Gregory L. Prickett
Judge, Orange County Superior Court
The objective of this article and self-study test is to review the law regarding excusing jurors for cause during jury selection. Readers will learn about the grounds for challenges for cause, including general disqualification, implied bias and actual bias. Readers will also learn about death penalty qualification of potential jurors, and appellate review of judges' rulings regarding excusing jurors for cause.
Overview
A challenge of a juror for cause may be based upon actual or implied bias. Code Civ. Proc., Section 225(b)(1)(B), (C). (All statutory references hereafter are to the Code Civil Procedure.) A challenge may also be based on the fact that a juror falls within the general disqualification list in Section 203, including not being a United States citizen. Sections 203(a)(1); 225(b)(1)(A).
In addition, jurors may be excused based on hardship. Section 204(b). Jurors can be excused on this basis for many reasons, including (1) lack of transportation to court; (2) having to travel an excessive distance; (3) "The prospective juror will bear an extreme financial burden"; (4) undue risk of material injury to juror's property due to service; (5) having a physical or mental disability that exposes the juror to harm due to service; (6) the juror is immediately needed and indispensable for protection of public health and safety; and (7) the juror has a personal obligation to take care of another person and no substitute care is available or practical. Cal. Rules of Court, rule 2.1008(d). Appellate courts have "repeatedly rejected any claim that a trial court's policy of freely excusing prospective jurors for financial hardship deprives a [criminal] defendant of his [or her] right to a fair and impartial jury." People v. Burgener, 29 Cal. 4th 833 (2003).
Trial courts and lawyers should also be aware of Section 219(b). This section provides no "peace officer" "shall be selected for voir dire in civil or criminal matters." The statute refers to definitions of a "peace officer" in statutes that include police, sheriffs, California Highway Patrol officers, and others. Section 219 (b)(1), (2).
General Disqualification
Potential jurors are excused based on general disqualification grounds by the trial court's jury commissioner. People v. Eubanks, 53 Cal. 4th 110 (2011). But, even when a jury commissioner does not excuse a juror for general disqualification, the judge may excuse the juror for cause on these grounds. See Sections 225(b)(1)(A), 228(a); People v. Moreno, 192 Cal. App. 4th 692 (2011).
Section 203(a), lists jurors not qualified to serve: "(1) Persons who are not citizens of the United States. (2) Persons who are less than 18 years of age. (3) Persons who are not domiciliaries of the State of California .... (4) Persons who are not residents of the jurisdiction wherein they are summoned to serve. (5) Persons who have been convicted of malfeasance in office or a felony, and whose civil rights have not been restored. (6) Persons who are not possessed of sufficient knowledge of the English language .... (7) Persons who are serving as grand or trial jurors in any court of this state. (8) Persons who are the subject of conservatorship."
Implied and Actual Bias
Implied bias is "when the existence of the facts as ascertained, in judgment of law[,] disqualifies the juror." Section 225(b)(1)(B). Section 229 limits the causes for which a challenge for implied bias may be made to those set forth in that section. See People v. Holt, 15 Cal. 4th 619 (1997).
Section 229, provides a challenge for cause may be taken for any of specified reasons, including,
"(a) Consanguinity or affinity within the fourth degree to any party ....
"(b) Standing in the relation of, or being the parent, spouse, or child[,] ... master and servant, employer and clerk, landlord and tenant, principal and agent, or debtor and creditor, to either party or to an officer of a corporation which is a party, or being a member of the family of either party ....
"(c) Having served as a trial or grand juror or on a jury of inquest in a civil or criminal action or been a witness on a previous or pending trial between the same parties ....
"(d) Interest on the part of the juror in the event of the action ... , except his or her interest as a member or citizen or taxpayer ....
"(e) Having an unqualified opinion or belief as to the merits of the action founded upon knowledge of its material facts or of some of them.
"(f) The existence of a state of mind in the juror evincing enmity against, or bias towards, either party.
"(g) That the juror is party to an action pending in the court for which he or she is drawn and which action is set for trial before the panel of which the juror is a member.
"(h) If the offense charged is punishable with death, the entertaining of such conscientious opinions as would preclude the juror finding the defendant guilty; in which case the juror may neither be permitted nor compelled to serve."
Actual bias is "the existence of a state of mind on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party." Section 225(b)(1)(C).
Death Penal Cases
As noted above, Section 229(h), expressly allows a juror to be excused in a death penalty case based on his or her opinions about capital punishment. "A trial court may excuse for cause a prospective juror who on voir dire expresses views about capital punishment, either for or against, that would prevent or substantially impair the performances of the ... juror's [duties]. The determinative question is whether the juror's views on the death penalty would prevent or impair the juror's ability to return a verdict of death in the case before the juror." People v. Carey, 41 Cal. 4th 109 (2007).
However, "'[d]ecisions of the United States Supreme Court and [the California Supreme Court] make it clear that a prospective juror's personal conscientious objection to the death penalty is not a sufficient basis for excluding that person from jury service in a capital case.'" People v. Wilson, 44 Cal. 4th 758 (2008). Wilson pointed out, "In Lockhart v. McCree (1986) 476 U.S. 162, 176, ... the high court observed that 'not all those who oppose the death penalty are subject to removal for cause in capital cases; those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they clearly state that they are willing to temporarily set aside their own beliefs in deference to the rule of law.'" See also People v. Kaurish, 52 Cal. 3d 648 (1990).
"Trial courts should be evenhanded in their questions to prospective jurors during the 'death-qualification' portion of the voir dire, and should inquire into the jurors' attitudes both for and against the death penalty to determine whether these views will impair their ability to serve as jurors." People v. Abel, 53 Cal. 4th 891 (2012).
Appellate Review
The defense must "'make either a timely objection, or the functional equivalent of an objection, such as a statement of opposition or disagreement, to the excusal stating specific grounds ... in order to preserve the issue for appeal.'" People v. Souza, 54 Cal. 4th 90, 127 (2012).
Moreover, "a defendant challenging on appeal the denial of a challenge for cause must fulfill a trio of procedural requirements: (1) the defense must exercise a peremptory challenge to remove the juror in question; (2) the defense must exhaust all available peremptory challenges; and (3) the defense must express dissatisfaction with the jury as finally constituted." People v. Weaver, 26 Cal. 4th 876 (2001); People v. Clark, 63 Cal. 4th 522 (2016). To preserve an issue on appeal, a defendant may be forced to use a peremptory challenge on a juror that should have been excused for cause. See People v. Gordon, 50 Cal. 3d 1223 (1990). But, such a loss of a peremptory challenge provides "'grounds for reversal only if the defendant exhausts all peremptory challenges and an incompetent juror is forced upon him.'" People v. Hillhouse, 27 Cal. 4th 469 (2002). "So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean" a constitutional violation occurred. People v. Farley, 46 Cal. 4th 1053 (2009).
A court's ruling on a challenge for cause is reviewed on appeal for abuse of discretion, and will be upheld if the juror's statements on voir dire support the court's finding as to whether the juror was biased. People v. Jiminez, 11 Cal. App. 4th 1611 (1992). If the prospective juror's responses to voir dire questions were conflicting or equivocal, the trial court's determination of the juror's true state of mind is binding upon the reviewing court. People v. Bradford, 15 Cal. 4th 1229 (1997); accord People v. Mayfield, 14 Cal. 4th 668 (1997).