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Will Goal of Efficiency Trump Justice?

June 23, 2002|ALEX RICCIARDULLI | Alex Ricciardulli is a Los Angeles County deputy public defender and adjunct professor at Loyola Law School.

To satisfy the huge appetite for jurors under the one-day, one-trial rule, Los Angeles County courts have embarked on a path that could undermine the right to jury trial in both civil and criminal cases. One of the first steps has been to try to accelerate trials by curtailing attorneys' ability to question potential jurors for fairness and impartiality during jury selection. With the courts favoring such measures as eliminating jury trials for some cases, the question is whether they are on a slippery slope to impaired standards of justice.

The one-day, one-trial system commendably reduces the burden on individuals called for jury duty, a vast improvement over its nightmarish predecessor. No more forced congregation in stuffy jury-assembly rooms waiting for the call of public service; no more second and third chances after rejection; no more shuffling from courtroom to courtroom, day after day. Individuals could spend up to 10 days in this mill, never serving on a jury. For most, the experience left a bitter aftertaste.

Under the new regimen, anyone not chosen to serve on a jury the first day is excused from serving again for at least a year. Anyone selected for a jury must serve until the trial is completed, but this is not as bad as it sounds because most trials usually end within a week.

The problem is, without the ability to recycle potential jurors from one day to the next, many more people than ever will have to be summoned. From Pomona to Santa Monica and Lancaster to Long Beach, L.A. County provides courtrooms for more than 9.5 million people. This is the largest court system in the U.S., if not the world. It is estimated that 10,000 people will need to be called each week to keep one-day, one-trial humming, an enormous requirement that makes attempts to ease the demand for warm bodies entirely understandable.

Minimizing attorney voir dire, however, is a move in the wrong direction. Under the courts' new rule, the judge would conduct the questioning, with attorneys getting 10 minutes per side to ask questions in misdemeanor cases and 20 minutes for felonies. In civil cases, attorney voir dire would be limited to 20 to 30 minutes for each side. That works out to fewer than two minutes per juror in felony trials, hardly enough time to ask meaningful questions, let alone to receive answers.

The anti-attorney voir dire protocol is largely a rerun of the disastrous 10-year experiment inaugurated by Proposition 115 in 1990, under which judges in criminal cases did all the questioning. Prosecutors and defense attorneys complained that the system resulted in incomplete questioning, leaving parties mostly in the dark about the composition of juries. The outcome was legislation, effective last year in L.A. County, that provides parties in all trials the "right to examine, by oral and direct questioning, any or all of the prospective jurors."

One reason attorney voir dire was restored was the perception that the number of hung juries had increased after judges did all the questioning. Deprived of voir dire, parties were unable to ferret out potentially aberrant jurors. It would be the height of irony if the new attempt to shave off trial minutes resulted in days or weeks of jury time being wasted because of hung juries. Such an outcome would be financially devastating to clients of civil practitioners, who would get stuck with the bills for additional time spent by their lawyers in retrials.

The efforts of a Blue Ribbon Commission on Jury System Improvement in 1996 may be a harbinger of more changes in the name of efficiency. The commission, which included practicing attorneys but was led by judges, called upon the justice community "to make individual sacrifices that will redound to the benefit of all" and acknowledged that some of its recommendations "may create discomfort among one or more groups." Included were proposals to eradicate jury trials for misdemeanors not carrying jail time; reducing the size of juries from 12 to eight in some cases; and allowing nonunanimous--11 to 1--jury verdicts.

Yet, these and other changes to speed up trials would be outweighed by the ensuing detriment to justice. Wiping out jury trials for any cases is a dreadful idea. The right to a trial before a jury is embedded in the nation's culture and confers legitimacy on the criminal trial process. Reducing juries' size would profoundly affect the diversity of jury panels, because fewer jurors means fewer opportunities for minorities to serve. Allowing nonunanimous verdicts would dangerously dilute the importance of jurors' individual opinions.

Given the expected popularity of one-day, one-trial, the system is probably here to stay, and ways should be found to keep pace up with its demands. The focus, however, should be on increasing the supply of jurors, rather than limiting their demand.

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