Contact With 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,” and “such a person” reaches jurors and prospective jurors as well as the judge.¹ The rule protects prospective jurors, the panel from which the jury will be chosen, while selection is under way, and it protects seated jurors for as long as they serve. Contact after the jury is discharged falls under a separate provision, taught in the next section, so this section covers contact before and during service. The elements are the ones tested against judges earlier in this chapter. What changes is the person on the receiving end: a layperson from the community who will decide the facts.

Everything meant to shape a juror's decision should arrive as evidence and argument in open court, where the other side can object and respond. Contact outside the courtroom bypasses that arrangement, because whatever the juror takes from it arrives with no one present to answer. That purpose produces a stricter result than the one reached for judges. Earlier in this chapter, a chat with a judge about a used dinette set fell outside the rule because nothing the judge heard could bear on a pending ruling. A juror is different. Every exchange leaves an impression of the lawyer, and the impression travels to the jury room whatever the subject. A juror who enjoyed talking with one side's lawyer may extend that side a little more goodwill, and the other side has no chance to counter it.

A rule that tolerated harmless contact would also make a disciplinary body decide, long after the fact, whether a given conversation had affected a juror's thinking, and the only evidence of that effect sits inside the juror's head. A ban on all contact outside open court during the proceeding removes the question, because no lawyer has to judge which exchanges are safe. The ban is also easy to follow in the moment. A lawyer who finds a juror from the case within earshot knows the conversation does not happen, whatever its subject.

Hypothetical Illustration

A lawyer riding a courthouse elevator finds two jurors from his own trial aboard. One remarks on the weather and the other on last night's baseball game, and the lawyer chats back for the length of the ride. Nobody mentions the case, and opposing counsel, who is not in the elevator, never learns of the exchange. The lawyer has communicated with sitting jurors, outside open court, during the proceeding, with the opposing side absent and nothing in law or a court order authorizing it. Rule 3.5(b) is violated even though the talk was friendly and unrelated to the case. Before the jury was seated, the same lawyer had put questions to the panel in the courtroom, with the judge presiding and opposing counsel present to hear every word and object. That exchange was open to the side it might have hurt, so it was not ex parte.

The two exchanges may be equally harmless in content. What separates them is the setting. The first happened outside the courtroom with no one present to answer, and the second happened where the court's procedures operate and the opposing side hears everything said.

The prohibition follows the lawyer's communication wherever it travels. A lawyer who directs an investigator, a paralegal, a client, or a friend to speak with a juror has communicated with that juror through another person, and the contact is treated as the lawyer's own. Imagine the rule without this reach. If the ban covered only conversations the lawyer held in person, every lawyer could comply on paper and still deliver the same private influence through a different messenger, and the client would benefit just the same. The lawyer also controls who speaks, since the lawyer sends the messenger, so placing responsibility on the lawyer places it with the person able to prevent the contact.

Jurors sometimes start the exchange. A juror may compliment a witness, ask a question about the trial, or simply say hello in the hall. The reasoning from judge-initiated contact applies here with equal force: the rule governs what the lawyer communicates, so the juror's opening does not excuse a lawyer who replies. The response that satisfies the rule is silence followed by a report to the court. Silence is complete compliance, because a lawyer who says nothing has communicated nothing. The report moves the episode into the open, where the judge can decide whether to question the juror, instruct the whole jury, or take other steps, and where the opposing side can be heard. The report should reach the court with notice to opposing counsel, because a private report would be one more ex parte contact. The approach also spares the lawyer an awkward rebuff, since a lawyer who does not answer has nothing to explain.

A lawyer may still learn about jurors. Rule 3.5(b) prohibits communication, and a lawyer who reads public records about a juror communicates nothing to that juror. A property deed, a court judgment, and a voter registration record sit in public offices. Reading them delivers no message to the juror, influences no one, and takes nothing from the other side, who may read the same files. The rule's concern is one-sided private persuasion, which research of this kind does not involve. The limit is that research must stay research. Once an inquiry reaches the juror personally, whether through a call, a visit, or a messenger, it becomes the contact described above.

Contact With Jurors

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