People v. Crowe

MOSK, J.

I dissent.

Paying obeisance to the gods of expediency and temporal economy, the People would reduce jury selection in criminal cases to a wooden process, ritualistic in form, ineffectual in practice, haphazard in result. I concede that examples may be found of imposition upon court and jury time by repetitive voir dire examination. I do not agree that judges are impotent to curb this abuse by methods short of totally eliminating the right of participatory interrogation by counsel. And I do not agree that Penal Code section 1078, or any other statute, authorizes such draconian procedure by a trial court.

The legislative history of section 1078 is recorded in the majority opinion. (Ante, pp. 821-823.) As originally proposed in 1927, the statute would have vested in the trial judge the discretion whether to permit reasonable examination of prospective jurors by counsel for the People and for the defendant. But the Legislature deliberately rejected the proposal, eliminated the reference to a discretion in the trial judge, and with pointed emphasis declared the latter shall permit reasonable examination by counsel. The Code section has remained unchanged since 1927.1

Despite this unmistakable indication of legislative intent, the Attorney General asserts through strange and convoluted reasoning that “shall” is not mandatory and that the trial court nevertheless retains discretion to prohibit interrogation of prospective jurors by counsel because—mirabile dictu— “examination” as used in the code does not mean oral examination. I admire the originality of the concept, but its tortured logic escapes me.

*835A trial is “a communicative process.” (Frank, Courts on Trial (1949) p. 186.) “Examination” has always been defined to include “interrogation.” (Bouvier's Law Dict. (Rawle 3d rev. 1914) p. 1107.) Black describes “examination” as a series of questions put to a person by a party or his counsel for the purpose of bringing knowledge before the court. (Black's Law Dict. (4th ed. 1951) p. 664.) Ordinarily counsel produce knowledge for the court; under the inverse procedure approved here, the court is expected to produce knowledge for counsel.2

The majority raise a concursas horribilium over lengthy voir dire examination. Anyone with trial experience has suffered on occasion from unduly prolonged and therefore unreasonable voir dire proceedings, whether caused by design or ineptitude of counsel. But reasonable voir dire conducted by counsel is a significant phase of a jury trial and should not be cavalierly discarded because of impatience, frustration, or a catering to temerarious public mood. As Professors Zeisel, Kalven and Buchholz wrote in their study, Delay in the Court (1959), at page 103, “Voir dire has become a complex institution today and has in the eyes of the bar important functions other than the selection of jurors. The appropriate length for it therefore raises questions that go beyond those of simple efficiency.”

I pause first to stress the considered views of the organized bar. That the Attorney General is not speaking for the prosecutors of this state in defending the procedure adopted by this trial judge and approved by the majority is made crystal clear in the amicus curiae brief filed by the District Attorneys and County Counsels Association of California. The state’s prosecuting counsel vigorously oppose this effort to deny them the right to personally question prospective jurors, and adopt the explanation in People v. Adams (1971) 21 Cal.App.3d 972, 978 [99 Cal.Rptr. 122]: “Every experienced trial counsel knows that it is an unrealistic fiction to assume that a series of generalized questions asked by a trial judge of the jury panel as a whole can as effectively probe the recesses of a juror’s mind and determine his or her real attitudes and prejudices as can individual questions propounded by trial counsel. An attorney who is fully acquainted with his case and actively pursuing a determination as to the individual juror's actual state of mind is in a superior position to pursue the interrogation in particular areas; . . .”

Interrogation of prospective jurors is essential to the intelligent exercise of counsel’s rights to challenge. In the opinion of the district attorneys and *836county counsel, control over the manner in which proper questions are put, and the order in which the questions are asked, often will suggest reasons not exposed by the court’s interrogation for the exercise of challenges. Only the trial counsel has a grasp of the facts of the case sufficient to propound questions that might expose a subtle, previously undetected bias in the hidden recesses of a prospective juror’s mind. A judge could not know these facts prior" to trial of the case; indeed, if he does, he should be deemed disqualified.

At the opposite pole of the criminal bar the California Public Defenders Association also filed an amicus curiae brief, contending that to prohibit counsel from personally conducting reasonable voir dire in effect results in denial of the right to counsel. Experienced trial practitioners deem the. skillful use of voir dire during selection of a jury to be a valuable tool of the trade; to blunt or destroy that tool is tó restrict the effectiveness of representation by counsel.

