In a defendant’s Batson/Wheeler claim, the prosecution may waive attorney work product protection in the prosecutor’s jury selection notes if the prosecutor justifies their peremptory challenges with a previously undisclosed juror rating system




Prosecutor Could Not Invoke Attorney Work Product Protection to Withhold Information Necessary to the Fair Adjudication of a Batson/Wheeler Claim In People v. Superior Court (Jones), 12 Cal. 5th 348, S255826 (Cal. December 2, 2021), the defendant, who was previously convicted of capital murder and sentenced to death, filed a habeas corpus petition claiming the prosecution had used peremptory strikes to discriminate against prospective jurors in violation of Batson v. Kentucky, 476 U.S. 79 (1986) (“Batson”) and People v. Wheeler, 22 Cal.3d 258 (1978) (“Wheeler”). In connection with his petition, the defendant filed a motion for postconviction discovery seeking access to the prosecutor’s jury selection notes. The District Attorney argued that the notes were protected as attorney work product. The trial court rejected the District Attorney’s argument and granted the motion, and the Court of Appeal affirmed. The Supreme Court of California granted the District Attorney’s petition for review to consider whether the disclosure order was permissible. Even if jury selection notes are protected work product, the prosecutor impliedly waived any work product protection when he justified his peremptory challenges by putting an undisclosed juror rating system at issue A privilege may be waived where the privilege holder, without coercion, discloses a significant part of the communication to another person. An implied waiver may be found when a party has put a privileged communication directly at issue and disclosure of the communication is essential for a fair adjudication of the action. In this case, the prosecutor invoked an undisclosed juror rating system in justifying his use of peremptory challenges during the Batson/Wheeler hearing and thus impliedly waived any claim that the information was protected work product. The Court explained that the attorney could not both stand on a purportedly color-blind numerical rating system devised by the prosecution to support their peremptory strikes and assert privilege over it. Discovery can be properly limited The Court noted that to the extent that the District Attorney raised concerns about overbroad discovery in the context of the prosecutor’s jury selection notes, those concerns could be adequately remedied by redaction by the trial court if the attorney made a preliminary showing that the disclosure would reveal his impressions, conclusions, opinions, or legal research or theories unrelated to the jury selection. Disposition The Court held that the district attorney impliedly waived any claim of work product protection over notes containing information about the juror rating system when he referenced the system to explain his reasons for the challenged peremptory strikes. The Court affirmed the judgment of the Court of Appeal and remanded the case for further proceedings.

April 14, 2022
People v. Superior Court (Jones), 12 Cal. 5th 348, S255826 (Cal. December 2, 2021)
California Courts