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