BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 2101 (Gordon)
Version: March 31, 2016
Hearing Date: June 14, 2016
Fiscal: Yes
Urgency: No
RD
SUBJECT
Sanctions: jurors
DESCRIPTION
This bill would allow judicial officers from a representative
sample of courts participating in a pilot project by the
Judicial Council, as specified, to impose reasonable monetary
sanctions, as specified, on an impaneled juror for any knowing
violation of a lawful court order without good cause or
substantial justification that is supported by clear and
convincing evidence. This bill would also require the Judicial
Council to report to the Governor and the Legislature the
results of its evaluation of the pilot project, on or after July
1, 2021. This bill would sunset on January 1, 2022.
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
of that case.
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,
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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.
As early as 2009, a New York Times article noted that "[t]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."
(Schwartz, New York Times, As Jurors Turn to Web, Mistrials are
Popping Up (Mar. 18, 2009)
[as of May
17, 2016].) 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
might take to drive from Point A to Point B, and news sites can
write about a criminal defendant, his lawyers or expert
witnesses."
Recognizing that jury misconduct can be an issue that has severe
consequences for the integrity and outcome of a trial,
California law provides for jury admonitions that inform jurors
of their duty not to converse with, or permit themselves to be
addressed by, any other person on any subject of the trial.
(Code Civ. Proc. Sec. 611; see also Pen. Code Sec. 1122 which
contains similar language.) Moreover, California law further
requires that the officer charged with guarding the jury during
deliberations 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 Civ. Proc. Sec. 613; see also
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Pen. Code Sec. 1128, which contains substantially similar
requirements.) In 2011, AB 141 (Fuentes, Ch. 181, Stats. 2011)
was enacted to curb the improper use of electronic and or
wireless communications, research, and dissemination of
information and to provide courts with the tools that were
necessary to enforce those rules (such as the ability to hold a
juror in contempt of court). Specifically, AB 141 updated
these existing statutes to require the jury admonition to inform
jurors of their duty not to conduct research or disseminate
information, and to require that the court clearly explain, as
part of the admonishment, that the prohibition on research,
dissemination of information, and conversation applies to all
forms of electronic and wireless communication. AB 141 also
clarified that the officer guarding the jury must not allow any
electronic or wireless communications to be made to jurors.
This bill would now add the ability of certain courts
participating in a Judicial Council pilot project to also impose
reasonable monetary sanctions (not to exceed $1,500) on an
impaneled juror who knowingly violates a lawful court order
without good cause or substantial justification, as specified.
This pilot project (and the authority to impose sanctions by
participating courts) would sunset on January 1, 2022.
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 defen[s]e. (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
conduct research, disseminate information, or converse with, or
permit 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. The court must clearly explain, as part of the
admonishment, that the prohibition on research, dissemination of
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information, and conversation applies to all forms of electronic
and wireless communication. (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
except by order of the court, the officer having them under his
or her charge must not allow any communication to be made to
them, including any form of electronic or wireless
communication, or make any communication himself or herself,
except to ask them if they or three-fourths of them are agreed
upon a verdict. Further, the officer 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.) Existing law, 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 must 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 (civil)
contempts of court. For example, under this list, a person
summoned as a juror is in contempt of court if the person
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, and fails to immediately disclose
the communication to the court. Additionally, a juror is in
contempt of court if he or she willfully disobeys a court
admonishment related to the prohibition on any form of
communication or research about the case, including all forms of
electronic or wireless communication or research. (Code Civ.
Proc. Sec. 1209(a)(6), (11).)
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,
conduct research, or disseminate information on any subject
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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).)
Existing law further provides with respect to the admonition in
the jury instructions, above, that the jurors shall not
converse, conduct research, or disseminate information on any
subject connected with the trial, 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 and wireless communication. (Pen.
Code Sec. 1122(a)(1).)
Existing law provides that the jury shall also, 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 conduct research, disseminate information, or 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. The court shall
clearly explain, as part of the admonishment, that the
prohibition on research, dissemination of information, and
conversation applies to all forms of electronic and wireless
communication. (Pen. Code Sec. 1122(b).)
Existing law governs how reports are to be submitted to the
Legislature and, among other things, requires that each report
include a summary of its contents, not to exceed one page in
length. If the report is submitted by a state agency, that
agency must also provide an electronic copy of the summary
directly to each member of the appropriate house or houses of
the Legislature. Additionally, any state agency report and
summary subject to these provisions must include an Internet Web
site where the report can be downloaded and a telephone number
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to call to order a hard copy of the report. (Gov. Code Sec.
9795.)
Existing law provides, generally, that a judicial officer has
the power to impose reasonable money sanctions, not to exceed
$1,500, notwithstanding any other provision of law, payable to
the court, for any violation of a lawful court order by a
person, done without good cause or substantial justification.
