Welcome
The United States Law Week

California Juror Challenges on Race, Bias Would be Banned (1)

June 11, 2020, 9:52 PMUpdated: June 12, 2020, 1:07 AM

California attorneys would be prohibited from removing potential jurors on the basis of race, ethnicity, gender, national origin, or religious affiliation under legislation passed by the Assembly.

Assembly Bill 3070 requiring parties to state the reasons why they’re making peremptory challenges was approved Thursday along party lines in the Democratic-controlled chamber. It now moves to the Senate, which will take it up this summer.

It’s been more than 40 years since the California Supreme Court and then the U.S. Supreme Court ruled that racial bias in the use of peremptory challenges is unconstitutional.

“And yet prosecutors in California continue to strike black and Latino jurors at disproportionate rates, and people continue to be convicted by juries that do not reflect the diversity of the state,” bill author Assembly member Shirley Weber (D) said during floor arguments.

The measure is based on the Washington Supreme Court’s General Rule 37 that recognizes implicit bias and uses an objective standard to assess whether racial bias influenced juror removal.

The California Supreme Court last January announced a work group would be formed to study whether modifications or additional measures are needed to guard against impermissible discrimination in jury selection. Chief Justice Tani Cantil-Sakauye said members would be appointed in the coming weeks.

But AJ Kutchins, supervising deputy in the office of state public defender, in an email said no group has formed “nor has it been empowered to do anything. No further details have been provided. In other words: There is no ‘work group.’” Court spokeswoman Merrill Balassone said the court, which was “challenged” by the coronavirus pandemic, “has been considering the constituency of the group and will begin recruitment and selection soon.”

The new legislation follows last year’s Assembly Bill 242, which requires the California Judicial Council by Jan. 1, 2021, and the State Bar by Jan. 1, 2022, to develop mandatory training on implicit bias. The bill defines implicit bias as positive or negative associations that affect their beliefs, attitudes, and actions toward other people.

The California Attorneys for Criminal Justice sponsored A.B. 3070, which is supported by the California Public Defenders Association.

The California District Attorneys Association opposes the bill, according to an Assembly analysis, contending it “would upend literally decades of state and federal jurisprudence,” remove judicial discretion during jury selection, and “replace the prohibition on purposeful discrimination with a vague objective standard.”

(Comments from state public defender's office, Supreme Court spokeswoman added to sixth and seventh paragraphs.)

To contact the reporter on this story: Joyce E. Cutler in San Francisco at jcutler@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

To read more articles log in. To learn more about a subscription click here.