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Final Report of the
Blue Ribbon Commission on
Jury System Improvement
Honorable Roy Wonder (Ret.), Chair
Honorable Charles B. Renfrew (Ret.), Vice-Chair
Honorable Orville A. Armstrong (Second Appellate District)
Honorable Patricia Bamattre-Manoukian (Sixth Appellate District)
Honorable Robert A. Barclay (Modoc County Superior Court)
Honorable Janet I. Kintner (San Diego Municipal Court)
Honorable Judith McConnell (San Diego County Superior Court)
Honorable Kathryne A. Stoltz (Los Angeles County Superior Court)
Honorable Lawrence Waddington (Ret.) (Los Angeles County Superior Court)
Senator Milton Marks (Third District)
Senator Charles M. Calderon (Thirtieth District)
Assemblywoman Paula Boland (Thirty-Eighth District)
Assemblyman Bill Morrow (Seventy-Third District)
Mr. Daniel Kolkey (Legal Affairs Secretary, Office of the Governor)
Ms. Mary E. Alexander (Cartwright & Alexander)
Mr. Gerald L. Chaleff (Chaleff & English)
Mr. Gil Garcetti (District Attorney, Los Angeles County)
Mr. Raymond C. Marshall (McCutchen, Doyle, Brown & Enersen)
Mr. John A. Clarke (Court Executive Officer, Los Angeles County Superior Court)
Mr. Michael Roddy (Court Executive Officer, Sacramento County Courts)
Mr. Alan Slater (Court Executive Officer, Orange County Superior Court)
Mr. Michael A. Tozzi (Court Executive Officer, Stanislaus County Superior Court)
Mr. Harry G. Bubb (Chairman Emeritus, Pacific Mutual Life Insurance Co.)
Ms. Lori Howard, Ph.D. (Office of Supervisor Mike Antonovich)
Ms. Fran Packard (President, League of Women Voters)
Honorable John David Lord, Advisory Member (Downey Municipal Court)
)))))))))))))))
Primary Author
Professor J. Clark Kelso (Institute for Legislative Practice, McGeorge School of Law)
Consultant
Mr. Tom Munsterman (National Center for State Courts)
Administrative Office of the Courts Staff
Mr. Martin Moshier
Mr. Scott Beseda
Ms. June Clark
Ms. Vicki Muzny
Ms. Cara Vonk
Ms. Terrie Wilfong
Date of Report: May 6, 1996
Blue Ribbon Commission on Jury System Improvement
Table of Contents
Table of Contents
Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
I. Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. Introduction to the Blue Ribbon Commission . . . . . . . . . . . . . . . . . . . . . . 1
B. Summary of Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1. Statement of Support for Commission Recommendations . . . . . . . . . . . . 3
2. Implementation of Recommendations and Continuing Oversight . . . . . . . 3
3. The Jury Pool, Juror Treatment and Jury Management . . . . . . . . . . . . . 3
4. Jury Selection and Structure of the Trial Jury . . . . . . . . . . . . . . . . . . . 7
5. The Jury’s Deliberative Function . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
II. The Commission’s Charge and Implementation of Recommendations . . . . . . . . 12
A. The Jury System in Crisis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
B. Previous Reports on the California Jury System . . . . . . . . . . . . . . . . . . . 13
C. The Commission’s Charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
D. Implementation of the Commission’s Recommendations . . . . . . . . . . . . . . 16
III. The Jury Pool, Juror Treatment and Jury Management . . . . . . . . . . . . . . . . . 18
A. The Jury Pool . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
1. Source Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2. Summons Stage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3. Hardship Exclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
B. Juror Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
1. Treatment by Court Staff, Attorneys and Judges . . . . . . . . . . . . . . . . 28
2. Transportation and Parking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
3. Juror Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4. Privacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
5. Term of Service and Period of Repose . . . . . . . . . . . . . . . . . . . . . . . 38
6. Juror Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
C. Jury Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
IV. Jury Selection and Structure of the Trial Jury . . . . . . . . . . . . . . . . . . . . . . . 49
A. The Juror Selection Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
1. The Need for Representative Jury Panels . . . . . . . . . . . . . . . . . . . . . 50
2. Improvements to Voir Dire . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
3. Peremptory Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
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Table of Contents
a. The Debate Over and Need for Peremptory Challenges . . . . . . . . . 55
b. Reducing the Number of Peremptory Challenges . . . . . . . . . . . . . . 59
B. Structure of the Trial Jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
1. The Size of the Trial Jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
2. The Unanimity Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
a. The Debate Over and Need for Unanimity . . . . . . . . . . . . . . . . . . 70
b. Addressing the Problem of Hung Juries and
The Recalcitrant Juror . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
V. The Jury’s Deliberative Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
A. Juror Orientation Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
B. Note-Taking by Jurors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
C. Questioning of Witnesses by Jurors . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
D. Pre-Deliberation Discussions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
E. Simplification of Jury Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
F. The Use of Alternative Jurors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
G. Trial Management Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
Appendix A. Proposed Amendments to the California Constitution . . . . . . . . . . . . . . 103
Appendix B. Proposed Amendments to the Codes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Appendix C. Proposed Amendments to the Rules of Court . . . . . . . . . . . . . . . . . . . . . 117
Appendix D. Proposed Amendments to the Standards of Judicial Administration . . . 123
Appendix E. ABA’s Standards Relating to Juror Use and Management . . . . . . . . . . . 129
Appendix F. State Bar Principles Relating to Jury Reform . . . . . . . . . . . . . . . . . . . . . 139
Appendix G. Jury Facilities Industry Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
Appendix H. Juror Fees by State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
Appendix I. Estimated Costs of Increased Jury Fees . . . . . . . . . . . . . . . . . . . . . . . . . . 152
Appendix J. Voir Dire Questionnaire . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
Appendix K. Number of Peremptory Challenges by State . . . . . . . . . . . . . . . . . . . . . . 155
Appendix L. Probability of Finding Persons on a 12-Person Jury Who
Share a Characteristic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
Appendix M. Jury Size and Verdict Rules by State . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
Appendix N. Misdemeanors Where Punishment Is 6 Months or Less . . . . . . . . . . . . . 160
Appendix O. Suggested Instruction for Jury Deliberation Procedures . . . . . . . . . . . . . 176
Appendix P. Minority Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
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Blue Ribbon Commission on Jury System Improvement
Acknowledgments
Acknowledgments
A project of this size relies upon contributions from many sources. In
addition to the strong staff support from the Administrative Office of the Courts,
the Commission would like to acknowledge the significant assistance of the
following persons to the Commission’s final work product: Ms. Gloria Gomez
(Jury Commissioner for the County of Los Angeles); Ms. Janet B. Miller (Jury
Commissioner for the County of Sacramento); Ms. Mary Kennedy (Counsel,
Senate Criminal Procedure Committee); Mr. David Shaw (Chief Counsel,
Assembly Committee on Public Safety); Ms. Pilar Onate (Legislative Assistant,
Senator Calderon’s Office); Mr. David Long (Director, Office of Research,
State Bar of California); Ms. Angela Johnson and Ms. Wendy Green (Research
Assistants to Professor J. Clark Kelso, McGeorge School of Law); and the
members of the Hastings School of Law Public Law Research Institute
(Professor David J. Jung, Director; Ms. Catherine Albright, Ms. Elizabeth
Ellen Chilton, Ms. Patricia Henley, and Ms. Margot Hunter).
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Blue Ribbon Commission on Jury System Improvement
Chapter I. Executive Summary
Chapter I
Executive Summary
A. Introduction to the Blue Ribbon Commission
The Judicial Council of California (the “Council”), the policy-making
body for California’s courts, created this Blue Ribbon Commission (the
“Commission”) to conduct a comprehensive evaluation of the jury system and to
make timely recommendations for improvement. The Commission is made up
of 26 members and is broadly representative of the diverse groups who regularly
work with the courts and juries. The membership includes judges from
municipal, superior and appellate courts, court administrators, legislators from
the Assembly and Senate, a representative from the Governor’s office, a district
attorney, defense counsel, civil practitioners, and public members. The chair of
the Commission is Judge Roy Wonder (Ret.) of the San Francisco Superior
Court, and the vice-chair is Judge Charles B. Renfrew (Ret.) of the United
States District Court for the Northern District of California.
The Commission was formed by the Council in December of 1995, and
the State Bar of California and the California Judges Association agreed to
participate as supporting sponsors. The Commission held its first meetings in
January of 1996. The Commission divided its work over three subcommittees:
Juror Pool, Treatment and Management, chaired by Mr. Michael Roddy,
executive officer of the Superior and Municipal Courts of Sacramento County;
Jury Selection and Trial Structure, chaired by Justice Patricia BamattreManoukian of the Court of Appeal for the Sixth Appellate District; and Jury
Functioning, chaired by Judge Judith McConnell of the San Diego County
Superior Court. These three subcommittees met frequently in February, March
and April to work through the long list of issues for consideration. Mr. Tom
Munsterman of the National Center for State Courts, one of the country’s
leading authorities on juries, attended all meetings and significantly contributed
to the Commission’s discussions. Professor J. Clark Kelso of the University of
the Pacific’s McGeorge School of Law served as reporter for the Commission’s
deliberations and primary author of this Report.
Two full days of public hearings were conducted in March in Los
Angeles and San Francisco. The Commission also received written comments
and reports from several interested persons. Quotes from these sources are
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Chapter I. Executive Summary
interspersed throughout this report.
A draft of this Report was presented to the full Commission for its
consideration in late March and again in late April for final approval. The
Report was then submitted to the Council at its May meeting in Chico. A
minority report dissenting in part appears in Appendix P.
The Commission commends the Council, the Legislature and the
Governor for cooperatively supporting the Commission’s work. Recognizing
that many of the issues considered by the Commission would involve legislative
action, Chief Justice Malcolm M. Lucas, chairperson of the Council, invited the
participation of the chairs of the Assembly and Senate Judiciary Committees, the
Assembly Public Safety Committee, the Senate Criminal Procedure Committee,
and a representative from the Governor’s office. Their participation has
enriched the Commission’s deliberations and has helped to ensure that the
Commission’s conclusions will receive full consideration in the legislative
process.
B. Summary of Recommendations
The Commission considered hundreds of suggestions in crafting its
recommendations. Some of the recommendations will command near universal
assent. Others are going to create discomfort among one or more groups.
Those who are involved with the jury system—jurors, judges, jury
commissioners, attorneys, and California businesses—will be asked to make
individual sacrifices that will redound to the benefit of all. The Commission’s
intent is to push for those changes that are necessary to preserve and improve
the system.
Recommendation 1.1: In view of the fundamental importance
of the jury system to public respect for the rule of law, the
Judicial Council, the Legislature, the Governor, and the State
Bar should seriously consider and support changes
recommended by this Commission that are necessary to
preserve, promote and improve the jury system.
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Chapter I. Executive Summary
The Commission attempted in its deliberations to reach consensus on all
issues. In many cases, a consensus was possible. On some issues (e.g., jury
size, the number of peremptory challenges, and the requirement of unanimity),
consensus was not possible. In these cases, the Commission adopted
recommendations by majority vote (usually conducted by a show of hands of
those present). This report clearly identifies those issues where consensus was
not achieved, presents both the majority and minority arguments, and indicates
the results of the votes taken by the Commission.
The specific recommendations adopted by the Commission are as
follows:
1. Support for Commission Recommendations
Recommendation 1.1: In view of the fundamental importance of the jury system
to public respect for the rule of law, the Judicial Council, the Legislature, the
Governor, and the State Bar should seriously consider and support changes
recommended by this Commission that are necessary to preserve, promote and
improve the jury system.
2. Implementation of Recommendations and Continuing Oversight
Recommendation 2.1: The Judicial Council should create an Implementation
Task Force on Jury System Improvements which would be responsible for
overseeing implementation of the Commission’s recommendations. Like the
membership of the Commission, the Task Force’s membership should be
broadly representative of the diverse perspectives about the jury system.
3. The Jury Pool, Jury Treatment and Jury Management
Recommendation 3.1: The Judicial Council should adopt a Standard of Judicial
Administration recommending use of the National Change of Address system to
update jury source lists.
Recommendation 3.2: The Implementation Task Force should evaluate the
results of an existing New York program to supplement its jury source lists with
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Blue Ribbon Commission on Jury System Improvement
Chapter I. Executive Summary
welfare and unemployment lists and should then consider whether one or more
California counties should conduct a pilot project supplementing the DMV and
registered voters lists with other comprehensive lists of persons living in
California.
Recommendation 3.3: The Judicial Council's Advisory Committee on Court
Technology, in consultation with the Implementation Task Force, should review
the cost, feasibility and efficacy of a statewide master jury list.
Recommendation 3.4: The Legislature should enact a statute clearly stating that
jury service is a mandatory duty of all qualified citizens.
Recommendation 3.5: The Legislature should amend C.C.P. § 209 and Vehicle
Code § 12805 to provide mandatory procedures for enforcing juror summons,
including placing a hold upon driver’s license renewals of those persons who
fail to respond to a juror summons.
Recommendation 3.6: The Implementation Task Force should produce a format
for a standardized jury summons for use, with appropriate modifications, around
the State which is understandable and has consumer appeal.
Recommendation 3.7: Jury commissioners should, if feasible, adopt a one-step
summons process (i.e., combined juror questionnaire and summons) to replace
the two-step process (i.e., juror questionnaire followed by summons).
Recommendation 3.8: Jury commissioners and judges should actively promote
the importance of the jury system and the duty to serve through all available
channels of communication.
Recommendation 3.9: The Judicial Council should enact a Rule of Court to
require jury commissioners to apply the standards regarding hardship excuses
presently set forth in Section 4.5 of the Standards of Judicial Administration.
Recommendation 3.10: The Legislature should enact a child-care program for
those jurors who must make special child-care arrangements as a result of jury
service.
Recommendation 3.11: The Judicial Council should adopt a Rule of Court
providing for mandatory judicial, court administrator, and jury staff teamtraining on juror treatment.
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Chapter I. Executive Summary
Recommendation 3.12: The Judicial Council should adopt a Rule of Court
requiring jury commissioners to prepare a juror handbook which sets forth the
juror’s rights and responsibilities and explains juror services within the
courthouse.
Recommendation 3.13: The Judicial Council should adopt a Rule of Court
requiring the creation within each court of some reasonable mechanism for
responding to juror complaints.
Recommendation 3.14: To reduce the burden of long-distance driving and to
reduce parking problems, the Legislature should consider the propriety of
measures requiring mass transit providers to offer free public transportation to
and from courthouses for jurors.
Recommendation 3.15: The Legislature should amend C.C.P. § 215 to require
courts to reimburse jurors for all reasonable and necessary parking expenses or
to provide free parking consistent with local building and transportation
policies.
Recommendation 3.16: Trial courts should review existing jury facilities in light
of national standards and, at a minimum, should take whatever steps are
necessary to bring all jury facilities up to those standards.
Recommendation 3.17: The presiding judge of the court should ensure that juror
security within the courthouse and from juror parking facilities to the courthouse
is properly coordinated and supervised by the court security officer.
Recommendation 3.18 (by a vote of 16 to 2): The Legislature should enact
legislation providing that jurors will be identified throughout the jury selection
process only by number and not by name, and that personal juror identifying
information shall not be elicited during voir dire except on a showing of a
compelling need.
Recommendation 3.19: The Legislature should enact a statute giving jurors the
right to respond in chambers to questions during voir dire that elicit highly
personal information and requiring that the court inform jurors of this right.
Recommendation 3.20: The Legislature should amend C.C.P. § 237 to ensure
that personal juror identifying information is properly safeguarded in the context
of post-verdict proceedings.
