New changes coming to jury selection

AB-3070 to limit peremptory challenges

In recent years, California has seen a wave of criminal justice reform legislation that lessens punishments or otherwise helps those accused of a crime to be treated more fairly by the criminal justice system.  This trend of criminal justice reform began with former Governor Jerry Brown, and has continued under Governor Gavin Newsom.  The focus of this article is the recently passed AB-3070, which will go into effect on January 1, 2022.  AB-3070 changes the way that "peremptory challenges" (more on that later) may be used to ensure that criminal defendants receive a fair trial.  This law should have a strong impact on the jury selection process, and should favor the defense in its application.

SOME BACKGROUND:  HOW ARE JURIES SELECTED?  READ MORE ABOUT JURY SELECTION GENERALLY
Juries are selected by a negative process; what that means is that potential jurors are "stricken" one by one, and those who remain will decide the case.  There are two different kinds of "strikes" that the sides can make to excuse a potential juror.  One kind of strike is called a "challenge for cause."  Challenges for cause are used when a juror has expressed a strong bias that would make them legally unfit to serve on the jury.  The other kind of challenge is known as a "peremptory" challenge.  Peremptory challenges may be made for almost any reason, and generally no reason needs to be given to exercise a peremptory challenge.  The sides have a limited number of peremptory challenges, and will typically use them to exclude jurors who have not necessarily expressed a strong bias, but who projects to be an unfavorable juror.  For example, in cases involving a crime against young children, the defense may seek to use its peremptory challenges against potential jurors it deems to be more concerned about such crimes (e.g. parents of young children).  It has long been said that trials are won and lost at jury selection.  Not only is it important to ensure that those who end up serving on the jury not harbor bias against the defendant, but it is important to have jurors who have a wide range of experiences in life.

THE PROBLEM:  HOW IS THE PROCESS ABUSED?
One issue that has long caused concern for criminal defense attorneys and other criminal justice activists is the use of peremptory challenges by the prosecution to excuse jurors from racial minority backgrounds.  Historically, prosecutors have disproportionately used their peremptory challenges against people of color.  In Los Angeles, prosecutors have sought to avoid having Black and Latino jurors out of concern that those jurors would be less likely to convict.  This problem has been so widespread that in the 1970s and 1980s California and Federal courts got involved and made in against the law to use a peremptory challenge on the basis of race.  In other words, while peremptory challenges were intended as a way for each side to excuse potential jurors without having to give a reason, race became a forbidden reason to kick a person off of a jury.  Despite this recognition by courts, prosecutors have continued to "white wash" juries, stating other grounds as their reason for striking a potential juror.  Their position has often been that yes, they are striking a minority juror, but that they were doing so for a reason other than race.  This is where AB-3070 comes in.

THE SOLUTION:  HOW DOES AB-3070 MAKE THINGS BETTER
Since the Batson and Wheeler court rulings prohibiting race-based peremptory challenges, prosecutors would often ask minority jurors if they have ever had negative impressions of members of law enforcement.  The party challenging the use of a peremptory challenge would have to show that the other side was acting in an intentionally discriminatory way.  This is of course very difficult.  Under the new law, certain "explanations" as to why a (usually) prosecutor has chosen to strike a minority potential juror are presumed invalid.  One case, interpreting the new law, People v. Henderson (2021) 68 Cal.App.5th 709 provides that the expression of a distrust of or having a negative experience with law enforcement or the criminal justice system are presumptively invalid reasons for exercising a peremptory challenge against a prospective juror who is a member of a cognizable group.  This is a monumental change affecting the fair selection of a jury.  The reality is that many white Americans simply have not experienced the kinds of things that lead a person who has experienced law enforcement abuses distrustful of law enforcement and the criminal justice system.  Removing those experiences and viewpoints from jury pools dangerously makes juries more likely to convict, and less likely to look at evidence from the skeptical lens required by our presumption of innocence.

HERE IS SOME OF THE TEXT FROM THE STATUTE
AB-3070 § 1(b):  "The Legislature finds that peremptory challenges are frequently used in criminal cases to exclude potential jurors from serving based on their race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, and that exclusion from jury service has disproportionately harmed African Americans, Latinos, and other people of color. The Legislature further finds that the existing procedure for determining whether a peremptory challenge was exercised on the basis of a legally impermissible reason has failed to eliminate that discrimination. In particular, the Legislature finds that requiring proof of intentional bias renders the procedure ineffective and that many of the reasons routinely advanced to justify the exclusion of jurors from protected groups are in fact associated with stereotypes about those groups or otherwise based on unlawful discrimination. Therefore, this legislation designates several justifications as presumptively invalid and provides a remedy for both conscious and unconscious bias in the use of peremptory challenges."

IF YOU OR A LOVED ONE HAS BEEN ARRESTED, CHARGED WITH A CRIME, OR IS ENGAGED IN A CRIMINAL CASE THAT MAY BE GOING TO A JURY TRIAL, IT IS VITAL TO HAVE THE REPRESENTATION OF A SKILLED, KNOWLEDGEABLE LOS ANGELES CRIMINAL DEFENSE ATTORNEY ON YOUR SIDE.  CONTACT THE LAW OFFICES OF NICHOLAS LONCAR TODAY FOR A FREE CONSULTATION.  213-375-3775

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RELATED ARTICLES:

Los Angeles Criminal Jury Trials
Jury Selection in Criminal Trials
Jury Nullification

HELPFUL LOS ANGELES CRIMINAL LAW LINKS:

LA Sheriff's Inmate Locator 
Los Angeles Superior Court  
LA County Law Library