California Supreme Court Names Jury Selection Work Group

The Supreme Court of California on Monday named members to its Jury Selection Work Group to study changes or new measures to guard against impermissible discrimination in jury selection.

Over 12 to 15 months, work group members will study a broad range of topics related to jury selection, including diversity in California jury pools, changes to jury instructions and the impact of unconscious bias.

“The right to trial by a jury of our peers is central to our justice system, and we must continue to safeguard that right,” said Justice Kathleen O'Leary, who will chair the work group. “We join a broad statewide and national dialogue that is focused on ensuring juries fairly represent the communities they serve.”

The work group includes 11 judges and justices that represent the California Supreme Court, appellate courts and trial courts throughout the state. They are:

Justice Kathleen E. O'Leary (Chair); Justice Kathryn Werdegar; Justice Teri L. Jackson; Justice Dorothy C. Kim; Justice William Murray, Jr.; Justice Rosendo Peña, Jr.; Judge Kevin Brazile; Judge Laurie Earl; Judge Jackson Lucky; Judge Lauren Thomasson; Judge Robert Trentacosta.

Five others will join the work group in an advisory capacity. They are:

• Michael Canzoneri, supervising deputy attorney general, Office of the California Attorney General;
• Cliff Gardner, criminal defense attorney specializing in post-conviction representation and lecturer at Berkeley Law;
• Mary McComb, State Public Defender;
• Nancy O’Malley, Alameda County District Attorney;
• Jose H. Varela, Marin County Public Defender.

The California Supreme Court in late January announced it would create the work group, contributing to a statewide, multibranch reassessment of jury selection practices that includes the Legislature’s introduction of AB 3070, which is focused on peremptory challenges.

Questions the Supreme Court’s California Jury Selection Work Group plans to study include:

• In light of the goal of eliminating improper discrimination in jury selection, does a purposeful discrimination standard impose an appropriate burden on litigants who attempt to show that a peremptory challenge was motivated by improper considerations or on advocates called upon to explain the basis for their peremptory challenges? What are the pros and cons of possible alternatives?
   
• To what extent does unconscious bias affect the jury selection process? Can this unconscious bias be effectively addressed in jury selection, and if so, how?
   
• Does allowing peremptory challenges based on a prospective juror’s negative experiences or views of law enforcement or the justice system result in disproportionate exclusion of jurors of certain backgrounds? Does accepting other facially neutral grounds for peremptory challenges have such an effect? If so, how if at all should these practices be addressed?
   
• Do current standards of appellate review of peremptory challenges in California adequately serve the goals of [Batson v. Kentucky and People v. Wheeler] jurisprudence?
   
• Are there other impediments to eliminating impermissible discrimination in jury selection and better ensuring that juries represent a cross-section of their communities? If so, how can these impediments be addressed?
   
• What kinds of training or guidance would assist advocates and judges in promoting fairness in this area and in making a record that facilitates sound appellate review?
   
• Should the standard jury instructions that address bias be modified or supplemented to provide more guidance to jurors in addressing bias during the deliberation process?

Read the full charge here.