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,  








          AB 2101 (Gordon)
          Page 2 of ? 

          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  







          AB 2101 (Gordon)
          Page 3 of ? 

          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  







          AB 2101 (Gordon)
          Page 4 of ? 

          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  







          AB 2101 (Gordon)
          Page 5 of ? 

            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  







          AB 2101 (Gordon)
          Page 6 of ? 

          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  







          AB 2101 (Gordon)
          Page 7 of ? 

          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  







          AB 2101 (Gordon)
          Page 8 of ? 

            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.  







          AB 2101 (Gordon)
          Page 9 of ? 

          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  







          AB 2101 (Gordon)
          Page 10 of ? 

          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:







          AB 2101 (Gordon)
          Page 11 of ? 

           
            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)







          AB 2101 (Gordon)
          Page 12 of ? 

          Assembly Judiciary Committee (Ayes 10, Noes 0)

                                   **************