Criminal Justice Section
Criminal Justice Magazine
Volume 19 Number 1
Criminal Justice Matters
Post-Trial Contact with Jurors: Ethical Dimensions
J. Vincent Aprile II
J. Vincent Aprile II practices law at Lynch, Cox, Gilman & Mahan P.S.C. in Louisville, Kentucky, with an emphasis on criminal law. He is retired from the Kentucky Department of Public Advocacy (1973-2003), where he served as the agency's first general counsel for 17 years (1982-1999). He is also a Section Council member, former chair and current member of the Criminal Justice magazine editorial board, as well as a contributing editor.
Recently in Louisville, Kentucky, a felony prosecutor allegedly grabbed and berated a juror whose jury the night before had acquitted a man accused of rape. The prosecutor who had tried the rape case apparently approached the juror in the courthouse where the juror was still on duty. Although the details of the meeting are in dispute, the prosecutor acknowledged that she questioned the juror about what evidence it would take to convict someone of rape. The prosecutor was fired for her alleged conduct the day after the incident. The next day, the chief prosecutor apologized to the jury pool for one of his prosecutors "confronting a juror, leaving her in tears."
Even without passing judgment on anyone's actions in this scenario, the incident raises ethical and legal questions about litigators meeting with individual jurors after they have been discharged.
Generally, ethical principles permit litigators in both civil and criminal cases to communicate with jurors after the jury trial is completed unless such contact is barred by law or court order. (ABA MODEL RULES OF PROF'L CONDUCT R. 3.5(c).) Ethical rules recognize that litigators may desire post-verdict contact with jurors in certain cases. "A lawyer may on occasion want to communicate with a juror or prospective juror after the jury has been discharged." (RULE 3.5(c), cmt. .) But, even though post-trial lawyer-juror contact is permitted, there are ethical limits on the nature and scope of that interaction.
Inherent in the juror's right to choose whether to talk with counsel is the requirement that the juror not be subject to misrepresentation, coercion, duress, or harassment. (RULE 3.5(c).) This requires lawyers or their agents, such as paralegals or investigators, to identify themselves to individual jurors, including telling the juror the client's identity. Even when the juror should be aware from the trial of the identities of the lawyer and client, counsel should nevertheless expressly provide this information. When lawyers send a nonlawyer member of the litigation team to interview the juror, the need for clearly identifying that person and the client to the juror is even more apparent. (RULE 5.3, Responsibilities Regarding Non-Lawyer Assistants.)
Just as witnesses generally have the right before trial either to talk with the lawyers in the case or to refuse such interviews, jurors who are approached after the trial has concluded have the freedom, absent contrary court order or law, either to talk with the lawyers or to decline to be interviewed. The juror has the ability to veto the lawyer's plan to talk with the juror. "The lawyer . . . must respect the desire of the juror not to talk with the lawyer." (RULE 3.5(c), cmt. .)
The lawyer should explain to the juror that the decision to talk with the lawyer is solely that of the juror. If the juror clearly informs the lawyer that he or she does not want to talk, the lawyer must refrain from attempting to change the juror's mind. However, nothing prohibits the lawyer from trying to convince an undecided or vacillating juror to talk as long as the lawyer refrains from misleading or badgering the juror. Of course, "[t]he lawyer may not engage in improper conduct during the communication." (RULE 3.5(c), cmt. .) Intimidating or pressuring the juror is prohibited.
Ideally, the lawyer's explanation of the juror's right to veto the interview would not be the first time the juror is given such advice. Trial judges should provide this information to the jurors. "At the conclusion of the trial, the court should instruct the jurors that they have the right either to discuss or to refuse to discuss the case with anyone, including counsel or members of the press." (ABA STANDARDS FOR CRIMINAL JUSTICE: DISCOVERY AND TRIAL BY JURY (3d ed. 1996), "Trial by Jury," standard 15-4.3.) Such an explanation by the trial judge removes or reduces the surprise element often experienced by the juror when the defense or prosecution approaches the juror after the trial has ended. The instruction also provides the juror with an understanding of the rules of engagement.
According to the latest version of the American Bar Association's ethical rules for lawyers, "[a] lawyer shall not . . . communicate with a juror or prospective juror after discharge of the jury if: (1) the communication is prohibited by law or court order; (2) the juror has made known to the lawyer a desire not to communicate; or (3) the communication involves misrepresentation, coercion, duress or harassment." (MODEL RULES OF PROF'L CONDUCT R. 3.5(c).) This ethical directive applies to all litigators, civil and criminal, as well as prosecutors and defense counsel.
