Bill S947-2011

Allows a court to preclude disclosure of jurors' names and addresses; repealer

Allows a court to issue an order precluding the disclosure of jurors' names and addresses upon a showing by the people that such an order is necessary to prevent bribery, jury tampering or physical injury to, or harassment of, the jurors or prospective jurors.

Details

Actions

  • Feb 6, 2012: referred to codes
  • Feb 6, 2012: DELIVERED TO ASSEMBLY
  • Feb 6, 2012: PASSED SENATE
  • Jan 30, 2012: ADVANCED TO THIRD READING
  • Jan 24, 2012: 2ND REPORT CAL.
  • Jan 23, 2012: 1ST REPORT CAL.97
  • Jan 4, 2012: REFERRED TO CODES
  • Jan 4, 2012: returned to senate
  • Jan 4, 2012: died in assembly
  • Jun 1, 2011: referred to codes
  • Jun 1, 2011: DELIVERED TO ASSEMBLY
  • Jun 1, 2011: PASSED SENATE
  • Feb 1, 2011: ADVANCED TO THIRD READING
  • Jan 31, 2011: 2ND REPORT CAL.
  • Jan 25, 2011: 1ST REPORT CAL.25
  • Jan 5, 2011: REFERRED TO CODES

Votes

VOTE: COMMITTEE VOTE: - Codes - Jan 25, 2011
Ayes (14): Saland, DeFrancisco, Flanagan, Fuschillo, Gallivan, Golden, Lanza, Nozzolio, O'Mara, Gianaris, Huntley, Perkins, Squadron, Espaillat
Ayes W/R (1): Duane
Nays (1): Parker
VOTE: COMMITTEE VOTE: - Codes - Jan 23, 2012
Ayes (13): Saland, DeFrancisco, Flanagan, Fuschillo, Gallivan, Golden, Lanza, Nozzolio, O'Mara, Gianaris, Huntley, Perkins, Espaillat
Ayes W/R (2): Duane, Squadron
Nays (1): Parker

Memo

 BILL NUMBER:  S947

TITLE OF BILL : An act to amend the criminal procedure law, in relation to anonymous juries and to repeal subdivision 1-a of section 270.15 of such law relating thereto

PURPOSE : This bill, introduced at the request of the Judiciary, would amend the criminal procedure law to permit the court to issue an order precluding the disclosure of jurors' names and addresses upon a showing by the People that such an order is necessary to prevent bribery, jury tampering or physical injury to or harassment of jurors.

SUMMARY OF PROVISIONS : This measure would repeal subdivision 1-a of section 270.15 of the Criminal Procedure Law and add a new section 270.17, to provide the court with the authority to preclude the disclosure of jurors' and prospective jurors' names. Currently, under subdivision I-a of section 270.15 the court may only issue a protective order regulating disclosure of the business or residential address of any prospective sworn juror to any person or persons, other than to counsel for either party. It does not allow the court to protect jurors' or prospective jurors' names from disclosure, nor does it provide complete assurance that jurors' addresses will not be disclosed to the defendant by the defense counsel. Thus, Subdivision 1-a fails to provide the court with sufficient means to protect jurors from intimidation and harm.

Further this measure provides that the prosecutor may move within three days prior to the commencement of jury selection (excluding Saturdays, Sundays and Holidays) for an order directing that jurors shall not disclose their names or residential or business addresses. The court could permit the prosecutor to file such a motion thereafter, for good cause shown. At a hearing on the motion, the prosecutor would be required to show by clear and convincing evidence that such an order is necessary to protect against the likelihood of bribery, jury tampering or intimidation. In determining whether the prosecutor has sustained this burden, the court shall consider any relevant factors, including:

1. Whether the defendant or persons acting on the defendant's behalf have bribed, tampered with, or caused or attempted to cause physical injury to or harassment of a juror or prospective juror, or a witness or prospective witness, in another criminal action or proceeding or in the instant proceeding;

2. Whether defendant is a member of a group that has manifested an intention to harm or intimidate witnesses or jurors;

3. The seriousness of the charges against defendant;

4. The extent of pretrial publicity about the criminal action or proceeding.

If the court determines that a protective order should be issued, it shall direct that all jurors and prospective jurors be identified by some means other than their names and their residential and business addresses. To balance any adverse effect on the defendant of withholding the identities of jurors, this measure permits the court to enlarge the scope and duration of the parties' examination of prospective jurors to assure that the parties have sufficient information upon which to base the exercise of peremptory challenges and challenges for cause.