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Chapter I. Executive Summary
Recommendation 3.21: The Judicial Council should adopt a Rule of Court
requiring by January 1998 adoption of a one trial - one day service requirement
except in those counties which can demonstrate good cause why such a
requirement is impractical.
Recommendation 3.22: The Judicial Council should adopt a Rule of Court
requiring by January 1998 implementation of an “on-call” telephone stand-by
system in every county except in those counties which can demonstrate good
cause why such a system is impractical.
Recommendation 3.23: Presiding judges should discuss the topic of case
predictability and late settlements with participants in the criminal justice system
in meetings required by Rule of Court 227.8.
Recommendation 3.24: The Legislature should amend C.C.P. § 204 to provide
that an eligible person shall be excused from service for a minimum of twelve
months if he or she has completed jury service.
Recommendation 3.25: The Legislature should amend C.C.P. § 215 to provide
for juror fees of $40 per day for each day of jury service after the first day and
$50 per day for each day of jury service after the thirtieth day, and to provide
for reimbursement to jurors at the rate of $0.28 per mile for travel to and from
the court.
Recommendation 3.26: The Legislature should amend Section 230 of the Labor
Code to require all employers to continue paying usual compensation and
benefits to employees for the first three days of jury service if the employee has
given reasonable notice to the employer of the service requirement.
Recommendation 3.27: The Legislature should adopt reasonable tax credits for
those employers who voluntarily continue paying usual compensation and
benefits to employees who are absent from work for more than three days on
account of jury service.
Recommendation 3.28: The Legislature should amend the Unemployment
Insurance Code to provide that, except for the first day, jury service constitutes
an employment disability which entitles the employee to a claim in the amount
of $40 per day (increased to $50 per day after the 30th day of service).
Recommendation 3.29: The Trial Court Presiding Judges Advisory Committee
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Chapter I. Executive Summary
and Court Administrators Advisory Committee should systematically monitor
and study critical components of the jury system for the purpose of permitting
more informed policy-making and management.
4. Jury Selection and Structure of the Trial Jury
Recommendation 4.1: The Judicial Council should amend Section 8.8 of the
Standards of Judicial Administration to encourage the Center for Judicial
Education and Research (“CJER”) to produce educational materials and
programs focused on the conduct of voir dire, particularly in criminal cases, that
can be distributed to all judges for use and review.
Recommendation 4.2: The Judicial Council should amend Section 8.7 of the
Standards of Judicial Administration to include a list of factors judges should
consider when making the “good cause” determination under C.C.P. § 223.
Recommendation 4.3: Rules of Court 228.2 & 516.2, which give the trial court
discretion to determine the appropriate method of supplementing the court’s voir
dire, should not be changed.
Recommendation 4.4: The Judicial Council should adopt a Standard of Judicial
Administration encouraging the use of a statewide juror questionnaire to be
developed by the Implementation Task Force to gather basic juror information,
other than juror identification information, for use by the court and counsel in
voir dire.
Recommendation 4.5: A reasonable and equal number of peremptory challenges
must be given to each side in criminal and civil cases, and the trial court should
be given discretion to increase the number of peremptory challenges for good
cause in the interests of justice.
Recommendation 4.6 (by a series of majority votes): The Legislature should
amend C.C.P. § 231 to provide each side with 12 peremptory challenges in
cases where the offense charged is punishable with death or with life
imprisonment, 6 peremptory challenges in all other felonies, and 3 peremptory
challenges in all misdemeanors. (The votes are reported below in the text.)
Recommendation 4.7: There should be a proportional reduction in the number
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Blue Ribbon Commission on Jury System Improvement
Chapter I. Executive Summary
of additional peremptory challenges given for multi-defendant cases.
Recommendation 4.8 (by a series of votes): The Legislature should amend
C.C.P. § 231(c) to provide each party in a 2-party civil action with 3
peremptory challenges, and each side in all other civil actions with 6 peremptory
challenges. (The votes are reported below in the text.)
Recommendation 4.9: In capital cases and felonies, the jury should consist of 12
persons.
Recommendation 4.10 (by a vote of 14 to 7): The Legislature should propose an
amendment to the California Constitution, Article I, § 16, to provide for a jury
of 8 persons in all misdemeanor cases or a lesser number agreed on by the
parties.
Recommendation 4.11 (by a vote of 19 to 2): The Legislature should eliminate
juries from those misdemeanors that do not carry any possible jail time.
Recommendation 4.12 (by a vote of 13 to 5): In civil cases within the
jurisdiction of the superior court, the jury should consist of 12 persons or a
lesser number agreed on by the parties.
Recommendation 4.13 (by a vote of 15 to 6): The Legislature should amend
C.C.P. § 220 to provide that in civil cases within the jurisdiction of the
municipal court, the jury should consist of 8 persons or a lesser number agreed
on by the parties.
Recommendation 4.14: The Commission recommends that the Judicial Council
conduct a short (e.g., 4-6 month), focused study to gather more reliable
information regarding: (1) the percentage of hung juries and the vote split; (2)
the reasons why individual juries are unable to reach a verdict (data that could
be collected from a form to be filled out by the jury foreperson); and (3) the
subsequent history of cases resulting in hung juries (e.g., number of cases
retried with the results, number of cases pled, number of cases dropped). Data
can be collected from court records and from files within the offices of county
prosecutors and public defenders.
Recommendation 4.15: A unanimous verdict should continue to be required for
criminal cases in which the punishment is death or life imprisonment.
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Chapter I. Executive Summary
Recommendation 4.16 (by a vote of 13 to 4): If the jury size in misdemeanor
cases is reduced from 12 to 8 (as provided for in Recommendation 4.10), then
unanimous verdicts should be required.
Recommendation 4.17 (by a vote of 20 to 1): After a jury reports it is
deadlocked, the trial judge should reemphasize to the jury the importance of
arriving at a verdict and each juror’s duty to deliberate. The trial judge should
also explain that the foreperson should report to the judge if any juror is
refusing to participate in deliberations or has a bias not disclosed in voir dire.
Recommendation 4.18 (by a vote of 15 to 7): The Legislature should propose a
constitutional amendment which provides that, except for good cause when the
interests of justice require a unanimous verdict, trial judges shall accept an 11-1
verdict after the jury has deliberated for a reasonable period of time not less
than 6 hours in all felonies, except where the punishment may be death or life
imprisonment, and in all misdemeanors where the jury consists of 12 persons.
5. The Jury’s Deliberative Function
Recommendation 5.1: The Implementation Task Force should produce a
professional quality, statewide juror orientation videotape which can be used by
jury commissioners, with or without modification, to satisfy the statutory
obligation to provide juror orientation.
Recommendation 5.2: The Judicial Council should adopt a Rule of Court which
requires the trial court to inform jurors of their right to take written notes and
which gives the trial judge discretion to determine the post-verdict disposition of
juror notes.
Recommendation 5.3: The Judicial Council should adopt a Standard of Judicial
Administration recommending that judges permit jurors to submit written
questions to the court which, subject to the discretion of the trial judge and the
rules of evidence, may be asked of witnesses who are still on the stand. The
Standard should include a pre-trial admonition explaining the procedure to
jurors.
Recommendation 5.4: The Judicial Council should reconsider in January 1998
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Chapter I. Executive Summary
the issue of pre-deliberation discussions by jurors based on a review of the
experience in Arizona. In the meantime, the Council should adopt a Standard of
Judicial Administration that encourages trial judges to experiment in long civil
trials with scheduled pre-deliberation discussions upon stipulation of counsel
with appropriate admonitions regarding withholding judgment until deliberations
have begun.
Recommendation 5.5: The Judicial Council should oppose legislation that would
permit or require trial judges to inform the jury of its power of nullification.
Recommendation 5.6: The Judicial Council should adopt a Standard of Judicial
Administration recommending that trial judges, in their discretion, pre-instruct
the jury on the substantive law of issues involved in the case.
Recommendation 5.7: The Judicial Council should adopt a Standard of Judicial
Administration that encourages counsel in cases involving highly complex
subject matters jointly to develop a glossary of common terms which can be
distributed to each juror at the beginning of trial.
Recommendation 5.8: The Judicial Council should appoint a Task Force on Jury
Instructions to be charged with the responsibility of drafting jury instructions
that accurately state the law using language that will be understandable to jurors.
Proposed instructions should be submitted to the Judicial Council and the
California Supreme Court for approval. The membership of the Task Force on
Jury Instructions should be diverse, including judges, lawyers, representatives
from the Committee on Standard Jury Instructions of the Superior Court of Los
Angeles, linguists, communications experts, and other non-lawyers. The Task
Force should be charged with completing its work no later than 18 months after
its formation.
Recommendation 5.9: As part of final jury instructions, trial judges should
suggest specific procedures for how to conduct the deliberations process.
Recommendation 5.10 (by a vote of 12 to 6): The Legislature should amend
C.C.P. § 234 to give the trial judge discretion in civil cases to permit alternate
jurors to observe but not participate in jury deliberations.
Recommendation 5.11: The Judicial Council should adopt a Standard of Judicial
Administration recommending that trial judges actively manage trial proceedings
with particular emphasis upon the needs of the jury. CJER should continue its
10
Blue Ribbon Commission on Jury System Improvement
Chapter I. Executive Summary
trial management training and develop materials on trial management that can be
distributed to trial judges throughout the state.
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11
Blue Ribbon Commission on Jury System Improvement
Chapter II. The Commission’s Charge and Implementation of Recommendations
Chapter II
The Commission’s Charge and
Implementation of Recommendations
A. The Jury System in Crisis
The jury system in California is on the brink of collapse. To some, this
statement may seem hyperbolic. But to jury commissioners, judges and
attorneys who work with juries on a daily basis, collapse seems to be just
around the corner.
The crisis manifests
The jury system is on the
itself in public dissatisfaction
with the jury system as it
brink of collapse. Felony
currently is structured and
trials are now delayed
managed. The public is
rendering its own judgment by
because of a juror shortage.
refusing to show up for jury
duty when called. There is no
single cause for the dissatisfaction, which is why the scope of the Commission’s
charge includes all aspects of the jury system (many of which are interrelated).
However, the results of the dissatisfaction are clear. Felony trials in several
counties with large populations are now occasionally delayed because of an
inability to provide sufficient jurors for the courtroom when needed.
Court and community leaders around the State have been actively
responding to the challenge. In November of 1994, the Superior Court of Los
Angeles issued a comprehensive report with recommendations to improve the
jury system. The Jury Report--A Blueprint for Change in the Los Angeles
County Jury System. The Citizens Economy and Efficiency Commission of Los
Angeles County issued its own report in December of 1994. The Management
of Juries Within Los Angeles County. Many of the recommendations found in
those reports have already been implemented in Los Angeles County and are
adopted in substantial form by this Commission.
12
Blue Ribbon Commission on Jury System Improvement
Chapter II. The Commission’s Charge and Implementation of Recommendations
Although Los Angeles
“For many of us, a call to jury service is ten days of
has been one of the hardest hit
real financial or personal hardship for no community
jurisdictions and has been one
benefit. We wait around a court house under the
control of a process that is poorly managed,
of the first to respond
insensitive to our needs, and we don’t get to serve.
comprehensively to juror
Were the process accommodating in the slightest,
issues, it is clear that the
and/or if we were actually needed to serve, then I
challenges facing our jury
would agree that avoidance of jury service would be
system go far beyond Los
reprehensible, but it isn’t that way.” Letter from
Robert J. Goldmann to the Commission, April 3,
Angeles County. Other
1996.
counties have witnessed
declines in juror yields, and
virtually all counties are
seeing increasing demands for jury trials, particularly in criminal cases. See,
e.g., Jurors’ Verdict: Make Reforms, Sacramento Bee, A1 (Jan. 29, 1996) (“In
Sacramento, where the number of criminal trials has doubled in the last three
years, the number of potential jurors not responding to eligibility questionnaires
has tripled.”). In addition, exit interviews with jurors and public reaction as
reflected in news media accounts reflect increasing public intolerance for a jury
system that many perceive as out of control, unnecessary, costly, burdensome,
and, in some cases, an obstacle to achieving justice.
Systematic review and reform of the jury system has been undertaken
recently in other states. New York and Arizona have completed studies of the
jury system within those states, and Arizona is in the process of implementing
far-reaching reforms. The American Bar Association’s Judicial Administration
Division promulgated a revised commentary to its Standards Relating to Juror
Use and Management in 1993. Mr. Tom Munsterman of the National Center
for State Courts, a consultant to the Commission, was the chief support staff to
the ABA’s Committee on Jury Standards. The Standards are reproduced in
Appendix E. California now joins the American Bar Association and other
jurisdictions in re-examining one of the most important institutions to a free and
democratic society: The Jury.
B. Previous Reports on the California Jury System
This Commission is not the first group in recent years to consider jury
reform in California. As noted above, the Los Angeles Superior Court and The
Citizens Economy and Efficiency Commission of Los Angeles County have
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Blue Ribbon Commission on Jury System Improvement
Chapter II. The Commission’s Charge and Implementation of Recommendations
previously issued comprehensive reports of the jury system in Los Angeles. In
January 1996, the State Bar of California conducted two State Bar Forums to
consider issues relating to the jury system. Forum participants included both
criminal and civil practitioners, consisting of district attorneys, city attorneys,
public defenders, plaintiff attorneys, defense attorneys, business litigators,
representatives of specialty bars and State Bar sections and committees, as well
as several legislative staff, judges and court staff. Several Commission
members participated in the State Bar Forums. On April 20, 1996, the State
Bar Board of Governors adopted a statement of Principles Relating to Jury
Reform which is reproduced in Appendix F.
The Judicial Council began its review of the jury with recommendations
found in the California judiciary’s 1993 futures report, Justice in the Balance
2020. Those recommendations were referred to the Council’s Civil and Small
Claims and Criminal Law Advisory Committees for review and action. In June
1995, members of the Judicial Council’s Court Administrators Advisory
Committee voted to form a jury issues subcommittee to perform a
comprehensive and systemic review of jury issues and practices. The
subcommittee actively coordinated its efforts with the Jury Education and
Management (JEM) Forum, a statewide association of jury commissioners and
managers. In July 1995, the jury issues subcommittees of the Civil and Small
Claims, Court Administrators, and Criminal Law Advisory Committees met
together to develop a project plan for presentation to the Executive Committee
of the Judicial Council. The plan, approved by the Council at its October 1995
meeting, recommended establishing this Blue Ribbon Commission.
The Legislature has also been considering jury reform over the past year.
On July 27, 1995, Senator Charles M. Calderon, Chairman of the Senate
Committee on the Judiciary, convened an all-day public hearing on jury reform
in Los Angeles to review a range of proposals directed at improving and
strengthening the jury system. As of this spring, there are no fewer than 15
bills pending before the Legislature dealing with jury reform issues. See, e.g.,
AB 2003 (Goldsmith); AB 2060 (Bowen); AB 2555 (Thompson); AB 2832
(Bordonaro); AB 2922 (Hawkins); AB 3079 (Baldwin); ACA 18 (Rainey); ACA
19 (Rainey); ACA 28 (Richter); SB 56 (Beverly); SB 2129 (Leslie); and SCA 24
(Calderon).
The Commission’s efforts have been significantly aided by this
abundance of recent, thoughtful study within California. The issues have been
exhaustively examined by knowledgeable participants in the justice system, and,
14
Blue Ribbon Commission on Jury System Improvement
Chapter II. The Commission’s Charge and Implementation of Recommendations
in part as a result of this examination, the Commission promptly reached
consensus on many of the issues. As will be seen in this report, consensus was
not possible on all issues, but the Commission’s discussions on even these issues
was well-informed and reflected genuine disagreements over the wisdom of
certain jury proposals.
