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Avoiding Contact With Jurors

Attorneys should be familiar with key rules and principles to avoid ethical quicksand during jury selection

By Wendy Patrick Mazzarella

Wendy Patrick Mazzarella
Mazzarella

You are standing in line at the coffee cart when a very nice older gentleman approaches you and asks you for directions to the restroom. He jokes that he is asking you because you are well dressed, carrying a briefcase and “look professional,” so he figured you must know your way around. Although you see his juror badge, you don’t want to refuse to give him the information. And after all, there are so many cases on the trial call calendar, what are the odds you will run into him when you get your case sent out? Sure enough, an hour later there he is filing into your courtroom as a part of your prospective panel. He smiles and happily waves to you. What do you need to do?

There are numerous ethical dilemmas that may arise during the jury selection phase of the trial and several important ethical rules and principles to be familiar with. This article will address contact with jurors, investigation of jurors and allegations of misconduct commonly made during voir dire. It will analyze these issues under both the California Rules of Professional Conduct and the ABA Model Rules of Professional Conduct. Knowledge of these rules and ethical considerations will permit you to try your case effectively, as well as ethically.

Rule of Professional Conduct 5-320, contact with jurors

This rule states in pertinent part:

(A) A member connected with a case shall not communicate directly or indirectly with anyone the member knows to be a member of the venire from which the jury will be selected for trial of that case.

(B) During trial a member connected with the case shall not communicate directly or indirectly with any juror.

(C) During trial a member who is not connected with the case shall not communicate directly or indirectly concerning the case with anyone the member knows is a juror in the case.

Rules such as this one are part of the reason that we stress to prospective jurors the importance of wearing their juror badges at all times. Realizing that lawyers and court staff are busy people and sometimes unobservant, judges remind jurors to please not cover up their juror badges with a coat or jacket in order to ensure that everyone associated with a case can recognize them out of court. And remember that none of the lawyers connected with a case can talk to these people about anything; there is no requirement that the conversation be related to the case at hand. 

This rule is very important to remember because there are countless opportunities for prospective jurors to strike up conversations with you before the voir dire process even begins, before the judge has a chance to explain to them that such contact is prohibited. These friendly folks who are enjoying their day off work will not only compliment you on your suit at the coffee cart, but they will comment on the weather, joke about how heavy your briefcase looks and maybe even inquire as to where you bought your shoes. Make sure you keep Rule 5-320 in mind from the moment you enter the courthouse. Any contact with someone who ends up on your venire should be reported to the judge and opposing counsel. While innocuous contact will likely not disqualify a juror and frequently will not even require follow up questions, it still needs to be reported.

Rules for criminal attorneys

With respect to criminal attorneys, at a national level, there are specific ethical rules that apply to attorneys’ dealings with jurors. Two of these rules are as follows.

ABA Standards for Criminal Justice — Defense Function Standard 4-7.3 Relations With Jury: This section states in pertinent part:

(a) Defense counsel should not intentionally communicate privately with persons summoned for jury duty or impaneled as jurors prior to or during the trial. Defense counsel should avoid the reality or appearance of any such communications.

(b) Defense counsel should treat jurors with deference and respect, avoiding the reality or appearance of currying favor by a show of undue solicitude for their comfort or convenience.

There is an almost identical standard for prosecutors: Prosecution Function Standard 3-5.4, which contains the same provisions. Sometimes these standards are accidentally violated when lawyers do not realize they are interacting outside of court with jurors because they have covered up their badges and the poor overworked (often unobservant) lawyers sincerely do not recognize these people and just think they have come across a friendly stranger.

Investigating your jurors

You may have seen it happening already: during jury voir dire, one or more lawyers at counsel table are paying less attention to the answers jurors are giving from the jury box and more attention to their computer screens as they furiously type the prospective jurors’ names into Google or other search engines in order to discover who may have authored letters to the editor in the local paper, contributed to different political candidates, or have been newsworthy in other ways. If you are thinking that this sounds like a good idea, make sure you consider the ethical and legal rules that may apply.

California Rule of Professional Conduct 5-320, Contact With Jurors

This rule states in subsection (E), “A member shall not directly or indirectly conduct an out of court investigation of a person who is either a member of the venire or a juror in a manner likely to influence the state of mind of such person in connection with the present or future jury service.” There may therefore be a difference under this rule between simply researching and reading information about a juror yourself, and questioning the prospective juror about it. There is also no definition in the rule of the phrase “out of court,” regarding whether it means outside of the courtroom or merely off the record. Note also that subsection (F) clarifies that all of this rule’s proscriptions “also apply to communications with, or investigations of, members of the family of a person who is either a member of the venire or a juror.” Subsection (H) clarifies that this rule does not ban official communication with jurors during court proceedings.

