Legislating Answers to Nonproblems : State bills on juries would produce a far worse system

Two bills now in the Legislature each reflect growing worry about the handling of the juries in criminal cases. Their passage would impose solutions to unproved problems. In so doing, they would surely produce a far worse jury system, not a better one.

Particularly problematic is a bill that gets its first hearing this week in the Senate Criminal Procedure Committee. SB 1199 would allow a judge in any criminal case to keep the identities of jurors anonymous throughout the proceedings. They would not be divulged to the public or any party to the case. Once jurors appear in a trial courtroom, they would be identified by number rather than name. During voir dire--when potential jurors are questioned--they would be asked for only general information about their employment, residence or family--nothing that would allow their precise identification.

But specificity is key to a fair trial; prosecutors as well as defense attorneys must probe to eliminate individuals who may have experiences or attitudes that would prevent them from being impartial in weighing the evidence in the case. This sweeping measure springs from some jurors’ fear of retaliation from defendants and the chilling effect that fear might have on a juror’s ability to clearly weigh a defendant’s guilt or innocence. But with very few reported instances of such retaliation, SB 1199 is not only a legislative overreaction, it is dangerous and unwarranted.

Here’s why: Existing law and procedure already give judges latitude. Judges control voir dire in criminal cases and can frame the questions they ask to protect jurors when necessary. In highly publicized trials, judges already have the authority to keep the identities of jurors from the public, as was done in the O.J. Simpson trial. Furthermore, it is already a crime to threaten a juror.

SB 1199 would have a pernicious effect on criminal trials. By promising anonymity to jurors up front, judges could send a signal that all defendants should be presumed dangerous when they are supposed to be presumed innocent. Identifying jurors only by number will inevitably dehumanize the justice system, seriously undercutting the courts’ prized tradition of openness. Anonymity could undercut as well the sense of personal responsibility that jurors must feel for a defendant’s fate.

The confidentiality called for in SB 1199, shielding juror identities from the parties as well as the public, goes far beyond prudence. It could seriously harm to our justice system.

So too would a measure approved last week by the Assembly Public Safety Committee that would permit nonunanimous juries in most criminal cases. Death penalty cases would still require a unanimous verdict. Two states already allow conviction if one or two jurors disagree with the majority, but the remainder still use nonunanimous juries. Unanimity requires hearing and considering the views of each member of a jury. Eliminating unanimity might make jurors more interested in a vote count than earnest deliberation.

Besides, this measure addresses a nonproblem, the argument that there are too many hung juries. While most states do not collect data on the hung jury rate, evidence from several large metropolitan areas indicates that the vast majority of juries reach a verdict and most often that verdict is to convict. Moreover, criminal juries that fail to reach unanimity are more often closely divided than held captive to one or two holdouts. A 10-2 rule, as permitted by this bill, would not help here.

Californians share a sincere desire to reduce crime, and to punish increasingly violent and remorseless predators. Doing so involves hard, gritty work on the streets and thoughtful work in court. It should not involve rewriting rules that have nothing to do with the imperfections in the system that do exist.