While the public defenders’ contention that denial of oral voir dire is the equivalent of denial of counsel may be overstating the case, the undeniable fact is that this procedure will severely handicap counsel in exercising peremptory challenges. Eyeball-to-eyeball examination of a potential juror may lead counsel to believe the juror to be untruthful or evasive in his answers, or possibly to entertain some unexpressed hostility toward defense attorneys or prosecutors generally or toward the individual attorney involved. Counsel may suspect the potential juror to possess a latent prejudice against persons accused of crimes, against police, or to possess some other emotional bias that might make it difficult for the juror to be impartial.

If counsel is not permitted to rely on his impressions of the veniremen gained from personal interrogation, he will be compelled in exercising peremptory challenges to fall back on his own latent prejudices and biases, such as those against certain racial and ethnic groups, occupations, professions, financial status, social class, community of residence, and other factors that should be irrelevant, and could be made so by forthright responses from prospective jurors.

Dependence upon the trial judge alone, even when questions are submitted to him, to effectively probe into the sensitive areas of racial, cultural, and economic bias, displays majestic indifference to the realities of contemporary urban life. No well-intentioned but necessarily general inquiry by che court—such as, “Will you be prejudiced against the defendant because of his race or color?”—is likely to produce anything but a negative response. Skillful counsel, by contrast, might well be able to reveal in a *837venireman a deep-rooted aversion to unorthodox dress, speech patterns, or life style of ghetto residents of a particular race or color.3

To complete the near-unanimity of the antipathy of the profession to the procedure approved by the majority, the State Bar itself has opposed legislative restriction of section 1078. A resolution adopted by the Board of Governors in 1971 (No. 1-3) expresses its opposition for the following persuasive reason: “The contention that any applicable amount of time will be saved by severely restricting voir dire examination is more than out-weighed by the serious loss of opportunity for trial counsel to interrogate prospective jurors on a person-to-person basis. The trial judge cannot possibly be aware of the concerns of trial counsel in regard to what trial counsel feels he must know about prospective jurors.’’

I recognize that opinions of the bar, although persuasive on matters of practice, cannot be deemed controlling if unsupported by authority. Here, however, the decisions of this court both before and after adoption of section 1078 have directed trial judges to respect the right of counsel personally to interrogate prospective jurors. This right originated as early as 1855 (People v. Backus (1855) 5 Cal. 275), and was honored even during efforts of critical courts to limit voir dire to queries material to a challenge for cause. (People v. Edwards (1912) 163 Cal. 752 [127 P. 58].)

A year before section 1078 was enacted, we called it prejudicial error “for the court to refuse the appellant the right to examine the jurors. . . *838(People v. Carmichael (1926) 198 Cal. 534, 547 [246 P. 62].) Indeed, our opinion explicated at length the inadequacy of general questions asked by the court: “It is contended by the respondent on this hearing that the error of the court, if any such error was made, in refusing to permit appellant to examine the jurors regarding the result of the former trial and as to their state of mind upon learning of such result, if any of them had learned of said result, was cured by these general and special questions asked of the jurors. We are not certain that this is the case. The asking of a general question of a juror does not always direct his attention to all the elements which go to make up the subject matter of such question. For example, a juror in answer to a general question might state with perfect sincerity that he knew of no reason why he could not give the defendant a fair and impartial trial, but upon a further and more minute examination it might be shown that his conception of a fair and impartial trial for one who had been previously tried by a jury, ten of whom believed him guilty, differed in many material respects from that which, the law accords to all persons accused of crime. Furthermore, he might presume the defendant innocent until proven guilty, but his state of mind might be such that it would require less evidence to convince him of defendant’s guilt in a case where the latter had been previously tried with the result as above indicated, than if no previous trial had been had. He might be in perfect accord with the law which declares that a defendant shall not suffer conviction until proven guilty beyond all reasonable doubt, but having heard that the former jury stood ten to two for conviction, he might not feel called upon to scrutinize and weigh the evidence with that extreme care and caution which the law enjoins of every juror in passing upon the life and liberty of one against whom a criminal accusation has been made.” (Italics added.) (Id. at p. 545.)

