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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May trial counsel disclose to jurors after trial evidence which was excluded at trial?
Under California Rules of Professional Conduct 7-106(D) and absent a court directive to the contrary, an attorney may disclose to jurors after trial evidence which was excluded at trial as long as in doing so the attorney does not intend to harass or embarrass or influence the juror in future jury service.
Rule 7-106(D) of the Rules of Professional Conduct of the State Bar of California.
The Committee has been requested to render an opinion on the extent to which an attorney may disclose to jurors after the conclusion of trial evidence excluded at trial. The Committee takes this opportunity to reconsider its prior opinion 1976-39 on the same subject.1
The issue which we address here is very limited. We do not discuss the right of counsel to investigate potential jury misconduct. Nor do we address communications counsel may have with jurors after trial related to issues other than evidence which was excluded at trial. The sole issue is whether counsel may or may not discuss with jurors after trial evidence which was excluded from their consideration during trial.
It is well established that counsel's communications with jurors is limited. California Rule of Professional Conduct 7-106 defines the extent to which counsel may communicate with and/or investigate jurors at various stages of a proceeding. Rule 7-106(D) addresses the extent to which counsel may communicate with jurors after the conclusion of trial. It states:
After discharge of the jury from further consideration of a case with which the member of the State Bar was connected, the member of the State Bar shall 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 action in future jury service.2
Absent a court directive to the contrary, rule 7-106(D) does not bar counsel from communicating with jurors after trial regarding evidence excluded from them. Rule 7-106(D) only prohibits communications "intended" to harass or embarrass the juror or influence future jury service. Absent such an intent, communications with jurors after trial are permitted. That the attorney's intent is determinative under 7-106(D) is evidenced by comparison to 7-106(E) which prohibits out-of-court investigations of veniremen "likely to influence" such veniremen in present or future jury service. It must be assumed that the difference in the applicable standard is intentional
However, attorneys are not free to communicate with jurors in any manner as long as they disclaim an intent to embarrass, harass or influence from future jury service. The intent of the attorney in communicating with jurors regarding excluded evidence may he inferred from the circumstances. Verbal assaults on jurors, criticisms of their verdict, insinuations that they acted improperly or naively, statements to them that are inherently prejudicial or aggravating or other such conduct evidencing an intent to adversely affect or influence jurors may constitute a violation of rule 7-106(D) even though the attorney involved denies any such intent.
The Committee does not underestimate the legitimacy of the concern regarding communications between counsel and jurors after the conclusion of trial. An unbiased jury is an essential element of our judicial system. Securing citizens for jury service is a difficult task under the best of circumstances. Jurors serve at significant expense and inconvenience to themselves. Care must be taken to assure that jurors are not burdened by unwarranted intrusions by counsel.
However, counterbalanced against the right of jurors to be free from harassment or embarrassment is the First Amendment right of free speech protecting the right of a lawyer and a former juror to communicate. Absent a substantial basis to restrict free speech as is set forth in rule 7-106 and other statutory or judicial restrictions on communications with jurors, a lawyer and a former juror have a constitutionally protected right to speak to each other about the proceedings in which they have participated including evidence admitted or excluded at trial. Such evidence may often be a matter of public record to which former jurors, like any member of the public, would have unencumbered access subsequent to the completion of jury service. It is not unusual for trial counsel to discuss the events of the trial with jurors after completion of jury service. Jurors often have questions regarding why certain things were done at trial. Attorneys have a legitimate interest in questioning jurors about the attorney's performance for educational and training purposes. It is foreseeable that during such discussions, evidence excluded at trial may be mentioned or discussed in a manner which is not intended to harass, embarrass or influence future jury service.
In balancing these competing interests, the Committee finds that absent some manifestation of an intent to harass, embarrass or influence jurors in future jury service, communications with jurors after trial regarding evidence excluded from their consideration are not prohibited.
To the extent our prior Opinion No. 1976-39 is inconsistent with this opinion, it is disapproved.3
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.
1 Although the Committee is hesitant to reconsider prior opinions, it is appropriate to do so in this instance. Opinion 1976-39 is very limited in its holding. It also relies upon the "appearance of impropriety" prohibition of the ABA Model Code of Professional Responsibility and a Texas State Bar opinion which is based upon "appearance of impropriety" considerations. As this Committee has, in opinion 1984-83, discussed the inapplicability of the "appearance of impropriety" standard in California, as California rule 7-106(D) is directly on point requiring no reference to authorities outside California (opinion 1983-71), and as there have been major revisions of the ABA Code since opinion 1976-39 was issued, the reasoning of the Committee's prior opinion warrants reconsideration at this time.
2 ABA Disciplinary Rule 7-108(D), Ethical Consideration 7-29 and ABA Model Rule of Professional Conduct 3.5 also address this issue. Consideration has also been given to this issue by various courts and ethics committees based upon provisions pertaining to their particular jurisdictions. (See e.g., In re the integration Rule of the Florida Bar (Fla. 1970) 235 So.2d 723; Brassell v. Brethauer (Fla. 1974) 305 So.2d 217, 219; Northern Pacific Railroad v. Mely (9th Cir. 1954) 219 F.2d 199, 202; Colorado Bar Association Ethics Opinion No. 70 (1985); Texas State Bar Ethics Opinion No. 278 (1964).) As California Rule of Professional Conduct 7-106(D) directly addresses the issue before this Committee, these other authorities which are based upon rules not binding in California are not relied upon.
3 We have considered the Supreme Court's comments regarding our former opinion 1976-39 in People v. Williams (1988) 45 Cal.3d 1268. The Supreme Court's comments do not require a different result. First, consistent with both the Court's comments and this opinion, where an attorney's communications with jurors are of a prejudicial or aggravating nature, an intent to embarrass, harass, or influence future jury service may be inferred. This Committee rejects any absolute rule that certain communications in every instance are intended to embarrass or harass jurors or influence future jury service. Whether such an intent may be inferred and whether rule 7-106(D) is violated depends upon an analysis of all of the factors involved in the communication. The literal language of rule 7-106(D) allows no other conclusion. Second, the Court's reference to our prior opinion was purely dicta and unnecessary to any material holding by the Court.
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