By Alex Ricciardulli
Edited by Barbara Kate Repa
The Nuts and Bolts of Jury Selection
Even with a Dream Team representing them, parties in civil or criminal litigation can usually dream of winning only if there are fair and impartial jurors deciding their cases.
Understanding the nuts and bolts of jury selection, then--including jurors' hardship requests, voir dire, peremptory challenges, challenges for cause, and objections due to parties' discriminatory excusal of jurors under Batson/Wheeler--is critical to successful litigation practice.
Hardship or Hard Luck?
The jury-selection process begins with an often-overlooked procedure: the judge's consideration of jurors' claims that serving on a jury would present an undue hardship. For example, many jurors' employers do not pay them while they serve in the courts, and some jurors must arrange for child care while they perform their civic duties. However, if courts automatically excused everyone with any financial difficulty, trials would be staffed almost exclusively by juries of retired or rich volunteers--hardly peers of the often poor and downtrodden litigants. As a result, only an undue or extreme hardship will suffice to excuse a prospective juror from service.
There is no requirement that a bench officer must consult the attorneys in weighing and ruling on hardship requests. Nonetheless, judges often welcome lawyers' input in this phase of the trial, provided that it is brief and informed by the criteria for hardship in the California Rules of Court. Revisions to those rules will take effect on January 1, 2007.
Rule 860 [Rule 2.1008, Excuses From Jury Service, upon revision] of the California Rules of Court sets forth a long list of legitimate hardship excuses for jurors, including lack of transportation, risk to property or health, and the necessity to continue working to protect public health and safety. Regarding financial burden, Rule 860(d)(3) [Rule 2.1008(d) upon revision] urges the judge to consider factors such as the sources of household income, whether a prospective juror will be compensated by an employer, the expected length of service, and whether service will compromise the prospective juror's ability to support himself or herself and any dependents, or "so disrupt the economic stability of any individual as to be against the interests of justice" to force that person to serve.
These are very loose standards, but using common sense helps a great deal in understanding how they are applied. For example, if a prospective juror is living on wages earned day-to-day by washing dishes and is the sole family breadwinner, he or she will likely be excused. But a person who is a self-employed stockbroker, who would be required to trade after hours or risk losing one of 40 clients, would not likely be excused.
Voir Dire, not Indoctrination
In both civil and criminal cases, the parties' attorneys have the right to personally ask jurors questions to determine whether they can serve fairly and impartially. (Cal. Code Civ. Proc. Â§Â§ 222.5 and 223.) However, voir dire is not a platform for attorneys to try to indoctrinate jurors. An attorney whose "question" to a juror is preceded by five minutes of oratory regarding the evils of unlawful police practices or unfair insurance tactics should expect to be cut off by the bench officer.
The judge conducts the initial examination of the jurors, then the attorneys are allowed to question them. The judge can "specify the maximum amount of time that counsel for each party may question an individual juror, or may specify an aggregate amount of time for each party, which can then be allocated among the prospective jurors by counsel." (Cal. Code Civ. Proc. Â§ 223.) The amount of time counsel should expect for questioning will depend on the type of case, with less than one-half hour per side generally given for misdemeanors--and more for felonies and complex civil cases.
Counsel will be given wide latitude to explore relevant areas with jurors. As one California appellate court noted, "Where appropriate, such questions may include family history, previous dealings with the government, prior health problems, individual criminal records, racial attitudes, and religious prejudice." (Pantos v. City and County of San Francisco, 151 Cal. App. 3d 258, 264 (1984).)
For both the judge and attorneys' questions, prospective jurors should be informed that they may request to answer any sensitive questions outside the presence of the remaining panel. Although such jurors' responses still must be reported on the record and taken in the presence of the attorneys, this protection of privacy often results in an increase in candor.
Challenges for Cause x 3
Once a judge has ruled on all the hardship requests and voir dire has concluded, the parties are permitted to request that jurors be excused for cause.
For-cause challenges are exercised against the jurors sitting in the jury box. They are distinguished from peremptory challenges because for-cause challenges--as the name implies--must be based on some specific grounds for the juror to be excused; parties need not state any grounds for peremptory challenges.
Challenges for cause fall into three categories: general disqualification, implied bias, and actual bias.
General disqualification refers to statutory exclusions that bar people from serving as jurors. For example, people cannot serve as jurors if they are not U.S. citizens, are under 18 years of age, do not live in California, are not residents of the county in which they are being asked to serve, have been convicted of a felony or malfeasance in office, are already serving as trial or grand jurors, or are subject to a conservator. (Cal. Code Civ. Proc. Â§ 203.)
One problematic area is the bar to people who are "not possessed of sufficient knowledge of the English language." (Cal. Code Civ. Proc. Â§ 203(a)(6).) The judge must distinguish those who truly do not understand enough English and who thus should be excluded from those who feign not understanding to get out of serving.
Another type of general disqualification that sometimes arises concerns peace officers. California Code of Civil Procedure section 219 bars the jury commissioner from assigning peace officers for voir dire in both criminal and civil cases. If a peace officer makes it past the screening of the jury commissioner and into a panel, he or she can be challenged for cause. The term "peace officer" does not include all law enforcement personnel. The only ones who fall within this definition and should be excluded are sheriffs, police officers, California Highway Patrol officers, university police, and BART police. (See Cal. Pen. Code Â§Â§ 830.1, 830.2(a)(c), and 830.33(a).)
Implied bias is a category specifically listed in California Code of Civil Procedure section 229. It rarely arises in cases not involving the death penalty. (Under Cal. Code Civ. Proc. Â§ 229(h), jurors who are conscientiously opposed to the death penalty in charges punishable by death can be challenged due to implied bias.) The list also includes people who are related to the parties by blood or marriage, are a party's employer or employee, have served as jurors within one year in one of the party's trials, or have a pecuniary interest in the subject matter of the trial. (See Cal. Code Civ. Proc. Â§ 229.)
