BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 141 (Fuentes )
As Introduced
Hearing Date: June 21, 2011
Fiscal: Yes
Urgency: No
RD
SUBJECT
Jurors: Electronic Communications
DESCRIPTION
This bill would add to existing jury admonishments the duty not
to conduct research or disseminate information and would also
require the court to clearly explain, as part of that
admonishment, that the prohibition on research, dissemination of
information, and conversation applies to all forms of electronic
or wireless communication.
This bill would clarify that existing prohibitions of
communications between the officer having the jury under his
charge and members of that jury includes electronic or wireless
communications.
This bill would make the willful disobedience by a juror of a
court admonishment related to the prohibition of any form of
communication or research about the case, including all forms of
electronic or wireless communication or research, a contempt of
court and a misdemeanor.
BACKGROUND
American jurisprudence provides for an adversarial system that
turns on ensuring that both sides of a matter have an
opportunity to scrutinize, challenge, and argue the facts and
evidence upon which a jury is to determine the outcome of the
case. The system is fundamentally undermined when a juror draws
upon his or her own bias, prejudice, experience or knowledge, or
otherwise brings in outside information into the deliberations
(more)
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of that case.
Current law provides for jury admonitions that inform jurors of
their duty not to converse with, or allow themselves to be
addressed by, another person on any subject matter in the trial.
(Code of Civ. Proc. Sec. 611.) Moreover, the officer charged
with guarding the jury must not allow any communication to be
made to the jurors, or make any communication with the jurors
himself or herself, except to ask them if they or three-fourths
of them are agreed upon a verdict, or otherwise communicate to
any person the state of their deliberations, or verdict agreed
upon before the verdict is rendered. (Code of Civ. Proc. Sec.
613.) Such statutes are in recognition of the fact that jury
misconduct can be an issue that has severe consequences for the
integrity and the outcome of a trial.
The potential for jury misconduct, while not a new issue, has
been magnified by advancements in technology. In recent years,
with the technological advances made and the widespread use of
social media and Internet on electronic and wireless devices,
the legal system has become increasingly threatened by such
"outside factors" entering the jury room. Numerous cases have
been cited in the news in which improper jury conduct arising
out of the use of social media during trial or jury
deliberations has led to mistrials, if not verdicts that were
challenged or overturned, costing government time and taxpayer
money.
A March 18, 2009 New York Times article notes "Ŭt]he use of
BlackBerries and iPhones by jurors gathering and sending out
information about cases is wrecking havoc on trials around the
country, upending deliberations and infuriating judges." (John
Schwartz, As Jurors Turn to Web, Mistrials are Popping Up
< http://www.nytimes.com/2009/03/18/us/18juries.html > Ŭas of June
13, 2011].) The article describes the multiple ways in which
jurors can use electronic or wireless devices to allow for
outside information to improperly supplement their understanding
or perception of a case: ". . . using their cellphones, they can
look up the name of a defendant on the Web or examine an
intersection using Google Maps, violating the legal system's
complex rules of evidence. They can also tell their friends
what is happening in the jury room, though they are supposed to
keep their opinions and deliberations secret. A juror on a
lunch or bathroom break can find out many details about a case.
Wikipedia can help explain the technology underlying a patent
claim or medical condition, Google Maps can show how long it
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might take to drive from Point A to Point B, and news sites can
write about a criminal defendant, his lawyers or expert
witnesses."
Last year, in an effort to address this problem, the author
introduced a bill identical to this one, AB 2217 (Fuentes,
2010), which was ultimately vetoed. Like AB 2217, this bill
would seek to curb the improper use of electronic and or
wireless communications, research, and dissemination of
information by adding language that specifically addresses such
activity to jury admonitions and other court rules relating to
communications made by and to jurors. The bill would further
provide courts with the tools necessary to enforce these rules.
This bill was heard in Senate Public Safety Committee on June 7,
2011 and was approved by a vote of 6-0.
CHANGES TO EXISTING LAW
Existing law guarantees a criminal defendant's right to a speedy
and public trial, by an impartial jury of the state and district
wherein the crime shall have been committed, and to be informed
of the nature and cause of the accusation; to be confronted with
the witnesses against him; to have compulsory process for
obtaining witnesses in his favor, and to have the Assistance of
Counsel for his defence. (U.S. Constitution, Sixth Amendment,
as applied to the states through the 14th Amendment's Due
Process Clause; See Apodaca v. Oregon (1972) 406 U.S. 404.)
Existing law requires that if the jury is permitted to separate,
either during the trial or after the case is submitted to them,
the court must admonish the jurors that it is their duty not to
converse with, or allow themselves to be addressed by any other
person, on any subject of the trial, and that it is their duty
not to form or express an opinion thereon until the case is
finally submitted to them. (Code Civ. Proc. Sec. 611.)
