Effort Starts to Streamline the Process of Jury Selection

Were you ever molested as a child? Do you think violence against homosexuals is on the rise? What do you think of Playboy magazine? Why aren’t there more black golfers, tennis players and corporation presidents?

Those are the kinds of wide-ranging, deeply probing and often difficult questions that lawyers have asked--or sought to ask--prospective jurors as trial counsel decide whom to remove from the panel because of bias or viewpoints that may harm their case.

The process, known in the courts as voir dire, can take weeks or months in criminal cases or even two full days in a routine drunk-driving trial--longer than it takes to put on the evidence in a case.

Efforts Under Way

But amid rising concern over court delays and the time it takes to select a jury, new efforts are under way in the state to limit the role of lawyers and to give judges effective control of the process, as is done in the federal court system.

“People can’t believe how long it takes to get a jury in California,” said Appellate Justice Ronald M. George of Los Angeles, who heads a new legal task force studying the problem. “There’s a great courting process that goes on to charm jurors and ‘educate’ them to one side or the other. We want to avoid that--but at the same time, make sure we have a fair jury.”

This summer, under a sweeping court reform bill passed by the Legislature last fall, Superior Courts in Fresno and Santa Cruz counties will launch pilot projects substantially restricting juror questioning by prosecutors and defense attorneys in criminal cases.

The results will be evaluated by the state Judicial Council to see, among other things, how much time is saved by having trial judges question jurors and whether it makes any difference in conviction rates.

Under separate legislation, trial judges throughout the state have been given new authority to bar lawyers’ questions that may serve to indoctrinate jurors.

In another time-saving effort, the number of peremptory challenges that trial counsel can use to remove jurors has been reduced from 26 to 20 in capital cases. (Unlike removal for cause, peremptory challenges require no reason to be stated for removing a prospective juror.)

On another front, a far-ranging anti-crime initiative aimed for the November ballot contains a key provision requiring judges to conduct jury questioning and to permit attorneys to ask supplemental questions only for “good cause.”

Critics of the current system say that too often lawyers on both sides abuse the process with needlessly long, intrusive and repetitive questions of prospective jurors, hoping to eliminate those they fear will vote against them in the end.

Called Blot on System

“The present system is probably the greatest blot on the California legal system there is,” said Alameda Superior Court Judge Roderic Duncan, an outspoken advocate of reform. “There is just no way we can justify taking months and months to pick a jury. We can’t afford that brand of justice.”

Duncan and other critics said that while exhaustive questioning may eliminate some bias in the jury, it may also bore or antagonize jurors. Most jurors want to be fair--and a judge can just as well ask questions that reveal those who may not be fair, the critics said.

The prospect for change, however, is causing particular apprehension among criminal defense attorneys, who fear that it may weaken their ability to attack juror bias.

“We are concerned more and more about the rush to justice,” said Thomas S. Worthington, a Salinas lawyer and expert on jury selection for the California Attorneys for Criminal Justice. “Just leaving it up to the judge never works. The courts won’t get the meaningful responses from jurors that lawyers will.”

With judges, Worthington contended, the process becomes more of a formality. Trial counsel, knowing much more about the case, will ask questions that will bring answers that are more revealing and provide more insight into the views of a prospective juror, he said.

Worthington, for example, pointed to the problem of potential juror bias in a child-molestation case.

“You have to ask questions that are intrusive and personal,” he said. “Jurors don’t want to be asked about it--but you may find out that a juror was molested as a child, making it virtually impossible for him or her to be fair in such a case.”

Nonetheless, reform-minded critics are finding new support in a soon-to-be published study by the National Center for State Courts showing that jury selection in some California courts is taking significantly longer than courts in other states where judges exercise more control.

Analyzing data from 1,500 trials, the study found among other things that the median time for jury selection in criminal cases in Oakland was 8 hours and 17 minutes--compared to 3 hours and 10 minutes in Denver, where jury selection is by both attorneys and a judge, and 1 hour, 5 minutes in Paterson, N.J., where jurors are questioned only by a judge.

No Lack of Fairness

Significantly, the study also found that attorneys in the other states reported no lack of fairness resulting from court-controlled jury selection.

