Despite time constraints imposed on the 2020 legislative session by the COVID-19 pandemic, the California legislature passed three major criminal justice reform bills this year which address racial discrimination in jury selection, the criteria for evaluating intellectual disability in death penalty cases, and racial bias in criminal prosecutions. On September 30, 2020, California Governor Gavin Newsom signed each of the following landmark pieces of legislation into law.
Assembly Bill 3070 -– Juries: peremptory challenges
AB 3070 increases transparency in jury selection by requiring attorneys exercising peremptory strikes to show clear and convincing evidence that their action is not related to the potential juror’s group identity. AB 3070 will take effect in criminal trials beginning on January 1, 2022, and in civil trials beginning on January 1, 2026.
This legislation formalizes and expands upon federal precedent prohibiting the exclusion of jurors from jury service on the basis of race, sex, or membership in another protected class. In the 1986 landmark case Batson v. Kentucky, the U.S. Supreme Court ruled that it is unconstitutional for the government to use peremptory challenges to exclude jurors on the basis of race. However, evidence that jurors of color are still being disproportionately excluded from jury pools has prompted many lawyers, scholars, and policymakers to question if the standards and procedures set by Batson are capable of effectively eliminating racial discrimination in jury selection.
In California, an attorney must follow three steps to challenge a jury strike under Batson: (1) she must argue that the strike in question is invalid because it is being made against a juror in a suspect class with discriminatory intent; (2) the State must then offer a neutral justification for challenging the juror; and (3) the trial court must assess the State’s rationale and decide whether the defendant has proven purposeful discrimination. AB 3070 addresses a question commonly raised regarding step two: what should qualify as an acceptably “neutral” justification for striking the juror?