There are two different reasons for counsel to seek to interview jurors after a trial: to expose improper outside influence on the jurors or to obtain the jury’s evaluation of the attorney’s performance. Each has its own procedure, which must be carefully followed.
Juror contact in the Eastern District is covered by Local Criminal Rule 24.1. The rule prohibits an attorney, party, or witness from communicating prior to trial with any person who is a member of the venire from which the member may be selected to be a member of the jury. The same prohibition applies to communicating with a member of the jury during the trial of a case. After the conclusion of the trial, an attorney, witness or party are prohibited from contacting any juror without first obtaining permission from the court.
Currently there is no specific similar rule for civil trials, although it is a general consensus that Rule 24.1 procedure applies to civil jury trials. Although not specifically citing Rule 24.1, a court has permitted a plaintiff’s attorney in a civil case to contact the jurors when the jury had returned a verdict for the defendant. In that case, permission was granted only for a lawyer interview; however the lawyer was later sanctioned for using an investigator to interview the jurors.
The Middle District of Pennsylvania has a rule similar to Rule 24.1. The Western District of Pennsylvania has a local rule that the jurors must be instructed that after trial they have no obligation to speak to anyone about their service, but may do so if they so choose. This is essentially a reiteration of one of the ABA Standards for Criminal Justice.
Contact Regarding Improper Outside Influence
Most reported cases deal with attorneys contacting jurors in criminal cases to attempt to overturn a verdict of guilty by seeking evidence that improper extraneous information was considered by the jury. Fed.R.Evidence 606(b) permits an inquiry of a jury if there was improper extraneous information considered by the jury, or any outside influence was improperly brought to bear on the juror, or if there was a mistake entering the verdict on the verdict form.
The 3rd U.S. Circuit Court of Appeals has exhibited a general reluctance to conduct post-verdict hearings to interrogate jurors absent a showing of compelling need. One district court judge described the federal courts as having a general disenchantment with post-verdict hearings regarding jurors absent extraordinary circumstances.
Once counsel becomes aware of such improper extraneous evidence or improper outside influence, counsel should quickly bring the matter to the attention of the court and opposing counsel. Where grounds exist for pursuing some inquiry into alleged improprieties by jurors, it is usually the court under its supervisory power who will conduct the inquiry rather than permitting counsel or counsel’s investigators to proceed. As a practical matter, if counsel learns of an allegation of misconduct by a juror, or is contacted by a juror, counsel should determine the juror’s name, and quickly terminate the conversation. Counsel should thereafter contact the judge and opposing counsel in writing with the specific details of how such communication came about. The court will then determine the course of the investigation.
Any attempt to determine the extent of outside influence requires the court to balance two competing policies: ensuring that jurors are not influenced by unauthorized material, the media or by communications with third parties but also ensuring that jurors are not beset by the defeated party, so that the private deliberative process becomes the subject of constant public investigation. Federal Rule of Evidence 606(b), while permitting an inquiry into outside information or influence, prohibits a juror from testifying on any matter or statement concerning the juror’s mental process.
In the federal prosecution of state Sen. Vincent J. Fumo, Judge Ronald L. Buckwalter rejected defense counsel Dennis Cogan’s request for an inquiry of the jury based upon Cogan’s affidavit filed with the court. In the affidavit Cogan stated that he had been contacted by Ralph Cipriano, an independent journalist who was preparing an article for Philadelphia Magazine . Cogan stated that Cipriano told him that he had interviewed several jurors from the Fumo jury and had learned of several extrajudicial influences upon the jury, which Cogan then related in his affidavit. When contacted by the government, the journalist and his editor refused to provide any further information about his interviews. Based upon the information contained in Cogan’s affidavit the court found that he had not made a clear showing of a substantial need for an inquiry of the jury. Buckwalter then assumed arguendo that the information related by Cogan was true, and nonetheless rejected his request for a new trial.