C. The Commission’s Charge
In his letter appointing Judge Roy Wonder as Chair of the Commission,
Chief Justice Malcolm M. Lucas made the following pertinent observations:
“As you well know,
the right to a jury trial is a
fundamental tenet in our legal
system and must be based on
fairness and public
confidence. At the same
time, there is a growing
consensus that there is room
for improvement, and the
objective should be to
strengthen the system, not
rebuild it.
“The right to a jury trial is a
fundamental tenet in our
legal system and must be
based on fairness and public
confidence.” Chief Justice
Malcolm M. Lucas.
“Over the past year, several Judicial Council standing advisory
committees have expressed interest in addressing various aspects of the jury
system and have established subcommittees to examine issues ranging from
increased demands for jury trials in criminal cases and decreased yields of
qualified jurors to improved jury selection and trial management procedures.
The council believes that a thorough and comprehensive review of the jury
system is both appropriate and timely and looks forward to your
recommendations for improvement.”
The Judicial Council charged the Commission as follows:
The Commission is to study, receive testimony, and develop recommended
actions on, including but not limited to, the following issues and practices, and
report back to the Judicial Council at its May 1996 meeting:
15
Blue Ribbon Commission on Jury System Improvement
Chapter II. The Commission’s Charge and Implementation of Recommendations
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
Low Juror Yields
Adequacy of Source Lists
Rate of Non-Responses to Qualification Questionnaires
Rate of Failure to Appear to Juror Summons
Lack of Citizen Interest / Participation
Term of Jury Service
Level of Compensation
Employer Continuation of Juror Salary
Length of Trials
Treatment of Jurors
Concerns Regarding Juror Privacy and Security
Inefficient Use of Juror Time
Peremptory Challenges and Challenges for Cause
Voir Dire of Jurors
Complexity of Jury Instructions
Juror Sequestration and Discharge
Size of Juries
Hung Juries and Alternatives to Unanimous Verdicts
D. Implementation of the Commission’s Recommendations
The Commission makes over 50 recommendations for improvement.
Some of the recommendations will require constitutional or statutory
amendments. Others will require action by the Judicial Council. Still others
involve long-term projects that will not be completed for several months or
years. The Commission is concerned that without continuing oversight,
implementation of many of the recommendations contained in this report will
not be fully, promptly accomplished. Moreover, in dealing with an institution
as complex as the jury system, it seems very likely that some recommendations
for change will fall short in meeting their goals. Other recommendations may
have unintended consequences that require further response. For these reasons,
the Commission believes it would be advisable to create an Implementation Task
Force on Jury System Improvements with a broadly representative membership
similar to the Commission’s membership.
Recommendation 2.1: The Judicial Council should create an
Implementation Task Force on Jury System Improvements
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Blue Ribbon Commission on Jury System Improvement
Chapter II. The Commission’s Charge and Implementation of Recommendations
which would be responsible for overseeing implementation of
the Commission’s recommendations. Like the membership of
the Commission, the Task Force’s membership should be
broadly representative of the diverse perspectives about the
jury system.
44444444444444444444
17
Blue Ribbon Commission on Jury System Improvement
Chapter III. The Jury Pool, Jury Treatment and Jury Management
Chapter III
The Jury Pool, Jury Treatment
and Jury Management
One of the most serious problems the jury system faces relates to low
juror yields. The yield represents the total number of prospective jurors
reporting for service as a percent of the total number of names selected from the
source list. The lower the yield, the higher the number of persons who must be
contacted by the jury commissioner for service. Yield is affected by many
factors. Persons selected from the source list drop out of the system because
they are unqualified for service or have an undue hardship (either medical,
financial or other), or because addresses are inaccurate, or, in some cases,
because persons simply fail to appear. Low yields result in juries that are less
representative of the community and cause the burdens of jury service to be
concentrated among relatively few citizens. There is no single cause for the low
numbers, and increasing those numbers is going to require significant efforts
and substantial changes.
The overall goals of the recommendations in this chapter are to improve
the representativeness of jury panels and spread the burdens and responsibilities
of jury service as widely throughout the State as possible. The Commission
believes these goals can be achieved by making clear to California’s citizens that
jury service is a mandatory requirement of citizenship, by reducing some of the
more burdensome aspects of jury service, and by creating greater incentives for
service.
A. The Jury Pool
Last year, nearly 500,000 Californians appeared in jury assembly rooms
prepared to fulfill their civic responsibility to serve as jurors. The
administrative processes employed to assemble this large group of persons are
the primary responsibility of the jury commissioner. For purposes of this
report, three aspects of those processes will be examined: (1) creation of the
source lists, (2) sending out summons, and (3) hardship excuses.
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Blue Ribbon Commission on Jury System Improvement
Chapter III. The Jury Pool, Jury Treatment and Jury Management
1. Source Lists
The first step in the process of selecting a jury is to identify those
persons within the vicinage who are eligible to serve on a jury. The jury
commissioner randomly selects names from “the source list or lists” in order to
create the "master jury list" (C.C.P. § 198(b)). In order to satisfy state and
federal constitutional requirements, the source and master lists of jurors must
consist of a representative cross-section of the community served by the court.
See Duren v. Missouri (1979) 439 U.S. 357; Taylor v. Louisiana (1975) 419
U.S. 522; People v. Wheeler (1978) 22 Cal.3d 258; Williams v. Superior Court
(1989) 49 Cal.3d 736.
Pursuant to statute, the jury commissioner creates the master list by
randomly selecting names "from a source or sources inclusive of a
representative cross section of the population of the area served by the court."
C.C.P. § 197(a). Those sources "may" include "customer mailing lists,
telephone directories, or utility company lists." Historically, in smaller
counties, jury commissioners actually knew many or all of the residents, and the
commissioner could generate the source list from his or her own head. As
counties have grown, however, there has been increasing reliance upon easily
accessible, relatively accurate, broad-based lists.
In many counties, the entire list is now drawn from only two sources:
the list of registered voters and the Department of Motor Vehicles' list of
licensed drivers and identification cardholders. Section 197(b) of the Code of
Civil Procedure specifically provides that these two lists, "when substantially
purged of duplicate names, shall be considered inclusive of a representative
cross section of the population." A jury commissioner is thus statutorily
permitted to rely solely upon the list of registered voters and licensed drivers
and identification cardholders. The courts have upheld the constitutionality of
these master lists against challenges based on the representative cross-section
requirement. People v. Sanders (1990) 51 Cal.3d 471, 491-96 (upholding
exclusive reliance upon list of registered voters); People v. Harmon (1989) 215
Cal.App.3d 552 (upholding reliance upon list of registered voters and DMV
lists).
The addresses contained on the list of registered voters and DMV lists
are not always accurate. Among other problems, persons who move often do
not promptly change their voter registration or notify DMV. Those lists also
19
Blue Ribbon Commission on Jury System Improvement
Chapter III. The Jury Pool, Jury Treatment and Jury Management
contain a certain number of names of persons who are dead, notwithstanding
administrative efforts to remove those names. In addition, the sets of lists
contain a certain number of inconsistencies and duplications that are not readily
purged when the lists are combined by jury commissioners. Cumulatively,
these errors can significantly increase the number of summons which a jury
commissioner must mail out.
There are several methods of addressing these problems. First, some
courts now update their master lists by using the National Change of Address
list which is available from the United States Postal Service. All courts should
take advantage of the National Change of Address system.
Recommendation 3.1: The Judicial Council should adopt a
Standard of Judicial Administration recommending use of the
National Change of Address system to update jury source lists.
44444444444444444444
Second, the lists of registered voters and licensed drivers could be
supplemented with other comprehensive lists of persons living in California,
including such possibilities as utility company lists, state income tax lists, social
security lists, lists of employees maintained for the State Disability Insurance
program, private group medical plan insurance lists, or welfare and
unemployment lists (which are now being used in New York). There are
advantages (e.g., greater accuracy or comprehensiveness) and disadvantages
(e.g., privacy concerns) associated with the use of any or all of these lists.
Virtually all lists come with a certain irreducible number of errors, and the costs
of merging these lists with voter and DMV lists and then purging duplicates may
outweigh the marginal benefits of adding a few additional names to the master
jury list. The Commission does not believe that the comparative advantages of
any one or all of these lists are so compelling as to justify mandatory use by jury
commissioners in creating the master list without additional experience and
study. Under current law, individual counties may choose to use these lists, and
one or more counties may conduct a pilot project to determine in practice the
comparative benefits of additional source lists.
Recommendation 3.2: The Implementation Task Force should
evaluate the results of an existing New York program to
20
Blue Ribbon Commission on Jury System Improvement
Chapter III. The Jury Pool, Jury Treatment and Jury Management
supplement its jury source lists with welfare and unemployment
lists and should then consider whether one or more California
counties should conduct a pilot project supplementing the DMV
and registered voters lists with other comprehensive lists of
persons living in California.
44444444444444444444
Ultimately, the Commission concludes that, although the registered
voters and DMV lists contain some errors, the existing sources for creating the
master jury list are adequate to the task. The Commission believes that the
accuracy of those lists can be improved and that greater consistency from county
to county could be achieved by greater statewide coordination of the process of
creating the master jury list. The list of registered voters and DMV lists are
maintained by state agencies (the Department of State and DMV) in computer
databases. Instead of performing the merge and purge functions within each
county, it may be that a more accurate and cost-effective list could be generated
by one agency at the state level and then distributed to each county.
Recommendation 3.3: The Judicial Council's Advisory
Committee on Court Technology, in consultation with the
Implementation Task Force, should review the cost, feasibility
and efficacy of a statewide master jury list.
44444444444444444444
2. Summons Stage
The second step in jury selection is the summons stage. In the summons
stage, the jury commissioner randomly selects names from the master jury list
and sends those persons selected either (1) a qualification questionnaire to be
returned to the court (which is then followed up by a summons for persons who
are qualified to serve as jurors based upon answers to the questionnaire) or (2) a
combined summons and qualification questionnaire. See C.C.P. § 198(c). The
summons stage is recognized as one of the most critical components of the jury
selection system. It is also, in many counties, a component that is desperately in
21
Blue Ribbon Commission on Jury System Improvement
Chapter III. The Jury Pool, Jury Treatment and Jury Management
need of attention. In Los Angeles, for example, of the almost 4 million juror
affidavits mailed in FY 1994-95, 36% did not respond and required follow-up
(which resulted in an improved response rate), 15% were undeliverable as
addressed, 12% were returned for updating, and 26% were excused either as not
qualified (10%) or as undue hardship (16%). This left only 10% who were
qualified and summoned (and only half of those, a total of 172,154 persons,
actually served on juries). These numbers represent an "overall yield" of about
5% for Los Angeles County, which is low when compared to most other
jurisdictions nationwide.
The low yield is
The low yield reflects, in part,
troubling because it reflects,
in part, a belief among a
a belief that jury service is
substantial portion of the
neither mandatory nor
public that jury service is not
worthwhile and that the courts
worthwhile. The
will not enforce the legal
Commission is committed to
obligation represented by
receipt of a summons. These
changing those beliefs.
beliefs are damaging not only
to the jury system in
particular, but also to overall public respect for the judiciary and the rule of law.
The Commission is committed to the policy that jury service is a mandatory,
civic responsibility. The Commission is also committed to making the
necessary changes to convince the public that jury service is worthwhile.
Recommendation 3.4: The Legislature should enact a statute
clearly stating that jury service is a mandatory duty of all
qualified citizens.
44444444444444444444
Simply stating in a statute that jury service is mandatory will not increase
the number of persons who respond to jury summons, although it will clarify the
issue for anyone who is confused. The Commission believes that an increase in
numbers can be achieved through a measured reaction to failures-to-appear
which includes the use of both carrots and sticks. The existing stick, if enforced
by the court, comes in the form of C.C.P. § 209, which provides that a nonresponsive juror "may be attached and compelled to attend; and, following an
22
Blue Ribbon Commission on Jury System Improvement
Chapter III. The Jury Pool, Jury Treatment and Jury Management
order to show cause hearing, the court may find the prospective juror in
contempt of court, punishable by fine, incarceration, or both." A number of
counties employ Section 209 as a method of both compelling responses and, just
as important, increasing general awareness within the community about the legal
obligation of jury service. Enforcement efforts in these counties have generally
been favorably received by the community and business interests. Enforcement
is also consistent with the policy expressed in Section 4.5(a) of the Standards of
Judicial Administration that "[t]he court and its staff should employ all
necessary and appropriate means to assure that citizens fulfill this important
civic responsibility [i.e., jury service]."
There is obviously a
Persons who fail to respond
resource allocation question
which must be addressed in
to a juror summons may have
deciding how much use
a hold placed on their
should be made of C.C.P. §
209. Peace officers cannot
driver’s license renewal.
spend significant portions of
their time arresting jurors.
Sensitively and selectively employed, however, Section 209 enforcement actions
have the potential substantially to increase overall yield, and the Commission
recommends prudent use of this power. In addition, the Commission believes
that a relatively inexpensive approach to enforcement in lieu of the order to
show cause process involves placing a hold upon the driver’s license renewal of
a person who fails to respond to a jury summons. This hold, which would be
lifted only upon satisfactory completion of a term of jury service, will be an
efficient mechanism for driving home to the public the message that jury service
is mandatory and that court orders cannot simply be ignored.
Recommendation 3.5: The Legislature should amend C.C.P. §
209 and Vehicle Code § 12805 to provide mandatory
procedures for enforcing juror summons, including placing a
hold upon driver’s license renewals of those persons who fail to
respond to a juror summons.
44444444444444444444
23
Blue Ribbon Commission on Jury System Improvement
Chapter III. The Jury Pool, Jury Treatment and Jury Management
As for the carrots, the
“Most importantly, educate the public with an initial
Commission believes jury
simple brochure that could be mailed at the same
commissioners should
time jury summons are mailed. This could be read
by the potential juror prior to completing any forms
consider a range of
they receive. Please remember that a population of
meaningful steps to improve
the public is intimidated by serving on jury duty.”
the mechanics of the summons
Letter from Patricia J. Murray to the Commission,
process and the public's
March 3, 1996.
understanding and
appreciation of the jury
system. Changes to the mechanics of the summons process include: (1)
reviewing the content of summons with a view towards improving their
appearance and understandability; and (2) reconsideration of a two-step
approach used in some counties (i.e., questionnaire followed by summons) in
favor of a one-step system (i.e., mailing a combined summons and
questionnaire).
Recommendation 3.6: The Implementation Task Force should
produce a format for a standardized jury summons for use,
with appropriate modifications, around the State which is
understandable and has consumer appeal.
Recommendation 3.7: Jury commissioners should, if feasible,
adopt a one-step summons process (i.e., combined juror
questionnaire and summons) to replace the two-step process
(i.e., juror questionnaire followed by summons).
44444444444444444444
Programs to enhance the public's understanding and appreciation of the
jury system are central to increasing responsiveness to jury summons. Many of
these educational messages and programs (such as juror orientation videotapes)
will be delivered to those persons who do respond to their summons. As with
any product, advertising by word of mouth from satisfied customers is one of
the most important marketing objectives. Some courts have also successfully
negotiated for public service announcements with the electronic mass media, and
other courts used local cable channels to broadcast information about jury
service. The Commission applauds these efforts to bring home to the largest
possible audience the importance of jury service.