After adoption of section 1078, the attitude of this court remained unchanged. In People v. Coen (1928) 205 Cal. 596, 605-606 [271 P. 1074], we found it “admittedly true that the trial court, in assuming to act in conformity with the provisions of section 1078 of the Penal Code as amended in 1927, did undertake at the outset of the examination of the prospective jurors in this cause to unduly limit the right of counsel for the defendant to conduct such reasonable examination of certain of the prospective jurors as is still permitted under the provisions of said amended section of the Penal Code, . . . We feel satisfied that the trial court unduly restricted the examination of the juror Smith in the foregoing regard, and that it also unduly restricted the right of counsel for the defendant to make similar inquiries of certain other of the prospective jurors who were among the twelve first called for examination.”

Again in People v. Barrett (1929) 207 Cal. 47, 49 [276 P. 1003], we reached a similar conclusion: “The effect of the trial court’s procedure in *839the matter of the examination of jurors on voir dire was to effectively stifle any attempted detailed examination of the talesmen by counsel for the purpose of developing possible grounds for challenge for cause, thus depriving appellant of the constitutionally guaranteed right of a trial by jury, including the right to the selection of a fair and impartial jury.” And in People v. Estorga (1928) 206 Cal. 81, 84 [273 P. 575], we said unequivocally: “The purpose of the statute, however, was not to bring about expedition by depriving either the People, or defendants charged with the commission of offenses, of the right of a reasonable examination of prospective jurors, and the Legislature was particular to provide for that right.”

Cases relied upon by the Attorney General fortify this dissent, not the majority opinion. People v. Brown (1929) 207 Cal. 172 [277 P. 320], and People v. Lazarus (1929) 207 Cal. 507 [279 P. 145], authorize the trial court to conduct an interrogation of jurors before permitting counsel to do so. That is normal trial procedure. No one quarrels with cited decisions permitting a limitation to reasonable inquiry, but neither respondent nor the majority can point to a single reported criminal case in California sanctioning total gagging of counsel.

Finally, as recently as 1964 Justice Tobriner spoke in terms of “an examination of the whole picture” in People v. Terry (1964) 61 Cal.2d 137, 147 [37 Cal.Rptr. 605, 390 P.2d 381], and in doing so relied upon Penal Code section 1078: “In the instant case the court’s rulings deprived the jury of an examination of the whole picture. In the course of voir dire examination of prospective jurors the court refused to permit defendant the right to examine jurors with respect to their possible reaction to his claim of innocence and misled the jury into believing that they could not take into consideration that claim. The rulings thereby eliminated from the jury’s deliberations the defendant’s theory of the facts and any possible doubt as to defendant’s guilt.

“Neither the defendant nor the prosecution should suffer an improper restriction upon a reasonable voir dire examination of prospective jurors or a frustration of an intelligent exercise of peremptory challenges and challenges for cause (Pen. Code, § 1078).”

Since Terry speaks of permitting defendant and the prosecution the right to examine jurors—not the court, and not vicariously through the court—I must assume the majority in eliminating the right are now overruling sub silentio that portion of the Terry decision. While Terry had some defects which I have previously noted (see my concurring and dissenting opinion in People v. McClellan (1969) 71 Cal.2d 793, 815 [80 Cal.Rptr. 31, 457 P.2d 871]), I would not disturb the quoted portion of the opinion.

In addition to its policy and precedential shortcomings, the majority *840opinion will inevitably produce burdensome judicial fallout. When it is counsel who interrogates prospective jurors he has no legal basis for claiming dissatisfaction with the ultimate product of the selection process in which he participated. But if the court alone interrogates veniremen, taking some questions suggested by counsel and, as here, imperiously rejecting others, an issue for appellate review emerges. In such circumstances we must recreate the scene, ascertain if the rejected queries should have been permitted, and if so, undertake to determine whether the exclusion was prejudicial.4 This is unlike the usual case in which we weigh the prejudicial effect of evidence; here the issue is the prejudicial inclinations of jurors. For a reviewing court, in this context, to attempt an analysis of the juror’s undisclosed predilections in order to reach a conclusion on potential prejudice would require an omniscience which I for one disclaim. The courthousekeeping seal of approval on denial of counsel’s right to interrogate prospective jurors presages new bases for appeal with which reviewing courts will be grappling in innumerable future cases. A substantial portion of the time saved at trial may thus be expended on appeal.5

