April 2012 | Earn one hour of MCLE Credit in Legal Ethics
Ethically Selecting a Winning Jury in the New Millennium
Picking a jury in the new millennium involves a host of legal and ethical issues unique to the high tech world in which we both live and practice law. These include restrictions on everything from ex parte contact with jurors to ethical restrictions on the online techniques lawyers use to investigate potential jurors. There are numerous ethical dilemmas that may arise during the jury selection phase of the trial, and several important ethical rules and principles with which modern lawyers should be familiar. This article will address conducting mock juries or community “focus groups,” contact with jurors as well as potential jurors, and investigation of potential jurors. It will analyze these issues under the California Rules of Professional Conduct, the ABA Model Rules of Professional Conduct, the ABA Standards of Criminal Justice, and ethics opinions in California and other states.
California Rule of Professional Conduct 5-320, Contact With Jurors
This Rule States in pertinent part in paragraph (A) that a lawyer “connected with a case” is prohibited from direct or indirect communication with “anyone the member knows to be a member of the venire from which the jury will be selected for trial of that case.” It also notes in paragraph (B) that during a trial, a lawyer who is connected with a case is prohibited from communicating “directly or indirectly with any juror.” In fact, paragraph (C) broadens the prohibition, stating that during the course of a trial, even a lawyer who is not connected with a particular 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 limitless 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. Many prospective jurors are friendly people who may be enjoying a day off work, or genuinely enjoying the opportunity to perform their civic duty. They may therefore want to talk with you about the process. Make sure you keep Rule 5-320 in mind from the moment you approach the courthouse. Any contact with someone who ends up on your venire should be reported to the judge and opposing counsel. Such contact frequently occurs at the coffee cart, in the restroom, even on the street as jurors may decide to ask you for restaurant selections during the lunch break. While innocuous contact will likely not disqualify a juror and frequently will not even require follow-up questions, in an abundance of caution it may still need to be reported on the record in most cases.
Regarding the terminology
of Rule 5-320, the San Diego County Bar Association examined the parameters of
a jury “venire” in Opinion 2010-1, analyzing the issue of whether
the term refers to the entire community at-large from which jurors may be
selected, versus only the community members summoned to a courtroom the day
jury selection is expected to start on a particular case. Opinion 2010-1
concluded that for purposes of California Rule of Professional Conduct 5-320, the
term jury venire refers to the community members who are actually summoned to report
to a particular courthouse, compared to a specific courtroom, for jury service
at the time of trial.
While Opinion 2010-1 states that "those individuals may not be solicited by a lawyer or his or her agent to serve as ‘mock’ jurors," it concluded that an attorney is not ethically barred from contacting, directly or indirectly, the community at-large where the trial will take place, and from which the jury panel will be summoned to serve as jurors, provided that any individual who is contacted be asked whether or not he or she has received a jury summons. If the individual being questioned indicates that he or she has in fact received a summons, the lawyer must immediately cease contact with the individual.
The Opinion further explained, “RPC 5-320 requires that the attorney have actual, rather than constructive, knowledge that someone is a member of the venire before the ethical rule is offended. But it may be enough that the attorney knows that the individual has been summoned for the date and courthouse his or her trial is set to begin, even if no courtroom assignments are made until the day the venireperson reports for service.”
Investigating your Jurors
Rule 5-320 also addresses investigation of potential 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).
Regarding methods of investigating potential jurors, in today’s world, Google just isn’t good enough anymore. Of course lawyers want to learn all about their jurors online – but there is only so much value to “public” information. Regarding how far they can go in search of information, cyberspace presents a new level of ethical dilemmas. Nonetheless, the current ethical rules still apply. One of the most up to date resources given the fact that in California, ethical rules have not kept pace with technology, is current ethics opinions interpreting the application of current ethical rules in a virtual environment. Regarding looking to ethics opinions for guidance, Rule 1-100 states that while they are not binding authority, California ethics committee opinions should be consulted by California lawyers “for guidance on proper professional conduct.” The rule also states that “Ethics opinions and rules and standards promulgated by other jurisdictions and bar associations may also be considered.” Regarding ABA formal opinions, case law holds that while an ABA formal opinion “does not establish an obligatory standard of conduct imposed on California lawyers,” the ABA Model Rules may be considered as a “collateral source” where there is no direct ethical authority in California.[i]
To analyze the issue of what restrictions might apply to researching jurors online, lawyers can look at ethics opinions analyzing related issues. The New York State Bar Association Committee on Professional Ethics in Opinion 843 (2010) stated that it is ethical for lawyers to search social networking sites looking for damaging information to use against their opponents in lawsuits. Regarding making contact with others during the course of researching online, lawyers are advised to be mindful of the duty of candor. The Philadelphia Bar Association in Opinion 2009-02 dealt with the question of whether a lawyer could have a third person attempt to “friend” a witness on her Facebook and Myspace websites in order to gain access to the information on her websites, because the witness apparently had a habit of accepting all “friend” requests. The opinion concluded that the proposed course of conduct was deceptive, in violation of ABA Rule 8.4(c), Misconduct, and it would also violate ABA Rule 4.1(a), Truthfulness in Statements to Others, as it would constitute a false statement of material fact made to the witness. The opinion notes that a different conclusion was reached by the New York Lawyers’ Association Committee on Professional Ethics in Formal Opinion No. 737 (May 2007), which approved the use of deception that did not violate the rights of third parties in the limited situation regarding investigating civil rights or intellectual property right violations that were imminent or actually taking place, and in the absence of other methods of obtaining evidence. Discussing a related issue, San Diego County Bar Association Opinion 2011-2 also addresses the duty of candor, concluding that an attorney who sends an opposing party a friend request on Facebook without disclosing his motivation violates his ethical duty not to deceive.
ABA Model Rules
Although California is not bound by 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 currently, every other state follows the ABA Model Rules, several of which relate to jury selection.
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)). Also relevant is ABA Rule 8.4, Misconduct, which 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, ”
Specific Ethical Rules for Criminal Attorneys
With respect to criminal attorneys, at a national level, there are specific ethic rules that apply to attorneys’ dealings with jurors. 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.
(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.
(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.
ABA Standards for Criminal Justice – Defense Function Standard 4-7.3 Relations With Jury: 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.
In the contemporary world, all attorneys need to be familiar with the types of ethical dilemmas they may face when dealing with prospective and current jurors, both online and offline. Knowledge of the applicable rules, ethics opinions, and ethical principles will permit lawyers to persuade a jury effectively as well as ethically.
*This article does not constitute legal advice. Please shepardize all case law before using.
ABOUT THE AUTHOR:
Wendy L. Patrick is Chair of the California State Bar Committee on Professional Responsibility and Conduct (COPRAC) and Chair of the San Diego County Bar Association Ethics Committee. She has her own ethics column in the San Diego Daily Transcript and writes and lectures on ethics nationally and internationally. Ms. Patrick is also a San Diego County Deputy District Attorney in the Sex Crimes and Stalking Division named by her peers as one of the 2010 Top Ten criminal attorneys in San Diego by the San Diego Daily Transcript and a 2010 Superlawyer.
Ms. Patrick can be reached at firstname.lastname@example.org or at (619) 531-3260