Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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Ethical considerations involved in communicating with jurors after the trial of a criminal case.
It is ethically improper after the trial of a criminal case to inform a juror of inadmissible facts of a prejudicial or aggravating nature.
Rule 7-106(D) and (E) of the Rules of Professional Conduct of the State Bar.
This Committee has been asked whether it is proper for a prosecuting attorney to inform individual members of the jury, after the trial of a criminal case, of facts not admissible at the trial which are of a prejudicial or aggravating nature, such as the defendant's prior convictions for similar crimes. We are of the opinion that such conduct is improper and unethical.
Rule 7-106(D) of the Rules of Professional Conduct provides that a lawyer, after the discharge of the jury, "[s]hall not ask questions of or make comments to a member of [the] jury that are intended to harass or embarrass the juror or to influence the juror's actions in future jury service." If the prosecuting attorney's comments to a juror "are intended to harass or embarrass the juror or to influence the juror's actions in future jury service," then they are clearly improper and proscribed by rule 7-106(D) of the Rules of Professional Conduct. (See also ABA Code of Prof. Responsibility, DR 7-108.)
Even if the inadmissible information given to the juror is not so intended, we believe the conduct is improper. (Cf. Texas State Bar Ethics, opn. No. 278 (1964), printed in 18 Baylor L.Rev. (1966) pp. 350-351.)
The law has long recognized that certain facts, such as prior crimes, have an excessive and undue impact on a jury and has excluded such facts from the evidence presented to the jury. We believe that the impact may be just as significant after the discharge of the jury and that the state of mind of a juror in future jury service may be influenced. Accordingly, because a lawyer should avoid even the appearance of impropriety (ABA Code of Prof. Responsibility, canon 9), we believe a prosecuting attorney should refrain from making such commnents, even in circumstances where it is not intended to harass, embarrass or influence the juror.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
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