24
Blue Ribbon Commission on Jury System Improvement
Chapter III. The Jury Pool, Jury Treatment and Jury Management
Recommendation 3.8: Jury commissioners and judges should
actively promote the importance of the jury system and the
duty to serve through all available channels of communication.
44444444444444444444
3. Hardship Exclusions
Exemptions and
excuses for jury service are
All citizens should share the
governed by C.C.P. § 204.
At one time, certain classes of
obligations of jury service,
persons were exempt from
and all citizens are
jury service in California.
Consistent with the
presumptively competent to
recommendation of the
serve as jurors.
American Bar Association,
nearly all of those exemptions
have been removed, and
Section 204(a) now provides that "[n]o eligible person shall be exempt from
service as a trial juror by reason of occupation, race, color, religion, sex,
national origin, or economic status, or for any other reason." See American
Bar Association, Standards Relating to Juror Use and Management, Standard
6(a) (“All automatic excuses or exemptions from jury service should be
eliminated.”). This language expresses California's strong policy that all
citizens share the obligations of jury service and that all citizens are
presumptively competent to serve as jurors.
Excuses from service are governed by Section 204(b), which provides
that "[a]n eligible person may be excused from jury service only for undue
hardship, upon themselves or upon the public, as defined by the Judicial
Council." The Judicial Council has set forth the permitted excuses in Section
4.5(d) of the Standards of Judicial Administration, which are advisory only.
The excuses include no means of transportation to the court, travel time to the
court in excess of one and one-half hours, extreme financial burden, undue risk
of material injury to the juror's property, mental impairment or disability that
would expose the juror to an undue risk of mental or physical harm, the juror's
25
Blue Ribbon Commission on Jury System Improvement
Chapter III. The Jury Pool, Jury Treatment and Jury Management
services are needed elsewhere for the protection of public health and safety, or a
juror has a personal obligation to care for another and substitute care is either
unavailable or available only by imposing an undue economic burden. The
Commission is convinced that these advisory standards should be converted into
a mandatory rule which all jury commissioners must follow. This will help to
promote uniformity around the State and to reduce the overall number of
hardship excuses granted.
Part and parcel of scrutinizing hardships is the jury commissioner’s
power to defer jury service if a specific date poses a hardship to a particular
juror. Section 4.5 of the Standards of Judicial Administration require the jury
commissioner to prefer deferring jury service over excusing a juror “for a
temporary or marginal hardship.” It is anticipated that as the grounds for
excuse based on hardship are tightened, jury commissioners will more liberally
apply policies for deferring jury service to accommodate the schedules of
prospective jurors.
Recommendation 3.9: The Judicial Council should enact a Rule
of Court to require jury commissioners to apply the standards
regarding hardship excuses presently set forth in Section 4.5 of
the Standards of Judicial Administration.
44444444444444444444
The most common
The Commission believes that
hardship excuse is the
personal obligation to care for
reasonable child care options
one's children where
must be made available to
substitute care would impose
an undue economic burden.
jurors.
In some counties, 60% of the
hardship excuses involve lack
of child care. The Commission believes that reasonable child care options must
be made available to jurors.
Existing court facilities, many of which were built decades ago, were not
designed to accommodate on-site child care, which means that jurors must
generally rely upon private child care centers. Section 1.3 of the Standards of
Judicial Administration, enacted in 1987, provides that “[e]ach court should
26
Blue Ribbon Commission on Jury System Improvement
Chapter III. The Jury Pool, Jury Treatment and Jury Management
endeavor to provide a children’s waiting room located in the courthouse for the
use of minors under the age of 16 who are present on court premises as
participants or who accompany persons who are participants in court
proceedings. The waiting room should be supervised and open during normal
court hours.” Unfortunately, this advisory standard has not met the needs of
jurors who require child care.
The Commission recommends that jurors who are not employed and
who must make special child care arrangements as a result of jury service
should be reimbursed for the actual, reasonable expenses of licensed day-care.
A model child care program for jurors has been implemented in Colorado. In
addition, some mechanism should be created to pay for child care given by a
spouse who stays home from work while the other does jury service. Properly
implemented, court-financed day-care has the real potential to increase overall
yield as well as to send a strong message to the public about our commitment to
the jury system.
Recommendation 3.10: The Legislature should enact a childcare program for those jurors who must make special childcare arrangements as a result of jury service.
44444444444444444444
B. Juror Treatment
At times, there appears to be a serious disconnect between our rhetoric
about juries and our actual treatment of jurors as individuals. Our rhetoric and
law extol the importance of the jury system, ranking it on a par with
fundamental due process protections and guarantees against tyrannical
government. Yet jury facilities are all too often uncomfortable, unclean,
antiquated and even unsafe. The courts "compensate" jurors at rates that do not
even pay for lunch or parking. Jurors sitting in over-crowded jury rooms who
are ordered around the courthouse begin to feel more like pawns than valued
participants in the justice system. Attorneys and judges appear to conspire to
keep jurors uninformed and, worse, waiting in the hall for court to begin. And,
when the time finally comes to serve on a jury, the judge may discover cause to
excuse particular jurors, and attorneys may, without offering any explanation
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Blue Ribbon Commission on Jury System Improvement
Chapter III. The Jury Pool, Jury Treatment and Jury Management
whatsoever, exercise peremptory challenges. Many persons come away from
having been called for jury service with the feeling that their time was not well
used by the court system. "Hurry up and wait" is a complaint commonly heard.
The Commission
Our actions must match our
unanimously agrees that all
participants in the judicial
rhetoric. Jurors must be
system--judges, court staff,
treated with courtesy and
and attorneys--must treat each
individual juror with the
respect.
courtesy and respect due to a
valued participant in the
justice process. Our actions must match our rhetoric.
In its deliberations, the Commission divided this topic into six
subdivisions: (1) general treatment by judges, court staff and attorneys; (2)
transportation and parking; (3) juror facilities; (4) juror privacy; (5) length of
term of service; and (6) juror fees.
1. Treatment by Court Staff, Attorneys and Judges
As courtrooms around the State are discovering, without a sufficient
number of jurors, the wheels of justice come grinding to an abrupt halt. To
bring jurors back into the system, we must radically adjust our perceptions, and
we must treat jurors as critical participants in the justice system. We must
reinforce a sense of community in the courthouse that includes jurors. Simply
put, we can no longer afford to take jurors for granted; we must demonstrate to
jurors that they are important.
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Jurors are people, not
“The jury room staff was discourteous, inflexible,
pawns. Court staff, attorneys
and unpleasant causing much discontent and bad
and judges can reinforce the
feeling in the jury room. If I were to treat people in
my professional life the way the jury room staff
importance of jurors by
treated jurors, I would be fired.” Letter to the
treating them as individuals
Commission from Judy Weinstein.
with dignity and respect. This
means simple things like
“The jury room staff at all three locations was
having sufficient staff to
courteous and pleasant at all times to all jurors. (I
should point out that the staff did not know that I was
answer phone calls from
a judge.) No one I spoke to considered the treatment
jurors with questions, giving
we received to be demeaning or that we were
jurors understandable and
maltreated in any way.” Letter to Commission from
timely instructions about
Commissioner and Justice Orville A. Armstrong
where they are expected to be,
(who was called for jury duty while serving on the
Commission).
and making the courthouse
secure, comfortable and
pleasant. While this may
seem trite to some, a smile and “hello” can go a long way to making the
courthouse juror friendly. The Commission recognizes the impossibility of
pleasing everyone since one juror’s perception of mistreatment may be
contradicted by several others. The goal is to serve as many persons as possible
in a respectful, dignified manner.
The Commission recommends that court administrators include within
employee training programs materials dealing with juror issues and that court
administrators distribute to all judicial officers and court employees information
to help make the courthouse juror friendly. There should be mandatory judicial,
administrator and jury staff team training on juror treatment. The Commission
further recommends that courts explore employing jury docents or omsbudsmen
responsible only for addressing juror requests for help or information. Finally,
the jury commissioner should create a handbook for jurors setting forth their
responsibilities and informing jurors about the services available within the
courthouse.
In addition to these courthouse improvements, courts should reach out to
the community through the Internet, public service announcements, juror
appreciation weeks, and high school and college programs that highlight the
importance of the jury system and promote jury service as an important civic
responsibility. The message sent by most commercial advertising is that the
customer and the customer’s needs are important. Courts need to communicate
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precisely the same message
about jurors.
Recommendation 3.11:
The Judicial Council
should adopt a Rule of
Court providing for
mandatory judicial,
court administrator,
and jury staff teamtraining on juror
treatment.
“Above all, we need to start educating everyone
about the court and jury process while they are in
history / civic classes at the high school level. Each
student should spend a day in the eyes of a juror.
They could observe cases, observe the jury selection
process, visit the jury processing room, fill out a
mock jury questionnaire and return to class with a
classroom review and discussion on what was
learned that day. Early education reaps rewards
when someday this student becomes a juror
candidate.” Letter from Patricia J. Murray to the
Commission, March 3, 1996.
Recommendation 3.12: The Judicial Council should adopt a
Rule of Court requiring jury commissioners to prepare a juror
handbook which sets forth the juror’s rights and
responsibilities and explains juror services within the
courthouse.
Recommendation 3.13: The Judicial Council should adopt a
Rule of Court requiring the creation within each court of some
reasonable mechanism for responding to juror complaints.
44444444444444444444
2. Transportation and Parking
Getting to and from court should be as convenient as possible. It is
inevitable that there will be significant travel time for many jurors since
courtrooms are generally centralized within a small handful of buildings within a
county. Thus, in some counties, jurors drive 100 miles or more to get to court.
In more urban counties, the difficulties of travel within the city and parking
offset some of the advantages of geographic compactness.
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Jury commissioners in some counties have successfully negotiated
arrangements with local transit providers to provide free public transportation to
and from courthouses for jurors. The Commission endorses this innovative
transportation program and believes it should be made available statewide.
Recommendation 3.14: To reduce the burden of long-distance
driving and to reduce parking problems, the Legislature should
consider the propriety of measures requiring mass transit
providers to offer free public transportation to and from
courthouses for jurors.
44444444444444444444
Those jurors who travel to court in their own cars face the familiar
problem of parking. In some counties, the only parking is located several
blocks away from the court, and the cost of parking exceeds the fees presently
paid to jurors (a topic discussed below). Security of parking facilities is also a
problem in many counties. The Commission believes that the courts should
provide parking or, alternatively, should reimburse jurors for the price of
private parking facilities.
Recommendation 3.15: The Legislature should amend C.C.P. §
215 to require courts to reimburse jurors for all reasonable and
necessary parking expenses or to provide free parking
consistent with local building and transportation policies.
44444444444444444444
3. Juror Facilities
The facilities we make available to jurors communicate very powerful
messages about our commitment to the jury system and our respect for
individual jurors. Respected guests should not be expected to wait for hours at a
time in over-crowded, noisy rooms with uncomfortable chairs, inadequate
bathroom facilities, and insufficient phone service. Yet these are precisely the
characteristics of most jury assembly rooms around the state.
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Improving these
Improvements to existing
conditions is a long-term
project, especially since jury
facilities and new facilities
rooms are not the only public
must accommodate the needs
facilities in California that are
desperately in need of repair
of jurors.
and reconstruction. But the
courts must not neglect this
important aspect of long-range planning. In planning for improvements to
existing facilities or for new facilities, careful attention needs to be paid to the
needs of jurors.
National standards for jury facilities appear in no fewer than six
publications. See American Bar Association, Standards Relating to Juror Use
and Management, Standard 14; American Bar Association & American Institute
of Architects, The American Courthouse: Planning and Design for the Future
(1973); Judicial Council of California, California Trial Court Facilities
Standards (1991); National Clearinghouse for Criminal Justice Planning and
Architecture, Guidelines for the Planning and Design of State Court Programs
and Facilities, Volume B: Court System Planning Concepts - Jury Facilities
(1976); U.S. Department of Justice, Space Management and the Courts: Design
Handbook; Judicial Conference of the United States, U.S. Courts Design Guide
(1993). The Los Angeles Superior Court Management Systems Unit has printed
a single document that summarizes these guidelines, and that document is
reproduced in Appendix G. The Commission recommends that trial courts
review existing jury facilities in light of national standards and take the
necessary steps to bring all jury facilities up to those standards. While these
standards establish a benchmark against which we should judge our efforts, it
bears emphasis that these standards establish only the minimum and not
necessarily the most desirable conditions for jury facilities. We must exceed the
minimum when possible.
Recommendation 3.16: Trial courts should review existing jury
facilities in light of national standards and, at a minimum,
should take whatever steps are necessary to bring all jury
facilities up to those standards.
44444444444444444444
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Of equal concern, some courts are located in comparatively unsafe areas.
When this is true, the court should be responsible for insuring that jurors can
both arrive and depart safely from the courthouse. In some areas, this means
getting the jurors out before dark, or providing special security in the areas
immediately surrounding the courthouse, or providing escorts by security
officers. Juror security includes not only the spaces outside the courthouse, but
also the jury assembly room and hallways within the courthouse. Many jurors
report feeling insecure and intimidated while waiting in these public areas.
Efforts must be made to make jurors feel secure throughout their term of
service, a responsibility that falls upon the court security officer. See Standards
of Judicial Administration, § 7.
Recommendation 3.17: The presiding judge of the court should
ensure that juror security within the courthouse and from juror
parking facilities to the courthouse is properly coordinated and
supervised by the court security officer.
44444444444444444444
4. Privacy
Jury service is a civic duty. Many persons, given a choice, would
probably prefer not to serve as a juror. Yet for the jury system to continue
functioning, the State must insist upon citizens fulfilling this important
responsibility. One of the most serious potential burdens upon jurors has
nothing to do with the inconvenience of service, or the condition of jury
facilities, or the treatment by court staff and counsel. Rather, it has to do with
the intrusion upon the right of privacy which occurs when a person is thrust
involuntarily into a public arena and is required to make important public
decisions (at times, life or death decisions).
The right of privacy in California has special constitutional status. By
legislative initiative, the right to privacy was added to the California
Constitution in 1972. The drafters of the initiative were especially concerned
about informational privacy and, in particular, about the unrestrained
proliferation of government and private databases containing personal
information and the equally unrestrained distribution of that information. See
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generally J. Clark Kelso, California’s Constitutional Right to Privacy, 19
Pepperdine L. Rev. 328, 426 (1992) (“‘The proliferation of government
snooping and data collecting is threatening to destroy our traditional
freedoms.’”) (quoting from the Ballot Argument).
In the course of voir dire, jurors are compelled to disclose a significant
amount of personal information in open court. That information may include
the juror’s identity, home address, place of work, marital status, the number and
ages of children (if any), the spouse’s place of employment, the juror’s arrest
record (if any), prior courtroom experience, the schools attended by the juror’s
children, the juror’s medical status, financial status, and army record, and a
wide range of other private life experiences. See Standards of Judicial
Administration §§ 8(c)(20) & 8.5(b)(20).
The disclosure of this
“It is my opinion that the only person needing your
information in public is itself
full name is the Jury Commissioner. . . . With the
a burden upon each juror’s
courts addressing more violent crimes that might
provoke or involve retaliation, drive by assaults,
right to informational privacy.
threats or potential hostility by the defendant’s family
But the public disclosure may
or associates, jurors will remain at risk if their full
have even more serious
name is stated . . . .” Letter from Patricia J. Murray
privacy and security
to the Commission, March 3, 1996.
consequences. After the trial
has concluded, jurors may be
hounded by reporters looking for stories, the juror’s friends and family may be
approached, and there is even the possibility of physical retaliation by a
disappointed litigant. While such physical retaliation is extremely rare, the
mere possibility may create fear within a juror’s mind, affecting both how a
juror responds to questions during voir dire and how a juror functions during
the trial or during deliberations. Particularly in criminal trials of gang
members, attempts to intimidate jurors during trial are becoming more frequent,
and many jurors are plainly worried about the threat of intimidation or
retaliation.
