THE PEOPLE, Plaintiff and Respondent, v. JAMES MICHAEL WHEELER et al., Defendants and Appellants.
Crim. No. 20233
Supreme Court of California
Sept. 25, 1978.
22 Cal. 3d 258 | 148 Cal. Rptr. 890 | 583 P.2d 748
Edward I. Gritz, Halpern & Halpern and H. Russell Halpern for Defendants and Appellants.
Paul N. Halvonik, State Public Defender, Clifton R. Jeffers, Chief Assistant State Public Defender, Ezra Hendon, Mark Fogelman, Deputy State Public Defenders, and Jonathan R. Adler as Amici Curiae on behalf of Defendants and Appellants.
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Daniel J. Kremer, Assistant Attorney General, A. Wells Petersen, Harley D. Mayfield, Beatrice W. Kemp and John W. Carney, Deputy Attorneys General, for Plaintiff and Respondent.
C. Stanley Trom, District Attorney (Ventura), Michael D. Bradbury, Assistant District Attorney, and Peter D. Kossoris, Deputy District Attorney, as Amici Curiae on behalf of Plaintiff and Respondent.
MOSK, J.-Defendants James Michael Wheeler and Robert Willis appeal from judgments convicting them of murdering Amaury Cedeno, a grocery store owner, in the course of a robbery. (
During the noon hour Cedeno withdrew $6,000 in cash from a bank and returned with the money to his store. As he entered he was seen to be grappling with another man; after a few moments four shots were fired and Cedeno was fatally wounded. The assailant ran from the store with the money, and entered the passenger door of a waiting car that was quickly driven away. A witness noted its license plate number, but did not see the driver.
At trial the principal issue was identification. Two witnesses to the events inside the store identified defendant Willis as the assailant from groups of photographs and from a lineup, and pointed him out in court. Willis sought to discredit this testimony by exploring various discrepancies between his appearance at trial and the descriptions furnished to the police by the witnesses. He also offered an alibi defense.
It was the People‘s theory that the unseen driver of the getaway car was defendant Wheeler. The sole direct evidence connecting him with that car, however, was two fingerprints found on the driver‘s door-one on the underside of the armrest and the other on the outside panel. A police expert identified the prints as belonging to Wheeler, but conceded on cross-examination that there is no way of determining when a fingerprint was actually placed on an object. The car in question had been stolen four days before the shooting.
To bolster their case the People also introduced, over objection, evidence of several prior incidents of assertedly similar but uncharged robberies or apparent preparations for robbery in which these defendants and other persons were implicated in varying degrees. Because the convictions must be reversed on other grounds, we do not reach the serious conflict over the admissibility of this evidence.
I
We begin with a claim of error arising at the very outset of the trial and infecting the entire remainder of the proceedings. Defendants are both black; the man they were accused of murdering was white; a number of
Not surprisingly, the record is unclear as to the exact number of blacks struck from the jury by the prosecutor: veniremen are not required to announce their race, religion, or ethnic origin when they enter the box, and these matters are not ordinarily explored on voir dire. The reason, of course, is that the courts of California are-or should be-blind to all such distinctions among our citizens.
Nevertheless, when an issue of this nature does arise in any case it is incumbent upon counsel, however delicate the matter, to make a record sufficient to preserve the point for review. In the case at bar defense counsel discharged that burden: after the People had exercised eight peremptory challenges, defense counsel began eliciting from each successive black prospective juror an acknowledgment of his or her race. In a declaration filed in this court, Edward I. Gritz, attorney for defendant Wheeler, explained the reason for undertaking to make that record: “During the course of the voir dire proceedings, and only after two black jurors had been peremptorily excused by the prosecutor, I became aware that the prosecutor was utilizing his peremptory challenges in a systematic effort to exclude any and all otherwise qualified black jurors from serving on my client‘s petit jury.”
Defense counsel thereafter established that prospective jurors Louise Jones, Odessa Bragg, and Napoleon Howard were black.1 All three responded that racial considerations would not affect their impartiality and they would base their verdict solely on the facts; as Mr. Howard succinctly put it, “We are not trying color. We are trying a case.” Both defense counsel passed these prospective jurors for cause, and the prosecutor did likewise after almost perfunctory questioning.2 Neverthe-
At this point Mr. Gritz expostulated that “It is obvious to me that there will be no blacks on this jury,” and moved for a mistrial. He gave his count of the number of black prospective jurors struck by the prosecutor, and stated: “whatever the reason for that is, that‘s up to him to say. I am not impugning his integrity or anything like that. It is obvious to me that these defendants cannot get a jury of their peers or, how shall I say, a proper cross section of the community, if what is apparent to me is the policy of the district attorney‘s office. Maybe it is only in this case, I don‘t know, to excuse all blacks that are being called.” His purpose in moving for the mistrial was, he said, “so we can try and get a fair cross section of the community.” Mr. Halpern joined in the motion, stressing that from the manner in which the prosecutor was exercising his peremptory challenges “it is apparent that he is using a form of unauthorized procedure, and that is to exclude blacks rather than exclude people who hold prejudices one way or the other.”
The trial court asked the prosecutor if he desired to respond, but advised him that “you don‘t have to respond if you don‘t wish to.” The prosecutor declined to explain his conduct, and the court denied the motion for mistrial.