And what if you observe your opponent or someone else engaging in improper contact with a juror outside of the courtroom? Subsection (G) mandates your reporting this to the judge. This section states that “a member shall reveal promptly to the court improper conduct by a person who is either a member of a venire or a juror, or by another toward a person who is either a member of a venire or a juror or a member of his or her family, of which the member has knowledge” (emphasis added).

Other contact with jurors

Although not controlling authority in California, the ABA Model Rules contain some relevant language that may be instructive.

ABA Model Rule 3.5, Impartiality And Decorum Of The Tribunal, prohibits a lawyer from seeking to influence a juror or prospective juror “by means prohibited by law” (subsection (a)), and also prohibits ex parte communications with jurors during a proceeding unless otherwise authorized by law or court order (subsection (b)). This rule also prohibits communication with a juror or prospective juror after the jury has been discharged if “the communication involves misrepresentation, coercion, duress or harassment” (subsection (c)(3)).

ABA Rule 8.4, Misconduct, prohibits lawyers from engaging “in conduct that is prejudicial to the administration of justice” (subsection (d)), and ABA Rule 8.3(a), Reporting Professional Misconduct, mandates the reporting of another lawyer’s conduct when it “raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”

Contact with prospective jurors is also specifically covered in the ABA ethics rules for criminal cases. ABA Standards for Criminal Justice — Defense Function 1. Standard 4-7.2 Selection of Jurors states in pertinent part: (b) In those cases where it appears necessary to conduct a pretrial investigation of the background of jurors, investigatory methods of defense counsel should neither harass nor unduly embarrass potential jurors or invade their privacy and, whenever possible, should be restricted to an investigation of records and sources of information already in existence.

The ABA standard for prosecutors is effectively the same; it is Standard 3-5.3, Selection of Jurors.

Ethical voir dire

Voir dire is the only opportunity lawyers have to actually enjoy a dialog (as opposed to a monologue as occurs during opening and closing statements) with the jury. As such, it is wise to strategize your time so as to maximize your credibility and effectiveness, and minimize the opportunity for objection and/or reprimand by the court. The following are several ethical issues to be mindful of as you build that great rapport with your prospective triers of fact. Although California does not follow the ABA Model Rules, such standards are persuasive when there is no California Rule of Professional Conduct on point. In addition, lawyers with a multijurisdictional practice should realize that virtually every other state follows the ABA Model Rules so should be familiar with the Rules and Standards for Criminal Justice.

ABA Standards for Criminal Justice — Defense Function 1. Standard 4-7.2 Selection of Jurors states in pertinent part:

(a) Defense counsel should prepare himself or herself prior to trial to discharge effectively his or her function in the selection of the jury, including the raising of any appropriate issues concerning the method by which the jury panel was selected and the exercise of both challenges for cause and peremptory challenges.

(c) The opportunity to question jurors personally should be used solely to obtain information for the intelligent exercise of challenges. Defense counsel should not intentionally use the voir dire to present factual matter which defense counsel knows will not be admissible at trial or to argue counsel’s case to the jury.

The ABA standard for prosecutors is effectively the same; it is Standard 3-5.3, Selection of Jurors.

Common allegations during voir dire

While California has not adopted the ABA Rule requiring lawyers to report certain types of professional misconduct (ABA Model Rule 8.3), lawyers in California should nonetheless be aware of frequent objections made during voir dire. Some of the most common involve arguing your case, appealing to passion or prejudice, and vouching for your credibility.

Information or Argument

The purpose of jury selection is to ethically and legally gather information about your jurors, not to argue your case. It is permissible to weave your theme into voir dire to some extent, but attorneys are warned not to ask questions that attempt to expose jurors to facts that will not come into evidence, to put a spin on the evidence, or to ask jurors to prejudge the evidence. This does not mean that you are not permitted to educate the jury about the facts of your case in some fashion. Many of the details in this regard will have been discussed with the court prior to voir dire.

Also remember that discussing too many facts of your case pre-trial may backfire for other reasons. For example, many of the anticipated facts may change during trial, and the direction or theory of your case also may change as a result. Some jurors are very good at remembering what you told them during voir dire and may be reminding their fellow jurors during deliberations about your failure to deliver the goods as promised.

