Supreme Judicial Court, July 13, 2012
Where there is a credible claim that the jury may have been exposed to an extraneous matter or influence, but there is also a claim of a Fidler violation that suggests wrongdoing by the defendant, the judge must conduct a meaningful inquiry into the alleged Fidler violation and weigh both claims in deciding whether the defendant's motion for juror inquiry should be granted.
One year after his conviction for operating a motor vehicle while under the influence of alcohol, the defendant moved for post-verdict inquiry of the jurors. After holding evidentiary hearings, the judge allowed the defendant's motion for a new trial on the basis that the jury had been exposed to an extraneous influence during deliberations and the Commonwealth had failed to prove that the incident did not prejudice the defendant. The Appeals Court vacated the order for a new trial and remanded the case for further inquiry into the bases for the defendant's request for a post-verdict inquiry of the jurors and, in particular, the role played by the defendant and his friend in contacting a juror, in apparent violation of the principles in Commonwealth v. Fidler, 377 Mass. 192 (1979). See Commonwealth v. Bresnahan, 79 Mass. App. Ct. 353, 364 (2011). The Supreme Judicial Court granted the defendant's application for further appellate review affirming the Appellate Courts ruling to remand for the case for further inquiry.
Based on its reading of Fidler, “the Commonwealth seeks to institute an exclusionary rule that would prevent a judge from hearing or at least considering evidence about an alleged extraneous influence on a jury if the initial information was gained through improper juror contact.” The Court disagreed ruling “we find no justification for adoption of a strict exclusionary rule whenever a violation of the Fidler principles is found to have occurred.
The Court clarified the procedure for conducting post-verdict hearings where, a defendant claims that the jury were exposed to an extraneous influence, but there is also evidence that the defendant or someone acting on the defendant's behalf may have violated the principles in Fidler.
Counsel, litigants, and those acting on behalf of them are prohibited from any post-verdict contact with jurors absent permission from a judge. See Fidler. “The Fidler proscriptions in relevant part have been adopted as a rule of professional conduct. See Mass. R. Prof. C. 3.5(d), 426 Mass. 1391 (1998) (rule 3.5 [d] ). The rule bars attorneys from initiating contact with jurors after a verdict is rendered without court approval, although attorneys may respond to juror-initiated communications so long as such response is not intended to harass, embarrass, or influence future jury service.”
“Where there is a credible claim that the jury may have been exposed to an extraneous matter or influence, but there is also a claim of a Fidler violation that suggests wrongdoing by the defendant, the judge must conduct a meaningful inquiry into the alleged Fidler violation and weigh both claims in deciding whether the defendant's motion for juror inquiry should be granted. A meaningful inquiry may well require an evidentiary hearing in order to evaluate whether a Fidler violation occurred and, if so, its nature and extent.”
“Where such an inquiry leads the judge to conclude that the Fidler principles in fact were violated by the defendant or someone acting on the defendant's behalf, the next step is to balance the Fidler violation or violations against the information that has been presented about the extraneous matter or influence--accepting, for purposes of the balancing exercise, that such information is accurate. Based on the evidence received, if the judge continues to believe that there is a colorable showing of extraneous influence on the jury, and also finds a violation of Fidler by the defendant or on his behalf, the judge must balance these considerations in deciding whether to grant the defendant's motion for juror inquiry. The balance ultimately struck will be highly dependent on the factual circumstances.”
The Court concluded that in this case, because the motion judge did not permit the Commonwealth the opportunity to inquire of the witnesses about the alleged Fidler violations, the case should be remanded for further proceedings where the judge should apply the balancing analysis laid out in this case to decide whether the defendant is entitled to a new trial.