Voir dire then resumed. Defense counsel established that two more prospective jurors, Lloyd Hill and Evelyn Smith, were black. Both testified that racial considerations would not enter into their deliberations, and Mr. Hill specifically denied that he would be prejudiced in defendants’ favor simply because he was black. Voir dire examination of these two prospective jurors by the court and defense counsel was brief and uneventful. Mr. Hill testified he was employed as a car man by the Santa Fe Railroad, his wife was a housewife, and his daughter a waitress; he had never served on a jury before, had never been the victim of or witness to a crime, and had no relatives or friends who were police officers or attorneys. In turn, Mrs. Smith testified she was employed as a cabin service planner by United Airlines and her husband was a presser at a cleaning business; she had previously served on a jury in two civil cases, one of which ended in a nonsuit; she had never been the victim of or witness to a crime, had never testified in court, and had no relatives or friends who were police officers or attorneys. Defense counsel passed both these prospective jurors for cause.
Once more Mr. Gritz vigorously objected, stating: “For the record, Your Honor, by my count, there are seven Negroes that have been kicked off the jury by [the prosecutor], I make a motion for mistrial. It is apparent that it is a policy of the district attorney‘s office not to permit any Negroes on this jury. Some of them have been kicked without him even questioning them. . . . I feel that these defendants cannot get a trial by their peers.” Mr. Halpern joined in the motion, contending that because “there is evidence that the peremptory challenge is being used to excuse only blacks from the jury,” there is “a prima facie case of abuse” of such challenges by the People.
Again the court offered the prosecutor the opportunity to respond, but made clear that it was “ready to rule on the matter” without the need of any explanations. The prosecutor replied, “I have no response, Your Honor, and I don‘t wish my silence to be construed as any tacit admission of the charges.” The court agreed it was “not considering it as such,” and ruled that “Attorneys have a right to select the jury and use all the peremptories available to them without stating the reason.”
Impliedly denying the second motion for mistrial, the court directed voir dire to proceed. No more black prospective jurors were called to the box, and in due course 12 regular jurors and 2 alternates were sworn to try the case. They were all white.
In a series of decisions beginning almost four decades ago the United States Supreme Court has held that an essential prerequisite to an impartial jury is that it be drawn from “a representative cross-section of the community.”5 The rationale of these decisions, often unstated, is that in our heterogeneous society jurors will inevitably belong to diverse and often overlapping groups defined by race, religion, ethnic or national origin, sex, age, education, occupation, economic condition, place of residence, and political affiliation; that it is unrealistic to expect jurors to be devoid of opinions, preconceptions, or even deep-rooted biases derived from their life experiences in such groups; and hence that the only practical way to achieve an overall impartiality is to encourage the representation of a variety of such groups on the jury so that the
The line of United States Supreme Court cases in point began with Smith v. Texas (1940) 311 U.S. 128 [85 L.Ed. 84, 61 S.Ct. 164]. There the high court reversed on equal protection grounds a state conviction of a black defendant upon a showing that blacks had been systematically excluded from grand jury service. In language that has proved to be seminal, Justice Black said for a unanimous court: “It is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community. For racial discrimination to result in the exclusion from jury service of otherwise qualified groups not only violates our Constitution and the laws enacted under it but is at war with our basic concepts of a democratic society and a representative government.” (Fn. omitted; id., at p. 130 [85 L.Ed. at p. 86].) We add that in such a war the courts cannot be pacifists.
In Glasser v. United States (1942) 315 U.S. 60 [86 L.Ed. 680, 62 S.Ct. 457], the defendants in a federal trial complained of the alleged exclusion from petit jury service of all women not members of the state League of Women Voters. Although rejecting the contention on the ground of insufficient proof, the high court strongly reaffirmed the requirement of a representative jury. It observed at the outset that impartiality achieved through representativeness is essential to preserving the constitutional right to jury trial: “Lest the right of trial by jury be nullified by the improper constitution of juries, the notion of what a proper jury is has become inextricably intertwined with the idea of jury trial.” (Id., at p. 85 [86 L.Ed. at p. 707].) Quoting from Smith v. Texas, the court stated (at p. 86 [86 L.Ed. at p. 707]) that “the proper functioning of the jury system, and, indeed, our democracy itself, requires that the jury be a ‘body truly representative of the community,’ and not the organ of any special group or class.” Finally, the court warned (ibid. [86 L.Ed. at p. 707]) that the officials charged with choosing jurors “must not allow the desire for competent jurors to lead them into selections which do not comport with the concept of the jury as a cross-section of the community. Tendencies, no matter how slight, toward the selection of jurors by any method other than a process which will insure a trial by a representative group are undermining processes weakening the institution of jury trial, and should be sturdily resisted. That the motives influencing such tendencies may be
In Thiel v. Southern Pacific Co. (1946) 328 U.S. 217 [90 L.Ed. 1181, 66 S.Ct. 984, 166 A.L.R. 1412], the court reversed a tort judgment in a diversity case tried in California on the ground that daily wage earners had been regularly excluded from petit jury service. In language thereafter often repeated, the court said: “The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community. [Citations.] This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community; frequently such complete representation would be impossible. But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups.” (Id., at p. 220 [90 L.Ed. at p. 1185].) The court further explained (ibid [90 L.Ed. at p. 1185]) that “Recognition must be given to the fact that those eligible for jury service are to be found in every stratum of society. Jury competence is an individual rather than a group or class matter. That fact lies at the very heart of the jury system. To disregard it is to open the door to class distinctions and discriminations which are abhorrent to the democratic ideals of trial by jury.”