The Legislature has partially addressed this problem with legislation that
requires the sealing of personal juror identifying information in criminal cases
after the jury has rendered its verdict. C.C.P. § 237(a)(2). The Commission
does not believe that this approach solves the problem. Sealing information
contained in court records after the information has already been disclosed
publicly and on the record is ineffective. The privacy right has already been
lost.
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Beginning in January of 1994, the Los Cerritos Municipal Court has
experimented with a program in which jurors are identified only by number and
personal identifying information is not permitted to be elicited during voir dire.
The program was described in a paper that was presented to the Commission by
Judge Philip K. Mautino, Presiding Judge of the Los Cerritos Municipal Court.
Only those jurors who requested identification by number participated in the
program. In 1994, over 2,800 jurors were called for service at the court, and
only 6 people did not request identification by number. With a participation rate
of 99.75%, this is obviously a popular program with jurors.
Identifying jurors only by number and preventing counsel from eliciting
personal identification information about jurors has been criticized as
jeopardizing the litigants’ rights to a fair trial. Opponents make three
arguments: First, a decision-maker who believes that he or she is effectively
anonymous may behave in very different ways from a decision-maker who
believes that he or she will be held publicly accountable. Authorizing
anonymous juries harkens back in some sense to the evils of the Star Chamber.
Second, an anonymous jury system sends a signal to jurors that there actually is
something to fear in the courtroom, and that fear will naturally be directed in
criminal cases at the accused. An anonymous jury system thus threatens to
undermine the constitutional presumption of innocence. Third, counsel’s ability
to discover grounds for challenges for cause or to discover juror misconduct
may be substantially impaired. While identification by number may increase
juror honesty during voir dire because of the cloak of anonymity, the opposite
tendency may be for jurors to conceal significant information because of the
near impossibility of proving that statements made by someone who is unknown
are inaccurate.
A majority of the Commission rejects these arguments and favors
identifying jurors only by number. The Commission believes these
improvements will help create a sense of security, encourage jury service, and
thereby facilitate the creation of more representative jury panels, which will be
to the benefit of all litigants and the interests of justice. See generally Nancy J.
King, Nameless Justice: The Case for the Routine Use of Anonymous Juries in
Criminal Trials, 49 Vand. L. Rev. 123 (1996). The criticism that jurors may
change their decision-making processes because of identification by number is
speculative. The analogy to the Star Chamber is inappropriate since the jury
must still appear in public and deliver its verdict in public. Concerns about a
signal being sent that there is something to fear are likewise speculative.
Indeed, to the contrary, we already know that large numbers of jurors are in
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Blue Ribbon Commission on Jury System Improvement
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fear of certain categories of defendants (e.g., defendants who are gang
members). The proposal to identify jurors by number will actually reduce juror
fear and permit decision-making to be unaffected by concerns of retribution.
Finally, juror credibility during voir dire is not a serious issue except in the
most unusual of cases. In all but the most extraordinary cases, counsel does not
have the resources or the interest to investigate the accuracy of juror statements
during voir dire. That is, in part, why peremptory challenges remain an
important feature of jury selection (as discussed further below). On balance, it
seems more likely that identifying jurors by number will decrease juror fear,
increase juror honesty, and insulate jury deliberations from the corrupting
influence of fear.
Recognizing the
Jurors should not be required
importance of informational
privacy under our State
to surrender all rights to
Constitution, and mindful of
informational privacy.
the burden placed upon
jurors’ privacy rights under
our current system of voir
dire, the Commission concludes by a vote of 16 to 2 that the disclosure of
identifying information about a juror or a juror’s family (e.g., name, home
address, place of employment, spouse’s place of employment, children’s school,
and similar information) should not be permitted during voir dire except on a
showing of a compelling need. In order to implement this recommendation, the
Legislature will need to enact a statute providing that jurors will be identified
throughout the jury selection process by number and not by name. Jurors
should not be required to surrender all rights to informational privacy.
Recommendation 3.18 (by a vote of 16 to 2): The Legislature
should enact legislation providing that jurors will be identified
throughout the jury selection process only by number and not
by name, and that personal juror identifying information shall
not be elicited during voir dire except on a showing of a
compelling need.
44444444444444444444
The Commission is also aware that some judges do not inform jurors that
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they may request the opportunity to discuss exceptionally private matters in
chambers with only the counsel and parties present. This is more than simply a
matter of common courtesy. Jurors who have very personal information which
is relevant to a question posed during voir dire are more likely to reveal that
information in chambers than in open court. Giving jurors the right to answer a
question in chambers and requiring that jurors be informed of that right will
result in a more honest voir dire process and in jurors who are less fearful of
being required to disclose very private information in public.
Recommendation 3.19: The Legislature should enact a statute
giving jurors the right to respond in chambers to questions
during voir dire that elicit highly personal information and
requiring that the court inform jurors of this right.
44444444444444444444
Identifying jurors by number throughout the process does not completely
address the problem of juror privacy. After the jury’s verdict has been
recorded, counsel may desire to interview jurors for the legitimate purpose of
establishing juror misconduct in support of a motion for a new trial. Section
237 of the Code of Civil Procedure provides a procedure by which a party may
discover the identity of a juror after the verdict has been recorded. As presently
drafted, the procedure requires the petitioner to establish a prima facie showing
of good cause for disclosure. C.C.P. § 237(b). If such a showing is made and
if there is no “compelling interest against disclosure” (e.g., “protecting jurors
from threats or danger of physical harm”), the court is required to set the matter
for a hearing. C.C.P. § 237(b). Upon setting the matter for a hearing, the
court is required to “provide notice [of the hearing] to each affected former
juror by personal service or by first-class mail.” C.C.P. § 237(c). The juror
“may appear in person, in writing, by telephone, or by counsel to protest the
granting of the petition.” C.C.P. § 237(c). In practice, jurors who receive this
notice are likely to feel intimidated into making a personal appearance at court
in circumstances that inevitably disclose the juror’s identity. The Commission
believes that Section 237 should be amended to provide appropriate protections
for juror identifying information during this post-trial process.
Recommendation 3.20: The Legislature should amend C.C.P. §
237 to ensure that personal juror identifying information is
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properly safeguarded in the context of post-verdict
proceedings.
44444444444444444444
5. Term of Service and Period of Repose
One of the most lasting negative impressions which a juror can take
away from jury service is the feeling that his or her time has been wasted.
From a juror's perspective, wasted time includes time spent waiting in the jury
assembly room to be assigned to a courtroom, waiting outside the courtroom for
significant periods of time either prior to voir dire or during the trial, or being
directed to a courtroom or assigned to a panel only to be told after a delay that
the case has suddenly settled. Jurors who are dismissed by peremptory
challenges also come away feeling like their time has been wasted.
The perception of
There is nothing more
wasted time is undoubtedly
magnified by the uncertainty
demoralizing for a juror than
associated with jury service.
showing up at 8:30 a.m. and
There may be uncertainty
about how many days a juror
waiting around until 3:00
must appear at court to be
p.m. without being used, only
available, uncertainty about
how much time will be spent
to be told to return the next
in jury selection where there
day.
is a significant chance of not
being used, and uncertainty
about how long a trial may
last if chosen. There is probably nothing more demoralizing for a prospective
juror than being told to show up at the jury assembly room at 8:30 a.m. and
then waiting around until 3:00 p.m. without being used, only to be told to return
the next day.
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Some of the
The goal should be to reduce
uncertainty can be reduced by
adopting a simple term of
as much as possible the time
service requirement. In some
spent by jurors in the
counties, for example, jurors
are asked to come to court on
assembly rooms waiting to be
the first day of service for
called into service.
orientation and then are
requested to remain available
through a phone-in system for
up to nine additional court days with a guarantee that actual service on one jury
(no matter how short the trial) will satisfy that juror's service requirement. The
American Bar Association recommends “a term of service of one day or the
completion of one trial, whichever is longer.” Standards Relating to Juror Use
and Management, Standard 5(a). One trial / one day systems require that a
larger number of persons be summoned, but the benefits in terms of reducing
the uncertainty regarding jury service substantially outweigh this cost. A short
and certain length of service should decrease the number of persons who drop
out of the system because of the economic hardship resulting from a one- or
two-week service requirement, and that will result in a more representative jury
panel. Id., Standard 5, commentary, pp. 44-45. The goal should be to reduce
as much as possible the time spent by jurors in the assembly rooms waiting to be
called into service. Because of the importance the Commission attaches to
reducing uncertainty in the length of service, the Commission recommends that
all courts be required to adopt a one trial - one day service requirement by 1998
except on a showing of good cause why such a requirement is impractical.
Recommendation 3.21: The Judicial Council should adopt a
Rule of Court requiring by January 1998 adoption of a one
trial - one day service requirement except in those counties
which can demonstrate good cause why such a requirement is
impractical.
44444444444444444444
It is apparent from practical experience that a one trial - one day service
requirement works best if the court has already implemented an “on-call”
telephone stand-by system. Even if a one trial - one day service requirement is
not adopted, the “on-call” system conserves juror resources by giving the jury
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commissioner the ability to manage juror attendance on a daily basis. The
Commission recommends that all counties be required to implement an “oncall” system.
Recommendation 3.22: The Judicial Council should adopt a
Rule of Court requiring by January 1998 implementation of an
“on-call” telephone stand-by system in every county except in
those counties which can demonstrate good cause why such a
system is impractical.
44444444444444444444
Significant uncertainty is introduced into the length of service by the
prevalence of last-second settlements and pleas. In these cases, the jury
commissioner has no choice but to have a complete panel of jurors standing by
in the jury assembly room or in the hallway (which may mean over 40 jurors in
an ordinary felony case). While a case settlement at this stage undoubtedly
saves significant resources and is to be encouraged, eleventh-hour settlements
plainly have a deleterious impact upon juror satisfaction and upon the cost of the
jury system.
The Commission discussed various policies--such as settlement and plea
cutoffs two days prior to trial--that might have the effect of causing settlements
before a jury panel has been selected. Ultimately, however, the Commission
decided not to recommend any statutory or rule changes with respect to
settlements and pleas. California has a very strong policy in favor of settlement
of disputes. In criminal cases, it often is not until the very last moments before
trial that a prosecutor knows whether all of his or her witnesses will testify.
Similarly, a defendant may not decide to accept a plea until faced with the
imminent arrival in court of a jury. Because of these practical realities, any
attempt to regulate the timing of settlements is likely to have unintended
consequences upon other aspects of the justice system. The Commission
recommends that presiding judges discuss the topic of case predictability and
late settlements with participants in the criminal justice system in meetings
required by Rule 227.8.
Recommendation 3.23: Presiding judges should discuss the
topic of case predictability and late settlements with
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participants in the criminal justice system in meetings required
by Rule of Court 227.8.
44444444444444444444
Finally, the Commission believes that a juror who has fulfilled his or her
civil responsibility is entitled to a period of repose from jury service. The
length of a period of repose depends upon a number of factors, including among
other things the total juror yield within a county, the length of service and the
number of jury trials demanded. Because these factors vary from county to
county, a single statewide rule is not practical; however, a minimum standard
should be established. The Commission recommends that a person who
completes jury service be excused from further service for at least a period of
twelve months. In those counties where it is practical, jurors should be excused
from service for a greater period of time (e.g., two years or more). See
American Bar Association, Standards Relating to Juror Use and Management,
Standard 6(b) (“Eligible persons who are summoned may be excused from jury
service if: . . . (ii) . . .they have been called for jury service during the two
years preceding their summons.”).
Recommendation 3.24: The Legislature should amend C.C.P. §
204 to provide that an eligible person shall be excused from
service for a minimum of twelve months if he or she has
completed jury service.
44444444444444444444
6. Juror Fees
At present, unless a
county or city provides for
higher fees, jurors receive
five dollars ($5) a day for
each day of attendance as a
juror, and reimbursement for
mileage at the rate of ($0.15)
At $5 per day, California’s
juror fees are among the
lowest in the nation.
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fifteen cents per mile for each mile actually traveled in going to (but not going
from) court as a juror. C.C.P. § 215. The $5 per day rate was enacted by the
Legislature in 1957 (Cal. Stats. 1957, ch. 1406, § 3), and the $0.15 per mile
rate was enacted by the Legislature in 1951 (Cal. Stats. 1951, ch. 1693, § 2). If
these figures were adjusted to reflect inflation from 1957 to the present (based
upon the California Consumer Price Index), jurors would receive $28.42 per
day and $0.85 per mile. Because California has not changed its juror fees in
almost 40 years, it is no surprise that California's juror fees are among the
lowest in the nation. See Appendix H (listing juror fees for each state).
Although the individual rates ($5/day and $0.15/mile) are surely a paltry
sum, in a court system as large as California's, total juror fee payments are in
the tens of millions of dollars. In 1994-95, the State paid out almost $22 million
in juror fees. Juror fees and mileage are budgeted at $23.2 million for 1995-96.
A substantial increase in a juror's daily fee and mileage rate (e.g., to $40 per
day and $0.28 per mile) with no other changes in the system would cost
additional tens of millions of dollars.
Nevertheless, the Commission is convinced that an increase in juror fees
and a reconsideration of juror compensation issues is long overdue. It is
insulting to tell jurors that, in return for their service, the State will
"compensate" them at a rate of $5 per day and $0.15 per mile to (but not from)
the court. The message sent by these outdated rates is that California does not
really value jurors' time. The Commission believes the increased costs of jury
service should be shared among jurors, employers, employees, the counties, the
State, and civil litigants. The interconnected package of proposals which
follows spreads the annual costs of jury service among all of these groups. (For
a rough estimate of some of the costs, see Appendix I.)
The Commission recommends that the daily fee for jury service be
increased from $5 per day to $40 per day after the first day (and $50 per day
after the thirtieth day). This increase underscores the State’s commitment to the
importance of jury service. Under this proposal, jurors will not receive a jury
fee for the first day of service. The Commission believes it is fair and
appropriate to require attendance at court for one day without receiving
compensation from the court. This new rate is consistent with the
recommendation of the Trial Court Budget Commission. It is also essentially
equivalent with juror fees paid in federal court and would make California one
of the leading states with respect to juror fees. See Appendix H (listing juror
fees by state); American Bar Association, Standards Relating to Juror Use and
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Management, Standard 15. The Commission further recommends that
reimbursement for travel expenses be at the rate of $0.28 per mile for travel to
and from the court. That is the rate now paid by the state for official travel. In
traveling to and from court, jurors are plainly on official state business and
should receive the same mileage fees paid to others who are similarly situated.
Recommendation 3.25: The Legislature should amend C.C.P. §
215 to provide for juror fees of $40 per day for each day of
jury service after the first day and $50 per day for each day of
jury service after the thirtieth day, and to provide for
reimbursement to jurors at the rate of $0.28 per mile for travel
to and from the court.
44444444444444444444
Employers should be required to participate in supporting the jury
system. At present, Labor Code § 230(a) provides that “[n]o employer shall
discharge or in any manner discriminate against an employee for taking time off
to serve as required by law on an inquest jury or trial jury, if such employee,
prior to taking such time off, gives reasonable notice to the employer that he is
required to serve.” State law does not require employers to continue paying the
salary of employees who are absent because of jury service. In fact, however,
many employers (including the Federal, State and many local governmental
units) have a policy of compensating employees for at least part, if not all, of an
employee's jury service. Jury service is an important civic responsibility and a
good educational experience. Enlightened corporate citizens, recognizing the
importance of the jury system to respect for the rule of law, are to be
commended for providing such tangible, direct support to the jury system.