Authorities say that even if prolonged jury questioning may provide additional protection against bias in particular cases, it may also be contributing to delay that produces unfairness throughout the judicial system.

“You also have to think about all the other cases awaiting trial, the witnesses whose memories are fading, the victims waiting for redress of their grievances,” said attorney Dale Anne Sipes, author of the center’s new study. “You have to wonder whether in California, where civil trials can be delayed up to five years because of congestion throughout the system, the cost is too high.”

In California, both judges and lawyers may conduct juror questioning in criminal and civil cases. But in recent years, lawyers have gained more leeway in asking questions--and, particularly in criminal cases, have put more emphasis on jury questioning.

In some cases, they may retain jury-selection experts who will advise them how to identify prospective jurors most sympathetic to their cases. And in some instances, lawyers may use extensive questioning to subtly advocate their own view of the case--a process known as “educating” prospective jurors.

Sensitive Questioning

Lawyers on occasion have interrogated jurors on highly sensitive matters. For example, jurors in the “gay bashing” murder of a homosexual attacked on a San Francisco street were questioned closely on their views on homosexuality and violence against homosexuals.

“When you hear the word faggot . . . what does that conjure up in your mind?” a defense attorney asked during the trial.

Generally, state court rulings in recent years have upheld the right of trial attorneys to have broad latitude in the questioning of jurors.

In 1981, the state Supreme Court ruled that trial counsel must be allowed to ask questions “reasonably designed” to help them exercise peremptory challenges--whether or not the questions would likely reveal feelings strong enough to require the removal of a juror for cause.

Even when a potential juror says he can judge a case impartially, further interrogation may reveal a bias on which a prudent lawyer would base a peremptory challenge, the court said.

Overturned Conviction

In 1983, a state Court of Appeal in Los Angeles overturned the manslaughter conviction of a black man accused of killing a white woman, ruling that the defendant’s counsel should have been given greater leeway to question jurors for bias against racial minorities.

The appeal court said that the trial judge correctly refused to allow the lawyer to ask some questions--such as what the jurors thought of Playboy magazine. But the court upheld the right of the defense to ask why there were so few blacks in professional golf and tennis, why so few blacks head large corporations and why there had never been a black governor of California.

Calls for reform have begun to mount as jury selection has consumed months in notorious cases, drawing widespread attention.

The Hillside Strangler trial of Angelo Buono Jr., which Justice George presided over as a Superior Court judge, took four months to pick jurors. In the murder trial of Steven Edward Jackson, it took nine months to select the jury. And it required seven months to seat a jury for the trial of “trailside killer” David Joseph Carpenter.

By contrast, the questioning of jurors in the trial of John Hinckley in the shooting of President Reagan took only five days in federal court in Washington.

Cites California Case

In 1985, then-Chief Justice Warren E. Burger cited the jury selection in the Carpenter case in denouncing proposals that would require federal judges to allow lawyers to question prospective trial jurors.

Last year, California’s new chief justice, Malcolm M. Lucas, strongly urged consideration of new limits on questioning by attorneys in this state’s courts, estimating that the change might save up to 15% of the time now being spent on a trial.

Until now, efforts to reform jury selection had met stiff opposition from trial lawyers, and bills that would change the process remained stalled in the state Legislature.

But last year, at the insistence of Gov. George Deukmejian, provisions to launch the pilot projects in Fresno and Santa Cruz were included in a far-reaching bill providing new state financing for local trial courts.

Separate legislation also was passed that requires judges to admonish trial counsel to phrase questions in a “neutral and non-argumentative” form and allows judges to bar questions that “indoctrinate” or “prejudice” prospective jurors.

Concern Over Restrictions

The pilot projects were modeled after a proposal by the California District Attorneys Assn., a group that had been divided over the issue in the past. Some prosecutors, while acknowledging that attorneys sometimes abuse the process, were also concerned that jury selection might be unduly restricted by turning it over to judges.

The executive director of the association, Gary Mullen, noted that now the group is supporting both the pilot projects and the ballot initiative that would restrict questioning by lawyers.

“There have been many, many abuses of the system,” Mullen said. “In many ways it’s ridiculous what we do in this state.”