Existing law provides that when the case is finally submitted to
the jury, they may decide in court or retire for deliberation.
If they retire, they must be kept together, in some convenient
place, until at least three-fourths of them agree upon a verdict
or are discharged by the court. Existing law provides that
unless by order of the court, the officer having them under his
or her charge must not allow any communication to be made to
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them, or make any himself or herself, except to ask them if they
or three-fourths of them are agreed upon a verdict, and he or
she must not, before their verdict is rendered, communicate to
any person the state of their deliberations, or verdict agreed
upon. (Code Civ. Proc. Sec. 613.) Penal Code Section 1128
contains substantially similar requirements, and further
provides that the court shall fix the time and place for
deliberation and that the jurors shall not deliberate on the
case except under such circumstances. If the jurors are
permitted by the court to separate, the court shall properly
admonish them. (Pen. Code Sec. 1128.)
Existing law provides a list of acts or omissions in respect to
a court of justice, or proceedings therein, that are contempts
of court, including where a person is summoned as a juror,
neglects to attend or serve as such, or improperly converses
with a party to an action, to be tried at such court, or with
any other person, in relation to the merits of such action, or
receives a communication from a party or other person in respect
to it, without immediately disclosing the same to the court.
(Code Civ. Proc. Sec. 1209(a)(10).)
Existing law provides that any person guilty of specified
contempts of court is guilty of a misdemeanor, except as
otherwise provided. (Pen. Code Sec. 166(a).)
Existing law provides that after the jury has been sworn or
before the people's opening address, the court shall instruct
the jury generally concerning its basic functions, duties, and
conduct. The instructions shall include, among other matters,
admonitions that the jurors:
shall not converse among themselves or with anyone else on any
subject connected with the trial;
shall not read or listen to any accounts or discussions of the
case reported by newspapers or other news media;
shall not visit or view the premises or place where the
offense or offenses charged were allegedly committed or any
other premises or place involved in the case;
shall not, within 90 days of discharge, request, accept, agree
to accept, or discuss with any person receiving or accepting
any payment or benefit in consideration for supplying any
information concerning the trial; or
shall promptly report to the court any incident within their
knowledge involving an attempt by any person to improperly
influence any member of the jury. (Pen. Code Sec. 1122(a).)
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Existing law provides that at each adjournment of the court
before the submission of the cause to the jury, whether
permitted to separate or kept in the charge of officers, be
admonished by the court that it is their duty not to converse
among themselves, or with anyone else, on any subject connected
with the trial, or to form or express nay opinion thereon until
the cause is finally submitted to them. (Pen. Code Sec.
1122(b).)
This bill would add to existing admonitions that it is a jury's
duty not to conduct research or disseminate information.
This bill would provide that, as part of the admonishment, the
court shall clearly explain that the prohibition on research,
dissemination of information, and conversation applies to all
forms of electronic and wireless communications.
This bill would clarify that an officer's duty to not permit any
communication to be made to the jurors under his or her charge,
as well as the officer's duty not to communicate with the jurors
himself or herself, except to ask if three-fourths of them are
agreed upon the verdict, includes any form of electronic or
wireless communication.
This bill would add to the statutory list of contempts of the
court: willful disobedience by a juror of a court admonishment
related to the prohibition of any form of communication or
research about the case, including all forms of electronic or
wireless communication or research.
This bill would add to the statutory list of contempts of court
that are misdemeanors: willful disobedience by a juror of a
court admonishment related to the prohibition of any form of
communication or research about the case, including all forms of
electronic or wireless communication or research.
This bill would amend a court instruction currently provided to
a jury after being sworn in and before the people's address to
provide that jurors shall not converse among themselves or with
anyone else, conduct research, or disseminate information on any
subject connected with the trial and that the court shall
clearly explain as part of the admonishment that the prohibition
on conversation, research, and dissemination of information
applies to all forms of electronic or wireless communications.
This bill would add to the existing admonishment provided at
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each adjournment of the court before the submission of the cause
to the jury to not converse among themselves or with anyone else
on any subject connected with the trial, or to form or express
any opinion about the case until the cause is finally submitted
to them, that it is their duty not to conduct research or
disseminate information. This bill would provide that as part
of the admonishment, the court must clearly explain that the
prohibition on research, dissemination of information, and
conversation applies to all forms of electronic and wireless
communication.
This bill would clarify that an officer sworn to keep a jury
together for deliberation in some private and convenient place
and to not permit any person to speak or communicate with them
during the deliberation, or to do so himself or herself,
includes any form of electronic or wireless communication.