This measure further seeks to offset any prejudicial effect of selecting jurors on an anonymous basis by requiring the court to give precautionary instruction to the jury upon the defendant's request (ie. the fact that the jury was selected on an anonymous basis is not a factor from which any inference unfavorable to the defendant may be drawn).

JUSTIFICATION : In order to preserve our criminal justice system as impartial and fair, it is critical that a jury be able to render an objective decision. To that end, we have an obligation to protect jurors from recrimination for their decisions. Certainly jurors should not be expected to bear the burden of risking what may happen to them or their families should they render a guilty verdict. Explicit threats to jurors or even just the fear of retaliation could very well affect a jurors' ability to fairly and impartially issue a verdict.

When a serious threat to juror safety reasonably is found to exist, the law must allow for precautionary measures to be taken. This legislation would expressly do just that, by expanding current law to permit the court to not only preclude the residential and business addresses of jurors from disclosure, but their names as well.

LEGISLATIVE HISTORY : 2009-2010: S.569--Senate Codes Committee 2007-2008: S.615--Passed Senate 2005-2006: S.661--Passed Senate 2003-2004: S.775--Passed Senate 2001-2002: S.103--Passed Senate 1999-00: S.822--Passed Senate 1997-98: S.1134--Passed Senate 1995-96: S.5211--Passed Senate 1993-94: S.2628--Referred to Codes Committee 1991-92: S.4905--Referred to Codes Committee 1989-90: S.8436--Referred to Codes Committee

FISCAL IMPLICATIONS : None.

EFFECTIVE DATE : This act shall take effect on the thirtieth day after it shall have become law.

