2 The nature
the rebuttal here, which was the juror's statement, made it3 inevitable that defense counsel would seek access to the postings that are4 covered by the Act. And, whatever may be said about the ElectronicCommunications Act, it is clear that the law was not intended to allow a juror to
violate the court's admonition to keep silent about a case and then claim that the
Act made the very postings that violated the admonition private and unreachable.
It is obvious that this information was posted so that others might read it and thatit was not private
any sense that relates to this inquiry. (See
(2009) 172 Cal. App. 4th 1125, 1130 [posting
MySpace page not
private, even when subsequently removed].)
Trial courts have inherent power to manage inquiries into juror misconduct.
(2009) 179 Cal.App.4
339, 380.) The inquiry into juror
misconduct is not simply a matter of dueling presentations by the prosecution and
defense. Instead, once a showing
misconduct has been made, the court also
must investigate. The court has discretion to subpoena reluctant jurors.
387.) "Jurors may not thwart
misconduct by the court itself."
this case, the court has concluded that the investigation must continue to
the point at which the postings themselves are available.
THEREFORE, ORDERED, that within 10 days from the date
1 execute a consent form sufficient to satisfy the exception stated
Title 18, U.S.C. section 2702(b) allowing Facebook to supply the postings made
1 during trial. These postings should be supplied directly to the court,
would occur under a criminal subpoena, and the court will redact, if necessary,
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