SB 794 And Its Impact On A Criminal Defendant’s Right To A Fair Trial

Sep 22nd, 2016 | by Scott C. Thomas, Orange County Criminal Law Attorney

SB 794 is a bill that seeks to reduce the number of peremptory challenges afforded to a criminal defendant in a misdemeanor trial from ten to five, in the name of judicial economy (i.e. saving money). Before I go any further, I must explain the purpose and history of peremptory challenges to provide the proper context.

Firstly, peremptory challenges are used during voir dire (jury selection) to dismiss potential jurors without cause. This means, as long as the motivation is not rooted in race or gender, a juror can be excused, using a peremptory challenge, without showing that he or she cannot be fair and impartial, is incapacitated, is incompetent, is related to any party or witness, is a participant in previous litigation on the same matter, all of which are what constitutes cause. Given that courts, especially with regard to misdemeanor cases, limit voir dire to as little as 10 minutes for each side, peremptory challenges serve as the last line of defense for attorneys to dismiss jurors who may be overly partial to the opposing side. Remember, voir dire occurs in open court, so jurors’ answers to questions posed by attorneys are not always honest, given the nature of the process. Peremptory challenges allow attorneys to excuse jurors whom they feel may be “hiding the ball,” absent a showing of cause.

Now for a little history; peremptory challenges are rooted in Roman law, where both sides were allowed to select 100 potential jurors, and both sides were afforded 50 peremptory challenges to dismiss jurors, thereby leaving 100 of the initial 200 jurors, to decide the case.

In California, the right to peremptory challenges is almost as old as the state; California Code of Civil Procedure Section 231 was enacted in 1851, and later codified in 1872. Under CCCP Section 231, a person alleged to have committed a crime in a criminal case, where the punishment may exceed 90 days, is afforded 10 peremptory challenges, and six peremptory challenges are allowed for those facing misdemeanors with a sentence of 90 days or less.

SB 794 aims change over 160 years of California law, by reducing the number of peremptory challenges, in misdemeanor cases, to five, regardless of the amount of potential custody time. This will affect the people’s ability to have a fair trial, and more worrisome, it will make it harder for criminal defendants to receive a fair trial, especially in conservative counties like Orange County.

This bill is opposed by both the California District Attorneys Association and the California Public Defenders Association, two groups that rarely agree on anything. It is safe to say that any gains in judicial economy will be offset by juries that are less diverse, less informed and more prejudiced toward one side or the other.

The right to a fair trial is the cornerstone of a free and open democracy; SB 794 will have the effect of eroding that right and creating adverse consequences for our democratic society.

Scott C. Thomas

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