The Commission believes that all employers, not just enlightened
employers, should support the jury system by continuing to compensate
employees for jury service. The burden should be shared equally among
employers. For most employers, the most critical issues involve uncertainty.
When will an employee be called? For how long must an employee be absent
from work while waiting to serve on a jury? Once placed on a jury, how long
will the employee be absent?
These uncertainties can be addressed. Jury commissioners in most
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Blue Ribbon Commission on Jury System Improvement
Chapter III. The Jury Pool, Jury Treatment and Jury Management
counties already have put in place flexible scheduling policies that permit
persons who have received a summons to delay service until a more convenient
time. Many counties have instituted call-in programs which help insure that an
employee is not called away to the court unless there is a good chance the
employee will be used as a juror.
The most significant uncertainty relates to trial time. While most cases
are resolved within days, some cases require much more trial time. The
Commission believes the best way to reduce this uncertainty is to require
employers to compensate employees absent for jury service for only the first 3
days of jury service. This rule places a clear limit upon the employer’s
obligation and permits businesses to plan well in advance to accommodate this
responsibility. The 3-day rule will provide a much needed financial assist to
employees for the first few days of service and will provide much needed
certainty to employers.
The Commission discussed whether the obligation should extend to all
employers or only to employers that have a minimum, threshold number of
employees (e.g., businesses which employ 5 or more persons). Proponents of a
threshold argue that the financial burden on a small employer of paying
employees for up to three days of jury service is arguably greater than the
burden on a larger employer. Opponents observe that each business has the
same risk of having employees called away for jury service, and that all
businesses (large and small) can plan in advance how to accommodate this new
requirement. Opponents also note that, as a matter of principle, all businesses
should be required to contribute to the jury system and that drawing distinctions
based upon the size of a business violates that principle. As the Supreme Court
explained in Dean v. Gadsden Times Publishing Corp. (1973) 412 U.S. 543,
where the Court upheld the constitutionality of requiring employers to continue
an employee’s usual compensation during jury service, “‘[m]ost regulations of
business necessarily impose financial burdens on the enterprise for which no
compensation is paid. Those are part of the costs of our civilization.’” Id., 412
U.S. at 544 (quoting Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421 at
424). By a vote of 14 to 7, the Commission decided that all employers should
be required to continue paying compensation and benefits to employees for the
first three days of jury service.
Recommendation 3.26: The Legislature should amend Section
230 of the Labor Code to require all employers to continue
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Blue Ribbon Commission on Jury System Improvement
Chapter III. The Jury Pool, Jury Treatment and Jury Management
paying usual compensation and benefits to employees for the
first three days of jury service if the employee has given
reasonable notice to the employer of the service requirement.
44444444444444444444
The Commission is concerned that by requiring employers to pay usual
compensation and benefits for the first three days of jury service, those
employers which currently pay compensation and benefits for all days of jury
service may reconsider their programs. The Commission also wants to avoid
any implication that employers should pay for only the first three days of jury
service. Jury service is a valuable experience for all employees and helps to
create a more informed, involved work force. The Commission wants to
encourage all employers to consider the benefits to themselves and to their
employees of paying compensation and benefits throughout the term of jury
service. Towards that end, the Commission recommends enactment of a
reasonable tax credit for businesses which pay usual compensation and benefits
beyond the three days recommended above.
Recommendation 3.27: The Legislature should adopt
reasonable tax credits for those employers who voluntarily
continue paying usual compensation and benefits to employees
who are absent from work for more than three days on account
of jury service.
44444444444444444444
Private sector employees need to contribute to the system as well. As
explained below, virtually all of the commissioners believe this can be
accomplished most efficiently, effectively and fairly by recourse to an existing
disability payment program: The Disability Insurance Program.
The Disability Insurance Program, established in 1946, provides benefits
to eligible workers suffering a loss of wages when they are unable to perform
their usual work because of a non-occupational illness, injury, pregnancy or
participation in an alcohol or drug treatment program. State law currently
requires coverage for employees working for employers with payrolls over $100
per calendar quarter. The program covers over 11 million workers. The
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Chapter III. The Jury Pool, Jury Treatment and Jury Management
program specifically excludes some domestic workers, most governmental
employees, employees of interstate railroads, and individuals claiming religious
exemptions. Those employees not covered by the mandatory plan may elect to
join a voluntary plan. At present, 95 percent of the workers are covered by the
state plan, and 5 percent are covered by voluntary plans.
Disability payments are financed entirely by California employees
through payroll deductions. Employers do not contribute to the fund, but are
responsible for withholding the SDI tax for each employee and for filing wage
reports for each employee. At present, the cost to the employee is 0.8 percent
of the first $31,767 in wages (i.e., a maximum of $254 per year). The rate may
be adjusted each year depending upon the balance in the disability fund and
projections of claims upon the fund in coming years. Adjustments are made in
tenths of a percentage point; a one-tenth of a percentage point increase in the
rate (i.e., approximately $32 per year per employee) produces approximately
$220 million in revenue annually.
To make jury service a basis for claims against the fund, Section 2626(b)
of the Unemployment Insurance Code should be amended by adding the
following to the definition of disability: "(5) Inability to work due to jury
service, except for the first day of such service.” A new section would then be
added to the code to set the rate for jury service claims at $40 per day for the
first 30 days of service, and $50 per day for each day over 30 days (the $10
increase reflects the additional burden which long trials place upon jurors).
Administratively, payments could be made to jurors directly from the court with
reimbursement from the fund. Alternatively, jurors could process a claim using
forms that employers already have available. The details of administration
would ultimately need to be worked out with the expert advice of the
Employment Development Department, which administers the fund. A rough
estimate suggests that demands on the SDI fund for jury service would constitute
approximately $27 million annually (which may or may not trigger a change in
the current SDI rate of 0.8 percent).
Opponents to this proposal may contend, among other things, that it
represents an unfair burden upon California employees and that it threatens to
expand the SDI program beyond its original intent into unchartered waters. The
burden upon California employees which this proposal creates is modest. The
Commission’s package of juror fee proposals creates burdens upon employers,
counties, litigants, jurors and the State; it is fair to ask employees to bear some
of the costs of ensuring a smoothly functioning jury system. As for extending
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Chapter III. The Jury Pool, Jury Treatment and Jury Management
the SDI program beyond its original intent, the Commission notes that SDI
already covers physical conditions other than injuries or illnesses. Jury service
is, in some sense, simply another physical condition that makes reporting to
work impossible. Equally important, adding jury service to the list of
disabilities in the SDI program will not open the door to adding other conditions
to that list. Jury service is sui generis in its importance to the State, its multiday service requirement, and its predictable cost. The basic purposes of the SDI
program will not be undermined by adding jury service to the short list of
disabilities.
Recommendation 3.28: The Legislature should amend the
Unemployment Insurance Code to provide that, except for the
first day, jury service constitutes an employment disability
which entitles the employee to a claim in the amount of $40 per
day (increased to $50 per day after the 30th day of service) .
44444444444444444444
C. Jury Management
Throughout its deliberations, the Commission has been struck by the
paucity of hard data that is available about the performance of jury systems in
California and around the country. The numbers which are available (e.g.,
numbers of persons who respond to a summons, numbers of persons excused for
hardship, numbers actually selected) do not provide much useful information to
policy makers. The numbers can tell us that the system is approaching a crisis
point, but the numbers do not tell us why or suggest how the numbers can be
improved. These are the more important issues for policy makers. In the
absence of systematically collected and analyzed data on these issues, the
Commission has been forced to rely primarily upon the expertise of its members
and the extensive experience of Mr. Tom Munsterman, consultant to the
Commission from the National Center for State Courts.
The Commission believes that better policy can be made in the long run
if we begin the systematic collection and analysis of information regarding jury
management. This data collection effort should run the entire gamut of jury
selection and use, from a systematic exploration of reasons why persons do not
respond to summons, to actual data on time spent by jurors waiting in the jury
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Chapter III. The Jury Pool, Jury Treatment and Jury Management
room, waiting in the hallways and working in courtrooms, to the number of and
reasons for hung juries (see infra Recommendation 4.14).
The Commission is aware that designing systematic studies and
collecting and analyzing data can be time-consuming and expensive. But the
cost in not performing this vital function is to reduce significantly our capability
to manage the jury system effectively and in the public’s best interest. The
Commission is convinced that the benefits to the policy-making process of
continued, systematic study outweigh the costs of the effort.
Recommendation 3.29: The Trial Court Presiding Judges
Advisory Committee and Court Administrators Advisory
Committee should systematically monitor and study critical
components of the jury system for the purpose of permitting
more informed policy-making and management.
44444444444444444444
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Blue Ribbon Commission on Jury System Improvement
Chapter IV. Jury Selection and Structure of the Trial Jury
Chapter IV
Jury Selection and Structure
of the Trial Jury
The jury’s role in the justice system is to represent the community’s
wisdom, experience, values and common sense in applying the law as given to it
by the court to the facts as established by the evidence and found by the jury.
To fulfill this role, the jury needs to reflect the diversity of the community and
must consist of a fair cross-section of the community’s population. In order to
remain a respected institution, the jury must also be structured and selected so
that it can render just verdicts consistent with law, and jurors must be willing
and able to deliberate amongst themselves rationally.
The use of peremptory challenges to sculpt a jury to be predisposed to
one side or the other and the increasing prevalence of jurors who are unwilling
to participate rationally in deliberations are serious threats to the jury system.
The Commission’s ultimate goal in dealing with these issues is to reinforce the
jury’s central role in reaching just verdicts through a process of complete and
informed deliberation devoid of bias and prejudice.
The Legislature has been actively considering this year a number of bills
dealing with voir dire, peremptory challenges, the size of the jury and the
requirement of unanimity: On voir dire, see AB 1065 (Richter), AB 2832
(Bordonaro); on peremptories, see AB 2003 (Goldsmith), AB 2060 (Bowen), SB
56 (Beverly), SB 1644 (Marks), SB 2159 (Leslie); on jury size, see ACA 28
(Richter), SB 56 (Beverly); and on unanimity, see ACA 18 (Rainey), SCA 24
(Calderon). Many of these bills have generated significant controversy and
opposition because they change characteristics of the jury system that have been
in place for hundreds of years. Juries have consisted of twelve persons for
centuries. Unanimity in criminal cases has been a staple for almost as long.
Peremptory challenges and voir dire have been central features of jury selection
throughout American history, although the number of peremptory challenges
and the conduct of voir dire varies widely around the country.
However, the fact that these proposals alter long-standing historical
practice does not fully account for the intensity of the debate. Proposals to
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Chapter IV. Jury Selection and Structure of the Trial Jury
change voir dire, peremptories, jury size and the unanimity requirement affect
the jury selection and deliberation process in virtually every case in ways that pit
powerful interests against each other. For example, significantly reducing the
number of peremptory challenges, a proposal favored by many judges,
courtroom observers, and ex-jurors, reduces attorney involvement and control
which, not surprisingly, is strongly opposed by most lawyers. See Appendix F
(State Bar Principles Relating to Jury Reform). As for reducing jury size and
permitting non-unanimous verdicts, critics argue these proposals favor one
group of repeat litigants (e.g., prosecutors) over another (e.g., defense counsel).
When changes from the status quo are perceived as favoring one powerful group
over another, controversy is to be expected. However, perceptions may be
incorrect. The diverse and broadly representative membership on the
Commission insured a full airing of these controversial issues.
This Report recites the reasonable arguments on both sides of these
complex issues, indicates those areas where consensus was reached, and notes
the degree of disagreement within the Commission by giving the vote on each
issue where consensus was not possible.
A. The Juror Selection Process
1. The Need for Representative Jury Panels
The process of jury
A great deal of representative
selection actually begins with
the creation of the master jury
diversity is being lost in the
list from various source lists,
early stages of the jury
as discussed in Chapter III.
Long before individual jurors
selection process.
are assigned to panels and
courtrooms, hundreds of
thousands of persons are dropped from the system. Many never receive their
summons because of outdated addresses. Many others never respond to their
jury summons. Others are excused from service because of undue hardship.
The anecdotal experience of judges and counsel in Los Angeles is that the jury
panels assigned to courtrooms are not truly representative of the community. A
great deal of representative diversity is being lost in the early stages of the jury
selection process.
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Blue Ribbon Commission on Jury System Improvement
Chapter IV. Jury Selection and Structure of the Trial Jury
The source list and summons stage of jury selection are inextricably
linked to other issues in the jury selection process. More broadly representative
jury panels will reduce concerns during the voir dire and challenge stages of
jury selection about the quality of the jury. As noted in Chapter III, the
Commission believes that improvements are needed in the jury summons
process to reduce the number of persons who never respond to a jury summons
and to provide for a more representative jury pool. These recommended
improvements (e.g., making jury service truly mandatory by enforcing jury
summons, making service more predictable and less burdensome on jurors and
employers by adopting one trial / one day programs, and increasing juror pay)
should make jury panels more representative of the community.
2. Improvements to Voir Dire
A properly conducted voir dire is critical to a fair trial and to promote
respect by litigants and the public for the jury's decision. Voir dire permits the
court and parties "to discover bias or prejudice with regard to the circumstances
of the particular case." C.C.P. § 222.5. The information gathered during voir
dire is generally the only basis for excusing jurors for cause or for attorneys
exercising peremptory challenges. In order to facilitate proper challenges, voir
dire questioning should consist of a "liberal and probing examination calculated"
to discover disqualifying biases, prejudices or circumstances. C.C.P. § 222.5.
Voir dire in civil cases is governed by C.C.P. § 222.5. The trial judge
begins voir dire with an initial examination to disclose grounds for excuses for
cause. See Standards of Judicial Administration § 8. After the judge concludes
the initial examination, counsel for both parties have the right to conduct
questioning for the purpose of "enabl[ing] counsel to intelligently exercise both
peremptory challenges and challenges for cause." C.C.P. § 222.5.
As a result of Proposition 115, enacted in 1990, voir dire in criminal
cases is conducted exclusively by the court except "upon a showing of good
cause," in which case the court may permit counsel to supplement the
examination. C.C.P. § 223. Although the parties still have the right to exercise
peremptory challenges in criminal cases, "[e]xamination of prospective jurors
shall be conducted only in aid of the exercise of challenges for cause." C.C.P.
§ 223. See Copley v. Superior Court (1991) 228 Cal.App.3d 77, 83 n.5.
Because of these changes in the law, voir dire in criminal cases has generally
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Chapter IV. Jury Selection and Structure of the Trial Jury
been shortened, and in a number of cases, both prosecutors and defense counsel
worry about whether sufficient information is being obtained during the process.
The Commission believes that the quality of voir dire in criminal cases
can be improved. Pursuant to Proposition 115, judges have a much more
critical role in criminal voir dire. Most judges had not engaged in extensive
voir dire examinations for many years when Proposition 115 was approved, and
there is no guarantee that new judicial appointees will have significant criminal
trial experience. Section 8.8 of the Standards of Judicial Administration
provides that "[a] judge assigned to jury trials should attend at least one
educational program devoted to the conduct of voir dire." The Commission is
concerned that this minimal level of training is simply insufficient to insure that
trial judges, some of whom will not have had recent jury-trial experience,
conduct an appropriately searching voir dire. The Commission recommends
that Section 8.8 of the Standards of Judicial Administration be amended to
encourage CJER to produce educational materials and programs focused on the
conduct of voir dire, particularly in criminal cases, that can be distributed to all
judges for use and review.
