BILL ANALYSIS Ó AB 141 Page 1 Date of Hearing: March 15, 2011 ASSEMBLY COMMITTEE ON JUDICIARY Mike Feuer, Chair AB 141 (Fuentes) - As Introduced: January 13, 2011 SUBJECT : JURORS: ELECTRONIC COMMUNICATIONS KEY ISSUE : SHOULD SEVERAL CHANGES BE MADE TO JURY INSTRUCTIONS TO PROVIDE STATUTORY CLARIFICATION REGARDING IMPROPER USE OF ELECTRONIC OR WIRELESS DEVICES TO COMMUNICATE, RESEARCH OR DISSEMINATE INFORMATION CONCERNING AN ONGOING CASE? FISCAL EFFECT : As currently in print this bill is keyed fiscal. SYNOPSIS This non-controversial bill is identical to last year's AB 2217 which passed this Committee and the Legislature with unanimous support but was vetoed by Governor Schwarzenegger. The author notes that broader access to electronic and wireless devices has enabled jurors to use social media and other internet tools to communicate during trial and jury deliberations. The use of these devices by jurors presents an ongoing challenge in preventing mistrials, overturned convictions and chaotic delays in court proceedings. In response, this common sense measure seeks to clarify and codify an informal practice among trial courts to authorize courts to appropriately admonish jurors against the use of electronic and wireless devices to communicate, research, or disseminate information about an ongoing case. The bill also seeks to amend the civil and criminal contempt statutes to grant courts the power to enforce the admonishment. There is no known opposition to the bill, and the bill is supported by both the Judicial Council and the Consumer Attorneys of California. SUMMARY : Seeks to statutorily authorize an informal practice by many courts to appropriately admonish jurors against the use of electronic and wireless devices to communicate, research, or disseminate information about an ongoing case. Specifically, this bill : 1)Requires the court, when admonishing the jury against conversation pursuant to these provisions, to clearly explain, as part of the admonishment, that the prohibition of the use AB 141 Page 2 of electronic or wireless devices applies to all forms of communication, electronic research, or dissemination of information about a case. The bill would require the officer in charge of a jury to prevent any use of an electronic or wireless device to communicate, research, or disseminate information about a case. 2)Updates existing civil and criminal contempt statutes by establishing that courts have the authority to hold jurors in contempt for willfully disobeying a court admonishment relating to the prohibition of any form of electronic communication, dissemination of information, or research about a case. EXISTING LAW : 1)Requires the court in a civil proceeding during a jury trial to admonish the jury that it is their duty not to converse with, or permit themselves to be addressed by, any other person on any subject of the trial. The court is required to provide the admonishment when the jurors are permitted to separate during the trial, and when the case is submitted to the jury. (Code of Civil Procedure section 611.) 2)Requires the court in a criminal proceeding during a jury trial to admonish the jury that it is their duty not to converse with, or permit themselves to be addressed by, any other person on any subject of the trial. The court is required to provide the admonishment after the jury has been sworn and before the people's opening address, at each adjournment of the court, and when the jurors are permitted by the court to separate after the case is submitted to the jury. (Penal Code 1122.) 3)Requires that an officer in a civil proceeding, having the jury under his or her charge, shall not permit any communication to be made to them, or make any himself or herself. (Code of Civil Procedure section 613.) 4)Requires that an officer in a criminal proceeding, having the jury under his or her charge, shall not permit any communication to be made to them, or make any himself or AB 141 Page 3 herself. (Penal Code section 1128.) COMMENTS : This non-controversial bill is identical to AB 2217 which passed unanimously out of this Committee and the Legislature last year, but was vetoed by Governor Schwarzenegger. Like the prior bill, the bill seeks to address the increasing incidence of juror use, of electronic and wireless devices, to conduct independent research on the internet or communicate with others about cases. Juror use of this media may take several forms: jurors conducting independent research on the case on the internet; sending e-mails, text messages, tweets or other communication conveying developments in a trial or deliberations; or using the camera feature of mobile technology to record courtroom proceedings. It is standard procedure for a court to admonish jurors of their duty not to converse with others or conduct independent research until a verdict is rendered. But recent use of electronic and wireless devices by jurors has caused mistrials, overturned convictions, and court delays. In 2009 a San Francisco Superior Court judge dismissed 600 potential jurors after several acknowledged