Reporters may refuse to disclose the identity of the jurors who provided the information. Katherine Hatton, former attorney for The Philadelphia Inquirer and The Daily News, said that if the reporter declines to identify the juror who provided the information, the newspaper would back the reporter’s decision. Thus if counsel is unable to identify the juror who made such a statement or present some other corroborating evidence, counsel is left with attempting to convince the court to conduct an inquiry of all jurors, as rejected in the Fumo case. There is no hard and fast rule for such inquiries, and each will depend upon the particular fact situation.
Contact Regarding Professional Performance
Aside from juror misconduct, there may be legitimate professional reasons for an attorney who tried the case for wanting to contact the jury. The attorney may want the jurors’ evaluation of his or her performance. Jurors are ideally suited for this function; perhaps more so in many situations than other lawyers. The losing attorney may want to determine for future similar cases, what facts the jurors thought were important. After the hung jury in the recent trial of former Illinois Gov. Rod Blagojevich, it would seem likely that the U.S. attorney would seek permission to interview the jurors as to how to make some adjustments in the proof for the retrial. (The Northern District of Illinois has a local rule similar to the Eastern District’s.) The U.S. attorney replied “no comment” to an inquiry in this regard.
Former Chief Judge Edward Cahn said that some judges tend to discourage the practice of permitting attorneys to interview jurors regarding their trial performance as that general practice can lead to abuses. Cahn said that he has granted permission to a young lawyer in a routine type of case to permit the lawyer to benefit from the jurors’ evaluations. Cahn said he would not grant permission for juror interviews in a hard-fought case where the loser was most likely looking for a reason to overturn the verdict.
Former Chief Judge Louis Bechtle said he believed that the practice of lawyers interviewing jurors after trial for professional evaluations was a legitimate practice, and is beneficial to the bar. Bechtle said that he insisted that the lawyers inform him of their interest in doing so before the jury was discharged. Bechtle said the jury should be instructed that the attorneys might contact them, and they had the right to refuse an interview, or to refuse to discuss a certain subject. He said he wanted to caution the jurors that they should respect the privacy of their fellow jurors, and not disclose any information about the fellow jurors’ observations. Bechtle said that without such instructions, the jurors would be caught unaware and might be suspicious of the intent of the attorneys, or be unaware of their right to refuse the interview.
The comments to the ABA Model Rules of Professional Conduct recognize that a lawyer may on occasion want to communicate with jurors after the jury has been discharged. Although Pennsylvania adopted most of the ABA Model Rules of Professional Conduct, it is unclear whether the comments to those rules were also adopted.
The comments are nonetheless good guidance in dealing with jurors and should be followed. The comments emphasize that there are ethical limits on the nature and scope of interaction with the jurors. The jurors must be informed it is their choice whether to speak with counsel, and the jurors must not be subjected to coercion, duress or harassment. The interviewing persons must identify themselves to the jurors, and identify the client they represent.
Although the comments indicate a nonlawyer such as an investigator or paralegal may interview the jurors, it is preferable for the lawyer to conduct the interviews. Interviewing a juror is always a sensitive matter, and the attorney needs to be the person who can personally answer any questions about what was said. If counsel would like to contact the jurors for professional development I suggest they follow former Bechtle’s procedure to inform the court before the jury is discharged, to permit the court to instruct them.
Attorney Jerry Litvin, an experienced trial lawyer with extensive history of teaching trial tactics, said that seeking to interview jurors about an attorney’s trial performance is a positive professional measure. Litvin said that before requesting permission to interview jurors the attorney should learn the judge’s attitude regarding the practice. He warned that some judges are deadly against it, and would be aggravated by the request. Litvin said that although the jurors agree to the interview the attorneys should take their comments with caution. He said jurors, while trying to be helpful will often attempt to justify their own decision, and thus their remarks may be misleading on certain aspects.
(Space limitations do not permit complete case citations utilized in support of this article. For a full text with complete legal citations, please contact Peter Vaira at email@example.com.) •
PETER F. VAIRA is a principal shareholder in the Philadelphia law firm of Vaira & Riley. He is the author of “Eastern District Federal Practice Rules, Annotated” (Gann Law Books). He can be contacted by e-mail at firstname.lastname@example.org. Vaira has a blog devoted entirely to Eastern District Practice at petervaira.wordpress.com.