In Ballard v. United States (1946) 329 U.S. 187 [91 L.Ed. 181, 67 S.Ct. 261], the court reversed a federal conviction on the ground that women had been deliberately excluded from both grand and petit jury service. The court began by reiterating the above-quoted passage from Thiel (id., at pp. 192-193 [91 L.Ed. at p. 185]), then addressed the government‘s contention that an all-male panel drawn from diverse groups would be equally representative because women jurors do not “act as a class.” Rejecting this argument, the court reasoned that “the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables. To insulate the courtroom from either may not in a given case make an iota of difference. Yet a flavor, a distinct quality is lost if either sex is excluded. The exclusion of one may indeed make the jury less representative of the community than would be true if an economic or racial group were excluded.” (Fn. omitted; id., at pp. 193-194 [91 L.Ed. at p. 186].) And the court concluded (at p. 195 [91 L.Ed. at p. 187]) that “The injury is not limited to the defendant-there is injury to the jury system, to the law as an institution, to the community at
In Peters v. Kiff (1972) 407 U.S. 493 [33 L.Ed.2d 83, 92 S.Ct. 2163], the court reversed on equal protection grounds a state conviction of a white defendant upon a showing that blacks had been arbitrarily excluded from grand and petit jury service. The state contended that because the defendant was not himself black he was not harmed by the exclusion. The plurality opinion of Justice Marshall rejected the argument, stating (at p. 503 [33 L.Ed.2d at p. 94]) that “the exclusion from jury service of a substantial and identifiable class of citizens has a potential impact that is too subtle and too pervasive to admit of confinement to particular issues or particular cases.” The court warned that “the opportunity to appeal to race prejudice is latent in a vast range of issues, cutting across the entire fabric of our society,” and concluded, “When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable. It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude, as we do, that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.” (Fn. omitted; id., at pp. 503-504 [33 L.Ed.2d at p. 94].)
The most recent case of this type was Taylor v. Louisiana (1975) 419 U.S. 522 [42 L.Ed.2d 690, 95 S.Ct. 692]. There the court reversed a state conviction of a male defendant on the ground that women had in effect been totally excluded from jury service. The court reviewed the foregoing precedents and concluded (at p. 528 [42 L.Ed.2d at p. 697]) that “The unmistakable import of this Court‘s opinions, at least since 1940, Smith v. Texas, supra, and not repudiated by intervening decisions, is that the selection of a petit jury from a representative cross section of the community is an essential component of the
We have reviewed this line of United States Supreme Court opinions in some detail because we fully agree with the views there expressed as to the importance of the representative cross-section rule, particularly in protecting the constitutional right to an impartial jury.7 We rely equally, however, on the law of California. It was not until its 1975 decision in Taylor that the high federal court imposed the representative cross-section rule on the states as a fundamental component of the
Thus in People v. White (1954) 43 Cal.2d 740 [278 P.2d 9], the defendant contended he was denied “his constitutional right to a trial by an impartial jury” because the method used in selecting the jury panel produced a “systematic inclusion of limited classes of persons who did not represent a cross-section of the community,” i.e., businessmen and club women, with a resulting exclusion of working class people. (Id., at
Although we found the error nonprejudicial in the circumstances of the case because the panel actually selected did in fact include a reasonable representation of working class people, we unanimously condemned the selection system itself for its tendency to produce venires that were not representative cross-sections of the community. We began, as we do here, by quoting well-known passages from Thiel and related federal cases. We then turned to the particular issue at hand, i.e., whether the source list used by the jury commissioner was “improperly weighted so as to prevent having a good cross-section of the community for prospective jurors.” (Id., at p. 750.) The question was answered in a vigorous affirmative: “Those persons who would be denied the opportunity for jury service under this system would not be excluded because of any lack of ability, intelligence or qualifications but merely because they did not belong to the social and economic strata of the community which compris[e] the membership of certain private clubs and organizations. A system which tends to permit this form of wholesale exclusion of a large segment of our citizens from jury duty would normally prevent the selection of juries from a cross-section of the community. Such a system is highly discriminatory and should not be condoned.” (Id., at p. 753.)
Summing up, we repeatedly emphasized (at p. 754) the need for compliance with the representative cross-section rule as a precondition to trial by an impartial jury: “The American system requires an impartial jury drawn from a cross-section of the entire community and recognition must be given to the fact that eligible jurors are to be found in every stratum of society. In selecting a truly representative jury panel, the membership lists of various clubs and organizations may properly be used, but they should not be relied on as the principal source of prospective jurors nor should they be used to the complete exclusion of other general sources more likely to represent a cross-section of the population, such as telephone directories, voting lists, and city directories. Any system or method of jury selection which fails to adhere to these democratic fundamentals, which is not designed to encompass a cross section of the community or which seeks to favor limited social or economic classes, is not in keeping with the American tradition and will
The White opinion did not specify which Constitution-state or federal-it was relying on as the source of its declared requirement of cross-sectionalism, but simply spoke in broad terms of the “American system” and the “American tradition.” California, of course, is an integral part of that system and tradition; and as we noted above, our courts have long recognized that the right to an impartial jury is an inseparable element of the jury trial guarantee of
It therefore becomes the responsibility of our courts to insure that this guarantee not be reduced to a hollow form of words, but remain a vital and effective safeguard of the liberties of California citizens. There are three stages in the jury selection process at which the ideal of a representative cross-section can be seriously compromised. The first is the initial compilation of the “roll of eligible juror candidates” (
Secondly, a number of prospective jurors thus selected are disqualified or excused by judges or various court personnel on grounds of competency (
Thirdly, when the case is called for trial the clerk draws the names of veniremen at random from the “trial jury box” (
The purpose of the challenge stage of jury selection is apparent from these statutory provisions and the constitutional considerations discussed above. Until this point in the process the goal of an impartial jury is pursued by insuring that the master list be a representative cross-section of the community and that the venire and the proposed trial jury be drawn therefrom by wholly random means. But precisely because it is both all-inclusive and random, the process cannot consistently screen out those prospective jurors who bring to the courtroom a bias concerning the particular case on trial or the parties or witnesses thereto-we may call this “specific bias“-derived, for example, from personal experience or from general exposure to pretrial publicity. Yet such persons must evidently be excused from the jury insofar as possible if the goal of impartiality is to be achieved. The law therefore presumes that each party will use his challenges to remove those prospective jurors who appear most likely to be biased against him or in favor of his opponent; by so doing, it is hoped, the extremes of potential prejudice on both sides will be eliminated, leaving a jury as impartial as can be obtained from the available venire.