Text

STATE OF NEW YORK ________________________________________________________________________ 947 2011-2012 Regular Sessions IN SENATE (PREFILED) January 5, 2011 ___________
Introduced by Sens. MARCELLINO, LARKIN -- read twice and ordered print- ed, and when printed to be committed to the Committee on Codes AN ACT to amend the criminal procedure law, in relation to anonymous juries and to repeal subdivision 1-a of section 270.15 of such law relating thereto THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Paragraph (a) of subdivision 1 of section 270.15 of the criminal procedure law, as amended by chapter 467 of the laws of 1985, is amended to read as follows: (a) If no challenge to the panel is made as prescribed by section 270.10, or if such challenge is made and disallowed, the court shall direct that the names of not less than twelve members of the panel be drawn and called as prescribed by the judiciary law, EXCEPT AS OTHERWISE REQUIRED BY SECTION 270.17 OF THIS ARTICLE. Such persons shall take their places in the jury box and shall be immediately sworn to answer truthfully questions asked them relative to their qualifications to serve as jurors in the action. In its discretion, the court may require prospective jurors to complete a questionnaire concerning their ability to serve as fair and impartial jurors, including but not limited to place of birth, current address, education, occupation, prior jury service, knowledge of, relationship to, or contact with the court, any party, witness or attorney in the action and any other fact relevant to his or her service on the jury. An official form for such questionnaire shall be developed by the chief administrator of the courts in consulta- tion with the administrative board of the courts. A copy of question- naires completed by the members of the panel shall be given to the court and each attorney prior to examination of prospective jurors. S 2. Subdivision 1-a of section 270.15 of the criminal procedure law is REPEALED.
S 3. The criminal procedure law is amended by adding a new section 270.17 to read as follows: S 270.17 TRIAL JURY; ANONYMOUS PANEL. 1. THE PEOPLE MAY MAKE A MOTION FOR AN ORDER PROTECTING THE NAMES AND RESIDENTIAL AND BUSINESS ADDRESSES OF JURORS AND PROSPECTIVE JURORS FROM DISCLOSURE TO ANY PERSON. SUCH A MOTION SHALL BE MADE NO LATER THAN THREE DAYS, EXCLUDING SATURDAYS, SUNDAYS AND HOLIDAYS, PRIOR TO THE COMMENCEMENT OF JURY SELECTION, BUT FOR GOOD CAUSE SHOWN MAY BE MADE THEREAFTER. THE COURT SHALL CONDUCT A HEARING UPON SUCH MOTION AND MAKE FINDINGS OF FACT ESSENTIAL TO THE DETERMINATION THEREOF. ALL PERSONS GIVING FACTUAL INFORMATION AT SUCH HEARING MUST TESTIFY UNDER OATH, EXCEPT THAT UNSWORN EVIDENCE PURSUANT TO SUBDIVISION TWO OF SECTION 60.20 OF THIS CHAPTER ALSO MAY BE RECEIVED. UPON SUCH HEARING, HEARSAY EVIDENCE SHALL BE ADMISSIBLE TO ESTABLISH ANY MATERIAL FACT. 2. AT THE HEARING, THE PEOPLE SHALL BEAR THE BURDEN OF PROVING BY CLEAR AND CONVINCING EVIDENCE THAT A PROTECTIVE ORDER IS NECESSARY TO PROTECT AGAINST THE LIKELIHOOD OF BRIBERY, JURY TAMPERING OR PHYSICAL INJURY TO OR HARASSMENT OF THE JURORS OR PROSPECTIVE JURORS. IN DETER- MINING WHETHER THE PEOPLE HAVE SUSTAINED THIS BURDEN, THE COURT MAY CONSIDER ANY RELEVANT FACTORS, INCLUDING: (A) WHETHER DEFENDANT OR PERSONS ACTING ON DEFENDANT'S BEHALF HAVE BRIBED, TAMPERED WITH, OR CAUSED OR ATTEMPTED TO CAUSE PHYSICAL INJURY TO OR HARASSMENT OF A JUROR OR PROSPECTIVE JUROR, OR A WITNESS OR PROSPECTIVE WITNESS, IN ANOTHER CRIMINAL ACTION OR PROCEEDING OR IN THE INSTANT CRIMINAL ACTION OR PROCEEDING; (B) WHETHER DEFENDANT IS A MEMBER OF AN ENTERPRISE, AS DEFINED IN SUBDIVISION TWO OF SECTION 460.10 OF THE PENAL LAW, THAT BY ITSELF OR THROUGH ANY OF ITS MEMBERS HAS MANIFESTED AN INTENTION TO BRIBE, TAMPER WITH, OR CAUSE OR ATTEMPT TO CAUSE PHYSICAL INJURY TO OR HARASSMENT OF A JUROR OR PROSPECTIVE JUROR, OR A WITNESS OR PROSPECTIVE WITNESS, IN THE INSTANT CRIMINAL ACTION OR PROCEEDING; (C) THE SERIOUSNESS OF THE CHARGES AGAINST DEFENDANT; (D) THE EXTENT OF PRETRIAL PUBLICITY CONCERNING THE CRIMINAL ACTION OR PROCEEDING. 3. IF THE COURT DETERMINES THAT A PROTECTIVE ORDER SHOULD BE ISSUED IT SHALL DIRECT THAT ALL JURORS AND PROSPECTIVE JURORS THEREAFTER SHALL BE IDENTIFIED BY SOME MEANS OTHER THAN THEIR NAMES AND THEIR RESIDENTIAL AND BUSINESS ADDRESSES. THE COURT MAY ENLARGE THE SCOPE AND DURATION OF THE PARTIES' EXAMINATION OF PROSPECTIVE JURORS TO ASSURE THAT THE PARTIES HAVE SUFFICIENT INFORMATION UPON WHICH TO BASE THE EXERCISE OF PEREMPTORY CHALLENGES AND CHALLENGES FOR CAUSE PURSUANT TO SECTIONS 270.20 AND 270.25 OF THIS ARTICLE. 4. UPON REQUEST BY A DEFENDANT, BUT NOT OTHERWISE, THE COURT SHALL INSTRUCT THE JURY THAT THE FACT THAT THE JURY WAS SELECTED ON AN ANONY- MOUS BASIS IS NOT A FACTOR FROM WHICH ANY INFERENCE UNFAVORABLE TO THE DEFENDANT MAY BE DRAWN. S 4. This act shall take effect on the thirtieth day after it shall have become a law.

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