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Statutory Jury Selection Statute Improvement

The following comes to you all from the input and scholarship of Michael Ogul, one of the great scholars and litigators in the Public Defender system and a Deputy Public Defender in San Jose; he authorized me to share this with you.

Governor Brown just signed AB 1541, which was written and sponsored by the California Public Defenders' Association, and which greatly improves jury selection in all criminal trials, an ability that we really needed in the aftermath of the reduction in peremptory challenges.

First, here are the key provisions that are new to CCP 223 (the most important changes are in bold underline), effective January 1, 2018:

(b) (1) Upon completion of the trial judge's initial examination, counsel for each party shall have the right to examine, by oral and direct questioning, any of the prospective jurors. The scope of the examination conducted by counsel shall be within reasonable limits prescribed by the trial judge in the judge's sound discretion subject to the provisions of this chapter. During any examination conducted by counsel for the parties, the trial judge shall permit liberal and probing examination calculated to discover bias or prejudice with regard to the circumstances of the particular case or the parties before the court. The fact that a topic has been included in the trial judge's examination shall not preclude appropriate followup questioning in the same area by counsel. The trial judge should permit counsel to conduct voir dire examination without requiring prior submission of the questions unless a particular counsel engages in improper questioning.

(2) The trial judge shall not impose specific unreasonable or arbitrary time limits or establish an inflexible time limit policy for voir dire. As voir dire proceeds, the trial judge shall permit supplemental time for questioning based on individual responses or conduct of jurors that may evince attitudes inconsistent with suitability to serve as a fair and impartial juror in the particular case.

(3) For purposes of this section, an "improper question" is any question that, as its dominant purpose, attempts to precondition the prospective jurors to a particular result or indoctrinate the jury.

(c) In exercising the judge's sound discretion, the trial judge shall consider all of the following:

(1) The amount of time requested by trial counsel.

(2) Any unique or complex legal or factual elements in the case.

(3) The length of the trial.

(4) The number of parties.

(5) The number of witnesses.

(d) Voir dire of any prospective jurors shall, where practicable, take place in the presence of the other jurors in all criminal cases, including death penalty cases. Examination of prospective jurors shall be conducted only in aid of the exercise of challenges for cause.

(e) The trial judge shall, in his or her sound discretion, consider reasonable written questionnaires when requested by counsel. If a questionnaire is utilized, the parties shall be given reasonable time to evaluate the responses to the questionnaires before oral questioning commences.

(f) To help facilitate the jury selection process, at the earliest practical time, the trial judge in a criminal trial shall provide the parties with the list of prospective jurors in the order in which they will be called.

As you can see, judges can no longer set arbitrary time limits;

no more "I already covered that, counsel";

we have a right to liberal and probing voir dire on cause issues;

we have a right to supplemental time for voir dire when things come up;

the judge has to consider using written questionnaires when we want them;

we have to be given a reasonable amount of time to evaluate questionnaires when they are used;

and we are entitled to the "random list."

Al of these rights apply in every criminal trial, misdemeanor or felony.

[MK Comment: as you can see, many of these statutory improvements would not be necessary if we had a neutral judiciary not focused on moving the calendar and on helping the Executive. Kudos to Michael Ogul and others in CPDA who were instrumental in giving us these helpful, and vital, new tools to with which to toil in our vineyard. By the way, "voir dire" means to see/to speak, not "to speak the truth," contrary to what some judges, and even some Black's Law Dictionaries claim. The latter is the meaning of "verdict"!] 

Michael Kennedy

Admitted to Bar, State of California, 1981 Education: Widener University, Chester, Pennsylvania (B.A., 1970) Southwestern University School of Law, Los Angeles, California (J.D., Scale, 1981) Harvard Law School, Program of Instruction for Lawyers, Cambridge, 1987


Bob Horner

Posted Sep 27, 2017 at 18:46:32

40 years of having my head feel like it was going to explode from having idiot judges say “voir dire” means “to tell the truth!”


Posted May 23, 2020 at 18:06:50

Unfortunately, even Black’s gets it wrong, but the meaning of the two French words is clear and unambiguous.


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