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.