THE LAW OF JURY THE LAW OF JURY SELECTIONSELECTION
(THE LAW IS THE LEAST OF (THE LAW IS THE LEAST OF YOUR PROBLEMS)YOUR PROBLEMS)
OUTLINEOUTLINE
POOL CHALLENGESPOOL CHALLENGES
HOW DOES IT WORK IN YOUR HOW DOES IT WORK IN YOUR NEIGHBORHOODNEIGHBORHOOD
DISCOVERY PHASEDISCOVERY PHASE
MOTION PHASEMOTION PHASE
OUTLINEOUTLINE
INDIVIDUAL CHALLENGESINDIVIDUAL CHALLENGES
CAUSE CHALLENGESCAUSE CHALLENGES
GENERAL DQGENERAL DQACTUAL/IMPLIED BIASACTUAL/IMPLIED BIAS
PEREMPTORY CHALLENGESPEREMPTORY CHALLENGES
POOL CHALLENGESPOOL CHALLENGES(DP AND EQUAL PROTECTION)(DP AND EQUAL PROTECTION)
HARD TO DOHARD TO DO
TAKES TIME, ENERGY AND MONEYTAKES TIME, ENERGY AND MONEY
YOU WILL PROBABLY LOSEYOU WILL PROBABLY LOSE
SO WHY BOTHER?SO WHY BOTHER?
BASIC LAWBASIC LAW
DUREN v. MISSOURI (1979) 439 U.S. 357DUREN v. MISSOURI (1979) 439 U.S. 357
DISTINCTIVE COMMUNITY GROUPDISTINCTIVE COMMUNITY GROUP
REPRESENTATION OF THIS GROUP IN JURY REPRESENTATION OF THIS GROUP IN JURY PANELS IS NOT FAIR AND REASONABLE IN PANELS IS NOT FAIR AND REASONABLE IN RELATION TO THEIR COMMUNITY NUMBERSRELATION TO THEIR COMMUNITY NUMBERS
UNDERUNDER--REPRESENTATION IS DUE TO REPRESENTATION IS DUE TO SYSTEMATIC EXCLUSIONSYSTEMATIC EXCLUSION
HOW DOES IT WORK IN YOUR HOW DOES IT WORK IN YOUR NEIGHBORHOOD?NEIGHBORHOOD?
DO YOU KNOW YOUR COUNTY?DO YOU KNOW YOUR COUNTY?SOURCE LISTSSOURCE LISTSACTUAL NUMBERS OF LISTSACTUAL NUMBERS OF LISTSACTUAL NUMBERS CALLEDACTUAL NUMBERS CALLEDACTUAL NUMBERS WHO SHOW UPACTUAL NUMBERS WHO SHOW UPENFORCEMENT MECHANISMENFORCEMENT MECHANISMHARDSHIP EXCUSESHARDSHIP EXCUSES
DISCOVERY PHASEDISCOVERY PHASE
PEOPLE v. JACKSON (1996) 13 Cal 4PEOPLE v. JACKSON (1996) 13 Cal 4thth 11641164
Particularized showing supporting a reasonable Particularized showing supporting a reasonable belief that underbelief that under--representation of jury pool or representation of jury pool or venire exists as a result of practices of systematic venire exists as a result of practices of systematic exclusionexclusion
Low tech.Low tech.
DISCOVERY PREP:FIND A DISCOVERY PREP:FIND A GROUP, GET THE CENSUSGROUP, GET THE CENSUS
Black persons, percent, 2005 (a)5.6%Black persons, percent, 2005 (a)5.6%American Indian, percent, 2005 (a)1.0%American Indian, percent, 2005 (a)1.0%Asian persons, percent, 2005 (a)10.2%Asian persons, percent, 2005 (a)10.2%Persons reporting two or more races, percent, Persons reporting two or more races, percent, 2005 3.0%2005 3.0%Persons of Hispanic or Latino origin, percent, Persons of Hispanic or Latino origin, percent, 2005 (a) 29.5%2005 (a) 29.5%White persons not Hispanic, percent, 2005 (a) White persons not Hispanic, percent, 2005 (a) 52.3%52.3%
GO LOW TECH.GO LOW TECH.
PANEL SURVEYSPANEL SURVEYS
VISUAL MATCHED TO NAMEVISUAL MATCHED TO NAME
GET A VALID SAMPLEGET A VALID SAMPLE
LIMITED TO PD’S OFFICE?LIMITED TO PD’S OFFICE?
SYSTEMATIC EXCLUSION?SYSTEMATIC EXCLUSION?
MOTION PHASEMOTION PHASE
DURENDUREN
EXPERTS ARE MANDATORYEXPERTS ARE MANDATORY
THE PROBLEM IS ALWAYS PRONG #3THE PROBLEM IS ALWAYS PRONG #3
THEY MUST BE CAUSING THE PROBLEMTHEY MUST BE CAUSING THE PROBLEM
SO WHY TRY?SO WHY TRY?
