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April 28 — The use of social media by jurors continues to disrupt trials, forcing courts, lawmakers and jurists to attempt to find new and more effective ways to curb this type of conduct.
Jury instructions frequently incorporate provisions explaining that the use of the Internet and social media to research or discuss the case the jurors are hearing is prohibited, but yet the forbidden behavior persists.
Like many other jurisdictions, California has a law in place that allows jurors to be held in civil contempt for violating restrictions on social media use. But the state is now considering combating this issue by hitting jurors in the wallet.
In February 2016, Assembly Member Rich Gordon introduced Assembly Bill 2101 into the state legislature. The bill authorizes a pilot program that would allow judges to impose reasonable monetary sanctions not to exceed $1,500 on a juror for misconduct.
“I was approached by the California Judicial Council, which represents all of the courts in California, about the concern that the almost ubiquitous use of social media is leaking into courtrooms,” Assembly Member Gordon told Bloomberg BNA April 26. “That use has led to mistrial and overturned verdicts, and in California the only recourse a judge has is to find the juror in contempt of court.”
Assembly Member Gordon explained that a contempt holding leads to a separate contempt hearing, delaying the primary trial.
“It seemed to me that allowing the judges an option of a fine in lieu of a contempt proceeding might be a reasonable approach to help manage this behavior,” Assembly Member Gordon explained.
Assembly Member Gordon explained to Bloomberg BNA that the pilot program would allow the Judicial Council to identify five counties that would participate, to determine if fining jurors is the “right correction.”
Hughes Hubbard and Reed's Ignatius Grande, who co-chairs the Social Media Committee of Commercial and Federal Litigation Section of the New York State Bar Association, isn't surprised by the bill.
“There are a lot more incidences than there used to be of misuse of social media by jurors,” Grande told Bloomberg BNA April 27. “It's not surprising that California is trying to find a way to prevent that or to discourage jurors from using social media.”
Grande predicted that depending on the pilot program's impact, other states may pass similar legislation. The topic isn't cut and dry however, given that jurors are performing a civic duty and are taking time off from work to participate in the trial system.
“The key here is that jurors have a great responsibility when they serve as a juror and there are rules involved,” Grande explained to Bloomberg BNA. “The question is are they willing to sacrifice for that by not using social media.”
The Social Media Committee that Grande co-chairs published its Social Media Jury Instruction Report in January 2016, which explains how crucial it is that jurors be provided with appropriate guidance for social media use (16 DDEE 61, 2/4/16).
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The text of AB 2101 is available at http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201520160AB2101
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