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Commonwealth of Massachusetts

June 2001

What can I say... what can I do?

Robert I. Warner, Assistant Bar Counsel

While waiting for the elevator after the jury has just returned a guilty verdict against your client, you overhear a conversation between two persons whom you recognize as jurors in the case. They say that they were unsure about the victim's testimony identifying your client and were surprised that a court officer told them that they could not have a transcript of the testimony, but would have to rely on their collective memories. Your client's defense was alibi, and the victim's identification testimony was of critical importance in the case. Can you walk over to the jurors and ask them if they would be willing to speak with you? The simple answer is no.

As originally enacted in 1972, DR 7-108(D), the disciplinary rule governing post-verdict contact with jurors, provided:

After discharge of the jury from further consideration of a case with which the lawyer was connected, the lawyer shall not ask questions of or make comments to a member of that jury that are calculated merely to harass or embarrass the juror or to influence his action in future jury service

On its face, this rule permitted post-verdict questions to be put to jurors so long as the communication was not intended to "harass or embarrass the juror". Nevertheless, and although the disciplinary rule remained unchanged until 1991, the Supreme Judicial Court took a different view with the 1978 case of Commonwealth v. Fidler, 377 Mass. 192 (1978).

In Fidler, a juror initiated post-verdict contact with defense counsel regarding what the juror believed to be an incident of jury misconduct. Defense counsel interviewed the juror and obtained an affidavit from him stating that, during their deliberations, the jurors had considered testimony stricken from the record and also had been exposed to information that was not admitted in evidence or discussed at the trial. Defense counsel then filed a motion for a new trial based on the juror's affidavit.

The trial judge refused to consider the affidavit or take the testimony of the juror, and denied Fidler's motion. Fidler appealed. Although defense counsel had not initiated the contact, the Supreme Judicial Court was concerned that the juror was interviewed absent any judicial oversight. Without referring to DR 7-108(D), the Court held that post-verdict interviews of jurors had to be conducted under supervision by the trial judge, that parties and their counsel were prohibited from independently contacting jurors after a verdict, and that counsel could investigate unsolicited juror information only to the extent of determining whether the matter was worth bringing to the trial judge's attention. The Court noted that "the jury system is best protected by a rule requiring that any post-verdict interviews of jurors…take place under the supervision and direction of the judge." Fidler was remanded to the Superior Court for a limited hearing on a portion of the alleged juror misconduct.

In 1985, the United States Court of Appeals for the First Circuit addressed the issue of post-verdict contact with jurors in United States v. Kepreos, 759 F. 2d 961 (1st Cir. 1985). In Kepreos, a mistrial was declared due to a hung jury. Prior to retrial, an Assistant United States Attorney contacted at least one juror and "learned the purported numerical split [of the jury], the identity of the jurors who were not persuaded beyond a reasonable doubt, and, further, their reasons for having been unwilling to convict [Kepreos] in the first trial."

This information came to light on the fourth day of the retrial. After the defendant was convicted, defense counsel appealed, claiming, among other things, that the government's contact with jurors from the first trial had given it an unfair advantage in the jury selection process and during the first three days of trial. The First Circuit "concur[red] in the rationale of Fidler and…expect[ed] counsel to adhere to that rule in the future[.]" The court adopted a prospective rule prohibiting "post-verdict interview of jurors by counsel, litigants or their agents except under the supervision of the district court, and then only in such extraordinary situations as are deemed appropriate."

In 1990, the Supreme Judicial Court revisited the issue of post-verdict contact with jurors in Commonwealth v. Solis, 407 Mass. 398 (1990). Solis' lawyer had made a practice of waiting to speak with jurors after a verdict to "seek feedback" in order to "learn and grow as [a] practitioner[.]" After the verdict, a juror approached defense counsel and disclosed in the course of the conversation that a court officer had told the jurors they could not obtain a transcript of the victim's testimony. In addition, the court officer had declined to report a deadlock to the court, instead, telling the jury foreman that the judge would not be informed of the deadlock for at least two to three days and that the jury should continue to deliberate.

Defense counsel filed a motion for a new trial based upon the alleged improper contact between the court officer and the jury. The Commonwealth objected to the motion on the grounds, among others, that defense counsel's contact with the juror was a violation of the rule set down in Fidler and that any evidence of impropriety gained from the prohibited contact should be excluded from evidence. The trial judge granted the motion for a new trial and the Commonwealth appealed.

The Supreme Judicial Court upheld the decision of the trial court, observing that defense counsel had not violated any constitutional rule or, for that matter, the Court's own disciplinary rules. The Court, nevertheless, found that defense counsel's "conduct was inconsistent with principles for postverdict interrogation of jurors set forth in Commonwealth v. Fidler[.]" Recognizing that Fidler was at odds with DR 7-108D) as then in effect, the Court announced an intention "to undertake consideration of whether to adopt a disciplinary rule that [would] incorporate the restrictions on postverdict interviews with jurors set in the Fidler opinion."

On August 26, 1991, the Supreme Judicial Court promulgated a new version of DR 7-108(D), which prohibited lawyers from initiating any post-verdict communications with former jurors absent "leave of court for good cause shown[.]" When a juror initiated contact with counsel, the rule required judicial supervision of post-verdict questioning and restricted the lawyer to "questions…or…comments…that [were not] intended to harass or embarrass the juror or to influence his action in future jury service." In accordance with established case law, the new rule added a prohibition against a lawyer's asking a juror anything about "the jury's deliberation processes." Justice Wilkins, in a written dissent to the new rule joined by Chief Justice Liacos, stated that post-verdict questioning of jurors did not require the imposition of the new restrictions, and pointed out that the new version of the rule attempted to deal "with a problem shown not to exist." SJC Issues New Rule on Lawyers, Jurors, Mass. Law. Wkly., Sept. 2, 1991.

The Board of Bar Overseers, the Massachusetts Bar Association, the Committee for Public Counsel Services, and the Massachusetts Association of Trial Attorneys, among others, opposed the court's restriction of post-verdict contact with jurors. These organizations pointed out that the questioning of jurors provided lawyers with opportunities to improve their trial skills and that most instances of improper influence on a jury are discovered in post-verdict interviews with jurors.

On January 1, 1998, the former Canons of Ethics and Disciplinary rules were replaced by the Massachusetts Rules of Professional Conduct. Current Mass. R. Prof. C. 3.5(d) continues the prohibitions formerly contained in DR 7-108(D) and requires a lawyer seeking to question a juror to obtain "leave of court…for good cause shown".

To return to our hypothetical lawyer's dilemma, if the lawyer wants to pursue any issues based on the jurors' comments, or if the juror had initiated contact with the lawyer, the lawyer must first meet with the trial judge and the assistant district attorney to disclose what was overheard in order to have the jurors questioned. If the judge were to find that the jurors' comments constituted "good cause", the judge may order the jurors to answer questions, under court supervision, regarding the alleged improprieties. Absent an order from the court, Rule 3.5(d) prohibits any contact with the jurors.

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© 2001. Board of Bar Overseers. Office of Bar Counsel. All rights reserved.