going online to research the criminal case before them. Additionally, in 2001 a federal drug trial in Florida ended in a mistrial when eight jurors admitted to conducting internet research on the case they were hearing. It is believed that more explicit mention in jury instructions of the various methods and modes of electronic communication and research would help jurors better understand and adhere to the scope of the prohibition against the use of these devices. The Judicial Conference of the United States, the policy-making body of the federal courts, has attempted to address this growing problem through the release of model jury instructions. The model jury instructions the Judicial Conference released to the federal judiciary specify: You may not communicate with anyone about the case on your cellphone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, MySpace, LinkedIn and YouTube. AB 141 Page 4 California has also attempted to address the problem of improper juror use of electronic and wireless devices. California Civil Jury Instruction 100, which is given at the outset of every civil case, includes the following admonitions: Do not use any electronic device or media, such as a cell phone or smart phone, PDA, computer, the Internet, any Internet Service, any text or instant-messaging service, any Internet chat room, blog, or Web site, including social networking websites or online diaries, to send or receive any information to or from anyone about this case or your experience as a juror until after you have been discharged from your jury duty. ? Do not do any research on your own or as a group. Do not use dictionaries, the Internet, or other reference materials. Do not investigate the case or conduct any experiments. California Criminal Jury Instruction 101 includes similar provisions: Do not share information about the case in writing, by email, or on the Internet. ... During the trial, do not read, listen to, or watch any news report or commentary about the case from any source. ? Do not do any research on your own or as a group. Do not use a dictionary, the Internet, Ýor other reference materials]. ... If you have a cell phone or other electronic device, keep it turned off while you are in the courtroom and during jury deliberations. An electronic device includes any data storage device. If someone needs to contact you in an emergency, the court can receive messages that it will deliver to you without delay. This bill seeks to statutorily authorize the above type of admonishments and clarify the scope of the prohibition against the use of these devices under California law. It also seeks to provide courts with the authority to enforce the prohibition by AB 141 Page 5 holding a disobedient juror in contempt. Earlier Veto : Despite unanimous support in the Legislature, Governor Schwarzenegger vetoed the proposal last year. Describing the bill as "unnecessary," the prior governor suggested that the goal of preventing electronic and wireless communication by jurors was more properly handled by court rules than by statute. However the Judicial Council supports this statutory approach to the issue. ARGUMENTS IN SUPPORT : Apropos of the consensus support for this measure at this time were the comments submitted to the Committee by the Judicial Council in relation to the prior identical bill 2217, which included: The Judicial Council is extremely concerned that jurors' use of electronic devices during the course of a trial is becoming an increasingly significant threat to the integrity of the justice system. While existing law may indeed cover the use of improper use of electronic communications by jurors, the courts would welcome the clear statutory directive that the admonition address the issue. In addition, as important as the admonition is, the statutory clarification that violators may be held in contempt of court is important, and would provide the court with necessary enforcement tools for use in appropriate cases. Additional comments of support related to the same exact language as it existed in last year's AB 2217 included those of the Consumer Attorneys of California, stating in part that: Recently, a number of instances of juror misconduct have resulted in mistrials, which can further add to the rising costs of litigation. Broader access to smart-phones and PDA devices have come at a cost to California litigants. In almost every state, courts have confronted incidents where a juror impermissibly accesses Google, Wikipedia, Facebook, Twitter, or Myspace to discuss the case or conduct amateur investigations of the evidence and the parties. Prior Related Legislation : As noted above, AB 2217 (Fuentes) AB 141 Page 6 last year contained identical language and provisions as this bill, but was vetoed. REGISTERED SUPPORT / OPPOSITION : Support California District Attorneys Association California Peace Officers' Association California Police Chiefs Association Consumer Attorneys of California Judicial Council Opposition None on file Analysis Prepared by : Drew Liebert and Travis Brooks / JUD. / (916) 319-2334