S947-2011 - NY Senate Open Legislation - 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.

Sponsor: MARCELLINO / Co-sponsor(s): AVELLA, LARKIN / Committee: CODES
Law Section: Criminal Procedure Law / Law: Amd S270.15, rpld S270.15 sub 1-a, add S270.17, CP L

S947-2011 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

S947-2011 Meetings

Codes: Jan 23, 2012, Codes: Jan 25, 2011

S947-2011 Calendars

S947-2011 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: FLOOR VOTE: - Jun 1, 2011

Ayes (58): Addabbo, Alesi, Avella, Ball, Bonacic, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Duane, Espaillat, Farley, Flanagan, Fuschillo, Gallivan, Gianaris, Golden, Griffo, Grisanti, Hannon, Hassell-Thomps, Johnson, Kennedy, Klein, Krueger, Lanza, Larkin, LaValle, Libous, Little, Marcellino, Martins, Maziarz, McDonald, Montgomery, Nozzolio, O'Mara, Oppenheimer, Parker, Peralta, Perkins, Ranzenhofer, Ritchie, Rivera, Robach, Saland, Sampson, Savino, Serrano, Seward, Skelos, Squadron, Stavisky, Stewart-Cousin, Valesky, Young, Zeldin
Absent (3): Huntley, Kruger, Smith
Excused (1): Adams

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

VOTE: FLOOR VOTE: - Feb 6, 2012

Ayes (60): Adams, Addabbo, Alesi, Avella, Ball, Bonacic, Carlucci, DeFrancisco, Diaz, Dilan, Duane, Espaillat, Farley, Flanagan, Fuschillo, Gallivan, Gianaris, Golden, Griffo, Grisanti, Hannon, Hassell-Thomps, Huntley, Johnson, Kennedy, Klein, Krueger, Lanza, Larkin, LaValle, Libous, Little, Marcellino, Martins, Maziarz, McDonald, Montgomery, Nozzolio, O'Mara, Oppenheimer, Parker, Peralta, Perkins, Ranzenhofer, Ritchie, Rivera, Robach, Saland, Sampson, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stavisky, Stewart-Cousin, Valesky, Young, Zeldin
Nays (1): Breslin

S947-2011 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.

S947-2011 Text

 S T A T E   O F   N E W   Y O R K
 
                                           947
 2011-2012 Regular Sessions
 I N  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.
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD03614-01-1
        S. 947                              2
 

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.

S947-2011: Allows a court to preclude disclosure of jurors' names and addresses; repealer