This bill would contain other technical, non-substantive
changes.
COMMENT
1. Stated need for the bill
According to the author:
Existing law requires that at specified intervals, the court
in a jury trial . . . 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. Existing law
also grants judges contempt power and specifies some of the
grounds on which this power may be exercised. ŬAB 141] would
require judges to specifically admonish jurors against the use
of electronic/wireless modes of communication to improperly
communicate with, disseminate information, or research.
Further, ŬAB 141] will provide judges with additional
enforcement tools by adding specificity to the contempt law.
Although current law arguably prohibits the use of
electronic/wireless communication devices to improperly
communicate, disseminate information or research, the fact
that this kind of communication is not expressly included Ŭin]
current law has resulted in increased problems in courts
across the county. For example, in one case the conviction of
a state senator in Pennsylvania is being appealed because
jurors discussed the case on Facebook and Twitter. In another
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case, a $12.6 million verdict was appealed because a juror's
Twitter messages sent before and after the trial showed that
he was biased against the Defendant. "Tweeting" and
"Googling" jurors have caused numerous mistrials.
ŬThis bill] represents the law catching up with technology
when it comes to the sanctity of the courtroom.
In support of the bill, the Judicial Council states that "Ŭt]he
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 improper use of
electronic communications by jurors, the council believes a
clear statutory directive that the admonishments include modern
technological means of communication is needed."
Also in support of the bill, the Attorney General's office
remarks that, "Ŭj]uror use of social media and other internet
tools to 'research' or discuss cases threatens the integrity of
the justice system. Jury misconduct causes mistrials and
reversals on appeal, wasting State assets and resources."
The Civil Justice Association of California (CJAC) comments in
support that, "Ŭt]his bill is a common-sense extension of the
current juror admonishment to consider only the facts of the
case before them."
2. The digital age: reconciling the modern social media
revolution with the traditional foundations of the American
legal justice system
Recognizing the modernization of society and the difficulties
associated with having a society connected to information and
other people on a 24/7 basis with new tools of communication,
this bill seeks to address a rising problem in the judicial
system with respect to sequestering juries and maintaining the
independence of those persons charged with delivering justice on
the basis of evidence presented in court. The bill would
require traditional admonitions be revised to take into account
electronic and wireless communications that now pervade society,
and as a result, the jury room.
a. The rise and role of social media in the courtroom
The advent of the Internet, social media, and the wireless
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devices has gradually revolutionized society and many of its
longstanding institutions. In many ways, they have improved
traditional ways of communicating, learning, working, and
providing services in the home, classroom, workplace, and
government alike. In other ways, they have created new issues
and problems that need to be addressed in each of those
spheres.
That this phenomenon has gradually seeped into the courtroom
and the jury room appears to be part of the natural evolution
of today's digital society. But, for an institution that in
many ways limits what information is relevant or can be
shared, the consequences can be dire. For centuries,
constitutional law, state laws, and court rules have been
designed, in part, to keep jurors unbiased and uninfluenced by
outside information. The common purpose is to keep juries
focused on the evidence provided at trial and whether the
parties have met their burdens of proof based on that
evidence. United States Supreme Court Justice Oliver Wendell
Holmes surmised that, "Ŭt]he theory of our system is that the
conclusions to be reached in a case will be induced only by
evidence and argument in open court, and not by any outside
influence, whether of private talk or public print."
(Patterson v. Colorado (1907) 205 U.S. 454, 462.) Juries, in
other (more modern) words, are meant to be "unplugged" from
all outside influences until they are discharged from their
duty.
Now, with the technological advancements made, it has becoming
increasingly more difficult to keep those outside influences
away. As noted by the proponents of this bill, there is
growing concern that current admonitions are not sufficiently
clear that prohibited conversations or communications include
those that are enabled through the use of electronic and
wireless social media tools. Seeking to preserve the sanctity
of the courtroom in the face of these modern day challenges,
the author asserts that this bill would serve as a vehicle to
enable the law to catch up to these advancements in
technology.
b. The right to a fair trial
This bill would explicitly provide in jury admonitions that
jurors must not research or disseminate information by way of
electronic or wireless communications, in order to better curb
jury misconduct and ensure that jurors decide the outcome of a
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case only on the evidence that is presented and argued by both
parties in court.