Recommendation 4.1: The Judicial Council should amend
Section 8.8 of the Standards of Judicial Administration to
encourage the Center for Judicial Education and Research to
produce educational materials and programs focused on the
conduct of voir dire, particularly in criminal cases, that can be
distributed to all judges for use and review.
44444444444444444444
According to Section 223 of the Code of Civil Procedure, counsel may
be permitted to supplement the court's voir dire "upon a showing of good
cause." Section 8.7 of the Standards of Judicial Administration provides further
details regarding the good cause showing:
"In making the determination of good cause for counsel to
supplement the court's examination of prospective jurors in
criminal cases under Code of Civil Procedure 223, the court
should consider all relevant matters which may lead to a
significant possibility of bias because of the nature of the case or
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Chapter IV. Jury Selection and Structure of the Trial Jury
its participants.
Good cause can be shown at any time during the jury
selection process to expand the permissible scope of attorney
participation in voir dire."
The first paragraph of Section 8.7 does very little more than simply
suggest that the court consider "all relevant matters" in determining whether
good cause exists. This standard provides very little guidance to trial courts in
exercising their discretion under Section 223. The Commission recommends
that Section 8.7 be amended to provide a list of factors which trial judges should
consider in making the good cause determination, including the following: (a)
the complexity of the case; (b) the number of defendants; (c) the severity of the
possible penalty; (d) the need for the questioner to have substantial knowledge
about the details of the case; and (e) any other factor which is relevant to
determining whether supplementation of the court’s voir dire would be in the
interests of justice.
Recommendation 4.2: The Judicial Council should amend
Section 8.7 of the Standards of Judicial Administration to
include a list of factors judges should consider when making
the “good cause” determination under C.C.P. § 223.
44444444444444444444
Neither the existing Standard 8.7 nor the proposed amendment deals with
the issue of the method by which counsel can supplement the court’s voir dire.
There are two major choices: counsel may be permitted to conduct the
supplemental voir dire by asking questions directly to the panel, or counsel may
submit additional questions to the judge either orally or in writing, and the judge
may ask those questions of the panel in the court’s discretion. Rules of Court
228.2 & 516.2 address this issue by giving the trial court discretion to determine
the appropriate method of supplementation (“the court may conduct or permit
counsel to conduct supplemental questioning as the court deems proper”). The
Commission agrees with this approach. Each case is likely to be slightly
different. When the supplemental question is simply one follow-up, it may be
more convenient for counsel to suggest that the court ask the question. When
appropriate supplemental questions may be extensive and require detailed
knowledge of the case, it may be more convenient for counsel to conduct the
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Chapter IV. Jury Selection and Structure of the Trial Jury
supplemental voir dire. The trial court is in the best position to decide which
method best serves the needs of the case and the interests of justice.
Recommendation 4.3: Rules of Court 228.2 & 516.2, which
give the trial court discretion to determine the appropriate
method of supplementing the court’s voir dire, should not be
changed.
44444444444444444444
Finally, the Commission has been impressed with one-page
questionnaires that are in use at several courts around the state (e.g., Appendix
J, Voir Dire Juror Questionnaire for the Superior and Municipal Courts of
Sacramento County). These questionnaires include basic information about the
juror, such as place of employment, marital status, prior involvement in
litigation. This is information that usually is developed orally during voir dire.
The questionnaire permits jurors to submit this information in a less stressful
environment and is a more efficient mechanism for making the information
available to counsel. The questionnaire in Sacramento County is filled out in
triplicate using pressure sensitive forms, with one copy being given to each
counsel and one copy given to the court. The Commission recommends that a
statewide questionnaire be developed which jury commissioners may adopt to
gather basic juror information for use by counsel and the court in conducting
voir dire.
As noted in Chapter
“I believe jurors have the right to remain
anonymous. This form requests your full name, and I
III, juror privacy has become
strongly believe this is a valid safety issue for the
a concern in some courts.
jurors and the Court to consider. The Court could
The questionnaire developed
use a number of alternatives to include the jurors’
for voir dire purposes should
DMV number, their Social Security number, random
numbers pre-assigned to jurors, or the last 3 letters
protect that privacy interest.
in the jurors’ last name. . . . Another objection I
The questionnaire used in
have is the necessity to list the name of the jurors’
Sacramento permits jurors to
employer, age, sex and occupation of my children.”
write a “P” in any space
Letter to Commission from Ms. Patricia J. Murray,
where the juror wants the
March 3, 1996.
information to remain private.
This option may not
sufficiently protect the privacy interests of jurors. At a minimum, the
Commission recommends that the questionnaire omit juror identification
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Chapter IV. Jury Selection and Structure of the Trial Jury
information, including the juror’s name, home address, employer address, and
identification of a child’s school.
Recommendation 4.4: The Judicial Council should adopt a
Standard of Judicial Administration encouraging the use of a
statewide juror questionnaire to be developed by the
Implementation Task Force to gather basic juror information,
other than juror identification information, for use by the court
and counsel in voir dire.
44444444444444444444
In complex and high-profile cases, a much longer questionnaire prepared
by counsel may be necessary to conduct a thorough voir dire. Courts around
the state are already using such questionnaires, and their use should be
encouraged where appropriate. However, the Commission believes that the
content of voir dire questionnaires must be carefully reviewed by the trial court
to protect jurors’ legitimate interest in privacy and to insure that questionnaires
in criminal cases are seeking only information related to challenges for cause
and, in civil cases, information related to challenges for cause and peremptory
challenges.
3. Peremptory Challenges
a. The Debate Over and Need for Peremptory Challenges
Criticism of peremptory challenges comes from many quarters. From
the juror's perspective, the use of peremptory challenges may represent an
unjustified, personal attack by counsel or may appear to be used by counsel to
sculpt or predispose a jury in one direction or another. There is naturally
something frustrating in being called down to court for jury service only to be
summarily dismissed without explanation. Juror respect for and confidence in
the judicial system is undoubtedly reduced by the peremptory challenge process,
and this has an impact upon the public’s willingness to serve as jurors. Informal
exit interviews with jurors in Los Angeles showed that almost 95% of the jurors
who were dismissed as a result of a peremptory challenge had an unfavorable
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Chapter IV. Jury Selection and Structure of the Trial Jury
view of the jury system, while those jurors who actually served on a jury had a
favorable view of the jury system.
The existence of peremptory challenges also increases the number of
persons who must be called for jury service (and, as a result, the cost of the jury
system). In calculating the size of a jury panel for a particular case, jury
commissioners add together the number of jurors (12), the number of
alternatives (usually 0-3), the approximate number of good cause dismissals
(which varies from case to case depending, in large part, upon the extent of
media reporting about the case), and the total number of peremptory challenges
(40 in a capital case, 20 in a felony, and so on). A reduction in the total number
of peremptory challenges in a felony case from 10 per side to 6 per side would
have a substantial effect upon the number of persons required to fill a jury
panel. In an ordinary felony case, for example, the jury commissioner calls
around 42 persons for a jury panel. Reducing the number of peremptory
challenges per side from 10 to 6 would lead to a jury panel size of 34. The
almost 20% decrease in the number of jurors required for each panel would
directly translate into more jurors available for other courtrooms. The number
of peremptory challenges clearly has an important impact upon the number of
citizens required to be called to court for jury service.
Peremptory challenges
“Our jury selection took approximately three (3) full
can defeat the attempt to create
days with challenges which removed some of the
a trial jury that is a fair crossseemingly most qualified potential jurors from the
section of the community.
panel. I understand the reason behind these
From creation of the source list
challenges where each side wants to skew the panel
in their favor. The problem is that some of the most
through selection of a jury
qualified potential jurors don’t end up serving and
panel and the exercise of forthe judicial system ends up being the loser. I believe
cause challenges, every effort
the number of challenges should be limited to a
is made to preserve the
relatively small number with the judge dismissing
representativeness of the jury.
(with the attorneys’ concurrence) those jurors which
obviously don’t appear to be qualified thus saving
Those efforts can be entirely
the challenges for the attorneys.” Mr. Larry J.
frustrated by counsel’s use of
O’Connell, Letter to the Commission, March 7, 1996.
peremptory challenges.
Counsel may, for example,
exercise peremptory challenges to remove all persons with a college education
from a jury.
Peremptory challenges have come under close constitutional scrutiny as a
result of state and federal decisions proscribing peremptory challenges based
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Blue Ribbon Commission on Jury System Improvement
Chapter IV. Jury Selection and Structure of the Trial Jury
upon race- or gender-based stereotypes. See People v. Wheeler (1978) 22 Cal.3d
258; Batson v. Kentucky (1986) 476 U.S. 79; J.E.B. v. Alabama (1994) 114 S. Ct.
1419. Under these cases, “once the opponent of a peremptory challenge has
made out a prima facie case of racial discrimination (step 1), the burden of
production shifts to the proponent of the strike to come forward with a
race-neutral explanation (step 2). If a race-neutral explanation is tendered, the
trial court must then decide (step 3) whether the opponent of the strike has proved
purposeful racial discrimination.” Purkett v. Elem (1995) 115 S. Ct. 1769, 177071. The explanation given does not need to be sufficient to justify a juror’s
exclusion for cause. Instead, “[j]urors may be excused based on ‘hunches’ and
even ‘arbitrary’ exclusion is permissible, so long as the reasons are not based on
impermissible group bias.” People v. Turner (1994) 8 Cal.4th 137, 164-165.
These constitutional limits have sparked broader criticism of peremptory
challenges, leading many scholars to forecast or call for the outright abolition of
the practice. See, e.g., Susan A. Winchurch, J.E.B. v. Alabama Ex Rel. T.B.:
The Supreme Court Moves Closer to Elimination of the Peremptory Challenge,
54 Md. L. Rev. 261 (1995); Felice Banker, Eliminating a Safe Haven for
Discrimination: Why New York Must Ban Peremptory Challenges From Jury
Selection, 3 J.L. & Policy 605 (1995). See also Batson, 476 U.S. at 102
(Marshall, J., concurring) (calling for abolition of peremptory challenges). See
generally V. Hale Starr & Mark McCormick, Jury Selection, § 11.4.6 (1995
Supp.).
Notwithstanding these critiques, a substantial majority of the
Commission believes peremptory challenges should continue to be part of our
jury system. Parties to a dispute are likely to have greater confidence in the
result reached when the parties have had some real input into the composition or
identity of the decision-maker. This is why, for example, arbitration
agreements usually permit each party to select one arbitrator with the third,
neutral arbitrator selected by agreement of the two party arbitrators. See, e.g.,
John S. Murray, Alan S. Rau, Edward F. Sherman, Process of Dispute
Resolution: The Role of Lawyers, p. 391 (1989); Alan Scott Rau, Resolving
Disputes Over Attorneys’ Fees: The Role of ADR, 46 S.M.U. L. Rev. 2005,
2057 n.185 (1993). Especially in view of the limited grounds which constitute
cause for a juror to be dismissed, it is important that parties to litigation
continue to have the right to exercise peremptory challenges where bias is
suspected but not provable. This direct input into the composition of the jury
fosters greater confidence in the fairness of the jury and helps to support the
legitimacy of the jury’s verdict from the parties’ perspective.
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Peremptory challenges can also permit counsel for both sides to attempt
to improve the perceived representativeness of the jury. A diversity of
viewpoints, perspectives and experiences contributes to the effectiveness of the
jury. Many attorneys contend that, in view of the large numbers of people who
drop out of the system prior to being assigned to a courtroom, peremptory
challenges are necessary to give counsel the opportunity to restore
representativeness to the jury.
Peremptory challenges are also necessary because the voir dire process,
even when conducted expertly, often does not explicitly reveal biases or
prejudices that would, if revealed, constitute good cause for dismissal. Jurors in
an ordinary voir dire conducted in open court tend to give very broad answers to
questions and are more likely to forget, conceal or misrepresent information.
See, e.g., V. Hale Starr & Mark McCormick, Jury Selection, §§ 9.4-9.5 &
11.0.3 (2d ed. 1993). Because voir dire is generally conducted with all jurors
present, it is common for jurors to “go to school” upon earlier responses. For
example, when a potential bias appears to be present, a juror will be asked
whether he or she can put aside the potential bias and decide the case on the
facts presented in court and the law given by the judge. Jurors quickly learn
what the appropriate response to this question is (depending upon whether the
juror’s desire is to remain on the jury or be dismissed). Anecdotally, one
member of the Commission recalls a case where a juror was asked what one
thing he most regretted in life. The first juror responded, “Not having
completed more education.” Every other juror in the panel gave an identical
response to this question.
Since the responses to questions during voir dire often do not reveal
actual biases or prejudices that may be the subject of challenges for cause,
peremptory challenges are necessary to permit counsel to exercise an informed
judgment about which jurors, notwithstanding their answers, will be unable to
judge the case with an open mind. In other words, peremptory challenges are
necessary to address the problem of strongly suspected, but not proven, biases
on the jury.
Because of the above considerations, the Commission reached a
consensus that a reasonable number of peremptory challenges must be given to
each side equally in criminal and civil cases. The Commission also reached a
consensus that the trial court should be given statutory discretion to increase the
number of peremptory challenges for good cause in the interests of justice. This
new discretion will be particularly important if, as recommended below, the
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Legislature reduces the number of peremptory challenges.
Recommendation 4.5: A reasonable and equal number of
peremptory challenges must be given to each side in criminal
and civil cases, and the trial court should be given discretion to
increase the number of peremptory challenges for good cause
in the interests of justice.
44444444444444444444
b. Reducing the Number of Peremptory Challenges
Although the Commission reached a consensus that a reasonable number
of peremptory challenges must be given to each side equally, a consensus was
not reached on what that number should be. Consensus was not possible on this
issue primarily because there is no principled or empirical basis for settling
upon any particular number. Proponents of a lower number than is presently
allowed point to significant administrative savings, improved juror perceptions,
less shaped and sculpted jury panels, and more representative juries. Opponents
assert that the administrative savings and other benefits come at the cost of a
jury that is more likely to be unrepresentative or populated by one or more
jurors who have hidden biases or are not open-minded.
Traditionally, attorneys were never required to disclose the reasons for
exercising peremptory challenges. Although attorneys have long claimed that
peremptory challenges were used primarily to exclude persons who were biased
and did not have an open mind, independent observers as well as some attorneys
report that peremptories are often used to sculpt a jury that will be as favorable
as possible to one side or the other. That is, prosecutors use peremptory
challenges to create a pro-prosecution jury, and defense counsel use
peremptories to create a pro-defense jury. In other words, each counsel’s goal
is to create a biased jury. According to this analysis, if the jury ultimately
selected is, on balance, unbiased, that is not because counsel has tried to create
an unbiased jury, but because counsels’ efforts to create a biased jury cancel
each other out.
If peremptories are being used more to sculpt a jury than to remove truly
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closed-minded jurors, then a reasonable reduction in the number of peremptory
challenges will not have a detrimental effect upon the conduct of jury trials.
Neither prosecution nor defense, and neither plaintiffs nor defendants, are
entitled to a decision-maker entirely of their choice. The adversary system is
designed for both sides to a dispute to present their case to an unbiased, openminded decision-maker. It should not be designed for both sides to use
peremptory challenges in an attempt to introduce bias into the decision-maker.