The purpose of the challenges also dictates their scope: they are to be used to remove jurors who are believed to entertain a specific bias, and no others. In the case of challenges for cause the matter is clear: the above-quoted statutory definition of actual bias is a literal description of this state of mind, i.e., a prejudice “in reference to the case, or to either of the parties” (
The issue is somewhat more complex with respect to peremptory challenges, but the answer remains the same. It is true that the statute defines such a challenge as one for which “no reason need be given” (
To say that peremptories will ordinarily be exercised only in cases of bias, however, does not clarify the kinds of bias upon which the challenge may permissibly be based. In contrast to the limited list of events authorizing a challenge for cause on the ground of implied bias (
For example, a prosecutor may fear bias on the part of one juror because he has a record of prior arrests or has complained of police harassment, and on the part of another simply because his clothes or hair length suggest an unconventional lifestyle. In turn, a defendant may suspect prejudice on the part of one juror because he has been the victim of crime or has relatives in law enforcement, and on the part of another merely because his answers on voir dire evince an excessive respect for authority. Indeed, even less tangible evidence of potential bias may bring forth a peremptory challenge: either party may feel a mistrust of a juror‘s objectivity on no more than the “sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another” (4 Blackstone, Commentaries *353)-upon entering the box the juror may have smiled at the defendant, for instance, or glared at him. Responsive to this reality, the law allows removal of a biased juror by a challenge for which no reason “need be given,” i.e., publicly stated: in many instances the party either cannot establish his reason by normal methods of proof or cannot do so without causing embarrassment to the challenged venireman and resentment among the remaining jurors.16
All of these reasons, nevertheless, share a common element: they seek to eliminate a specific bias as we have defined that term herein-a bias relating to the particular case on trial or the parties or witnesses thereto. By the same token, they are essentially neutral with respect to the various groups represented on the venire: the characteristics on which they focus cut across many segments of our society. Thus both blacks and whites may have prior arrests, both rich and poor may have been crime victims, both young and old may have relatives on the police force, both men and women may believe strongly in law and order, and members of any group whatever may alienate a party by “bare looks and gestures.” It follows that peremptory challenges predicated on such reasons do not significantly skew the population mix of the venire in one direction or another; rather, they promote the impartiality of the jury without destroying its representativeness.
By contrast, when a party presumes that certain jurors are biased merely because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds-we may call this “group bias“-and peremptorily strikes all such persons for that reason alone, he not only upsets the demographic balance of the venire but frustrates the primary purpose of the representative cross-section requirement. That purpose, as we have seen, is to achieve an overall impartiality by allowing the interaction of the diverse beliefs and values the jurors bring from their group experiences. Manifestly if jurors are struck simply because they may hold those very beliefs, such interaction becomes impossible and the jury will be dominated by the conscious or unconscious prejudices of the majority. Seen in this light, the presumed group bias that triggered the peremptory challenges against its members is indistinguishable from the group perspective we seek to encourage by the cross-section rule.17
We conclude that the use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross-section of the community under
What it does mean, however, is that a party is constitutionally entitled to a petit jury that is as near an approximation of the ideal cross-section of the community as the process of random draw permits. Obviously he cannot avoid the effect of that process: the master list must be reduced to a manageable venire, and that venire must in turn be reduced to a 12-person jury. The best the law can do to accomplish those steps with the least risk to the representative nature of the jury pool is to take them by random means, i.e., by drawing lots. We recognize that in a predictable percentage of cases the result will be a wholly unbalanced jury, usually composed exclusively of members of the majority group. This is inevitable, the price we must pay for juries of a workable size. It is no less inevitable, however, that in all other instances-as in the case at bar-the representative nature of the pool or venire will be reflected at least in
some degree in the 12 persons called at random to the jury box. It is that degree of representativeness—whatever it may prove to be—that we can and must preserve as essential to trial by an impartial jury. Certainly the prospective jurors are then subject to challenges for cause and peremptory challenges on grounds of specific bias; but for the reasons stated above we cannot countenance the decimation of the surviving jurors by peremptory challenges on the ground of group bias alone.
II
The question of remedy remains, and we do not underestimate its difficulty.19 We begin with the proposition that in any given instance the presumption must be that a party exercising a peremptory challenge is doing so on a constitutionally permissible ground. We adopt this presumption for several reasons: in deference to the legislative intent underlying such challenges, in order to encourage their use in all proper cases, and out of respect for counsel as officers of the court.
Yet it is only a presumption, and must be rebuttable if the foregoing constitutional right is not to be nullified even by honest zeal. The issue is what showing is necessary to rebut it. We must define a burden of proof which a party may reasonably be expected to sustain in meritorious cases, but which he cannot abuse to the detriment of the peremptory challenge system.
