BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 2683 (Cooley) 3
As Introduced February 21, 2014
Hearing date: June 10, 2014
Penal Code
MK:mc
CONTEMPT: JURORS
HISTORY
Source: Judicial Council
Prior Legislation: AB 141 (Fuentes) - Chapter 181, Stats. 2011
AB 2217 (Fuentes) - 2010, vetoed
Support: Unknown
Opposition:None known
Assembly Floor Vote: Ayes 75 - Noes 0
KEY ISSUE
SHOULD CRIMINAL CONTEMPT FOR USE OF AN ELECTRONIC COMMUNICATION
DEVICE BY A JUROR BE ELIMINATED?
PURPOSE
The purpose of this bill is to eliminate criminal contempt for
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the use of an electronic or wireless communication device by a
juror.
Existing law 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 § 611.)
Existing law establishes that the court shall not permit any
communication regarding a pending trial by jurors during
deliberation. (Code of Civil Procedure § 613.)
Existing law 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 §
166(a)(6).)
This bill deletes the above provision.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
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felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014, and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013, Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
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the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated May 15, 2014, the state
reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
design bed capacity, and 8,650 inmates were housed in
out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
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Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
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According to the author:
AB 2683 restores Fifth Amendment protections by
deleting a category of juror misconduct for willfully
disobeying a court instruction against any
communication or research about a pending trial,
including electronic communications.
In 2011, the Legislature passed AB 141 to address the
problem of jurors using electronic devices, such as
cell phones, in the jury box to communicate information
about an ongoing case. The willful disobedience by a
juror of a court instruction against any communication
about a pending trial constitutes a criminal
misdemeanor contempt of court.
Courts are required to investigate allegations of
misconduct by jurors during trials because such conduct
may bear on the outcome of the trial. To determine
whether misconduct involving the use of an electronic
device has occurred, courts must often question jurors
because, in many instances, only jurors can explain the
subject of the electronic communication.
By making electronic communication about the trial a
criminal offense, California unintentionally weakened
the ability of the court to informally inquire about a
juror's alleged use of electronic communications.
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.
Penal Code section 166 enumerates certain offenses
constituting misdemeanor contempt of court. This bill
deletes the section pertaining to "Willful disobedience
by a juror of a court admonishment related to the
prohibition on any form of communication or research
about the case, including all forms of electronic or
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wireless communication or research."
The juror may still be held in civil contempt of court
for this act, according to Civil Procedure Code
Sections 611 and 613. If the court believes
questioning the juror is necessary to preserve the
integrity of a trial, the court could 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 allows courts to reduce
the risk of mistrial and reversal on appeal.
2. Eliminating Criminal Contempt for Use of Electronic Devices
As noted in the author statement, when willful disobedience by a
juror of a court admonishment related to the prohibition of any
form of communication or research about the case including
electronic research was added to the provisions on misdemeanor
criminal contempt, the fact that this could hinder the court's
ability to determine whether there had been improper use of an
electronic device was not discussed. By making it a crime, a
person can invoke his or her 5th Amendment right against
self-incrimination and not answer the judge's question about use
of an electronic device, thus hampering the court's ability to
determine whether juror misconduct occurred.
By deleting the criminal penalty for this type of jury
misconduct, the court will be able to determine if jury
misconduct occurred. Civil contempt penalties will still exist
if the judge determines they are appropriate.
The Judicial Council states:
The Judicial Council believes the proper remedy for
this category of juror misconduct is civil, as opposed
to criminal, contempt of court. Although civil
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contempt proceedings raise similar constitutional
implications, the authority to initiate civil contempt
proceedings lies exclusively with the court. Thus, if
the court believes that questioning the juror is
necessary to preserve the integrity of a trial, the
court could first offer the juror immunity from civil
contempt sanctions in exchange for a formal inquiry on
the record. This process would ensure 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.
Courts need to have the ability to inquire into juror
activities that may bear on the outcome of the trial
without implicating the juror's constitutional rights
associated with the possibility of criminal contempt of
court sanctions. Some ability to question jurors is
critical, allowing the court to determine if misconduct
occurred. The flexibility to question a juror without
implicating his/her constitutional rights is essential
and will avoid jeopardizing the integrity of the
proceedings and increasing the risk of mistrial and
reversal on appeal. AB 2683 eliminates the unforeseen
consequence of implicating a juror's constitutional
rights by deleting the recently added subdivision
(a)(6) from Penal Code section 166.
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