Although empirical
California provides more
research cannot establish with
precision the number of
peremptory challenges than
peremptory challenges needed
nearly all other states, and
to cleanse a jury of bias, the
rules adopted in other
twice the number
jurisdictions suggest that
recommended by the
California provides counsel
with too many peremptory
American Bar Association.
challenges to achieve this
legitimate goal. In criminal
cases, California law provides each side with 20 peremptory challenges when
the offense charged is punishable with death or life imprisonment, 6 peremptory
challenges when the offense charged is punishable with a maximum term of
imprisonment of 90 days or less, and 10 peremptory challenges in all other
cases. C.C.P. § 231. California provides more peremptory challenges than
nearly all other states (see Appendix K, listing peremptory challenges by state),
and twice the number recommended by the American Bar Association. The
ABA Standards provide for 10 peremptory challenges per side in capital cases, 5
peremptory challenges per side in all other felonies, and 3 peremptories per side
in misdemeanors. Standards Relating to Juror Use and Management, Standard
9(d).
A very rough sense of the number of peremptories needed can be
gleaned from probability tables that show the likelihood a jury will contain a
determined number of persons who share some characteristic with a defined
percentage of the overall population. (The complete table of probabilities
appears in Appendix L.) For example, assuming that 10% of the jury pool
would vote to convict regardless of the evidence presented (or, alternatively,
that 10% of the jury pool would vote to acquit regardless of the evidence
presented), we can expect that there will be 2 or more such persons on a 12person jury in 34% of the cases, 3 or more such persons in 11% of the cases, 6
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or more such persons in only .054% of the cases, and 10 or more such persons
in virtually none of the cases. The “appropriate” number of peremptories
depends upon what percentage of the jury pool is biased and unable to keep an
open mind, the size of the jury, and counsels’ ability to identify those jurors
who are unable to keep an open mind but who are not challengeable for cause.
The probability figures described in the paragraph above support the
Commission’s conclusion that a reasonable number of peremptory challenges is
necessary for both defendants and the People to receive a fair trial before an
unbiased decision-maker. Assuming that only 10% of the jury pool has a
disqualifying bias, two or more such persons will appear on a 12-person jury
panel in one case out of three. Outright abolition of peremptory challenges
poses too great a risk to a properly functioning jury system.
It also appears from the probabilities that giving each side 10
peremptories in non-capital felony cases (which is the current practice) for a
total of 20 peremptories is unnecessary. Even if we assume that 25% of the
jury pool has a closed mind, the likelihood of a jury containing six or more such
persons is 5%, the likelihood of 8 or more is .28%, and the likelihood of 10 or
more is .004%. One or more of these persons may be dismissed for cause, and
it therefore appears that giving each side 10 peremptory challenges invites
counsel to use peremptories for purposes other than dismissing jurors who, in
counsels’ view, would have a closed mind and would not deliberate fairly.
These other, illegitimate, purposes include sculpting a jury to be biased towards
one side or the other, or using peremptories to challenge jurors based upon
invalid stereotypes.
A majority of the Commission ultimately concluded that a reduction in
the number of peremptory challenges in both criminal and civil cases would
improve the jury system without significantly undermining counsels’ legitimate
concerns about undiscovered bias and representativeness. The Commission
voted as follows:
Peremptory Challenges in Criminal Cases
•
In cases where the punishment may be death, life without
possibility of parole, and life with possibility of parole, a
majority of the Commission voted to reduce the number of
peremptories to 12 by a 16 to 7 vote. Specifically, retention of
the current 20 peremptories per side received 7 votes, reducing
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the number of peremptories to 12 per side received 5 votes, and
reducing the number of peremptories to 10 per side received 11
votes. (Thus, a majority of the Commission (5+11=16) was in
favor of a reduction in the number of peremptory challenges to at
least 12, but a bare majority of the Commission (7+5=12) was
against reducing the number of peremptory challenges to 10.)
•
In all other felonies, a reduction from the current 10 peremptories
per side to 6 peremptories per side was favored by a 15 to 7 vote.
A separate vote was taken to retain the current level of 10
peremptories per side only for serious and violent felonies, and
this proposal was rejected by a vote of 12 to 9.
•
For all misdemeanors, retaining the current number of 10
peremptories per side received 5 votes, reducing the number to 5
peremptories per side received 1 vote, and reducing the number
to 3 peremptories per side received 14 votes.
Recommendation 4.6 (by a series of majority votes): The
Legislature should amend C.C.P. § 231 to provide each side
with 12 peremptory challenges in cases where the offense
charged is punishable with death or with life imprisonment, 6
peremptory challenges in all other felonies, and 3 peremptory
challenges in all misdemeanors.
44444444444444444444
Existing law provides for additional peremptory challenges to be given to
each side in criminal actions involving more than one defendant and in civil
actions involving more than 2 parties. By consensus, the Commission agreed
that if there is any reduction in the number of peremptory challenges, there
should be a proportional reduction in the number of additional peremptory
challenges given in these cases. This proportional reduction is intended to
achieve the same goals described above of reducing counsels’ ability to use
peremptories to sculpt or predispose the jury and to improve the
representativeness of the jury.
Recommendation 4.7: There should be a proportional
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reduction in the number of additional peremptory challenges
given for multi-defendant cases.
44444444444444444444
A majority of the Commission also believed there should be a reduction
in the number of peremptory challenges in civil cases. Under current law, in
two-party civil actions, each party is given 6 peremptory challenges. C.C.P. §
231(c). In cases where there are more than two parties, the court divides the
parties into one or more “sides,” and each side generally receives 8 peremptory
challenges. C.C.P. § 231(c). This is more than double the number of
peremptory challenges recommended by the American Bar Association.
Standards Relating to Juror Use and Management, Standard 9(c) (“In civil
cases, the number of peremptory challenges should not exceed three for each
side.”). Moreover, the same reasons which call for a reduction of peremptory
challenges in criminal cases--such as a more representative and less sculpted
jury--call for a similar reduction in civil cases. Indeed, the need for peremptory
challenges to remove jurors suspected of bias in civil cases is less than the need
in criminal cases since in civil cases, “three-fourths of the jury may render a
verdict.” Cal. Const., Art. I, § 16. Especially in light of the recommendation
by a majority of the Commission to reduce the number of peremptory challenges
in criminal cases, a reduction in the number of peremptory challenges for civil
cases seemed appropriate. By consensus, the Commission agreed that, as a
general matter, civil litigants in superior court should not have more peremptory
challenges than criminal litigants in superior court, and that civil litigants in
municipal court should not have more peremptory challenges than criminal
litigants in municipal court.
The Commission voted as follows on the number of peremptory
challenges in civil cases:
Peremptory Challenges in Civil Cases
•
12 votes: In a 2-party action, each side has 3 peremptory
challenges. With more than two parties, each side receives 6
peremptory challenges.
•
6 votes: In all civil actions, each side receives 6 peremptory
challenges.
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•
4 votes: Retain the existing rule that each party receives 6
peremptory challenges, and in multi-party actions, each side
receives 8 peremptory challenges.
Recommendation 4.8 (by a series of votes): The Legislature
should amend C.C.P. § 231(c) to provide each party in a 2party civil action with 3 peremptory challenges, and each side
in all other civil actions with 6 peremptory challenges.
44444444444444444444
Reducing the number of peremptories in criminal and civil cases and
giving the court discretion to increase this number for good cause would
essentially conform California law to the recommendations of the American Bar
Association. See Standards Relating to Juror Use and Management, Standard
9(c) & (d) (recommending 10-5-3 for peremptory challenges in criminal cases,
and 3 for peremptory challenges in civil cases). The reduction will bring
significant relief to jury commissioners who are charged with the responsibility
of producing for the courts enough jurors to staff pending trials. It will also
pressure counsel to use peremptories less for sculpting the jury and more for
removing jurors who truly are suspected of being unable to deliberate fairly.
Finally, and perhaps most importantly, it should result in a reduction in the
number of jurors who are summarily dismissed without explanation and who
then leave the courthouse with an extremely unfavorable view of the jury
system, determined never to participate in the future.
B. Structure of the Trial Jury
1. The Size of the Trial Jury
The trial jury in England has consisted of twelve persons for centuries,
apparently from as early as the middle of the fourteenth century. See, e.g.,
Richard S. Arnold, Trial by Jury: The Constitutional Right to a Jury of Twelve
in Civil Trials, 22 Hofstra L. Rev. 1, 8 (1993). In the first few decades of
colonization in America, there were brief experiments with juries of fewer than
twelve persons (apparently because of the scarcity of colonists), but by the
eighteenth century, American juries were uniformly composed of twelve
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persons.
Although juries have traditionally consisted of twelve persons, the
Supreme Court has recognized that the United States Constitution does not
require that number to sit on a jury. In Williams v. Florida (1970) 399 U.S. 78,
the Court found that the function of the jury was to ensure the common sense
judgment of the community through community participation. The Court then
reasoned that this function would be preserved as long as the jury was large
enough to promote group deliberation free from outside attempts at intimidation
and provide a fair possibility for obtaining a representative cross-section of the
community. Id., 399 U.S. at 99. Relying upon early jury research, the Court
concluded that six person juries were constitutional under the Sixth Amendment
in part because there was no discernible difference in the results reached by six
and twelve person juries. Id., 399 U.S. at 100-01. The Court’s Sixth
Amendment analysis in Williams was extended to the Seventh Amendment and
federal civil trials in Colgrove v. Battin (1973) 413 U.S. 149.
The lower limit for jury size was set in Ballew v. Georgia (1978) 435
U.S. 223, where the Court held that juries of fewer than six persons in nonpetty criminal cases failed to meet the Sixth Amendment’s representativeness
requirement. The Court subsequently held in Burch v. Louisiana (1979) 441
U.S. 130, that the states could not circumvent the six-person minimum by
allowing six person juries to deliver non-unanimous verdicts.
The primary arguments for reducing the size of the jury from twelve
persons are that it would reduce the time and expense of trials, thereby making
jury trials more efficient, and that it would make more jurors available for other
trials. Most researchers agree that a reduction in jury size would save time and
money, and would generally improve trial efficiency. Just as with the reduction
in the number of peremptory challenges, reducing the size of the jury would
have a direct effect upon the number of persons jury commissioners would have
to assign to each jury panel. Other researchers point out that, while there will
be some cost savings, there will probably not be a significant savings in time.
See, e.g., Ralph Black, The Impact of Jury Size on the Court System, 12
Loy.U.L. Rev. 1103, 1121 (1979); William R. Pabst, Jr., Statistical Studies of
the Costs of Six-Man Versus Twelve-Man Juries, 14 William & Mary L. Rev.
326 (1972).
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Researchers have
Because of conflicting
naturally focused their
attention upon the critical
results, the question of jury
question of whether smaller
size should not be decided on
juries produce different results
than twelve-person juries.
the basis of empirical studies.
The supposed equivalence of
results was one of the key
underpinnings of the Supreme Court’s decision in Williams. Unfortunately,
there is a considerable lack of consensus among researchers on this question.
Several studies have concluded that there is no significant difference in the
outcome of decisions between six and twelve person juries. See, e.g., Joan B.
Kessler, An Empirical Study of Six- and Twelve-Member Jury Decision-Making
Processes, 6 U. Mich. J.L. Reform 712, 734 (1973); Lawrence R. Mills, SixMember and Twelve-Member Juries: An Empirical Study of Trial Results, 6 U.
Mich. J.L. Reform 671, 710-11 (1973). But other studies disagree with these
results, finding that six person juries are more likely to convict than twelve
person juries, and that six person juries produce more divergent (i.e., both
higher and lower) damage judgments than twelve person juries (even though the
number of pro-plaintiff and pro-defendant verdicts is roughly equivalent). See,
e.g., Dana Richard Katnik, Statistical Analysis and Jury Size: Ballew v. State of
Georgia, 56 Denver L.J. 659, 670-71 (1979). Because of these conflicting
results, the question of jury size should not be decided on the basis of empirical
studies. See Paul Lermack, No Right Number? Social Science Research and the
Jury-Size Cases, 54 N.Y.U. L. Rev. 951, 952 (1979) (“The history of jury-size
studies and judicial use of them reveals that, because neither judges nor social
scientists have understood that the place of empirical work in judicial decisions
is dependent on how judges define legal questions, both judicial opinions and
empirical studies have been inadequate.”).
The law in other states serves as a partial guide for what has become
acceptable jury size. As would be expected in our federal system, there is a
great deal of variation among states. There are only eight states which allow, in
some circumstances, juries of less than twelve persons in felony trials.
Washington and Wisconsin allow parties to agree to a jury of less than twelve.
Kansas requires that twelve person juries be seated, but allows fewer than
twelve jurors to decide the case if it becomes necessary. Louisiana requires
twelve jurors if the punishment is necessarily confinement at hard labor, but
only six jurors if the punishment is only possible confinement at hard labor.
Arizona has eight person juries, except in death penalty cases or when the
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sentence which may be imposed is thirty years or more. Connecticut has six
person juries except in death penalty cases unless the defendant elects to have a
smaller jury. Florida has six person juries except for death penalty cases. Utah
requires eight person juries and makes no exception for death penalty cases.
The remaining states, the District of Columbia and the federal courts have
twelve person juries in felony trials. See Appendix M (list of jury size by state).
Smaller juries are more prevalent in misdemeanor actions. Over thirty
states either require or permit juries of less than twelve in misdemeanor actions,
while fewer than twenty states require juries of twelve in all misdemeanor
actions.
In civil actions, fewer than fifteen states have retained the twelve person
jury without exception. Four states, including California, require twelve person
juries unless the parties agree to fewer jurors. The remaining states and the
District of Columbia either require juries of six or eight in all civil actions, or
require juries of six or eight in small civil actions tried before courts of limited
jurisdiction (e.g., where the amount in controversy does not exceed a
jurisdictional amount such as $25,000 or $5,000).
In federal court, twelve person juries are required in all criminal cases.
By virtue of Federal Rule of Civil Procedure 48, six person juries are used in
civil trials unless a jury of twelve is demanded. However, if the court must
excuse a juror, a valid verdict may be returned by the remaining jurors even
absent a stipulation by the parties.
On December 13, 1994, the Committee on Rules of Practice and
Procedure of the Judicial Conference of the United States issued a report
unanimously recommending that Rule 48 be amended to require twelve person
juries in civil cases. After reviewing the voluminous literature on jury size, the
Committee found that twelve person juries were a more stable, deliberative body
and better reflected the interests of minority groups. The Committee also found
that the dollar savings, while not insignificant, were nevertheless small when
compared to the overall judiciary budget and that savings in time were also not
substantial. The proposed amendment has not yet been approved.
The California Constitution mandates twelve person juries in felony
trials, and requires twelve person juries in misdemeanor and civil trials unless
the parties agree to seat fewer jurors. Cal. Const., Art. I, § 16. The
Legislature may permit juries of as few as eight persons in civil cases within the
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jurisdiction of the municipal court (e.g., cases where the amount in controversy
is $25,000 or less). Cal. Const., Art. I, § 16; C.C.P. § 86(a)(1). In 1988, the
Legislature authorized eight-person juries in municipal court civil cases in Los
Angeles County on an experimental basis. This pilot project ended in 1990, and
the results were reported in G. Thomas Munsterman & Steven D. Penrod, A
Comparison of the Performance of Eight- and Twelve-Person Juries (April
1990) (available from the Administrative Office of the Courts). The study
concluded that having smaller juries (1) decreased diversity on the jury, (2) had
no measurable impact upon plaintiff/defendant verdicts, (3) resulted in higher
damage awards in those cases where the verdict was for the plaintiff, (4) had no
significant, measurable impact upon the time required for impanelment, trial and
deliberations, and (5) resulted i
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