SB 658: Ensuring fair and impartial juries

Thanks to a new law, attorneys and judges have clear rules on how to examine potential jurors in civil cases. Senate Bill 658, authored by Sen. Scott Weiner (D-San Francisco) was signed into law by Gov. Jerry Brown on Sep. 27, 2017. The bill revises Code of Civil Procedure Section 222.5 by providing more guidance as to how voir dire is to be conducted and to address the issue of arbitrary restrictions on attorney examination of potential members of a jury in a civil case.

Under the former version of Section 222.5, after an initial examination by the trial judge, attorneys for both parties were permitted to conduct questioning in order to enable the attorneys to obtain the information needed to exercise peremptory challenges and challenge jurors for cause. Section 222.5 also was intended to prohibit unreasonable restrictions on counsel's ability to examine jurors. However, enforcement of Section 222.5's allowance for attorney examination of jurors has eroded over the years, with judges permitting only extremely short voir dire by attorneys, or refusing to allow counsel to examine jurors at all. Attorneys reported that in some courtrooms they were given less than 20 minutes to examine 24 jurors in unlimited civil cases.

The SB 658 adds much stronger language to Section 222.5, stating that counsel for each party "shall have the right to examine" any of the prospective jurors, and mandating that judges "permit liberal and probing examination" by attorneys. Section 222.5 also contains factors a judge must consider in deciding what questions to allow by counsel, including any unique or complex elements of the case. It states unequivocally that "[s]pecific unreasonable or arbitrary time limits shall not be imposed in any case" and that judges "shall not establish a blanket policy of a time limit for voir dire." It makes clear that counsel are not required to submit questions to judges ahead of conducting voir dire unless a particular attorney engages in improper questioning. Section 222.5 also now makes it abundantly clear that a court cannot unreasonably refuse to submit reasonable juror questionnaires proposed by counsel, and states that if a questionnaire is used, counsel "shall be given reasonable time to evaluate the responses before conducting oral voir dire."

This bill maintains the integrity of the constitutional right to a jury trial and ensures flexibility in the jury selection process.