Like voting or serving in public office, jury service is a duty and privilege of citizenship. Gov. Jerry Brown was right to veto Assembly Bill 1401, which would have allowed noncitizens to serve on juries and by so doing subtly diluted what it means to be a citizen.
Yet the problem the bill sought to address – a persistent shortage of jurors – remains vexing and expensive for the courts. Statewide approximately 10 million jurors are summoned for service a year, but only 4 million of those are available and qualified for the task. And even fewer, 1.5 million prospective jurors, actually report to courts. Courts struggle to find sufficient numbers of jurors to serve and the cost of jury service to the courts and to those who serve has become a real strain.
Remedies are available. The Legislature could consider granting the courts authority to reduce both the size of juries and the number of peremptory challenges that can be applied to prospective jurors. Some 39 states have already reduced jury sizes, according to a report this year by the Presiding Judges Advisory Committee Jury Working Group.
That report made several specific recommendations: For all felonies, there would be no change to the traditional 12-member jury. However, the number of peremptory challenges in which lawyers are not required to state a reason would be reduced from 20 per side to 12 for cases involving life sentences and from 10 to six per side for all other felonies. For death penalty cases, the 20 peremptory challenges allowed per side under current law would not be changed.
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For misdemeanors where conviction carries the potential for penalties of six months or more, jury size would be reduced from the current 12 to eight and the number of peremptory challenges reduced from 10 to six per side.
All other misdemeanors would be adjudicated in court trials with a judge presiding and no jury at all.
In all civil cases, the number of jurors would be reduced from 12 to eight.
It’s estimated that the changes proposed would save beleaguered California courts $5.1 million annually in direct costs. Community costs, which include the loss of productivity, wages and business activity, would be reduced by approximately $174 million annually.
The reason to reduce jury sizes, however, is not to save the courts money. Indeed, there’s an argument to be made that California should pay jurors more to make up for lost wages and workplace hassles and to make jury duty more attractive. Reducing the size of juries, however, would make it easier to bear these costs.
The changes suggested are not without controversy. Opponents, mostly from the defense bar, argue that reducing the size of juries or the number of peremptory challenges would result in juries with less diversity in viewpoints, background, experiences, race, age and gender. The push back from supporters is that peremptory challenges have been used historically to exclude minority jurors and thus reduce diversity.
Despite the savings, and despite the recommendations of judges most knowledgeable about the problem, the forces supporting the status quo have prevailed. A single very modest bill introduced on the subject this year – to reduce the number of peremptory challenges allowed in misdemeanor cases – failed to even get a hearing.
The courts are facing serious economic distress. In some counties courts have gone dark, and access to justice has been seriously reduced.
Gamesmanship in jury selection wastes everyone’s time and money. The reforms recommended deserve consideration.