For these purposes, "person" includes a witness, a party, a
party's attorney, or both. Existing law provides that such
sanctions shall not be imposed except on notice contained in a
party's moving or responding papers; or on the court's own
motion, after notice and opportunity to be heard. An order
imposing sanctions shall be in writing and shall recite in
detail the conduct or circumstances justifying the order. (Code
Civ. Proc. Sec. 177.5.)
This bill would require the Judicial Council, on or before July
1, 2017, to solicit the participation of a representative sample
of courts, taking into account size, geography, and other
factors identified by the council, for participation in a pilot
project to evaluate the effectiveness of this bill. This bill
would specify that it applies only to those courts participating
in the pilot project.
This bill would provide that, notwithstanding any other law, a
judicial officer of a court selected pursuant to the provisions
below for participation in the pilot project established by this
bill may impose reasonable monetary sanctions, not to exceed
$1,500, payable to the court, on an impaneled juror for any
knowing violation of a lawful court order without good cause or
substantial justification that is supported by clear and
convincing evidence.
This bill would prohibit the imposition of sanctions except on
notice contained in a party's moving or responding papers, or on
the court's own motion, after notice and an opportunity to be
heard. An order imposing sanctions must be in writing and must
recite in detail the conduct or circumstances justifying the
order.
This bill requires the Judicial Council to conduct an evaluation
of the pilot project and report the results to the Governor and
the Legislature on or before July 1, 2021, as specified under
existing law, above. The report must also examine whether the
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imposition of sanctions affects the number of prospective jurors
who report for jury duty.
This bill would include a January 1, 2022, sunset date.
COMMENT
1. Stated need for the bill
According to the author:
Existing law, Code of Civil Procedure (CCP) [S]ection 177.5,
authorizes a judicial officer to impose reasonable money
sanctions upon a person for violations of lawful court orders.
As defined in CCP Section 177.5, the term "person" includes a
witness, a party, a party's attorney, or both. However, jurors
are not included in this definition even though juror
misconduct occurs.
Currently there are many forms of juror misconduct that can
take place during a trial. These include discussing a case
with other jurors, talking with members of either party of a
case, researching evidence outside of the court, and more
recently using social media to discuss the case. Social media
use by jurors has been a growing phenomenon. Stories of jurors
posting about their experiences in the juror box have
seemingly become common place. In some instances, jurors have
been found to have "friend requested" other parties of a trial
via social media, while the jury was still in deliberations.
Social media posts made by a juror about their specific case
is not only a violation of lawful court orders, but can also
jeopardize the integrity of court cases and in some instances
has resulted in mistrials of cases as well as verdicts that
were challenged or overturned, costing government time and
taxpayer money. As it stands now, the only avenue to bring
about accountability for juror misconduct is to hold the juror
in civil contempt of the court.
There is a major difference between the process for imposing
reasonable money sanctions and the more formal procedures
required for contempt of court. Depending on the nature of
the contempt, formal notice and a hearing may be needed and in
the case of criminal contempt, counsel may be appointed. In
contrast to these contempt procedures, which may delay a trial
for hours or even days, the process for a money sanction may
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be resolved in a matter of minutes while still giving the
juror an opportunity to explain his or her actions.
In an effort to hold jurors accountable and deter them from
violating lawful court orders, AB 2101 would create a pilot
program to give judicial officers in select counties the
option to impose reasonable money sanctions on jurors for
violations done without good cause or substantial
justification. Adding jurors to the list of persons subject to
reasonable money sanctions will prevent delays in cases over
minor juror misconduct, while also allowing a judicial officer
an additional tool to protect the integrity of the case at
hand.
2. Sanctions against impaneled jurors who violate court
admonitions against the use of electronic or wireless
communications during trial
A 2013 American Bar Association article discusses the
significant impact that social media can have on the American
jury system. According to that article, in 2011, a death row
inmate's murder conviction was tossed because of a juror's
tweets during trial (Dimas-Martinez v. State (Ark. 2011) 385
S.W.3d 238, 249). Likewise, a Kentucky murder conviction was
reversed when two jurors "friended" the victim's mother on
Facebook during trial (Sluss v. Commonwealth (Ky. 2012) 381
S.W.3d 215, 229). That article advocates for the bar to prepare
to counter the potential adverse impact social media can have on
juries in several ways. The article recommends not only
prohibiting the use of social media to communicate about a case
by way of frequent jury instructions, but also advocates for the
implementation of additional safeguards such as the issuance of
fines for violations of judicial instructions.
California law already provides for jury admonitions that inform
jurors of their duty not to conduct research, disseminate
information, converse with, or permit themselves to be addressed
by, any other person on any subject of the trial. Additionally,
under this law, the court must clearly explain, as part of the
admonishment, that the prohibition on research, dissemination of
information, and conversation applies to all forms of electronic
and wireless communication. Separately, existing law also
requires that the officer guarding the jury not allow any
communication to be made to the jurors, including any electronic
or wireless communications, during deliberations. (Code Civ.