In their briefs on appeal defendants propose a mathematical method of analyzing numerical data derived from voir dire to determine the statistical probability, expressed as a percentage, that the prosecutor exercised his peremptory challenges against black prospective jurors on a purely random basis. They calculate that chance as 2.8 percent, conclude there was a 97.2 percent probability that the elimination of all black
We decline to accept either proposal, not because of the discrepancy between their results but because of their inappropriateness to the need at hand. The method suggested by amicus, commonly called statistical decision theory, has impressive credentials: the United States Supreme Court has given it increasing weight in the past decade,22 and it has been enthusiastically espoused by scholars.23 But its use thus far has been limited to reviewing an earlier stage in the jury selection process, i.e., whether the master list or the grand or petit jury venire constitutes a representative cross-section of the community. Even for that purpose the technique has been criticized on the ground that it “involves complicated calculations resulting in answers that are difficult to visualize and evaluate,” and that “the result is significantly affected by the choice of sample size.” (Fn. omitted.) (Kairys et al., op. cit. supra, fn. 11, at p. 794.) More disturbing for our purpose is the declaration by a leading writer in the field that because of the discretionary nature of peremptory challenges it is “virtually impossible” for statistical decision theory to demonstrate racial motivation in the striking of blacks from a petit jury.24
In that setting, rather, we rely on more traditional procedures.25 If a party believes his opponent is using his peremptory challenges to strike jurors on the ground of group bias alone, he must raise the point in timely fashion and make a prima facie case of such discrimination to the satisfaction of the court. First, as in the case at bar, he should make as complete a record of the circumstances as is feasible. Second, he must establish that the persons excluded are members of a cognizable group within the meaning of the representative cross-section rule.26 Third, from all the circumstances of the case he must show a strong likelihood that such persons are being challenged because of their group association rather than because of any specific bias.
We shall not attempt a compendium of all the ways in which a party may seek to make such a showing. For illustration, however, we mention certain types of evidence that will be relevant for this purpose. Thus the party may show that his opponent has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of his peremptories against the group. He may also demonstrate that the jurors in question share only this one characteristic—their membership in the group—and that in all other respects they are as heterogeneous as the community as a whole.27 Next, the showing may be
Upon presentation of this and similar evidence—in the absence, of course, of the jury—the court must determine whether a reasonable inference arises that peremptory challenges are being used on the ground of group bias alone. We recognize that such a ruling “requires trial judges to make difficult and often close judgments. They are in a good position to make such determinations, however, on the basis of their knowledge of local conditions and of local prosecutors.” (Kuhn, op. cit. supra, fn. 5, at p. 295.) They are also well situated to bring to bear on this question their powers of observation, their understanding of trial techniques, and their broad judicial experience. We are confident of their ability to distinguish a true case of group discrimination by peremptory challenges from a spurious claim interposed simply for purposes of harassment or delay.
If the court finds that a prima facie case has been made, the burden shifts to the other party to show if he can that the peremptory challenges in question were not predicated on group bias alone.28 The showing need
If the court finds that the burden of justification is not sustained as to any of the questioned peremptory challenges, the presumption of their validity is rebutted. Accordingly, the court must then conclude that the jury as constituted fails to comply with the representative cross-section requirement, and it must dismiss the jurors thus far selected. So too it must quash any remaining venire, since the complaining party is entitled to a random draw from an entire venire—not one that has been partially or totally stripped of members of a cognizable group by the improper use of peremptory challenges. Upon such dismissal a different venire shall be drawn and the jury selection process may begin anew.29
The error is prejudicial per se: “The right to a fair and impartial jury is one of the most sacred and important of the guaranties of the constitution. Where it has been infringed, no inquiry as to the sufficiency of the evidence to show guilt is indulged and a conviction by a jury so selected must be set aside.” (People v. Riggins (1910) 159 Cal. 113, 120 [112 P. 862]; accord, People v. Carmichael (1926) supra, 198 Cal. 534, 547; People v. Diaz (1951) 105 Cal.App.2d 690, 696-700 [234 P.2d 300]; People v. O‘Connor (1927) 81 Cal.App. 506, 519-521 [254 P.2d 630]; People v. Wismer (1922) 58 Cal.App. 679, 687 [209 P. 259]; cf. Ballard v. United States (1946) supra, 329 U.S. 187, 195 [91 L.Ed. 181, 186-187] (federal rule).) The judgments must therefore be reversed and the cause remanded for a new trial.31
III
The People nevertheless contend that we are compelled to allow this pernicious practice to continue in our courts by the case of Swain v. Alabama (1965) 380 U.S. 202 [13 L.Ed.2d 759, 85 S.Ct. 824]. There a black defendant was convicted of rape and sentenced to death by an all-white jury after the prosecutor had struck each of the six blacks on the venire by the equivalent of peremptory challenges. In an opinion concurred in by only five justices (id., at pp. 209-222 [13 L.Ed.2d at pp. 766-774]) the court rejected the defendant‘s claim of a violation of the equal protection
The high court reached this conclusion because of its concern (ibid.) that under a contrary rule the challenge “would no longer be peremptory, each and every challenge being open to examination, either at the time of the challenge or at a hearing afterwards. The prosecutor‘s judgment underlying each challenge would be subject to scrutiny for reasonableness and sincerity.”32 Finally, in a dictum concurred in by only four justices (cf. opn. of Harlan, J., 380 U.S. 228 [13 L.Ed.2d 777]), the opinion implied that a meritorious equal protection claim might be stated “when the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be,” removed every black from every petit jury. (Id., at p. 223 [13 L.Ed.2d at p. 774].)