Appealing to Passion or Prejudice

Jury selection is not an opportunity to precondition jurors unfairly. It is improper to present information in voir dire designed to appeal to the passion or prejudices of the jurors, or to otherwise inflame their emotions. This is another area you would be wise to discuss pre-trial, especially if one side represents a particularly sympathetic defendant, or key witnesses are particularly unattractive due to drug use or prior criminal convictions. Best to have already litigated whether or not such “dirt” about the parties or witnesses will be admissible in the trial in the first place, because jurors are unlikely to forget such interesting facts, even if they are specifically instructed to do so.

Vouching For Your Own Credibility

As the trial lawyer, you are not a party or a witness. Consequently, it is not your job to argue your own credibility. Vouching is improper in all stages of a jury trial, from voir dire to questioning witnesses to closing argument. Make sure you ethically try your case based solely on the evidence presented. Do not try to ingratiate yourself to the jury by telling them about how honest, religious, experienced or sincere you are.

Conclusion

Regardless of the facts of your case, all attorneys need to be familiar with the types of ethical dilemmas they may face when dealing with prospective and current jurors. Knowledge of these rules and principles will permit the prudent lawyer to persuade the trier of fact, while protecting themselves.

  • This article does not constitute legal advice. Please shepardize all case law before using.
  • Wendy Patrick Mazzarella is a San Diego County deputy district attorney, immediate past chair of the San Diego County Bar Association Legal Ethics Committee and one of 16 members of the California State Bar Committee on Professional Responsibility and Conduct.

Certification

  • This self-study activity has been approved for Minimum Continuing Legal Education credit by the State Bar of California in the amount of one hour of legal ethics.

  • The State Bar of California certifies that this activity conforms to the standards for approved education activities prescribed by the rules and regulations of the State Bar of California governing minimum continuing legal education.

Self-Assessment Test

Indicate whether the following statements are true or false after reading the MCLE article. Use the answer form provided to send the test, along with a $25 processing fee, to the State Bar. If you do not receive your certificate within four to six weeks, call 415-538-2504.

  1. The rule covering a lawyer’s contact with prospective jurors extends to other lawyers working on that same case.
  2. A lawyer who wants to investigate a juror out of court may simply delegate this task to his or her investigator so as not to worry about ever coming within the provisions of Rule 5-320.
  3. Lawyers may be able to conduct out of court investigations of prospective jurors without violating any ethics rules. 
  4. A lawyer will not face discipline under CRPC 5-320 if they communicate with someone they genuinely do not know is a member of their jury venire.
  5. The ABA Standards for Criminal Justice prohibit attorneys from communicating with people who are not only impaneled as jurors, but even summoned for jury duty.
  6. The ABA Standards for Criminal Justice prohibit attorneys from conduct that might even have the appearance of communications with members of their jury.
  7. The ABA Standards for Criminal Justice do not address any in-court restrictions on conduct by attorneys toward jury members.
  8. Regarding contact between attorneys and prospective jurors, the ABA Standards for Criminal Justice impose greater restrictions on prosecutors than they do on defense attorneys.
  9. The State Bar Rule governing contact with jurors governs contacts not only with the prospective juror, but also with members of his or her family.
  10. CRPC 5-320 prohibits lawyers from asking questions in court during voir dire that may influence a juror’s state of mind towards future jury service.
  11. A lawyer who observes his or her opposing counsel engaging in improper contact with a juror outside of the courtroom has the option of revealing it to the court, but is not required to.
  12. A lawyer who observes a juror engaging in misconduct outside of court will not be subject to discipline for not reporting their observations to the judge.
  13. The State Bar ethics rules mandate that a lawyer must report to the court observations of improper conduct by another toward a family member of a juror.
  14. A lawyer does not have to directly observe juror misconduct to have a duty to report it to the judge.
  15. The ABA Model Rules prohibit some forms of communication with a juror even after the juror has been discharged from service.
  16. The ABA Standards for Criminal Justice prohibit all forms of pretrial investigation into the backgrounds of prospective jurors.
  17. The ABA Standards for Criminal Justice specifically suggest that lawyers attempt to restrict their pretrial investigation into the backgrounds of prospective jurors to sources of information already in existence.
  18. The ABA Standards for Criminal Justice specifically limit pretrial investigation into the backgrounds of prospective jurors to only investigating sources of information already in existence.
  19. Under the ABA Model Rules, attorneys who attempt to unfairly influence jurors pre-trial may be subject to sanctions for engaging in conduct prejudicial to the administration of justice.
  20. Under the ABA Model Rules, an attorney who observes his or her opposing counsel unfairly attempting to influence a juror out of court has a duty to report such conduct.
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