Mark S Ross

Another View: Reducing peremptory challenges is common sense jury reform

Published: Saturday, Jan. 25, 2014 - 12:00 am

In an attempt to save state courts more than $1 million a year, Senate Bill 794 would reduce the number of peremptory challenges in misdemeanor cases from 10 challenges per side to five. The judicial branch has lost more than $1 billion in funding in the last six years. The chief justice estimates that the branch would need to receive $266 million in additional funding just to tread water. The governor’s recent budget proposal has only $105 million allocated in additional funding to the courts. That is not treading water; that is drowning.

So the job of the California Judges Association, the presiding judges and the Judicial Council was to come up with ways to create efficiencies in how we do business without compromising due process rights. We looked at other states and federal court, and we noticed that the vast majority of states allow for fewer peremptory challenges than we do in California, particularly in misdemeanor cases.

The reality is that only California, New York and New Jersey have 10 peremptory challenges per side in misdemeanors. The vast majority of states allow for anywhere from three to six peremptory challenges per side. In federal court each side receives three peremptory challenges. Why should California be so out of step with what is going on in 47 other states and federal court, particularly in this time of financial crisis? That is why California Judges Association, all 58 presiding judges and the Judicial Council all support this bill.

We also noticed that one of the most frequent complaints we receive from jurors after trial, particularly in misdemeanors, is that they think the jury selection process takes way too long and that too many people are being excused for no reason at all. The jury selection in a misdemeanor case can frequently take a day to a day and a half and the trial testimony may take one hour. SB 794, authored and championed by Sen. Noreen Evans, addresses that concern.

The opponents curiously argue that SB 794 will not save money. (“Peremptory challenges key to fair trial”; Viewpoints, Jan. 23). That argument makes no sense. Certainly fewer jurors would need to be called in for service. That would mean that fewer personnel resources would be involved, and those employees could be redeployed in other essential areas. Also misdemeanor trials would be shorter because jury selection would take less time. A conservative estimate of the court cost savings would be $1.2 million per year.

The savings to local communities would likely run in the tens of millions. That calculation would be based on all the lost income for the employees who are not paid by their employers for jury service, combined with the lost productivity to employers when their employees serve jury duty.

Bear in mind that this proposal would retain challenges for cause. If a judge incorrectly rules on a challenge for cause, SB 794 would still leave five peremptory challenges available per side. Moreover, an incorrect ruling on a challenge for cause by the judge would be grounds for appeal.

Judges are confident that after this bill is enacted lawyers will see that misdemeanors can be fairly and efficiently tried with fewer peremptory challenges. It will be a win for all participants in the criminal justice system. If it could be documented that either side’s due process rights were being in any way affected by this law, then we would be the first to say the law should not be renewed after the proposed two-year sunset.

Let’s give this modest change a try.

Joan P. Weber is a vice president of the California Judges Association and has been a trial judge in San Diego since 1990.

Read more articles by Joan P. Weber

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