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Proc. Secs. 611, 613; see also Pen. Code Secs. 1122, 1128.) Any
juror who 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, and fails to immediately
disclose the communication to the court, could be held in
contempt of court. Similarly, a juror can be held in contempt of
court if he or she willfully disobeys a court admonishment
related to the prohibition on any form of communication or
research about the case, including all forms of electronic or
wireless communication or research. (Code Civ. Proc. Sec.
1209(a)(6), (11).)
That being said, short of holding a juror in contempt of court,
the court's enforcement mechanisms are limited in addressing
such juror misconduct. One such mechanism could, as suggested
by the ABA article, above, include the ability to issue fines or
sanctions. While a judicial officer generally has the authority
to impose sanctions, not to exceed $1,500, for any violation of
a lawful court order by a person, done without good cause or
substantial justification, for these purposes, under existing
law, "person" only includes a witness, a party, a party's
attorney (or both). (See Civ. Code Sec. 177.5.) In contrast,
judicial officers do not have the power to impose sanctions on
jurors for similar violations of court orders, including orders
made in the jury admonitions against electronic or wireless
communication.
Accordingly, this bill would, until January 1, 2022, allow
courts in select counties to also sanction impaneled jurors who
violate court orders such as those given under the jury
admonition statutes. Specifically, this bill would provide
that, notwithstanding any other law, a judicial officer of a
court selected for participation in the pilot project, as
specified, may impose reasonable monetary sanctions, not to
exceed $1,500 on an impaneled juror for any knowing violation of
a lawful court order without good cause or substantial
justification that is supported by clear and convincing
evidence. Like the existing provision allowing for sanctions
against parties, attorneys, or witnesses, this bill would ensure
that the parties or court provide the juror with notice and
opportunity to be heard before any sanctions can be imposed, and
that an order imposing sanctions be in writing and recite in
detail the conduct or circumstances justifying the order.
Moreover, by operation of this bill's sunset date and reporting
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requirement, this Legislature will have the opportunity to
review any unintended consequences of such sanctions, including
any impact that the sanctions might have on the number of
prospective jurors who report for jury duty. In the meantime,
because the bill is limited to select courts participating in
this pilot program by Judicial Council, any adverse impacts
would be further limited.
3. Sanctions under this bill are payable to the court
This bill currently provides that the sanction, which can be up
to $1,500, is payable to the court. Arguably, though there must
be clear and convincing evidence that the juror knowingly
violated the lawful court order without good cause or
substantial justification, this could provide a direct incentive
to the participating courts to sanction jurors. Staff notes
that existing law authorizes judicial officers to impose
sanctions up to $1,500 against parties, attorneys, or witnesses
(Code Civ. Proc. Sec. 177.5), and similarly provides that the
sanctions are payable to the court. However, in contrast to
this bill, those sanctions must be remitted to the Trial Court
Trust Fund (TCTF) pursuant to a separate provision of law, "as
soon as practicable after collection and on a regular basis."
(See Gov. Code Sec. 68085.1(a)(1) and (b).) To avoid any
possible conflict, the author has agreed to the following
amendment to ensure that the sanction is ultimately remitted to
the TCTF, similar to sanctions imposed under Section 177.5.
Author's amendment:
Amend paragraph (1) of subdivision (a) of Section 68085.1 of
the Government Code to add Section 177.6 of the Code of Civil
Procedure, following the reference to Section 177.5.
4. Time allotted between the Judicial Council report and the
bill's sunset date
This bill currently only provides for six months between the due
date of the Judicial Council report and the bill's sunset. To
allow the Legislature time to review the report before the
expiration of the bill's sunset, the author has agreed to the
following amendment to require the report one year in advance of
the sunset.
Author's amendment:
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On page 2, line 26, strike "July" and insert "January"
5. Clarifying amendment
The author has also agreed to the following clarifying amendment
would ensure that the standard of clear and convincing evidence
applies to the court's finding of a knowing violation, done
without good cause or substantial justification:
Author's amendments :
On page 2, line 8, strike "order" and insert "order, done"
On page 2, line 9, strike "justification" and insert
"justification,"
Support : None Known
Opposition : None Known
HISTORY
Source : Judicial Council
Related Pending Legislation : None Known
Prior Legislation :
AB 2683 (Cooley, Ch. 99, Stats. 2014) deleted a Penal Code
provision that made it a contempt of court (a misdemeanor) for a
juror to willfully disobey a court admonishment related to the
prohibition on any form of communication or research about the
case, including all forms of electronic or wireless
communication or research.
AB 141 (Fuentes, Ch. 181, Stats. 2011), See Background.
AB 2217 (Fuentes, 2010) was substantially similar to AB 141,
above. This bill was vetoed.
Prior Vote :
Assembly Floor (Ayes 76, Noes 0)
Assembly Appropriations Committee (Ayes 16, Noes 0)
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Assembly Judiciary Committee (Ayes 10, Noes 0)
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