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
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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
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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.
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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
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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)
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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