It is true that Swain adjudicated the issue in terms of the equal protection clause of the Fourteenth Amendment rather than the impartial jury guarantee of the Sixth Amendment, presumably because the case predated both Duncan and Taylor. (See fn. 8, ante.) But we shall not attempt to distinguish it on that ground. The court‘s motivation in Swain seems to have been its desire to avoid what it believed would be “a radical change in the nature and operation of the [peremptory] chal-
Because a fundamental safeguard of the California Declaration of Rights is at issue, however, “our first referent is California Law” and divergent decisions of the United States Supreme Court “are to be followed by California courts only when they provide no less individual protection than is guaranteed by California law.” (People v. Pettingill (1978) 21 Cal.3d 231, 248 [145 Cal.Rptr. 861, 578 P.2d 108]; accord, People v. Hannon (1977) 19 Cal.3d 588, 606 [138 Cal.Rptr. 885, 564 P.2d 1203]; Serrano v. Priest (1976) 18 Cal.3d 728, 764 [141 Cal.Rptr. 315, 569 P.2d 1303]; People v. Longwill (1975) 14 Cal.3d 943, 951, fn. 4 [123 Cal.Rptr. 297, 538 P.2d 753].) It is apparent that Swain provides less protection to California residents than the rule we now adopt. Under Swain a defendant is barred from vindicating his right to an impartial jury unless he can prove that over a long period of time the same prosecutor has struck every black from every petit jury “whatever the circumstances, whatever the crime and whoever the defendant or the victim may be.”
To begin with, Swain obviously furnishes no protection whatever to the first defendant who suffers such discrimination in any given court—or indeed to all his successors, until “enough” such instances have accumulated to show a pattern of prosecutorial abuse. Yet in California each and every defendant—not merely the last in this artificial sequence—is constitutionally entitled to trial by a jury drawn from a representative cross-section of the community.
Moreover, even if we consider only the defendant who believes himself in a position to invoke the exception suggested in Swain, we see that his attempt to comply with the federal standard of proof is bound to fail. The defendant is party to only one criminal proceeding, and has no personal experience of racial discrimination in the other trials held in that court. Nor can he easily obtain such information, for several reasons: First, those defendants who are indigent or of limited means cannot afford to pay investigators to develop the necessary data. Second, even if the funds were available—or the public defender‘s office were willing and able to
Rather, the defendant would be required to somehow obtain and analyze the records of an undetermined number of individual trials in the hope of finding a pattern of abuse among the many peremptory challenges there exercised by the People. But he would have no practical way of discovering which of the excused jurors were black, or of proving their race even if he could learn of it; nor, for the same reasons, could he discover and prove the race of each of the previous defendants and their victims. And even if he could somehow show such a pattern at the hands of certain prosecutors, what of other prosecutors who had more recently joined the local district attorney‘s office? Would they be immunized from any inquiry until they had made a “record” of such discrimination? If so, how many “free” unrepresentative juries would each be entitled to?
That these are not fanciful concerns is dramatically demonstrated by the history of attempts by black defendants to meet the Swain burden of proof. Those attempts, in both federal and state courts, were recently reviewed in some detail (Annot., Use of Peremptory Challenge to Exclude from Jury Persons Belonging to a Class or Race (1975) 79 A.L.R.3d 14, 56-73), and the author concluded (at p. 24) that in the 10 years since Swain “in all of the cases involving this issue thus far, all of which have dealt with blacks as the group peremptorily challenged, no defendant has yet been successful in proving to the court‘s satisfaction an invidious discrimination by the use of the peremptory challenge against blacks over a period of time.” (Italics added; fn. omitted.) The California experience has been identical: numerous decisions of the Court of Appeal have adopted the Swain burden of proof; numerous black defendants have attempted to comply with it, but none has succeeded.35
In view of our disposition herein it is unnecessary to reach defendants’ additional contentions.
The judgments are reversed.
Tobriner, J., Manuel, J., and Newman, J., concurred.
BIRD, C. J., Concurring.—I agree with the result reached by the majority that the state‘s use of peremptory challenges to remove prospective jurors on the sole ground of race violates the right to trial by jury drawn from a representative cross-section of the community under
In my opinion when a lawyer during the course of a civil or criminal trial exercises a peremptory challenge he is not accountable for his decision to anyone. This has been axiomatic for many years both in the United States generally and in California. As to criminal cases the rule is cemented in
The majority accepting, as it must, the statutory definition of a peremptory challenge contained in
Ostensibly, the new principles which the majority adopts are necessary to “vindicate” a defendant‘s right to an impartial jury. I believe the concepts advanced by the majority are wholly antithetic to procedural rules which governed civil and criminal trials for many years. Further, rather than guaranteeing an impartial trial, I think the only guarantee is that the present lengthy process of voir dire will be rendered lengthier still. In my opinion, the majority position is wrong in concept and will prove illusory and unworkable in application.
Preliminarily, two important features of the majority‘s holding should be stressed and their implications fully understood in evaluating both its wisdom and its reach. First, it applies in criminal cases to both prosecution and defense. (Ante, p. 276.) Second, although the majority limits application of the new principles to criminal cases and leaves “to another day” a determination of whether the new rules apply to civil cases, the “functions” of a jury, which the majority treats as controlling, seem remarkably similar in civil and criminal cases, leading me to conclude that, given the issue in a civil context, the majority will reach the same result. This probability underscores the seriousness of the sweeping procedural changes today worked by the majority.