FORCE SYSTEM TO EXPOSE ITSELFFORCE SYSTEM TO EXPOSE ITSELF
STRANGE SHIT HAPPENSSTRANGE SHIT HAPPENS
PEOPLE V. SMITHPEOPLE V. SMITH TURNS INTO TURNS INTO
SMITH V. SUPERIOR COURTSMITH V. SUPERIOR COURT
RECENT CASE HISTORYRECENT CASE HISTORY
P v. Brown P v. Brown JoinderJoinderP v. Smith and People v. S.P v. Smith and People v. S.UnUn--JoinderJoinder
4 Jury Comm. declarations later4 Jury Comm. declarations laterBrown and S. get discoveryBrown and S. get discovery
Unintended ConsequencesUnintended Consequences
DA writ win on discovery of DMV listsDA writ win on discovery of DMV lists
People v. S. writ win on PC 1050People v. S. writ win on PC 1050
People v. Brown gets inside jury loungePeople v. Brown gets inside jury lounge
Superior Court fires their lawyersSuperior Court fires their lawyers
People v. Smith writ win on D.A. participationPeople v. Smith writ win on D.A. participation
Good For MeGood For Me
DA NOT A PARTY TO 3RD PARTY DISCOVERY AND CAN'T GET DA NOT A PARTY TO 3RD PARTY DISCOVERY AND CAN'T GET WHAT THE DEFENSE GETS FROM AN SDTWHAT THE DEFENSE GETS FROM AN SDT
Big win for Matt Braner, San Diego PD. The PD issued an SDT for Big win for Matt Braner, San Diego PD. The PD issued an SDT for records of the jury commissioner, for a jury draw challenge. Therecords of the jury commissioner, for a jury draw challenge. The C/A C/A holds that the DA does not have the right to participate in the holds that the DA does not have the right to participate in the litigation on the discovery of the jury commissioner records. Thlitigation on the discovery of the jury commissioner records. This is is is third party discovery and the People aren't a party to such discthird party discovery and the People aren't a party to such discovery. overy. The C/A also says that the DA isn't entitled to copies of whatevThe C/A also says that the DA isn't entitled to copies of whatever the er the defense gets from the jury commissioner, unless the defense usesdefense gets from the jury commissioner, unless the defense uses the the information to make a motion and then the only appropriate discoinformation to make a motion and then the only appropriate discovery is very is limited by PC 1054. They cite Teal (117 CA4th 488) and the recenlimited by PC 1054. They cite Teal (117 CA4th 488) and the recently tly amended PC 1326(c), which both say that information obtained by amended PC 1326(c), which both say that information obtained by the the defense from a subpoena can't be ordered disclosed to the DA excdefense from a subpoena can't be ordered disclosed to the DA except as ept as required by 1054.required by 1054.
Smith v. Superior CourtSmith v. Superior Court; 2007 DJ DAR 9151; DJ, ; 2007 DJ DAR 9151; DJ, 6/21/076/21/07; C/A 4th; C/A 4th
Not Just About The LawNot Just About The Law
Political and Legal issuePolitical and Legal issue
May survive legally but how do they explain that May survive legally but how do they explain that Latinos are being kept off jury duty because the Latinos are being kept off jury duty because the system does not work that wellsystem does not work that well
Even if you lose, you may get a series of fixes Even if you lose, you may get a series of fixes that improves the system but not fix it totallythat improves the system but not fix it totally
Individual ChallengesIndividual Challenges
BUT WAIT…..BUT WAIT…..
Who is your jury comm. actually sending to the Who is your jury comm. actually sending to the courtroomcourtroom
L.C. And V.L.C.L.C. And V.L.C.
Types of Individual Types of Individual Challenge(CCPChallenge(CCP223223--231)231)
General DQGeneral DQ
Implied BiasImplied Bias
Actual BiasActual Bias
PeremptoryPeremptory
Courtroom ProcedureCourtroom Procedure
Court’s goal is speed/ Your goal is slothCourt’s goal is speed/ Your goal is sloth
Either/Or Either/Or ------No time or a lot of time, it is the No time or a lot of time, it is the middle ground that hurts usmiddle ground that hurts us
Basic court procedureBasic court procedure------six packsix pack
Sequence (CCP 223)Sequence (CCP 223)
Judge does initial questioningJudge does initial questioning
Asks questions proposed by lawyersAsks questions proposed by lawyers
Lawyers turnLawyers turn------now the fight begins on timenow the fight begins on time
You can only ask questions that assist you in You can only ask questions that assist you in exercising your cause challengesexercising your cause challenges
General DQGeneral DQ
Usually done in jury loungeUsually done in jury lounge
CitizensCitizensOver 18Over 18County ResidentCounty ResidentCopsCopsCommunication/Language problemCommunication/Language problem
Implied Bias (CCP 229)Implied Bias (CCP 229)
Laundry ListLaundry List
Related to party or wit.Related to party or wit.Interest in actionInterest in actionUnqualified opinion on issues or partyUnqualified opinion on issues or partyBiasedBiasedIn In d.pd.p. case. case--c.oc.o..
Actual Bias (CCP 225)Actual Bias (CCP 225)
““Existence of a state of mind …which will Existence of a state of mind …which will prevent the juror from acting with prevent the juror from acting with entireentireimpartiality and w/o prejudice to the substantial impartiality and w/o prejudice to the substantial rights of any party”rights of any party”
Difficult to keep open mindDifficult to keep open mindAdmits group biasAdmits group biasInstruction impairedInstruction impaired
Peremptory ChallengePeremptory Challenge
Numbers: 6/10/20 SVP: 6Numbers: 6/10/20 SVP: 6
Court policy on questions for cause/peremptoryCourt policy on questions for cause/peremptory
Batson/WheelerBatson/Wheeler-- works both waysworks both ways