The concern of juror misconduct that this bill aims to address
is actually an issue that goes to a cornerstone of the
American legal justice system: a defendant's right to a fair
trial. Integral to the right to a fair trial is a trial by an
impartial jury, meaning a the jury determines the outcome of a
case on the basis of only that evidence and those arguments
introduced by the parties, and without any bias, prejudice or
influence from their personal beliefs, experience, knowledge
or outside information. (See Juror Misconduct in the
Twenty-First Century: The Prevalence of the Internet and its
Effect on American Courtrooms (2010) 30 Loy. L.A. Ent. L. Rev.
301.)
Current rules requiring admonishments to jurors about their
duties not to communicate with any other person, including
even the officer charged with their oversight, about any
matter at issue in the trial, ultimately serve to protect a
defendant's right to a fair trial. They are, however, proving
to come up short in combatting the problems posed by
technological advancements as discussed in the Comment above
and by the author of this bill. Whereas jury misconduct used
to mean investigating the crime scene, talking about the case
with one's spouse, or sending a letter to a prosecutor or
defense attorney, today it is much more sophisticated: it
means browsing the internet for names of attorneys or parties
to the case on search engines, sending "friend" requests to
parties involved on social media tools like Facebook,
educating oneself through online encyclopedias such as
Wikipedia about medical conditions or other matters typically
reserved for expert testimony, or blasting news to friends (or
even the general public) on Twitter about the case as it is in
process. (Id. at 308; see also, Can the Jury Trial Survive
Google? (2011) 25 Crim. Just. 4, 10-11.)
Reuters Legal has reported that jurors' internet research,
blog comments, and tweets have called into question at least
90 verdicts since 1999. Using data supplied by Westlaw, it
found that judges had granted new trials or overturned
verdicts in 28 such criminal and civil cases, 21 in the last
two years. (Pamela MacLean, Jurors Gone Wild, April 2011
< http://www.callawyer.com/story.cfm?eid=914907&evid=1 > Ŭas of
June 13, 2011].)
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The problem appears to have become pervasive enough to warrant
statutory directives. Among the few options available to the
courts and the Legislature to curb such misconduct, is to
alter the jury admonitions to specifically address these
situations. Another is to support those admonitions with the
possibility of tough sanctions, as discussed below. This bill
would seek to do both. First, it would explicitly provide in
those admonitions that a juror has a duty not to research or
disseminate information and that the prohibition on research,
dissemination of information, and conversation applies to all
forms of electronic and wireless communications. Second, it
would provide that the willful disobedience of these
admonitions, including engaging in any form of electronic or
wireless communication or research, is a contempt of court and
a misdemeanor. (See Comment 3 below.)
3. Willful Disobedience
Existing law provisions enumerate contempts of court and also
enumerate those contempts of court that are misdemeanors. This
bill would allow for a court to find a juror guilty of contempt
for any willful disobedience of a court admonishment related to
the prohibition of any form of communication or research about
the case, including all forms of electronic or wireless
communication or research is a contempt of court and a
misdemeanor. The bill would also provide that a person guilty
of a contempt of court for willfully disobeying this court
admonishment is also guilty of a misdemeanor.
To effectively curb jurors' electronic and wireless
communications, it is important that jurors not only be advised
of their duties and warned of engaging in any improper conduct,
but also that courts be given the tools needed to enforce these
admonishments and deter any willful disobedience by jurors.
In recognition of the potential havoc that these improper
communications can cause for the courts and the resulting costs
to both the state's resources and the legal system's integrity
and legitimacy, this bill would provide courts with the ability
to enforce those admonishments, as described above.
4. AB 2217 veto message
Governor Schwarzenegger vetoed an identical bill last year, AB
2217. In his veto message, the Governor stated:
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This bill would require courts to provide specific
admonishments to jurors about communication through electronic
and wireless devices. This bill is unnecessary. Existing law
already sufficiently deals with communications among jurors.
Moreover, this type of admonishment is better handled through
court rules rather than by statute.
5. Potential chaptering-out issues
Staff notes that AB 179 (Gorell and Williams), relating to
contempt, and AB 1402 (Committee on Public Safety), relating to
deadly weapons, would amend several of the same sections amended
by this bill and double-jointing language must be added to the
bill before it leaves the Senate to avoid any chaptering-out of
this bill's provisions.
Support : American Federation of State, County and Municipal
Employees (AFSCME), AFL-CIO; California District Attorneys
Association (CDAA); California Public Defenders Association
(CPDA); Consumer Attorneys of California (CAOC); Civil Justice
Association of California (CJAC); Judicial Council; Los Angeles
County District Attorney's Office; Office of the California
Attorney General
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : AB 2217 (Fuentes, 2010) See Background.
Prior Vote :
Senate Public Safety Committee (Ayes 6, Noes 0)
Assembly Floor (Ayes 60, Noes 0)
Assembly Appropriations Committee (Ayes 16, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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