Concept
Jurors During the Proceeding
Impartiality and decorum of the tribunal
Jurors During the Proceeding
Rule 3.5 lists jurors and prospective jurors among the people a lawyer may not try to influence "by means prohibited by law," and the ex parte clause that follows protects the same list during the proceeding.1 With a judge, the ex parte ban comes with sorting questions: whether the subject was a pending matter, whether the contact was housekeeping, whether law or a court order authorized it. With a juror, almost none of those questions help the lawyer, and the working rule is silence outside open court.
Three rules follow. The first is the near-total ban on private contact with sitting and prospective jurors. The second extends the same protective reasoning to a juror who is excused during trial but before the verdict. The third reverses direction: a lawyer who learns that a juror has misbehaved, or that someone has acted improperly toward a juror, must speak up rather than stay silent. All three concern the period while the proceeding is under way. Contact after the jury is discharged follows different rules, taken up in the next section.
Sitting Jurors
Rule 3.5(b) forbids a lawyer to "communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order."2 "Such a person" points back to paragraph (a), which names jurors and prospective jurors without qualification.3 The text therefore draws no line between a juror already seated and a member of the venire (the pool summoned for possible selection), and it draws none by subject. A lawyer who trades remarks about the weather with a juror has communicated with that juror ex parte just as surely as one who mentions the case. The only exits are the two the rule names, authorization by law and authorization by court order. A communication made in open court with the other side present is not ex parte at all, which is why voir dire, the questioning of prospective jurors to select a jury, remains lawful.
The rule asks only whether contact occurred, not whether it did harm, because of how a juror's decision is made. A juror is supposed to decide on evidence and argument presented in open court, where the opponent can object and answer. A private remark arrives without those checks, and no one can later measure its effect, because jurors deliberate in private and return a verdict without reasons. A harm test would send courts looking for something they cannot see and would invite lawyers to gamble on which conversations are safe. A rule of silence needs no such inquiry.
The version of the problem that tempts students most is the one in which the juror speaks first, because a lawyer who answers feels merely polite.
The juror's decision to speak first changes nothing, because the rule binds the lawyer, who knows it and can decline to answer. The careful lawyer says nothing, lets the exchange die, and afterward discloses it to the judge with opposing counsel present or on notice. That disclosure restores the openness the contact lacked.
The same reasoning reaches contact that a lawyer arranges but does not personally make, because a message the lawyer could not deliver is no less one-sided when a friend delivers it. A rule against communicating with jurors would mean little if a lawyer could hand the conversation to someone else.
The hinge between the two scenes is who put the contact in motion. When the lawyer initiates it, the carrier becomes the lawyer's agent. Chatter among neighbors in which the lawyer had no part is not the lawyer's act.
Live contact and background research are different things, and the ban reaches only the first. Reading a record is not communicating with the person it describes.
The line falls between reading a document and speaking to a person. Once the research turns into a conversation with the juror, whether held by the lawyer, a paralegal, or an investigator the lawyer sends, it becomes contact within the ban.
Step two is where the instinct to ask whether the chat was harmless leads students astray. The rule asks only whether a communication with a juror occurred, so a friendly tone and a trivial topic do not help.
Excused Jurors
The ban on contact with sitting jurors leaves a gap: a juror excused partway through a trial, before the verdict, is off the panel while the proceeding goes on. Hobson v. Wilson filled it, holding that attorney contact with an excused juror during trial is potentially harmful and creates a rebuttable presumption of prejudice.5 A presumption of prejudice is a conclusion the law draws once the contact is shown, and it stands unless the contact is shown to have done no harm. The rule is easiest to learn as the sitting-juror protection applied to a new person, and the court's reasoning shows why it drew the line there.
