BILL ANALYSIS THIRD READING AB 501 W. Brown (D) 8/24/94 in Senate 21 FIRST JUDICIARY COMMITTEE VOTE NOT RELEVANT NOT RELEVANT SUBJECT: Criminal proceedings SOURCE: Author ____________________________________________________________________________ DIGEST: This bill creates a new crime of juror tampering. ANALYSIS: Existing law requires that at the adjournment each day of šthe court in criminal trials before the case is submitted to the jury, the šcourt must admonish the jury that it is their duty not to talk to anyone šabout the proceedings or to form or express any opinion about the šproceedings until the cause is formally submitted to them. (Penal Code šSection 1122) Falsifying evidence and bribing, influencing, intimidating or threatening šwitnesses is prohibited. Specified penalties apply. (Penal Code Sections š132 to 140) For purposes of those code sections, "Witness" means any natural person, š(i) having knowledge of the existence or nonexistence of facts relating to šany crime, or (ii) whose declaration under oath is received or has been šreceived as evidence for any purpose, or (iii) who has reported any crime što any peace officer, prosecutor, probation or parole officer, correctional šofficer or judicial officer, or (iv) who has been served with a subpoena šissued under the authority of any court in the state, or of any other state šor of the United States, or (v) who would be believed by any reasonable šperson to be an individual described in subparagraphs (i) to (iv), š inclusive. (Penal Code Section 136 2!) š The First Amendment of the United States Constitution guarantees freedom of šspeech; the Sixth Amendment provides for the right to a fair trial; the šFourteenth Amendment provides that the states shall not abridge the privileges and rights of šcitizens of the United States and provides for both due process of law and šequal protection of the laws. Article I, Section 2 of the California Constitution provides for freedom of šspeech and states that: "A law may not restrain or abridge liberty of šspeech or press." This bill would create a new crime to prohibit a person who (a) is a šwitness to an event or occurrence that he or she knows is a crime or (b) šhas personal knowledge of facts that he or she knows or reasonably should šknow may require the person to be called as a witness in a criminal šprosecution from receiving directly or indirectly any money or its šequivalent for providing information obtained as a result of witnessing the ševent or occurrence or having personal knowledge of the facts. The bill authorizes the Attorney General or the district attorney to šinstitute a civil proceeding. Where a final judgement is rendered in the šcivil proceeding, the defendant will be punished by a fine equal to 150% of šthe amount received or contracted for. A violation of (b), above, is a misdemeanor punishable by imprisonment for ša term not exceeding six months in the county jail, a fine of three times šthe amount of compensation requested, or both the fine and imprisonment. The new prohibition would not apply if more than one year has elapsed from šthe date of any criminal act related to the information about a criminal šact unless prosecution has commenced, in which case the new crime shall šapply until final judgment in the action. Exceptions from that new crime are provided for specified circumstances, šsuch as (a) lawful compensation paid to expert witnesses, investigators, šemployees, or agents by a prosecutor, law enforcement agency, or an šattorney for one of the parties, (b) lawful compensation to prosecution and šlaw enforcement informants, (c) compensation paid to media šemployees/personnel for disclosing information obtained in the ordinary šcourse of business, and (d) statutorily authorized rewards offered by šgovernmental agencies for information leading to the arrest and conviction šof specified offenders. The bill provides that the court, in its discretion, may, at each šadjournment of the court before the submission of the cause to the jury, šadmonish the jury, whether permitted to separate or kept in charge of šofficers, that, on pain of contempt of court, no juror shall, prior to šdischarge, accept, agree to accept, or benefit, directly or indirectly, šfrom any payment or other consideration for supplying any information šconcerning the trial. In enacting this section, the Legislature recognizes that the appearance of šjustice, and justice itself, may be undermined by any juror who, prior to š CONTINUED AB 501 Page 3 discharge, accepts, agrees to accept, or benefits from valuable šconsideration for providing information concerning a criminal trial. The bill contains severability clause. The purposes of this bill are to specifically admonish jurors in criminal šcases that they are not to receive compensation for information about the šcase being presented before them and to prevent witnesses in criminal cases šfrom "tainting" evidence by selling information about those cases while šprosecution is pending or the case if being presented, as specified. FISCAL EFFECT: Appropriation: No Fiscal Committee: Yes Local: Yes SUPPORT: (Verified 8/25/94) National Association for the Advancement of Colored People Judicial Council of California Los Angeles County District Attorney California State Sheriff's Association California Police Officers Association California Police Chiefs' Association OPPOSITION: (Verified 8/24/94) California Broadcasters Association American Civil Liberties Union California Attorneys for Criminal Justice California Newspaper Publishers Association ARGUMENTS IN SUPPORT: According to the author's office, "For weeks on šend, the O.J. Simpson case has transfixed the nation with a compelling šcombination of horror, suspense, high drama and celebrity. One aspect of šthe Simpson case is particularly troubling: witnesses who have sold their štestimony for a fee. Such a practice damages the right to a fair trial in štwo important ways: First, it compounds the problem of pretrial publicity, šsince there are clearly some people who would not talk to the press without špayment. Second, and more importantly, it intrudes upon the judicial šprocess, because it creates an incentive to lie. That kind of incentive šcan be devastating in a trial A witness who tells the truth, but admits to šbeing paid for his or her story, may lose credibility in the eyes of the šjury. The American judicial system is dependent upon the voluntary šparticipation of citizens - both as witness and jurors. When such šparticipation is linked to the receipt of large sums of cash, the very šintegrity of the judicial process is at risk. In criminal cases, where the šlife and liberty of a defendant are at stake, such practices should not be štolerated. It is important to note that this legislation in no way šprohibits witnesses from talking with the press prior to or during a trial, šbut only from being paid to do so. The Bill of Rights, which guarantees šfreedom of speech and freedom of the press, also establishes, through the šSixth Amendment, the right of criminal defendants to a fair trial." ARGUMENTS IN OPPOSITION: The American Civil Liberties Union asserts š CONTINUED AB 501 Page 4 that this bill: "significantly impedes on First Amendment rights of freedom šof speech and freedom of press. We are equally concerned about the need to šprotect a defendant's Sixth Amendment right to a fair trial...if the šstate's interest were truly to protect the defendant's Sixth Amendment šrights, whether the media pays or does not pay for information is širrelevant to whether it is prejudicial to the court or jury...creating a šcrime with a negligence standard of intent, ('should have known'), is very šharsh and unwarranted. And, the exemption for reporters who 'disclose šinformation obtained from another person relating to a crime' does not šprotect reporters who are percipient witness to a crime. Would the šreporter who videotaped and reported on the Reginald Denny beating be šguilty of a crime? Imagine the results if this statute had been in effect šwhen the Rodney King beating tape was sold to the news media. The state's šinterests in ensuring the Sixth Amendment right to a fair trial and šprotecting the credibility of witnesses can be met by less restrictive šalternatives than prohibiting all potential witnesses to all crimes from šreceiving payment for their stories." RJG:lm 8/25/94 Senate Floor Analyses CONTINUED