On Legal Ethics

You may have seen it happening already: during jury voir dire, one or more lawyers at counsel table are paying less attention to the answers jurors are giving from the jury box and more attention to their computer screens as they furiously type the prospective jurors' names into Google or other search engines in order to discover who may have authored letters to the editor in the local paper, contributed politically to different candidates, or have been newsworthy in other ways.

If you are thinking that this sounds like a good idea, make sure you consider the ethical and legal rules that may apply.

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

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).

Although not controlling authority in California, the ABA Model Rules contain some relevant language that may be instructive.

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)).

ABA Rule 8.4, Misconduct, 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, trustworthiness or fitness as a lawyer in other respects."

Contact with prospective jurors is also specifically covered in the ABA ethics rules for criminal cases. ABA Standards for Criminal Justice -- Defense Function 1. Standard 4-7.2 Selection of Jurors states in pertinent part:

(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.

The ABA standard for prosecutors is effectively the same; it is Standard 3-5.3, Selection of Jurors.

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