The contact came in a civil trial. After the close of evidence but before closing arguments, one of the plaintiffs' attorneys telephoned a person who had sat on the jury early in the trial and had been excused on December 3, 1981, and the two discussed the juror's view of the case and the evidence.6 The conversation was extremely brief. The former juror freely offered her opinions about the evidence, calling it overwhelming and confusing and saying she was not convinced the defendants had incited the police, while denying that the jurors had discussed the merits among themselves.7 Four days later the trial court examined the juror on the record, with counsel invited to ask questions, and examined the lawyer who had made the call. The defendants then moved for a mistrial, which asks the court to end the trial and start over, and the court denied the motion.8
The appeals court found no case addressing attorney contact with an excused juror, and it observed that confusion about whether such contact was even permitted apparently gave rise to the call. It therefore set out to make clear what it expects of officers of the court and what follows when they fall short.9 Its starting point was the sitting-juror cases. Mattox v. United States and Remmer v. United States considered the possible prejudicial effect of third-party contacts with sitting jurors and concluded that the likelihood of prejudice warrants a rebuttable presumption. Following the same analysis, the court held that the presumption applies to an excused juror as well.10
The presumption rests on the assumption that jurors are impartial. That assumption does two jobs: it insures that defendants receive a fair trial, and it maintains litigants' faith in the probity of verdicts and the integrity of the system.11 Contact between an excused juror and a party, the party's counsel, or an agent of either implicates both of the concerns underlying Mattox, the fairness of the trial and the integrity of the jury system. A presumption of prejudice therefore arises from a showing that the contact occurred.12
The court's reasoning has two strands, and the first is the weaker. An excused juror who discusses the merits with a third party could carry what was said back to the jurors still deliberating. If that were the only worry, the court said, it might hesitate to presume prejudice, because the likelihood of prejudice dissipates drastically and a cautionary instruction to the excused juror, coupled with the judge's inherent discretion to declare a mistrial, might be an adequate safeguard.13
The stronger concern runs the other way, from juror to lawyer. An excused juror can tell counsel how the jurors viewed credibility and the strength of the evidence, and counsel could use that to shore up weak points with more witnesses or different proof before the trial ends. A call of this kind also works as a private voir dire. The opponent gets no notice, takes no part, and there is no record, and a knowledgeable party can learn a juror's attributes and concerns and tailor arguments to them. Allowing it would let parties circumvent voir dire by questioning excused jurors about the biases of those who remain.14
The presumption can be rebutted, and the judge weighs how much actual prejudice the contact produced: whether it was directly with a party, related to the merits, involved threats, or was communicated to other jurors.15 In Hobson the call went to the merits, which cut toward prejudice. Against that, the call was extremely brief, the juror denied that the jurors had discussed the case, and the court examined both juror and lawyer on the record within days.16 The trial judge found the presumption rebutted and the contact without prejudicial impact. The appeals court found his reasoning convincing and upheld the denial of the mistrial as a proper exercise of discretion.17 Surviving the presumption saved the verdict, but it did not license the call, since the court wrote to make plain what it expects of officers of the court.18
Timing marks the other edge of the rule, because the presumption addresses contact while the trial is still being decided.
Step three is where students lose points, because the objecting side does not have to prove that the verdict was affected. Step four is where the contest takes place, and a short contact examined on the record, with no spread to the panel, is the pattern in which the presumption gives way.
Reporting Juror Misconduct
Rule 3.5(a) bars a lawyer from seeking to influence a juror by means prohibited by law, and the preceding subsections followed that protection through the bans on private contact.20 Those rules tell a lawyer what to refrain from doing. A further duty runs the other way: a lawyer who knows of improper conduct by a juror, or of improper conduct by someone else directed at a juror or a juror's family, must report it to the court, even when silence would help the client. Where the earlier rules call for silence, this one calls for speech.
The reason for an affirmative duty lies in how little a court can see. A jury room is closed to everyone but the jurors, and a judge can protect a panel only from influences the judge knows about. The people most likely to know are the lawyers, who heard the voir dire answers, who know the parties and witnesses, and who may recognize a juror from their own past dealings. If a lawyer who gains from the problem may stay silent, the one person able to expose it has every reason to leave it alone. Lawyers are ordinarily free to leave adverse facts for the opponent to find, but that freedom assumes the opponent can find them, and a juror's undisclosed tie to the other side's lawyer or witness is the kind of fact an opponent usually cannot.
The duty has a second half, which governs how the report is made. It goes to the court, and the court investigates. A lawyer who tries to confirm the facts by speaking with a sitting juror breaks the ban on contact with jurors. A lawyer who carries the news privately to the judge makes an ex parte communication with the judge about a pending matter that no law or court order authorizes.21 Reporting suspends none of the other rules in this chapter, and the goal of protecting the jury must be pursued by routes that keep the other side informed and leave the court in charge.
Each lawyer fails in a different way, so the two must be assessed separately. The prosecutor is subject to discipline for failing to inform the court. His knowledge was complete, the false answer concerned relationships bearing directly on the juror's impartiality, and silence favored his own side, the situation in which the temptation to say nothing is strongest. That defense counsel could have asked sharper questions makes no difference, because the duty turns on what the reporting lawyer knows and not on what the opponent might have found. The defense lawyer pursued the right goal by the wrong route. A private visit to the judge is an ex parte communication about a pending case, and a good motive does not cure the one-sided channel.
The exam question that follows is what the defense lawyer should have done, and the answer comes from putting both halves of the duty together.
A student who reads the defense lawyer's conduct for motive will find a sympathetic one, since the lawyer was trying to secure an impartial jury for a capital defendant. But the harm in the ex parte rules lies in the one-sided channel, and a good reason for using it does not cure it. The prosecutor's error is the mirror image: silence leaves the duty unperformed however correct the lawyer's other conduct has been.
Steps one through three catch the prosecutor, and step four catches the defense lawyer. An answer that finds a violation for one lawyer should still check the other, because stems of this kind are usually built so that both fail in different ways.