Should a prosecutor's post-trial access to jurors be more or less restrictive than that of defense counsel? Ethical standards treat prosecutors and defense counsel equally on the issue of post-verdict access to jurors. For example, the ABA Criminal Justice Standards for prosecutors and defense counsel on this question are identical. (ABA STANDARDS FOR CRIMINAL JUSTICE, PROSECUTION FUNCTION AND DEFENSE FUNCTION, (3d ed. 1993), PROSECUTION FUNCTION, Standard 3-5.4(c), relations with jury; and DEFENSE FUNCTION, Standard 4-7.3(c), relations with jury.)
These standards emphasize that an important aspect of post-trial contact with jurors is that the interview be conducted in a positive manner that avoids criticism of the verdict or the jurors. "After discharge of the jury from further consideration of a case, a prosecutor [or defense counsel] should not intentionally make comments to or ask questions of a juror for the purposes of harassing or embarrassing the juror in any way which will tend to influence judgment in future jury service." (PROSECUTION FUNCTION, Standard 3-5.4(c); DEFENSE FUNCTION, Standard 4-7.3(c).) Juror harassment can result from either the lawyer's conduct toward the juror or the questions asked.
Harassment, embarrassment, and criticism in such interviews have the potential to color the juror's decision making in any later stints as a juror. "Since it is vital to the proper functioning of the jury system that jurors not be influenced in their deliberations by fears that they subsequently will be harassed by lawyers or others who wish to learn what transpired in the jury room, neither the prosecutor nor defense counsel should discuss a case with jurors after trial in a way that is critical of the verdict." (PROSECUTION FUNCTION, Standard 3-5.4(c), cmt.; DEFENSE FUNCTION, Standard 4-7.3(c), cmt.) Any competent interviewer knows that the tactics condemned by these standards are not strategies conducive to an open and frank discussion with anyone, let alone a juror who has been advised of his or her right to veto the interview.
What are the legitimate purposes of such post-trial contacts with jurors? "If the prosecutor [or defense counsel] believes that the verdict may be subject to legal challenge, he or she may properly, if no statute or rule prohibits such course, communicate with jurors to determine whether such challenge may be available." (PROSECUTION FUNCTION, Standard 3-5.4(c); DEFENSE FUNCTION, Standard 4-7.3(c).) Under these standards, post-trial contact with jurors to investigate a legal basis for attacking the verdict is legitimate and appropriate, even when the claim is juror misconduct. "Where prevailing law permits such inquiries, the prosecutor [or defense counsel] may discuss a case with former jurors for the purpose of ascertaining the existence of juror misconduct." (PROSECUTION FUNCTION, Standard 3-5.4(c), cmt.; DEFENSE FUNCTION, Standard 4-7.3(c), cmt.) "However, the prosecutor [or defense attorney] must carefully avoid any harassment of the jurors in the course of such inquiries." (Id.)
Similarly, ethical principles do not preclude either the prosecution or defense from contacting jurors after the trial to discuss the case, a particular issue, or the lawyer's trial performance. Jurors are ideally suited, if so disposed, to provide the prosecutor or defense counsel with extremely informative feedback about all aspects of the presentation of the case. Lawyers should be free to take advantage of this educational resource when it is available. "[I]t is not improper, in states where the law and ethics codes so permit, for the prosecutor [or defense counsel] to communicate in an informal manner for the purpose of self-education with former jurors who are willing to talk about their jury service." (Id.)
Some jurisdictions are examining a bill of rights for jurors that may speak to the issues involved in post-trial discussions with discharged jurors. One version of a jurors' bill of rights would require attorneys who contact jurors after trials to inform the jurors: (a) who they represent; (b) why they are contacting the juror; ( c) that the juror has a right to refuse to talk to them; and (d) that the juror has a right to review and receive a copy of any subsequent declarations filed in court. In most instances such a bill of rights for jurors is unnecessary because both prosecutors and defense attorneys, both public defenders and retained counsel, are ethically obligated to provide virtually all of the rights sought.
Absent prevailing law or court order to the contrary, was the Louisville prosecutor ethically permitted to contact the juror and, with the juror's consent, discuss the acquittal in the rape case? Undoubtedly. But that is only the beginning of the inquiry. How the contact was made, how the prosecutor conducted herself, and how she questioned the juror are the touchstones by which that prosecutor's actions will be judged ethical or not.
Situations such as the incident in Louisville should never, however, cause prosecutors or defense counsel to eschew post-trial contact with jurors. Instead, those incidents must remind litigators in the criminal justice system to review the ethical principles and guidelines to ensure that their post-trial contacts with jurors are not only informative and valuable, but proper and appropriate, as well as in conformity with law and controlling court orders.