According to an op-ed piece in the Sacramento Bee, “Another View: Reducing peremptory challenges is common sense jury reform,” (1/25/14) by Judge Joan Weber (CA Superior Court Judge, San Diego and V.P. of the California Judges Association), the judicial branch in this state has lost more than $1 billion in funding in the last six years. Her piece was written in support of CA Senate Bill 794, which, if passed, would purportedly save state courts approximately $1 million a year. I suspect the same debate, in one form or another, is being played out elsewhere.
While I completely agree with her Honor that 10 peremptory challenges is overkill for misdemeanor cases (the target of the bill, and a favorite target in general), and assuming her figures are correct, $1 million a year in savings isn’t going to make much of dent in the deficit. Is $1 million a year the best we can do? Are there measures that would make a greater impact?
Peremptory strikes vs. excuses for cause
Savings in court time is provided as the chief factor in support of fewer peremptory strikes, but in my experience as a jury consultant, far greater court time, and wasted jury recruiting efforts, result from judges excusing jurors for the flimsiest of causes, as I noted in a previous article, “Flimsy Excuses for Cause – Two Opposite Approaches from the Bench”. A Ventura County case I worked on serves as an example. For a two-week civil trial a pool of 60 jurors was brought into court. The judge asked the pool if anyone had a good reason why they couldn’t serve. Very few hands went up, but when they witnessed one juror, a business executive from a huge national food brand, was excused because he was working on a “big deal,” hands shot up throughout the pool and the ranks were decimated to the point where a second pool of 60 had to be brought in to seat a jury of 12. That’s a ratio of 10 to 1.
Worse, in the same court some years later a pool of approximately 200 jurors was brought in to fill the needs of the court that day. The entire pool was voir dired for the first trial and NONE were seated.
In a northern California case from my files, a judge excused a juror whose daughter was on summer break from college. The inconvenience of jury service for her centered on her need to drive her daughter to and from summer job hunting chores.
Judges who bemoan the budget cuts should understand that, when it comes to wasted funds, many of them are part of the problem. Further, when they excuse jurors for flimsy causes, they are violating state law, at least in this state, as confirmed by the U.S. Supreme Court in the landmark case, Thiel v. Southern Pacific (1946). The majority opinion reads, in part;
“…under California state law, ‘A juror shall not be excused by a court for slight or trivial causes, or for hardship, or for inconvenience to said juror’s business, but only when material injury or destruction to said juror’s property or of the property entrusted to said juror is threatened’…Jury service is a duty as well as a privilege of citizenship: it is a duty that cannot be shirked on a plea of inconvenience or decreased earning power.”
The examples I provide above are, from my experience, more the rule than the exception, one of which was Judge Carl J. West (Superior Court, L.A., since retired). Working a case in his court many years ago, I ordered a transcript of his voir dire, the opening remarks of which read, in part;
The first thing you need to know is the fact that you were cleared to come to this courtroom means that, in effect, there’s a presumption that you are able to serve in this trial. Financial hardship alone may not be a justification for excusing you. Personal matters … work-related restrictions are not necessarily a basis for excusing you for hardship. We have what is known as a one-trial one-day service program here. ..That puts demands on our system. We have about ten thousand jurors a day in the Los Angeles Superior Court system…, you can do the math. We barely have enough people in the county to bring in the number we need all the time to make our courts run. And so you may feel that my willingness to excuse you for a hardship is kind of stingy or a little arbitrary, but you have to keep in view and keep in mind the global needs of the system; …
The entire transcript of Judge West’s voir dire is provided in the “Flimsy Excuses” article mentioned above (see blogs on this site) and in Fixing the Engine of Justice: Diagnosis and Repair of Our Jury System.
Reducing peremptory challenges is worthy of discussion, but if the rational is saving money, the courts should take aim at bigger game. Recruiting jurors is expensive for the courts and for the jurors. When judges turn their courtrooms into revolving doors they are watching that investment leave with the jurors.