Samuel Stretton
Samuel Stretton ()

Judges shouldn’t express to jurors 
their opinions on a verdict.

I tried a jury trial recently and it is clear the judge radically disagreed with the jury’s decision based on the judge’s demeanor and comments. Is that a violation of the Code of Judicial Conduct?

Yes. Rule 2.8 of the new Code of Judicial Conduct is very clear that a judge has to maintain proper decorum, demeanor and communication with jurors. Under Rule 2.8(c), the following is noted:

“A judge shall not commend or criticize the verdict of the jury, other than in a court order or opinion in a proceeding. This rule does not prohibit a judge from expressing appreciation to the jurors for their service to the judicial system and to the community. Judges are expected to maintain their supervisory role over a deliberating jury.”

Comment 2 to Rule 2.8 notes that when a judge commends or criticizes a jury for the verdict, it could “imply a judicial expectation in future cases and may impair a juror’s ability to be fair and impartial in a subsequent case.” In Comment 3, the rule notes as follows:

“A judge, who is not otherwise prohibited by law from doing so, may meet with jurors who choose to remain after trial, but should be careful not to discuss the merits of the case.”

These rules are fairly strong and necessary. Every trial lawyer, particularly in major criminal cases, has watched judges criticize jury verdicts in front of the jury. Over the years, I recall watching a judge open up the defendant’s criminal record, which was 10 pages long, and hold it up in front of the jury after the jury reached a not guilty verdict.

Other judges are a little more subtle but are very abrupt and just tell the court officers to get the jury out of the room and send them home. It is clear by the demeanor and body language that the judge is very upset with the jury over the verdict in these cases.

This new rule makes it very clear that conduct is no longer acceptable. The days of a judge putting his or her two cents in to a jury after a verdict or making the jury feel bad are finished, as they should be. The verdict of the jury should be respected, even if the judge disagrees.

Of interest is Comment 3, which notes that a judge can’t discuss the merits of a case with jurors after a verdict is rendered. Therefore, if a judge goes back to discuss the case with a jury, the judge can answer their questions about issues, lawyers, etc., but can’t in any way comment on whether the verdict was fair or not.

This rule is particularly important in smaller counties where there is a small jury pool and jurors are going to be called again and again. In larger counties, like Philadelphia, it is not as critical, although in recent times it seems like the same jurors are being called back repeatedly because so many jurors don’t show up or honor their summons.

Interestingly, the rule does not say anything about when lawyers can talk to jurors after a verdict is given. There used to be some requirement that lawyers ask permission from a judge. In federal court, that is still the requirement.

The better practice for a lawyer who wishes to talk to a jury after the verdict is to get judicial permission. Obviously, if a lawyer is talking to jurors, the lawyer should not criticize a verdict either. This is difficult, particularly for young lawyers. If a lawyer goes back to talk to a jury, then the lawyer can ask questions trying to understand what was of interest to the jury and ask for constructive criticism and things of that nature. But a lawyer should never criticize a jury or make the jury feel bad.

The jury system is a remarkable civic and constitutional institution. It is one of the few democratic institutions that still seems to work and hasn’t become overrun with bureaucracy and big money. The jury system should be respected at all costs. Every judge should recognize that. Therefore, there is no excuse or any reason why a judge should directly or indirectly express disapproval, either by words, body language or any other means, to a jury just because the judge doesn’t agree with the verdict. It is a serious ethical violation and could cost a judge some time on the bench.

Finally, judges have to be careful what their court staff says to jurors. Often, it is the judge’s court officer who goes in and out of the jury room, stays with the jury during the selection process and talks with them. Years ago, in Philadelphia, there was a court officer who used to give little opening statements to jurors about the nature of the case before the voir dire began. This was discovered by defense counsel when they inadvertently walked in. Obviously, that can never happen and court employees also cannot let a jury know about their thoughts on the verdict or about the evidence. A judge has a strong obligation to supervise and ensure that that doesn’t occur.

Letters to judges discussing substantive issues are prohibited ex parte communications.

I have been seeing more lawyers, particularly in federal court, sending letters to judges discussing substantive issues about cases. Normally, I respond, but one never hears from a judicial officer setting time for a response. Isn’t that ex parte communication?

Yes, it is ex parte communication. Ex parte communication, under the new Code of Judicial Conduct, involves contact with a judge on substantive issues. Under Rule 2.9(c), a judge cannot initiate, permit or consider ex parte communications outside the presence of the lawyers or parties except for scheduling, administrative or emergency purposes, “which does not address substantive matters.”

Under that same rule, if there is substantive communication, the judge must immediately notify all parties and give them an opportunity to respond.

The problem with contacting a judge on substantive matters by letter is that there are no rules that govern that. If one files a motion, there is a rule that one has a certain number of days to respond. A letter outlining substantive issues doesn’t allow that. One doesn’t know if the judge is going to act or not. The judge should disregard that letter and the better practice would be to send it back unread with language not to do it again.

But at a minimum, the judge should contact all parties to say that he or she received ex parte communication on substantive matters and if the parties wish to respond, they have a certain number of days to do so. The fact that the lawyer on the other side copied all of the parties doesn’t really remove the ex parte taint. For it to be ex parte, it is not who you copy, it is the nature of the communications.

Under the Rule of Professional Conduct 3.5(b), there can be no ex parte communication unless authorized by law or court order. Comment 2 to that rule clearly prohibits a lawyer from any ex parte communications with a judicial officer. Therefore, a lawyer should never send such a letter to a judge. If there are substantive issues, file a motion and there can be a hearing.

It is of some concern if the federal courts have dropped their guard when ex parte letters are being sent to federal judges without criticism. Any judge should recognize that the other side immediately draws conclusions if the judge is not critical of ex parte substantive communications or doesn’t allow a chance to respond. Such conduct will raise questions from the opposing side about whether or not the judge is fair.

A lawyer has the obligation not to engage in ex parte communications. But if it is done, then a judicial officer, at least in Pennsylvania, has a clear road map as to what to do: disregard it, notify all parties or provide an opportunity to respond. The best way to respond is to suggest the next time it occurs there will be a sanctions hearing. Sanctions hearings have a way of creating a great deal of clarity of thought among members of the bar who aren’t complying with the rules. 

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.