Justice Marshall, concurring and dissenting in Ham v. South Carolina (1973) 409 U.S. 524, 534 [35 L.Ed.2d 46, 54-55, 93 S.Ct. 848], put the issue in proper context: “It may be that permitting slightly more extensive voir dire examination will put an additional burden on the administration of justice. But as Mr. Chief Justice Hughes argued 40 years ago ‘it would be far more injurious to permit it to be thought that persons entertaining a disqualifying prejudice were allowed to serve as jurors and that inquiries designed to elicit the fact of disqualification were barred. No surer way could be devised to bring the processes of justice into disrepute.’ Aldridge v. United States, 283 U.S., at 315.” (See also the majority opinion of Justice Rehnquist and the concurring and dissenting opinion of Justice Douglas in Ham.)

The trial court abused its discretion and ignored the clear command of section 1078 in compelling counsel to submit questions in writing and denying counsel the right to orally interrogate prospective jurors. That such *841procedure is permissible in federal courts, and that certain commentators may believe some economy in time is thereby achieved (but see Gutman, The Attorney-Conducted Voir Dire of Jurors: A Constitutional Right (1972) 39 Brooklyn L.Rev. 290), provide no statutory authority in California for such radical departure from the time-honored and legislatively mandated practice of criminal jury selection.

I would reverse the judgment.

Appellant’s petition for a rehearing was denied March 15, 1973, and the opinion was modified to read as printed above. Mosk, J., was of the opinion that the petition should be granted.

There have been numerous abortive efforts at restrictive change. Two recent proposals failed to pass the Legislature in 1971, and another measure foundered in the 1972 session. Each proposal would have amended section 1078 to deny counsel the right to personally conduct an unfettered examination of prospective jurors. The very fact it was believed necessary to introduce such bills, of course, strongly implies the majority are wrong in asserting that section 1078 already permits counsel to be denied that right.

The Judicial Council amended rules 228 and 516, effective January 1, 1972, to provide “In all civil trials, the trial judge shall examine the prospective jurors . . . .” The limitation to civil trials cannot be deemed insignificant.

The procedure employed by the trial judge here is neither innovative nor responsive to peculiarly contemporary problems. Indeed the precise method was used by a Florida trial judge in 1895. Despite a permissive statute in that state, its Supreme Court on review ordered trial courts to thereafter conform to “the better and more prevalent practice [is] to permit such examinations to be made by the counsel in the case, . . (Jones v. State (1895) 35 Fla. 289 [17 So. 284].)

In United States v. Dellinger (7th Cir. 1972) 472 F.2d 340 the court said: “The government’s position must rest upon an assumption that a general question to the group whether there is any reason they could not be fair and impartial can be relied on to produce a disclosure of any disqualifying state of mind. We do not believe that a prospective juror is so alert to his own prejudices. Thus it is essential to explore the backgrounds and attitudes of the jurors to some extent in order to discover actual bias, or cause. [Citation.] . . .

“If this right is not to be an empty one, the defendants must, upon request, be permitted sufficient inquiry into the background and attitudes of the jurors to enable them to exercise intelligently their peremptory challenges, . . .
“. . . significant, were the conflicts of values represented by the so-called youth culture—hippies, yippies and freaks—in contrast with the more traditional values of the vast majority of the community, presumably including most citizens summoned for jury service. Again, we are not unaware that many otherwise qualified members of the community could not be impartial toward, and in fact are often offended by, persons who wear long hair, beards, and bizarre clothing and who seem to avoid the burdens and responsibilities of regular employment. . . .
“. . . Natural human pride would suggest a negative answer to whether there was a reason the juror could not be fair and impartial. A juror might well answer negatively in good faith, without stopping to consider the significance or firmness of impressions he might have gained from news reports. We think the question is not adequate to bring out responses showing that jurors had gained information and formed opinions about relevant matters in issue if in truth any had.”

In Swain v. Alabama (1964) 380 U.S. 202, 219 [13 L.Ed.2d 759, 771-772, 85 S.Ct. 824], it was held the denial or impairment of the right to peremptorily challenge veniremen is reversible error without a showing of prejudice.

In United States v. Dellinger, supra, 472 F.2d 340, one of the significant grounds for reversal was inadequacy of the federal trial court’s voir dire examination. A bitter trial of months’ duration, consuming 22,000 transcript pages, was thus in vain.