Communication with Jurors
Direct communication with jurors on a case by a party’s lawyer is prohibited. Model Rule 3.5(a) holds that a lawyer may not “seek to influence a … juror [or] prospective juror…” In courthouses, a lawyer might even be infringing on some ethical rules by holding open a door for jurors entering a courtroom, and some judges might not allow these types of practices. Judges also might even frown upon a lawyer going to his table in a courtroom to give a coughing juror a cup of water.
Maintaining the appearance of propriety and ensuring impartiality is crucial in a courtroom. Judges want juries to decide a case only on admitted evidence. Contact with a lawyer might present an opportunity for the lawyer to impart details about the case which the judge has purposefully excluded.
Jurisdictions sometimes allow lawyers who perceive a prospective jury member might be biased to investigate the background of the prospective jury member. The lawyer may not, however, make direct contact with the juror, and must be completely discreet in her practices.
The federal government and all states have criminal statutes that cover “jury tampering.” See
Lawyers can do or say things in a courtroom that can be so inflammatory that they prevent the impartial adjudication of a case. Model Rule 3.6 prohibits a lawyer from making statements that he knows will likely “materially prejudice” the jury in a case.
For example, a lawyer who reveals an adversary’s history of committing domestic violence when the case is about trademark infringement, might prejudice the jury in a way that unfairly influences the outcome of the case.
Prior to a trial, a lawyer is not permitted to contact a juror unless he is permitted to do so by law – such as, for example, in the voir dire questioning process (the stage of a trial in which prospective jurors are interviewed by the lawyers and judge).
During a trial, no one except a judge can discuss the case at bar with any juror. This prohibition extends up to the moment a verdict is returned by the jury. A lawyer must end any conversation initiated by a juror. See
Many jurisdictions have rules about post-trial contact with jurors by lawyers. Some of the rules hold that contact must be permitted by the court, and it must not be obtrusive. Certain rules hold that lawyers may only contact jurors after a trial in order to determine whether the verdict was fraudulent or influenced improperly. See Model Rules 3.5 and 4.4. However, some jurisdictions do not allow any post-trial contact with jurors for the purpose of discussing the case.
Another basis for permitted contact with jurors after trial is to inform lawyers of the factors that led to the jury verdict and thus enable the lawyers to improve their skills and abilities for future clients. ABA Opn. 319.