A guide to the new rules on contacting jurors post verdict

Issue July/August 2016 By Peter Elikann

When the Supreme Judicial Court (SJC) rendered its decision in the case of Commonwealth v. Dwayne Moore (SJC 11582, June 16, 2016), permitting attorney contact with jurors post verdict, there was a rush to judgment by practitioners that the floodgates had suddenly opened on a free unrestrained exchange between advocates and jurors who had deliberated on or were discharged from the attorney's client's case at trial.

Attorneys hoped to determine whether any undue influence on the jurors may have occurred and, if so, its effect on their deliberations. Additionally, some attorneys anticipated using the once secret information on jury deliberations for their own education and professional development on how they might improve their presentation at future trials. Did the jurors find me unlikable or off-putting in any way? Was I overbearing or convoluted or boring or rude in the manner I handled myself during trial? Did the jurors react well to a particular exhibit I offered, or was it completely ineffective?

In fact, the decision did not grant such "unfettered and unrestricted" access to jurors, but rather is so nuanced that it could potentially present a dangerous minefield to unprepared attorneys. Attorneys need to familiarize themselves with the new rules and protocol set out in Moore in order to not conflict with and unwarily violate its new procedural practices.

The Moore decision set out to clarify the new Massachusetts Rule of Professional Conduct 3.5(c) that implicitly overruled the prohibition against attorney-initiated post-verdict communications with jurors recognized under the court's 1979 decision in Commonwealth v. Fidler, 377 Mass 192 (1979). But it did not overrule Fidler in its entirety.

Rule 3.5(c), which essentially followed the American Bar Association's model rule governing juror contact, seemingly begged for clarification since it apparently implied, within its text, that, although there were prohibitions governing certain aspects of their attempted communications, the door still remains open to attorney inquiry of jurors post verdict. It read:

"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, either directly or through communications with the judge or otherwise, a desire not to communicate with the lawyer; or

(3) the communication involves misrepresentation, coercion, duress or harassment."

The court in Moore concluded that, while an attorney may interview a consenting juror as to inappropriate outside influences and secure an affidavit, he or she may not delve into the actual substance of the jury's deliberations, including the mental process and thinking of either a single juror or the panel collectively. This could, purportedly, compromise the integrity of the core principle that holds sacrosanct the secrecy of jury deliberations. For better or worse, the result is that one can't inquire in general about the reason for a jury's decision and, presumably, cannot ask if any wrongful intentions or biases affected the verdict, including any impartiality caused by prejudice against a particular race, sexual orientation, gender, nationality or ethnic group. The difficulty is that, once one identifies an extraneous influence, the asking of follow-up questions to determine its effect on a juror or jury seems, at first blush, like such a logical next step. Yet that is a line that cannot be crossed.

In Moore, which included, among other charges, four murders, defense counsel, after trial, desired to explore concerns that one juror had conducted independent research and whether other recent highly publicized multiple murders and social media may have affected the jury deliberations.

In a nutshell, the SJC responded after transferring to itself five questions of law reported by the Superior Court judge to the Appeals Court. The court concluded:

The court did, in its adoption of Rule 3.5(c) in 2015, overrule the requirement in Fidler that jurors could only be contacted post verdict by an attorney with specific permission of court that would also supervise and direct the interview process.

The long-established case law principles forbidding inquiry by attorneys into the substance of the deliberations are still in effect. Inquiry is allowed to attempt to determine the presence of improper influence, but, quoting Fidler, "not … to show the role that the improper influence played in the jury's decisions." So the bottom line is that one may ask about potential improper influences but then may not follow the seemingly natural progression of attempting to find out if any juror was, indeed, swayed by these influences.

The type of contacts prohibited by law includes communications that run afoul of both statutory law and specific court orders and court rules.

The ruling here in Moore will not be applied retroactively to cases decided prior to July 1, 2015, when Rule 3.5(c) went into effect. That is unless the case was either on appeal or the appeal period had not run as of that date. The rationale is that, generally speaking, since there is no substantive change here in the common law, but rather an ethical rule concerning lawyer professional responsibility, the common law principles of retroactivity do not apply. Ethical rules tend to govern and discipline prospective behavior, not past behavior. The existing opposing argument is that defendants whose cases were tried years or decades ago will not be permitted to similarly attempt to uncover potential injustices that occurred through jury deliberations merely because the possible injustice was not recent.

While counsel is not required to seek prior court permission to approach jurors, the attorney must delay the attempted debriefing, at least five days in advance, give notice to the other party that it intends to make inquiry of the jury. That gives opposing counsel an opportunity to seek relief from the court if it objects. The notice must be rather detailed in its expression of the manner of contact, the substance of the proposed inquiry, and, if pertinent, the letter or communication that will be sent to the jurors. The SJC declared its preference that the notice be in writing and specifically include "that the juror may decline any contact with the attorney or terminate contact once initiated."

It is currently unclear whether theMoore ruling on post-verdict juror contact by attorneys presents a somewhat significant change in practice or might potentially show itself to be so limited and qualified that it proves less effective than anticipated in its application. Yet the protocol outlined in the decision contains enough subtle gradations and distinctions that it is likely incumbent upon a practitioner to thoughtfully become well versed with its nuanced roadmap before attempting to embark on the debriefing of a juror.

Peter Elikann is a Boston criminal defense attorney, chair of the MBA's Criminal Justice section, author of books on the criminal justice system and a television legal commentator.