UPDATE: Two years after the law went into effect, California's Judicial Council recommended that the statute be repealed, saying that that the possibility of criminal sanctions actually impeded courts' inquiries into improper online activity by jurors. The criminal provisions were repealed in 2014, 2014 Cal. Laws chap. 99, although civil penalties remain.
California has adopted a new statute which clarifies that jurors may not use social media and the Internet – such as texting, Twitter, Facebook, and Internet searches – to research or disseminate information about cases, and can be held in criminal or civil contempt for violating these restrictions.
The new statute, 2011 Cal. Laws chap. 181, expands the state's existing jury instructions which currently, at the start of trial and prior to any recesses or breaks, admonish jurors not to discuss the case they are sitting on with each other or anyone else before deliberations. The current instructions already admonish jurors not to conduct electronic research or communications. See Jud. Council of Cal., Civ. Jury Instrs. [CACI] Nos. 100 and 5000 (2011), available here; and Jud. Council of Cal., Crim. Jury Instr. [CALCRIM], Nos. 101 and 201 (2011), available here.The new law also charges court officers to bar jurors from communicating outside the jury room, by electronic or other means, during deliberations.
Under the new statute, "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" can be punished as contempt of court, a misdemeanor.
Assembly Member Felipe Fuentes, who sponsored the legislation, explained the need for the changes in his statement of support. "Although current law arguably prohibits the use of electronic/wireless communication devices to improperly communicate, disseminate information or research, the fact that this kind of communication is not expressly included in current law has resulted in increased problems in courts across the county."
Several of these problems have been in California courts.
- In 2007, a California appellate court reversed a trial court’s refusal to grant a motion by a convicted burglary defendant to contact the jurors in his trial, after the jury foreman discussed the jury’s deliberations in the case on his blog. People v. McNeely, No. D048692, 2007 WL 1723711 (Cal. App., 4th Dist., Div. 1 June 14, 2007) (unpublished), reh’g denied (Cal. App., 4th Dist., Div. 1 July 3, 2007), rev. denied, No. S154577 (Cal. Sept. 12, 2007).
- In 2008, a juror who posted a picture of the weapon in a murder trial to his blog was held in contempt by a Superior Court judge, but no penalty was imposed after the judge determined that the blogging did not result in an unfair trial. See Raul Hernandez, Juror held in contempt for blog of murder trial, Ventura County (Cal.) Daily Star, Jan. 23, 2008.
- In 2009, a California appeals court denied an appeal by a man of convicted of torture and other crimes, including spousal and child abuse offenses, who alleged that the jury was tainted by a juror’s online search for a definition of the term “great bodily injury.” People v. Hamlin, 170 Cal. App. 4th 1412, 89 Cal.Rptr.3d 402 (2009).
- Another appellate decision in 2009 affirmed a trial court’s denial of a new trial motion in a murder case, even though a juror was found to have blogged extensively about the case during the trial. People v. Ortiz, Crim. No. B205674, 2009 WL 3211030 (Cal. App., 2d Dist. 2009) (unreported).
- In February 2011, a trial court judge, after determining that a jury foreman had been posting updates to Facebook during a criminal gang beating trial, ordered the foreman to authorize Facebook to make the postings available to the judge for his review. The foreman appealed, and the California Supreme Court vacated the appellate court’s refusal to act on the trial court’s order. The case is now fully briefed and pending before the California Court of Appeals. See Juror No. 1 v. Super. Ct. of Sacramento County, No. C067309 (Cal. App., 3d Dist. filed Feb. 8, 2011) (docket showing that case is fully briefed as of May 12, 2011) (appeal of Juror No. 1 v. Super. Ct. of Sacramento County, No. C067309 [Cal. App., 3d Dist. Feb. 10, 2011] [denying petition], vacated, No. S190544 [Cal. Mar. 30, 2011].)
Then-Governor Arnold Schwarzenegger vetoed a similar bill last year, explaining that "[e]xisting law already sufficiently deals with communications among jurors," and that "this type of admonishment is better handled through court rules rather than by
Eric P. Robinson is the deputy director of the Donald W. Reynolds Center for Courts and Media at the University of Nevada, Reno. The California cases are excerpted from his recent article, "Jury Instructions for the Modern Age," available here.