BILL ANALYSIS
AB 2217
Page 1
Date of Hearing: April 6, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 2217 (Fuentes) - As Amended: March 25, 2010
PROPOSED CONSENT
SUBJECT : JURORS: ELECTRONIC COMMUNICATIONS
KEY ISSUE : SHOULD SEVERAL CHANGES BE MADE TO JURY INSTRUCTIONS
TO PROVIDE STATUTORY CLARIFICATION REGARDING IMPROPER USE OF
ELECTRONIC OR WIRELESS DEVICES TO COMMUNICATE, RESEARCH OR
DISSEMINATE INFORMATION CONCERNING AN ONGOING CASE?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
The author notes that broader access to electronic and wireless
devices has enabled jurors to use social media and other
internet tools to communicate during trial and jury
deliberations. The use of these devices by jurors presents an
ongoing challenge in preventing mistrials, overturned
convictions and chaotic delays in court proceedings. In
response, this non-controversial measure seeks to clarify and
codify an informal practice among trial courts to authorize
courts to appropriately admonish jurors against the use of
electronic and wireless devices to communicate, research, or
disseminate information about an ongoing case. The bill also
seeks to amend the civil and criminal contempt statutes to grant
courts the power to enforce the admonishment. There is no known
opposition to the bill, and the bill is supported by both the
Consumer Attorneys and the Judicial Council.
SUMMARY : Seeks to statutorily authorize an informal practice by
many courts to appropriately admonish jurors against the use of
electronic and wireless devices to communicate, research, or
disseminate information about an ongoing case. Specifically,
this bill :
1)Requires the court, when admonishing the jury against
conversation pursuant to these provisions, to clearly explain,
as part of the admonishment, that the prohibition of the use
of electronic or wireless devices applies to all forms of
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communication, electronic research, or dissemination of
information about a case. The bill would require the officer
in charge of a jury to prevent any use of an electronic or
wireless device to communicate, research, or disseminate
information about a case.
2)Updates existing civil and criminal contempt statutes by
establishing that courts have the authority to hold jurors in
contempt for willfully disobeying a court admonishment
relating to the prohibition of any form of electronic
communication, dissemination of information, or research about
a case.
EXISTING LAW :
1)Requires the court in a civil proceeding during a jury trial
to 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. The court is required to
provide the admonishment when the jurors are permitted to
separate during the trial, and when the case is submitted to
the jury. (Civil Code section 611.)
2)Requires the court in a criminal proceeding during a jury
trial to 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. The court is
required to provide the admonishment after the jury has been
sworn and before the people's opening address, at each
adjournment of the court, and when the jurors are permitted by
the court to separate after the case is submitted to the jury.
(Penal Code 1122.)
3)Requires that an officer in a civil proceeding, having the
jury under his or her charge, shall not permit any
communication to be made to them, or make any himself or
herself. (Civil Code section 613.)
4)Requires that an officer in a criminal proceeding, having the
jury under his or her charge, shall not permit any
communication to be made to them, or make any himself or
herself. (Penal Code section 1128.)
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COMMENTS : This non-controversial bill seeks to address the
increasing incidence of juror use, of electronic and wireless
devices, to conduct independent research on the internet or
communicate with others about cases. Juror use of this media
may take several forms: jurors conducting independent research
on the case on the internet; sending e-mails, text messages,
tweets or other communication conveying developments in a trial
or deliberations; or using the camera feature of mobile
technology to record courtroom proceedings.
It is standard procedure for a court to admonish jurors of their
duty not to converse with others or conduct independent research
until a verdict is rendered. But recent use of electronic and
wireless devices by jurors has caused mistrials, overturned
convictions, and court delays. In 2009 a San Francisco Superior
Court judge dismissed 600 potential jurors after several
acknowledged going online to research the criminal case before
them. Additionally, in 2001 a federal drug trial in Florida
ended in a mistrial when eight jurors admitted to conducting
internet research on the case they were hearing.
It is believed that more explicit mention in jury instructions
of the various methods and modes of electronic communication and
research would help jurors better understand and adhere to the
scope of the prohibition against the use of these devices. The
Judicial Conference of the United States, the policy-making body
of the federal courts, has attempted to address this growing
problem through the release of model jury instructions. The
model jury instructions the Judicial Conference released to the
federal judiciary specify:
You may not communicate with anyone about the case on
your cellphone, through e-mail, Blackberry, iPhone,
text messaging, or on Twitter, through any blog or
website, through any internet chat room, or by way of
any other social networking websites, including
Facebook, MySpace, LinkedIn and YouTube.
California has also attempted to address the problem of improper
juror use of electronic and wireless devices. California Civil
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Jury Instruction 100, which is given at the outset of every
civil case, includes the following admonitions:
Do not post any information about the trial or your
jury service on the Internet in any form. Do not send
or accept any messages, including e-mail or text
messages, to or from anyone concerning the trial or
your service. ...
Do not do any research on your own or as a group. Do
not use dictionaries, the Internet, or other reference
materials. Do not investigate the case or conduct any
experiments.
California Criminal Jury Instruction 101 includes similar
provisions:
Do not share information about the case in writing, by
email, or on the Internet. ... During the trial, do
not read, listen to, or watch any news report or
commentary about the case from any source.
Do not do any research on your own or as a group. Do
not use a dictionary, the Internet, or other reference
materials. ...
If you have a cell phone or other electronic device,
keep it turned off while you are in the courtroom and
during jury deliberations. An electronic device
includes any data storage device. If someone needs to
contact you in an emergency, the court can receive
messages that it will deliver to you without delay.
This bill seeks to statutorily authorize the above type of
admonishments and clarify the scope of the prohibition
against the use of these devices under California law. It
also seeks to provide courts with the authority to enforce
the prohibition by holding a disobedient juror in contempt.
ARGUMENTS IN SUPPORT : Apropos of the consensus support for this
measure at this time are the comments submitted to the Committee
by the Judicial Council, which include that:
The Judicial Council is extremely concerned that
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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 use of improper use of
electronic communications by jurors, the courts would
welcome the clear statutory directive that the
admonition address the issue. In addition, as
important as the admonition is, the statutory
clarification that violators may be held in contempt
of court is important, and would provide the court
with necessary enforcement tools for use in
appropriate cases.
Additional comments of support include those of the
Consumer Attorneys of California, stating in part that:
Recently, a number of instances of juror misconduct
have resulted in mistrials, which can further add to
the rising costs of litigation. Broader access to
smart-phones and PDA devices have come at a cost to
California litigants. In almost every state, courts
have confronted incidents where a juror impermissibly
accesses Google, Wikipedia, Facebook, Twitter, or
Myspace to discuss the case or conduct amateur
investigations of the evidence and the parties.
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association
California Peace Officers' Association
California Police Chiefs Association
Consumer Attorneys of California
Judicial Council
Opposition
None on file
Analysis Prepared by : Drew Liebert and Cheryl Lema / JUD. /
(916) 319-2334