New California Law Aims to Correct Unconscious Bias in Jury Selection
By Maxwell Nelson
Following the controversial removal of a juror from a 2016 Contra Costa murder trial for her support of Black Lives Matter, a new California law would require courts to consider unconscious bias when attorneys appear to exclude specific groups during jury selection.
The new law, AB 3070, will apply to jury selection for criminal trials beginning January 1, 2022, but will not apply to civil cases until January 1, 2026.
Under current California law, attorneys are prevented from removing jurors on the basis of sex, race, religion, or other immutable characteristics. However, under this law, the trial judge must find that the attorney intentionally removed the juror on this basis.
Alternatively, AB 3070 will require courts to consider unconscious bias against “race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups” when determining unlawful removal of a juror.
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When signing AB 3070 into effect, Governor Gavin Newsom said, “[a]s a nation, we can only truly thrive when every one of us has the opportunity to thrive. Our painful history of slavery has evolved into structural racism and bias built into and permeating throughout our democratic and economic institutions.”
In California civil and criminal trials, attorneys may raise a limited number of peremptory challenges to remove jurors who may not be impartial. Peremptory challenges are different from “for-cause” challenges because an attorney does not need a particular reason, or “cause,” to remove a given juror. However, if it is believed that an attorney has removed a juror due to their race, opposing counsel can challenge that removal.
California’s current procedure for determining racially-motivated peremptory challenges derives from the state Supreme Court decision in People v. Wheeler.
Objecting attorneys are first required to make a prima facie showing of purposeful discrimination by opposing counsel. If the trial judge finds that a prima facie showing is successfully made, the burden then shifts to opposing counsel to produce evidence that the peremptory challenge was made for a race-neutral reason. The trial judge must then determine the validity of that reason.
Under the new law’s procedure, attorneys will be required to state the reasons for their peremptory challenge and the trial judge will determine whether there is a “substantial likelihood that an objectively reasonable person” would view unconscious bias as a factor in the peremptory challenge.
Professor Elisabeth Semel of Berkeley Law’s Death Penalty Clinic worked with lawmakers on drafting AB 3070 and describes the new law as a major change from California’s current law.
“The reasons [attorneys] are giving are not necessarily intentionally discriminatory, but they are very often related to racial stereotypes or ethnic stereotypes, and at the very least, are the product of implicit bias,” Semel said.
Semel said that while the neighborhood a juror lives in or their demeanor are common, “race-neutral” reasons attorneys give for removing jurors, attorneys are often motivated by implicit bias. Such reasons are what Semel refers to as proxies for race because they tend to reflect typical racial differences.
Semel said a peremptory challenge on the basis of supporting Black Lives Matter would likely be presumptively invalid under AB 3070. Among other reasons, the new law presumes bias when a juror is removed for expressing concerns or opinions about racially motivated conduct by law enforcement or the criminal legal system.
“As a pure statistical matter, if you are African American you will have a much higher likelihood of being stopped or being arrested or being prosecuted or having someone in your family who’s had that experience. So these reasons are not [race] neutral,” Semel said.
Daniel Okonkwo, Santa Clara County Supervising Deputy District Attorney, said he hopes removal of a juror for their support of Black Lives Matter would not occur in Santa Clara County.
“To challenge a juror that they can't be fair because they say that Black Lives Matter is, from my vantage point, and not just because I'm an African American, absurd,” Okonkwo said. “I think it comes down to an office’s philosophy and the individual prosecutor’s philosophy.”
As for AB 3070, Okonkwo said he was not familiar enough with the new law to comment on it, but thinks these kinds of issues can be difficult to regulate.
“Legislating implicit bias seems a little tricky, as to how it can be determined, and whether the challenge was made with implicit bias,” Okonkwo said.
However, Okonkwo does believe that removing a juror for supporting Black Lives Matter may indicate bias.
“The [district attorney] that says that the term Black Lives Matter means that you can’t be fair to police is probably coming in with a significant amount of bias already,” Okonkwo said.
Ellen Kreitzberg, Professor at Santa Clara University School of Law, supports AB 3070 and believes there needs to be a heightened check on the unconscious biases of attorneys during jury selection than what the current law provides.
“Even a well-intentioned, well-meaning, thoughtful prosecutor may exercise his or her peremptory challenges in a discriminatory manner without that intent. And then the outcome would be one that the courts and our society can’t really condone,” Kreitzberg said. “We are all vulnerable to our implicit biases. And we're all vulnerable to making assumptions or presumptions about people, often without even realizing it.”
Both Kreitzberg and Semel agree that AB 3070 will make it easier on trial judges who rule on whether a peremptory challenge is racially-motivated. Semel said this is because the purposeful discrimination standard, as opposed to the unconscious bias standard, creates the perception that judges are ruling on whether or not the prosecutor is racist.
Kreitzberg also said she sees AB 3070 as correcting two violations that derive from improperly using peremptory challenges to remove potential jurors for race-based or race-related reasons.
“One, we have a criminal defendant who's being deprived of a jury that represents that fair cross section of the community. But we also have a violation against that potential juror, that person has been removed from the courtroom, and has not been allowed to participate in the jury process,” Kreitzberg said.
For her part, Semel said she sees AB 3070 as a step toward wider changes needed to address systemic racism.
“We’re in a political moment,” Semel said. “We’re in a cultural moment. I don’t want to say awakening, but hopefully reawakening to the profound inequities in so many aspects of our system. So to do something that is meaningful and systematic to change the way in which strikes are exercised seems to be a move that the legislature should have made.”
(Editor's Note: This article was originally published in the October 2020 [Volume 51, Issue 1] edition of The Advocate.)