BILL ANALYSIS Ó
AB 2683
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Date of Hearing: April 29, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 2683 (Cooley) - As Introduced: February 21, 2014
Proposed Consent
SUBJECT : CONTEMPT: JURORS
KEY ISSUE : Should A RECENTLY ENACTED criminal contempt remedy
for POTENTIAL JUROR MISCONDUCT be ELIMINATED AT THE REQUEST OF
THE JUDICIAL COUNCIL BECAUSE THIS WELL-INTENTIONED APPROACH
UNINTENTIONALLY WEAKENED THE ABILITY OF COURTS TO INFORMALLY
INQUIRE ABOUT ALLEGED JUROR MISUSE OF ELECTRONIC COMMUNICATIONS?
SYNOPSIS
This non-controversial bill, sponsored by the Judicial Council
of California, seeks to eliminate a category of juror misconduct
that constitutes misdemeanor contempt of court - the willful
disobedience by a juror of a court admonishment against any
communication or research about a pending trial, including
electronic or wireless communications. Last year's AB 141,
which the Judicial Council supported and which passed both
houses of the Legislature with no negative votes, had inserted
that category in Penal Code Section 166 with the laudable
objective of discouraging this type of juror misconduct.
However the famous law of unintended consequence arose in this
instance, and the addition of this criminal contempt remedy has
proven impracticable because, due to the potential
criminalization of the conduct, it inadvertently prevented
courts from informally inquiring about the alleged juror
misconduct. The Judicial Council thus has concluded that recent
court experience has revealed that civil contempt remains the
proper remedy for this type of juror misconduct. There is no
known opposition to the bill's proposed reversion back to prior
law in this area.
SUMMARY : Seeks to reverse a recent 2012 change to the juror
misconduct statute involving juror communications or research
about a pending trial, including electronic or wireless
communications, returning the law to civil rather than criminal
contempt in this area.
AB 2683
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EXISTING LAW :
1)Provides that the willful disobedience by a juror of a court
admonishment against communication or research about a pending
trial, including all forms of electronic or wireless
communication or research, can be a misdemeanor. (Penal Code
Section 166(a)(6), created in 2012 as noted above in AB 141
(Fuentes) Chapter 181, Statutes of 2011.)
2)Requires the court, when permitting the jury to separate, to
admonish the jury against conducting research, disseminating
information, or conversing with anyone about a pending trial.
(Code of Civil Procedure Section 611.)
3)Establishes that the court shall not permit any communication
regarding a pending trial by jurors during deliberation.
(Code of Civil Procedure Section 613.)
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
COMMENTS : This non-controversial bill merely seeks to return
the law pertaining to potential juror misconduct involving juror
communications or research about a pending trial, including
electronic or wireless communications, to civil rather than
criminal contempt. In 2011, the Legislature passed AB 141 to
address the problem of jurors using electronic devices in the
jury box to communicate information about an ongoing case. The
well-intended bill sought to amend the civil and criminal
contempt statutes to grant courts the power to enforce an
admonishment against any communication or research about a
pending trial, including electronic or wireless communications.
That measure passed this Committee by a bi-partisan vote of
10-0, and it subsequently passed the Legislature with no
negative votes and was signed by the Governor.
However after the enactment of AB 141 a not-so-funny thing
happened on the way to the forum. According to the bill's
sponsor, the Judicial Council, by making electronic
communication about the trial a criminal offense, AB 141's
changes to Penal Code Section 166(1)(6) unintentionally weakened
the ability of the court to informally inquire about a juror's
alleged use of electronic communications. When placed in a
situation to determine whether misconduct involving the use of
an electronic device occurred, courts most often questioned
AB 2683
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jurors because, in many instances, only jurors can explain the
subject of the electronic communication. It required courts to
investigate allegations of misconduct by jurors during trials
because such conduct could of course potentially bear on the
outcomes of the trial. Hence the unintended rub: because that
juror may be charged with a misdemeanor, questions posed by the
court may implicate the juror's constitutional rights against
compelled testimony and self-incrimination.
This bill therefore seeks to avoid this conundrum and eliminates
the unforeseen consequence of implicating a juror's
constitutional rights by deleting the recently added subdivision
(a)(6) from Penal Code Section 166. In support, the Judicial
Council states that "[b]y eliminating the criminal contempt
remedy for jurors' communication or research on a case, the bill
allows a court to question a juror about such activity when
necessary to preserve the integrity of the trial."
Appropriate Remedies Remain to Address Juror Misconduct in This
Area : Removing subdivision (a)(6) from Penal Code Section 166
will not completely eliminate the courts' ability to investigate
and pursue charges against delinquent jurors. The author notes
that courts still will retain the power to pursue the civil
contempt of court remedy against jurors who disregard court
admonishment against communication or research about a pending
trial, according to Civil Procedure Code Sections 611 and 613.
Although civil contempt proceedings raise similar constitutional
implications, the authority to initiate civil contempt
proceedings lies exclusively with the court. Thus, if the court
believes questioning the juror is necessary to preserve the
integrity of a trial, the court will be able to first offer the
juror immunity from civil contempt sanctions in exchange for a
formal inquiry on the record. The flexibility to question a
juror without implicating his or her constitutional rights will
once again allow courts to reduce the risk of mistrial and
reversal on appeal. This process will, according to the
Judicial Council, ensure that the conduct of the trial,
including any inquiry of a juror into the use of electronic
communications during the trial, remains squarely within the
province of the court. Thus the author and sponsor maintain it
turns out through recent experience that civil contempt of court
really is the best remedy for this type of potential juror
misconduct.
AB 2683
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REGISTERED SUPPORT / OPPOSITION :
Support
Judicial Council of California (sponsor)
Opposition
None on file
Analysis Prepared by : Drew Liebert and Ruth Yang / JUD. / (916)
319-2334