On Legal Ethics

You are standing in line at the coffee cart when a very nice older gentleman approaches you and asks you for directions to the restroom. He jokes that he is asking you because you are well dressed, carrying a briefcase and "look professional," so he figured you must know your way around. Although you see his juror badge, you don't want to refuse to give him the information. And after all, there are so many cases on the trial call calendar, what are the odds you will run into him when you get your case sent out? Sure enough, an hour later there he is filing into your courtroom as a part of your prospective panel. He smiles and waves happily when he sees you. What do you need to do?

California Rule of Professional Conduct 5-320, Contact With Jurors

This rule states in pertinent part:

(A) A member connected with a case shall not communicate directly or indirectly with anyone the member knows to be a member of the venire from which the jury will be selected for trial of that case.

(B) During trial a member connected with the case shall not communicate directly or indirectly with any juror.

(C) During trial a member who is not connected with the 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 countless 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. These friendly folks who are enjoying their day off of work will not only compliment you on your suit at the coffee cart, but they will comment on the weather, joke about how heavy your briefcase looks and maybe even inquire as to where you bought your shoes.

Make sure you keep Rule 5-320 in mind from the moment you enter the courthouse. Any contact with someone who ends up on your venire should be reported to the judge and opposing counsel. While innocuous contact will likely not disqualify a juror and frequently will not even require follow up questions, it still needs to be reported.

Specific ethical rules for criminal attorneys

With respect to criminal attorneys, at a national level, there are specific ethics rules that apply to attorneys' dealings with jurors. A few of these rules are as follows:

ABA Standards for Criminal Justice -- Prosecution and Defense Function

This section 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 who 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.

Please tune in next month for our continuation of our Jury Selection series.