BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 2217 (Fuentes) 7
As Amended March 25, 2010
Hearing date: June 29, 2010
Code of Civil Procedure; Penal Code
MK:dl
JURORS: ELECTRONIC COMMUNICATIONS
HISTORY
Source: Author
Prior Legislation: None
Support: Judicial Council of California; Civil Justice
Association of California; California District
Attorneys Association
Opposition:None known
Assembly Floor Vote: Ayes 71 - Noes 0
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?
PURPOSE
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The purpose of this bill is to make it clear that admonishments
by the court to juries regarding communications include
communication by means of electronic and wireless devices to
communicate, research, or disseminate information about an
ongoing case.
Existing law 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 s 611.)
This bill provides that the courts 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.
Existing law 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 613.)
This bill provides that communication includes any type of
communication including any form of electronic or wireless
communication.
Existing law provides that specified acts or omissions in
respect to a court of justice are contempts of the authority of
the court. (Code of Civil Procedure 1209)
This bill provides that the 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 wireless communication or research is contempt of
court.
Existing law specifies that specified contempts of court are a
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misdemeanor.
This bill provides that the 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 wireless communication or research is a contempt
of court that is a misdemeanor.
Existing law 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.)
This bill provides also that jurors shall not converse among
themselves, or with anyone else, conduct research or disseminate
information on any subject connected with the trial.
This bill provides 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.
Existing law 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 1128.)
This bill clarifies that communication means any form of
electronic or wireless communication.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
The severe prison overcrowding problem California has
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experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
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system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. On Monday, June 14, 2010, The U.S. Supreme Court agreed
to hear the state's appeal in this case.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
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<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
COMMENTS
1. Need for This Bill
According to the author:
Existing law requires that at specified intervals, the
court in 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.
Although this admonition arguably includes the use of
electronic communications, the fact that this kind of
communication is not expressly included has resulted in
increased problems in courts across the country. For
example, in one case the conviction of a state senator
in Pennsylvania is being appealed because jurors
discussed the case on Facebook and Twitter. In another
case, a $12.6 million verdict was appealed because a
juror's Twitter messages sent before and after the trial
showed that he was biased against the Defendant.
"Tweeting" and "Googling" jurors have caused numerous
mistrials.
2. Communication Includes Wireless Communication and Research
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. While communication and research
implicitly include wireless communication, there have been
incidents in California and other places where jurors have used
Facebook or twitter to communicate with each other or have been
found to have done independent electronic research during the
course of a trial. This bill takes the implicit inclusion of
electronic communications and statutorily makes such
communications explicitly included in the admonishments. It also
makes clear that a violation of an admonishment against using
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electronic communications is punishable as misdemeanor contempt.
In support the Judicial Council states:
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 improper use of electronic
communications by jurors, the council welcomes the clear
statutory directive that the admonition address the
issue. In addition, given the importance of the
admonition, the statutory clarification that violators
may be held in contempt of court is also important, and
would provide the court with necessary enforcement tools
for use in appropriate cases.
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