California jury commission calls for smaller panels, more involved jurors.

The Judicial Council of California is expected to name an Implementation Task Force this month to oversee progress on far-reaching proposals for change that were recommended by the state's Blue Ribbon Commission on Jury System Improvement.

Most of the 60 recommendations reported to the council on May 17 were simply parceled out to committees for further consideration. Changes that require legislative action were not formally recommended until July 12, long after the California Senate had withdrawn bills set aside for court reform this year. (Mike Lewis, July Reform Efforts Fail in State Senate, L.A. Daily J., June 17,1996, at 1.)

The most controversial proposals made by the Blue Ribbon Commission are those calling for smaller juries, fewer peremptory challenges, and majority (not unanimous) verdicts in some criminal cases. All three proposals are opposed by the Consumer Attorneys of California.

The commission's report claimed that "the jury system in California is on the brink of collapse," because dissatisfied prospective jurors are simply "refusing to show up for jury duty when called." The Los Angeles Superior Court recently imposed a $1,500 fine on residents who fail to answer jury summonses.

Many recommendations deal with ways to increase the size and diversity of the jury pool, respond to juror complaints, and improve the public's overall perception of jury duty.

Other recommendations seek to improve jurors' performance and their understanding of the trial process. For example, the commission recommended that

* jurors be allowed to take notes during a trial;

* jurors be allowed to submit written questions for witnesses still on the stand; judges instruct jurors at the outset of trials to improve their understanding of legal issues;

* attorney's develop glossaries of terms in complex cases; and

* a task force be charged with developing instructions that jurors can understand.

These proposals are modeled on changes to court rules made recently in Arizona. In fact, a proposal to allow jurors to discuss matters among themselves before formal deliberation is contingent on review of Arizona's experience with a similar rule. (Arizona Courts Implement Far-Reaching Jury Changes, TRIAL, Jan. 1996, at 79.)

The commission also recommended that juries be reduced from 12 to 8 jurors in certain civil cases and misdemeanor criminal cases. The Consumer Attorneys of California, in a minority report that was appended to the commission report, argued that reducing jury size abridged a citizen's constitutional right to a trial by jury. "Although this constitutional right may be waived by the party, [it] cannot be limited due to the state's interest to save money."

The reliability of smaller juries was questioned because the smaller jury could be more easily dominated by a single juror, and cost savings were described as negligible. "There is virtually nothing to be gained by changing the number and much to be lost," the attorneys said.

The commission also recommended that fewer peremptory challenges be allowed each side in criminal and civil cases. The California attorneys argued that peremptory challenges are already limited in number and that there are safeguards against abusing them. The California District Attorneys Association also opposed this proposal.

With reference to majority verdicts, the Judicial Council forwarded to the state legislature, without expressing its support, a recommended constitutional amendment allowing trial judges to accept an 11-1 verdict in felony cases except those where punishment may be death or life imprisonment.

The issue concerns only criminal cases, since California already allows three-quarter majority verdicts in civil actions. Proponents of eliminating the unanimity requirement say a significant number of hung juries are caused by one or two jurors intent on nullification.

In their dissent, California attorneys pointed to a Los Angeles Country Public Defender study showing that only 11 percent of hung juries between 1985 and 1995 hung at 11-1 or 10-2. Of the hung cases that were retried, more than half resulted in acquittal or a second hung jury "Eliminating deliberations because a plurality reaches a verdict," the attorneys said, "increases the likelihood of convicting innocent people."

A copy "Report of the Blue Ribbon Commission on Jury System Improvement" can be obtained from the Judicial Council of California, 303 Second St., South Tower, San Francisco, CA 94107; [phone].