BILL ANALYSIS                                                                                                                                                                                                    ”



                                                                  AB 141
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          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, ›or 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