Referring to the peremptory challenge, the Swain court said: “The function of the challenge is not only to eliminate extremes of partiality on both sides, but to assure the parties that the jurors before whom they try the case will decide on the basis of the evidence placed before them, and not otherwise. In this way the peremptory satisfies the rule that ‘to perform its high function in the best way “justice must satisfy the appearance of justice.“’ [Citation omitted.]” (P. 219 [13 L.Ed.2d p. 772].) “The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court‘s control. [Citations omitted.] While challenges for cause permit rejection of jurors on a narrowly specified, provable and legally cognizable basis of partiality, the peremptory permits rejection for a real or imagined partiality that is less easily designated or demonstrable. [Citation omitted.]... [A peremptory challenge] is no less frequently exercised on grounds normally thought irrelevant to legal proceedings or official action, namely, the race, religion, nationality, occupation or affiliations of people summoned for jury duty. For the question a prosecutor or defense counsel must decide is not whether a juror of a particular race or nationality is in fact partial, but whether one from a different group is less likely to be. . . . Hence veniremen are not always judged solely as individuals for the purpose of exercising peremptory challenges. Rather they are challenged in light of the limited knowledge counsel has of them, which may include their group affiliations, in the context of the case to be tried.” (Pp. 220-221 [13 L.Ed.2d pp. 772-773], italics added.)
By its decision in Swain the United States Supreme Court recognized that in the appropriate circumstances the race as well as religion, sex, nationality, occupation, or affiliation of prospective jurors are trial-related considerations which may constitute proper reasons for the exercise of the peremptory challenge.
We ourselves have consistently followed Swain and have denied hearing in several recent cases raising the precise present contention. (See People v. Allums (1975) 47 Cal.App.3d 654, 663-664 [121 Cal.Rptr. 62], hg. den., cert. den., 423 U.S. 934 [46 L.Ed.2d 266, 96 S.Ct. 291] [defendant must show systematic exclusion of blacks “over a period of time“]; In re Wells (1971) 20 Cal.App.3d 640, 647-648 [98 Cal.Rptr. 1], hg. den. [same].) Moreover, the majority errs in suggesting that the issue is one of first impression. Indeed, we have quoted from Swain with approval in rejecting a similar contention regarding the prosecutor‘s use of peremptory challenges to exclude jurors with negative views concerning the death penalty. (People v. Floyd (1970) 1 Cal.3d 694, 727 [83 Cal.Rptr. 608, 464 P.2d 64].)
In Floyd, we carefully explained that “we cannot engage in conjecture regarding the prosecutor‘s reasons for exercising some of his peremptory challenges. . . . Instead, we must assume ‘that the prosecutor is acting on acceptable considerations related to the case he is trying, the particular defendant involved and the particular crime charged.’ [Citing Swain.] Swain held that the prosecutor could properly exclude all Negroes from a particular jury, regardless of the factual basis for his belief that such jurors, either as individuals or as a class, might be biased in the particular case to be tried. As the court stated, ‘In the light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the Constitution requires an examination of the prosecutor‘s reasons for the exercise of his challenges in any given case.’ [Citing Swain.]” (People v. Floyd, supra, at pp. 727-728, italics added.)
The majority now insists that the petit jury exhibit the same “representative” characteristics which heretofore have been required exclusively of the jury pool or jury venire. This is a totally novel proposition and makes for unwieldy, unworkable results. Without exception all of the authorities relied upon by the majority involve the compositions of grand juries or jury venires. The salutary principles
I suggest that the foregoing Taylor rule is the only feasible rule, given the element of chance which necessarily, and properly, is injected in the process through use of the jury wheel. For although the jury panel sitting in the courtroom may reflect to perfection the economic, social, occupational, sexual, religious, and cultural community from which it is drawn, once the jury wheel is turned and the first names are drawn the situation is changed. Fate takes a hand. The first 12 names drawn may be all men, or all women, all black or all white, all from the poor, or from the wealthy class. The exercise of the peremptory challenge by both sides is directed to 12 persons who may not be, at any given time, “representative” of either the community or the venire. It is not the true function of peremptories to “restore” any balance, but rather, to the extent humanly possible to attain impartiality. Thus the true rule and goal should be that while the jury venire, or pool, or reservoir must be “representative” the trial jurors must be “impartial.”
Henceforward, under the majority‘s holding any peremptory challenge “on the ground of group bias” will be deemed to violate the right to a jury trial under the California Constitution because it does not permit “a jury drawn from a representative cross-section of the community.” (Ante, p. 277.) I find no legal precedent for such a proposition. In any event, the majority now insists “that a party is constitutionally entitled to a petit jury that is as near an approximation of the ideal cross-section of the community as the process of random draw permits.” (Ante, p. 277, italics added.)
Dissension, to the extent that it reflects only a clash of the “respective biases” of individual jurors, is no guarantee whatever of impartiality. Impartiality is not assured by balancing “biases.” Quite the opposite. Such disagreement may indicate that individual prejudices so control the jurors that they are incapable of viewing the issues before them dispassionately. Such disharmony may make a unanimous verdict an impossibility from the outset thus rendering the criminal trial a futile exercise. Surely, one of the specific purposes of voir dire is to allow counsel to identify those in the venire whose biases hold such sway over their thinking and to eliminate them from the jury.
In Ginger, Jury Selection in Criminal Trials (1975), one informed source is noted at page 281: “The real and realistic aim of our jury selection method is not to achieve the impossible complete impartiality but rather to minimize the range of predispositions that may influence the jury‘s verdict. Conceptually, we can rank the members of a jury venire in a spectrum that ranges from those most predisposed toward the plaintiff to those most predisposed toward the defendant. The purpose of the voir dire proceedings is to eliminate from the jury that will sit on the case the extreme positions on both sides of the spectrum.”
