• Let the Jurors Speak (After Trial)
  • March 3, 2015
  • Law Firm: Holland & Hart LLP - Denver Office
  • In our system, it is common to see someone suing someone else, but it is rare for that someone to be a juror. But that is exactly what is happening in the latest outgrowth of the decision to not indict Ferguson police officer Darren Wilson in the shooting of Michael Brown. An as yet unnamed grand juror last week filed suit against Saint Louis County Prosecutor, Robert McCullogh. The suit comes in response to Missouri law requiring that "no member of a grand jury shall be obliged or allowed to testify or declare in what manner he or any other member of the grand jury voted on any question before them, or what opinions were expressed by any juror in relation to any such question" (Mo. Rev. Stat 540.310). The former juror is suing in part for the opportunity to speak openly about the case without harm of criminal penalty. "Plaintiff would like to speak about the experience of being a grand juror," the suit reads, "including expressing Plaintiff's opinion about the evidence and the investigation, and believes Plaintiff's experience could contribute to the current public dialogue concerning race relations."

    The basis for the gag law is understandable: When proceedings lead to nonindictment, respect for the accused dictates keeping the information and the process private. But in this case, the testimony and evidence has already been made public by the prosecutor in a rare move to build legitimacy for the grand jury's highly controversial decision. Enforcement of the restriction on identification of and comment by grand jurors, in that situation, does not seem to serve the purpose of protecting the secrecy of the evidence. "Right now there are only 12 people who can't talk about the evidence out there," ACLU attorney Tony Rothert said. "The people who know the most: those 12 people are sworn to secrecy. What the grand juror wants is to be able to be part of the conversation." That's a pretty good rationale for setting aside the prohibition in this case. If Juror Doe is brave enough to weigh-in on this national conversation, let's hear what she or he has to say. But, more broadly, this suit is a reminder to not forget about the perspective of the ex-juror in all cases. Some venues and some judges limit the opportunities of attorneys and consultants to contact jurors post-trial, but in most cases, those prohibitions are unnecessary or ill-advised. As long as the lawyers and their agents follow the ethical principles (The American Bar Association as well as the American Society of Trial Consultants have such principles), then jurors can decide for themselves whether they want to comment or not.

    Post-Trial Contact is Not Always Allowed

    Rules vary based on jurisdiction, and sometimes by judge, on post-trial juror contact. In federal jurisdictions, prior approval from the judge is often required, and that approval can limit the time, place and manner of the inquiry. Most states, on the other hand, have adapted a more open-ended ABA Rule (3.5) that allows such contact as long as the trial is completed, the interview is voluntary, the communication avoids misrepresentation, coercion, duress or harassment, and the interview is not otherwise prohibited by law or court order. Some states, however, limit further contact. Massachusetts, for example, has its own 3.5 rule prohibiting any contact by attorneys or their agents without "leave of the court granted for good cause." And it adds, "In no circumstances shall such a lawyer inquire of a juror concerning the jury's deliberation process." By and large, however, post-trial interviews around the rest of the country are most often neglected, not because they're prohibited, but because they are not requested or not pursued.

    But the Interviews Are Always Useful

    Attorneys should never pass on an opportunity to talk with jurors after a verdict. Where it isn't prohibited, at least try to strike up a conversation with the panel on their way out. Better yet, arrange for an in-depth interview to take place a day or two after the verdict, once passions have cooled, but while memories are still fresh. This is where a consultant comes in handy. By contacting the ex-jurors by phone, and not initially letting them know which side they're working for, the consultant stands a good chance of getting the most unguarded, thoughtful, and illuminating feedback.

    When I conduct these interviews, I typically have three general purposes.

    Understand the Present Case. You've heard the verdict, but that is only the punchline. What you need is the whole story: how they felt initially, what helped, what didn't, and what changed their mind along the way. It is far more satisfying for attorneys to get a broad view of the whole process than to just get the result.

    Prepare for the Next Case.
    You'll probably never try this exact case again, but you are likely to try similar cases and face similar challenges in the future. Getting the direct feedback and advice from the jurors themselves will help you think of the factfinders and do better next time.

    Provide Appreciation and Closure for the Jury. This reason is not as selfish, but still strikes me as very important. Almost uniformly, once jurors get past the surprise of being contacted, they genuinely appreciate and enjoy the opportunity to talk about their experience. Particularly if they were an alternate, or if the case didn't get all the way to verdict, an interview provides closure. But in all cases, it sends the message to jurors that their reactions are valuable and important.

    And No, They're Not a Fishing Expedition

    One fear in conducting post-trial interviews is often that the information will be used in some way to throw the verdict into question. For example, a recent Jury and Democracy Project post from John Gastil quotes former federal judge William Dwyer, noting that in his view, "The gathering of a jury bears some resemblance to the gathering of cardinals to decide on the next pope: Their decision must be final, so it’s best not to know what went on in the room." I have been told, for example, after a big win, that I should not contact the jury because the team does not want to learn anything that might rock the boat.

    I am sure there are anecdotes, but my perception is that they are extremely rare. A recent Supreme Court opinion, also covered in John Gastil's piece, reaffirms the sanctity of deliberations and the very narrow admissibility grounds for any testimony on jury deliberations. By and large, those grounds focus on external factors (contact, threats, outside information), and not on the deliberation process itself.

    But jurors, and sometimes lawyers, don't always know that. So post-trial communications should always be conducted with the express purpose just to learn more about the result and not to do anything to undermine it, however unlikely the possibility. Lawyers, as well, need to understand that a post-trial juror interview is not a deposition and not a cross of a hostile witness. Whether you've won or lost, your goal is just to understand. If you make sure that the former juror understands that as well, they're generally more than happy to provide useful feedback.