privacy protections to prospective jurors during the jury selection process. This bill simply provides that during voir dire, a court or counsel in a criminal matter must address a prospective juror by either a jury number, the juror’s first name and last initial, or the juror’s title and last name.

This bill might even put at ease those jurors who feel reluctant about reporting to jury duty for privacy reasons. To the extent that voir dire contributes to instances of identity theft or juror intimidation among prospective jurors, this bill could curb those instances.

Federal Circuit Courts Have Developed a Doctrine to Determine Whether Providing an Anonymous Jury Violates a Defendant’s Fifth Amendment Right to a Presumption of Innocence, or Sixth Amendment Right to an Impartial Jury. Federal circuit courts have recognized that “empaneling an anonymous jury is an unusual measure that is warranted only where there is a strong reason to believe the jury needs protection or to safeguard the integrity of the justice system, so that the jury can perform its factfinding function.” (United States v. Shryrock (9th Cir. 2003) 342 F.3d 948, 971.) At issue is whether this bill, which provides a little more anonymity to jurors, would violate a criminal defendant’s Fifth Amendment right to a presumption of innocence, or a criminal defendant’s Sixth Amendment right to an impartial jury.

Generally, a lower court’s decision to empanel an anonymous jury will be upheld if “(1) there is a strong reason for concluding that it is necessary to enable the jury to perform its factfinding function, or to ensure jury protection; and (2) reasonable safeguards are adopted by the trial court to minimize any risk of infringement upon the fundamental rights of the accused.” (Shryrock, supra, at 971.) A court’s decision to empanel an anonymous jury is reviewed under an abuse of discretion review. (United States v. Fernandez (9th Cir. 2004) 388 F.3d 1199, 1244.)

When a court seeks to provide anonymity to jurors for their protection, a court considers several factors, including “(1) the defendants' involvement with organized crime; (2) the defendants' participation in a group with the capacity to harm jurors; (3) the defendants' past attempts to interfere with the judicial process or witnesses; (4) the potential that the defendants will suffer a lengthy incarceration if convicted; and (5) extensive publicity that could enhance the possibility that jurors' names would become public and expose them to intimidation and harassment.” (Ibid.)

Even If a Federal Analysis Was Applicable, This Bill Likely Meets Constitutional Muster Under the Federal Test. Although this bill prohibits a court or counsel from addressing a prospective juror by his or her full name, this bill does not go so far as establishing an anonymous jury. First, this bill allows the court the discretion to address jurors by any one of the following methods: (1) an identification number; (2) their first name and first initial of their last name; or (3) a prefix and their last name. Second, the narrow scope of this bill is limited to how a court addresses jurors during voir dire, and not how the court addresses jurors during trial.

Although this bill limits some personal information of a prospective juror, this bill provides several constitutional safeguards to protect the rights of criminal defendants, consistent with Shyrock. As proposed to be amended, this bill requires the court to provide to each counsel a complete list of names of the prospective jurors. Even if a court decides to address jurors by an identification number, the complete list of names guards against any constitutional danger of complete anonymity. Furthermore, this bill, as proposed to be amended, requires the court to advise jurors that in accordance with state law, the court and counsel are prohibited from addressing jurors by their full names, and must identify jurors through a different method. Indeed, this neutral explanation has been viewed by circuit courts as “adequate guards against the possibility of prejudice.” (Fernandez, supra, at 1245.; see also Shryrock, supra, at 972-973 (“the trial court took reasonable precautions by advising the jury that the use of anonymous juries was commonplace in federal court”).)

This Bill Also Likely Meets Constitutional Muster Under a State Analysis. The California Supreme Court has recently considered whether trial courts have the discretion to address jurors by a number throughout a jury trial, rather than their full names. In People v. Thomas (2012) 53 Cal. 4th 771, the trial court ordered that prospective jurors and trial jurors be referred to by number only. There, the defendant contended, among other things, that the use of the jury numbers violated his rights to be presumed innocent and to a fair and public trial. (Id.)

The California Supreme Court held that the trial court did not err, and that “the procedure did not violate the defendant’s right to a public trial because the trial was open and the jurors’ faces were visible to anyone present.” (Id.) In addition, the Court held that:

Any risk that the jury would speculate that the use of numbers related to the defendant’s dangerousness was diminished because the trial court indicated it would admonish the jury that the procedure was required in all criminal cases and had nothing to do with the defendant. (Id.)

Given the public nature of criminal trials, and the fact that this bill only applies to voir dire and allows courts and counsel to address prospective jurors by their first or last names, and requires not only that the court provide counsel with access to the full names of prospective jurors, but also that the court advise jurors about this new criminal procedure, this bill would certainly survive the test under People v. Thomas, supra, at 771.

Adverse Consequences? The California Attorneys for Criminal Justice (CACJ), the opponents of the bill, claim that this bill would give jurors the false impression that jurors need protection because the defendant is, in fact, a dangerous person. In opposition, CACJ writes:

The bill could inadvertently give the impression to prospective jurors that there is an unknown public safety reason that their true identities must be concealed. The proposal further perpetuates a stigma attached to a criminal defendant, whereby a juror’s identity needs to be kept secret and not spoken in a public courtroom, adding to the already unjust and existing bias against the defendant as a dangerous person.

Additionally, CACJ is opposed because it is unaware of any specific problem that has arisen as a result of addressing prospective jurors by their full names.

As mentioned above, to address concerns raised by CACJ, the author has agreed to take amendments to require the court to advise prospective jurors that California law prohibits the court and counsel in criminal cases from addressing prospective jurors by their full names during the jury selection process. This advisory is similar to the notice that survived the court’s scrutiny United States v. Shryrock, and in People v. Thomas.

The Scope of the Bill is Limited to Criminal Cases Only. To address concerns raised by the Judicial Council, the bill, as proposed to be amended, is limited to criminal cases only. However, of course, this bill does not prevent a civil court from addressing jurors in a manner it deems appropriate and that is in accordance with law.

This Bill Ensures that Each Panel of Prospective Jurors Are Uniformly Addressed in the Same Manner. As previously mentioned, this bill, as proposed to be amended, provides the court the discretion to determine how the court and counsel shall address each panel of prospective jurors. While the court may decide, from case to case, how it wants to address the jurors, this bill ensures that within a particular panel, the court addresses each prospective juror uniformly. Given that a court’s decision is still subject to abuse of discretion review, this does not change the existing practice which allows the attorneys to object a court’s determination.

This Bill Would Still Allow the Court and the Parties’ Counsel to Have Access to a Prospective Juror’s Full Name. Although this bill limits the way the court or counsel can address a prospective juror during voir dire, this bill does not prevent the court or counsel from having access to the prospective juror’s full name. This fair approach allows attorneys, like prosecutors and defense attorneys, to continue to assess jurors for other conflicts without resorting to open questioning during voir dire. Indeed, to ensure that attorneys continue to have access to this information, this bill requires a court in a criminal case to provide to each party’s counsel a complete list of the names of prospective jurors, both in alphabetical and examination calling order - similar to lists usually provided to a party’s counsel in civil cases.

REGISTERED SUPPORT / OPPOSITION:

Support

California District Attorneys’ Association (sponsor)

San Diego County District Attorney (sponsor)

Association of Deputy District Attorneys

California Police Chiefs Association

Opposition

California Attorneys for Criminal Justice (opposed unless amended)

Analysis Prepared by: Eric Dang / JUD. / (916) 319-2334