A heavy responsibility rests upon a trial lawyer in a criminal case, whether prosecution or defense. The factors which prompt counsel to exercise a peremptory challenge may be very subtle. The lawyer‘s antenna is alert for signals. The prospective juror‘s hesitancy in answer, the tone of the voice, the nature of the response, whether warm or metallic, a stare, a set of the jaw, a partial smile or frown, may be revealing to a seasoned lawyer. These physical signs will not appear in a cold record.
Counsel, knowing the issues and witnesses, the probable evidentiary flow and interplay of emotion, and the strength and weaknesses of his case and that of his opponent, may believe that his client may get more or
The majority, commendably, recognizes that the real difficulty with its formulation is reached when it considers the matter of the “remedy.” These difficulties inhere in requiring judges at the voir dire phase of trial to examine the validity of the subjective motives of counsel in exercising peremptory challenges. With due respect, I suggest that what the majority proposes as a simple straightforward test will, in fact, become all too frequently a time consuming inquiry leading the court, counsel, and litigants into procedural quicksand and a quagmire of questionable efficacy. The majority requires that the challenger‘s opponent “show a strong likelihood” that group associations alone are the basis of the complained of challenge. The court must then determine whether a “reasonable inference” arises that the challenges are improperly motivated. If a “prima facie” case has been made, the “burden” shifts to the other side to show that the challenges were exercised on grounds “reasonably relevant” to the particular case.
I believe the foregoing proposed test is so vague as to constitute no standard at all. Could not a prosecutor, for example, carry his burden in this regard merely by declaring that his challenges were based upon such considerations as the economic or social (as opposed to racial) backgrounds of those challenged, or some subjective, unprovable suspicion of sympathy for the defendant?
Furthermore, the majority suggests that the foregoing tests may be met by a showing that “most or all of the members of the identified group” (ante, p. 280) have been challenged or that a “disproportionate number” of peremptory challenges have been directed at the group, or that counsel‘s voir dire of the challenged group has been “desultory.” The mere recitation of the following three examples illustrates the difficult burdens which the majority has imposed. If the victim in a robbery case is elderly and the contention is that the young have been systematically challenged, a statistical age profile of the venire would have to be compiled and
The majority‘s rules place the court in a difficult, indeed precarious, position. It is a fundamental principle of our trial system that it is the litigants who pick, and must be satisfied with, the jury. The court can rarely have the intimate knowledge of the case possessed by the parties and a jury with which the court is happy may not be a jury with which either the district attorney or the defense can reasonably be comfortable or satisfied.
In the event either prosecutor or defense counsel has improperly exercised a peremptory challenge, the jurors theretofore chosen are to be dismissed along with the entire remaining venire. The majority deems the foregoing a sufficient deterrent to “the abuses of the peremptory challenge,” adding, “if experience should prove otherwise it will be time enough then to consider alternative penalties.” (Ante, p. 282.) The ominous overtones of this warning will not be lost on counsel, both prosecution and defense.
Unlike almost every other area of the criminal justice system in the matter of jury selection there is no inherent or gross disparity between the power and the resources of the People and those of the defense. Each side has an equal opportunity to challenge and the end result is the most satisfactory jury that can be drawn from the venire, for it is not only the fact but the appearance of prejudice which may disqualify a juror. It is the probable rather than the provable fact of prejudice which impairs the legitimacy of the jury. In the matter before us there is no suggestion that the jury was not impartial. On the contrary, the record indicates that defendants did not exhaust their peremptory challenges. Although the
There is a clear salutary effect which peremptory challenges have in assuring an impartial petit jury. The challenge is an important tool for trial lawyers who, bearing heavy responsibilities to their clients, should remain free and unfettered to do their essential job. The legal precedents, notably Swain, are compelling. The practical difficulties in administering the majority‘s scheme are complex.
I would affirm the judgment.
Clark, J., concurred.
The petitions of all the parties for a rehearing were denied October 25, 1978. Clark, J., and Richardson, J., were of the opinion that the respondent‘s petition should be granted.
Notes
That right is paramount because the peremptory challenge is not a constitutional necessity but a statutory privilege. The point was made with characteristic clarity by Justice (then Presiding Justice) Sullivan, writing for the court in People v. King (1966) 240 Cal.App.2d 389 [49 Cal.Rptr. 562, 21 A.L.R.3d 706]. After reviewing numerous statements in federal and state decisions on the origins and importance of the peremptory challenge, Justice Sullivan concluded: “Notwithstanding such distinguished ancestry and respected career, neither the United States Constitution nor the Constitution of California in their respective provisions securing to the accused his right to trial by jury (
Although in the present appeal the Attorney General for obvious reasons does not claim the right to object to the same misuse of peremptory challenges on the part of defense counsel, we observe for the guidance of the bench and bar that he has that right under the constitutional theory we adopt herein: the People no less than individual defendants are entitled to a trial by an impartial jury drawn from a representative cross-section of the community. Furthermore, to hold to the contrary would frustrate other essential functions served by the requirement of cross-sectionalism. (See fn. 6, ante.) For example, when a white defendant is charged with a crime against a black victim, the black community as a whole has a legitimate interest in participating in the trial proceedings; that interest will be defeated if the prosecutor does not have the power to thwart any defense attempt to strike all blacks from the jury on the ground of group bias alone.
We do not reach, however, the question of the applicability of this decision to civil cases. Although