One situation that occasionally arises is the request to exclude a juror who has some relation to a party, such as being in an attorney-client relationship within the past twelve months. (Cal. Code Civ. Proc. Â§ 229(b).) This provision has been expanded to include situations in which a juror was an attorney-employee of a law firm representing one of the parties. For example, People v. Terry (30 Cal. App. 4th 97 (1994)) held that a juror who was a deputy district attorney with the same district attorney's office representing the prosecution in the case could be challenged for cause due to implied bias under section 229(b). The rationale of the opinion also extends to attorney-employees of any law firms representing involved parties, including the public defender's office.
Actual bias is defined as "the existence of a state of mind on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party." (Cal. Code Civ. Proc. Â§ 225(b)(1)(C).)
Examples of individuals who can be challenged for actual bias are those who express difficulty in keeping an open mind, admit being biased, admit to firmly settled opinions showing bias, and cannot assure the court that they will be fair. The mere fact that a person does not wish to sit on a case because it would be too emotional is not a basis for a challenge for cause. (People v. Sanchez, 208 Cal. App. 3d 721, 732 (1989).) On the other hand, if the prospective juror's emotions would cause "prejudice to the substantial rights" of the challenging party, he or she should be removed for cause. (Cal. Code Civ. Proc. Â§ 228(b).)
The court determines whether a juror harbors actual bias, and that juror may then be examined by the court and parties on the issue. (Cal. Code Civ. Proc. Â§ 230.) The party making the challenge for cause bears the burden of showing actual bias. (People v. Stewart, 33 Cal. 4th 425 (2004).)
The defense gets to make the first challenges for cause to individual jurors; thereafter, the prosecution or plaintiff exercises its challenges for cause. (Cal. Code Civ. Proc. Â§ 226(d).) Challenges for cause should be made at side bar, outside the presence of the jury panel. To preserve the record for appeal, the judge must state a full explanation as to why challenges for cause were granted or denied. When a juror is excused for cause, another juror is drawn from the panel to replace him or her. There are no limits on the number of challenges for cause that may be made in a case.
Once there are at least twelve jurors sitting who have survived any challenges for cause, the parties will begin exercising their peremptory challenges. As new jurors replace the ones who have been excused, the parties may also exercise challenges for cause on the new jurors. Usually no reason need be given for a party exercising its peremptory challenges.
The number of peremptory challenges allotted to each party will depend on the type of case and number of defendants involved. Generally, in civil cases, each side gets 6 challenges; in most criminal cases, each side has 10 peremptories at its disposal. In criminal cases in which the potential sentence is life in prison or the death penalty, each side gets 20. In all cases, each side is also entitled to 1 peremptory challenge for every alternate juror that will be used in the trial.
The plaintiff or prosecution goes first in exercising peremptory challenges. (Cal. Code Civ. Proc. Â§ 231(d).) The challenged juror is replaced by another juror randomly drawn from the panel; the new juror undergoes voir dire and may be challenged for cause. The defense then gets to exercise one of its peremptory challenges, with the process being repeated.
When a party decides not to exercise a challenge and passes, the party's number of challenges is not diminished. (Cal. Code Civ. Proc. Â§ 231(e).) When the parties pass consecutively, or all the parties have run out of peremptory challenges, jury selection is deemed complete. (Cal. Code Civ. Proc. Â§ 231(d).)
In both criminal and civil cases, parties are not allowed to exercise peremptory challenges to remove a juror merely due to membership in a "cognizable group." This limitation has been upheld by both the U.S. Supreme Court (Batson v. Kentucky, 476 U.S. 79 (1986)) and the California Supreme Court (People v. Wheeler, 22 Cal. 3d 258 (1978)).
Cognizable groups include classifications such as race, color, religion, sex, national origin, and sexual orientation. (See Cal. Code Civ. Proc. Â§ 231.5.) Some of the more common classes held not to be cognizable groups include resident aliens and people who are hearing-impaired, have low incomes, are young, are more than 70 years of age, or are not well educated.
When one side objects to the other side's exercise of a peremptory challenge, a three-part analysis is used. First, the objecting party must establish that there is a prima facie showing that the other side used one or more peremptories unlawfully. If such a showing is made, the party who exercised the challenge must then justify its use. The judge then weighs whether the objecting party has proved that the challenge was used unlawfully.
Regarding the prima facie showing that must be demonstrated, all that is required is that the objecting party establish that there is a "reasonable inference" that people are being challenged due to membership in a cognizable group. (Johnson v. California, 545 U.S. 162 (2005).) The "reasonable inference" test replaced California's earlier, more stringent test, which required that a party show that it was more likely than not that an impermissible exercise had been made.
If a prima facie showing is made, the burden shifts to the opposing party to provide an explanation for the challenge. Examples of valid reasons for challenges include a juror's negative or positive experiences with the criminal justice system, a demeanor displaying hostility to one side, and his or her youthful age.
A court must immediately rule on a Batson/Wheeler objection and can-not defer ruling until the end of jury selection. The court must weigh whether the proffered nongroup membership reasons for a challenge are genuine or a sham. The focus must be on the subjective genuineness of the reasons, given the totality of the circumstances.
Finally, regarding remedies, the party who successfully proves a violation has a choice: The entire panel can be quashed, with jury selection starting anew with a fresh group of jurors; the challenged juror may be reseated; or the successful party may be awarded additional peremptory challenges. (People v. Willis, 27 Cal. 4th 811 (2002).)
Hon. Alex Ricciardulli is a judge with the Superior Court of California, County of Los Angeles, and coauthor of California Criminal Law (West, 2006).