Judges talking with former jurors after the verdict

My pal, Mark Bennett, the superlative federal trial judge from Iowa, sent me a note about the Supreme Court of New Jersey categorically barring judges from speaking with jurors off the record following a jury verdict. Both Mark and I regularly speak with jurors after each verdict.

We do so for a variety of reasons, but I think these two are the most basic reasons: (1) jury service is an acutely distressing task to lay people and the simple act of saying “thank you” and showing human kindness from the judge after the verdict, in an intimate and private setting, is the humane thing to do; and (2) we trial judges learn a lot about how to do our jobs better.

Now, sure there can be problems.*But over the 25 years I have been doing this, I have never had one problem, and I have spoken with each and every jury after each and every case. Let me repeat that: After 25 years not one problem has arisen. If you are an appellate judge, or an academic, you can dream up all sorts of problems. In the real world, when you are dealing with real people who have taken their time, and invested their souls, in fulfilling the great promise of the Sixth and Seventh Amendments, the good common sense of experienced trial judges counsels against inflexible rules that interfere with judicial discretion.

Let me be clear: I never conduct such interviews until after I have excused the jury. As such, there can be no ex parte contact with jurors. (By the way, when I served on the Codes of Conduct Committee, I once spent a lot of time trying to define for myself the phrase “ex parte contact.” Ethics professors, judges and lawyers use the phrase a lot, but if one looks seriously you will find the phrase very hard to define with any precision.) Thus, I feel perfectly free to speak with the jurors without inviting the lawyers to accompany me. These citizens are no longer jurors. No former juror is required to participate, and each former juror has a First Amendment right to speak with whomever they choose.

The first thing I do in the jury room is shake hands with each juror individually and thank each one for their jury service. The act of gently grasping the hand of a juror has great symbolic power. I tell them that I am happy to discuss any questions they may have except as to the particulars of their decision. I never inquire into the particulars for ruling one way or the other. I don’t make comments about the substance of their verdict, mostly I just answer questions about the trial process plus incidental things like whether the parking garage is still open, when they will get paid or how they get attendance certificates for their employers.

If a sensitive question arises, I easily duck the question–experienced trial judges are very good at that and the previously excused jurors instinctively understand. I explain to the former jurors that they may speak with the lawyers if they wish, but that they have no obligation to do so. If they speak to the lawyers, I encourage them not to discuss the substance of their decision while feeling free to provide a critique of the lawyers’ performance so the lawyers can improve. Virtually, all of the former jurors express relief after my post-verdict discussions with them.

By the way, this post-verdict discussion is a bookend to the “walk around” jury orientation practice that I follow immediately before selecting a jury. See here. See also the fascinating “guest post” from a really good trial lawyer about his experience with an interview of former jurors when he served as a law clerk to a very experienced federal trial judge. Kyle McNewOne trial lawyer’s view about speaking with the jury after the verdict, Hercules and the umpire (September 24, 2014).

And this brings me back to New Jersey decision.  Here is a squib about it:

On December 23, 2014, the Supreme Court of New Jersey entered an opinion in Davis v. Husain. The underlying case was a sexual harassment allegation and the plaintiff was awarded $12,500 by a jury. Following the verdict, the trial judge communicated directly with the juror’s outside the presence of the attorneys or the parties, and no record was made of that exchange. During that communication, a juror expressed surprise that the defendant did not place his hand on the Bible while taking the oath. That comment was reported to counsel for both sides and resulted in post-trial motions as well as the issue on appeal. The Supreme Court of New Jersey stated, “we hold that under no circumstances may post-verdict discussions occur between the court and discharged jurors, unless those discussions are part of a hearing ordered on good cause shown pursuant to Rule 1:16-1.” The Court went on to state that if a trial judge wishes to thank the jury for their service, they may do so but that must be done in open court. The Court further noted that it may be a violation of the Code of Judicial Conduct in New Jersey for a trial judge to engage in ex parte communications with a jury.

NCSC, Jur-E Bulletin (January 2, 2015).

With due respect to the New Jersey Supreme Court, I’m not going to change my practice because of a “one-off” problem. What are your thoughts about the New Jersey Supreme Court’s decision and the prohibited practice more generally?

RGK

*I do not intend this blog post as a survey of the federal sources on ethics or law on this subject. Suffice it to state that I could credibly defend my federal practice from both a legal and ethical point of view.

26 responses

  1. 1. Great that you shake hands with each juror.

    2. No state should take their ethics cue from New Jersey.

  2. Judge,

    The New Jersey Supreme Court is right. And the squib you quoted shows why.

    I suspect that in virtually every case when you have spoken to jurors, you have then been presented with post-trial motions, and that in almost all of them the findings or behavior of jurors is involved; indeed, it is likely a central issue. Can you really say that your decisions on such motions have never been affected,even unconsciously, by what you learned from the jurors? if you say yes, color me dubious.

  3. Judge:
    I see absolutely nothing wrong with what you do. On the contrary, you are merely expressing appreciation to those whose jury service has been an imposition. The decision in the New Jersey case struck me as a bit of an overreaction.
    Robert

  4. What you do is the correct thing to do–a very simple but profound way to end the jury’s service. It would be nice if all judges engaged in similar practice. To your point of lawyers talking to jurors post verdict, I am not against doing so but I have reached the conclusion that it is the rare juror that can give the lawyer truly helpful feedback. Now ,maybe it is just that jurors don’t want to be hard on the lawyer who lost the case, but my experience suggests that jurors rarely identify aspects of the lawyer decisions, performance as it were, positive or negative, that swung the decision either way. Because jurors tend to ignore evidence and facts that are inconsistent with how they see the outcome, even annoying, inept, or offensive lawyers can be on the “winning” side. Therefore, I have stopped kidding myself that good lawyering is the difference between winning and losing.

  5. I was the foreperson of a jury in Indiana in 1994. The accused was on trial for drug possession. The judge informed us that we were not to take the fact that the accused was not in the courtroom into consideration. Long story short, I was responsible for a hung jury because I thought that the police evidence was weak.

    After the case, the judge called us into his chambers. He thanked us as you describe doing with your juries, and then asked why we voted as we did. He then explained that the accused had jumped bail and was nowhere to be found, having been previously convicted for drug violations.

    Based on your experience, should the judge have told us that fact, or just let us leave?

  6. I don’t see how a juror failing to place their hand on the bible affects their competency to testify. What the hell does that have to do with testifying?

    I can think of religious reasons but no logical reason for holding as the court did. Forbidding outside communications between jurors and attorneys and judges during the trial makes sense from a sense of fair play: it prevents the jury from being unduly influenced and possibly rendering a biased decision. Once the decision is rendered, that prohibition should vanish.

    -SLS

  7. on voir dire, I have asked the venire, who previously sat on a jury, whether s/he regretted her/his verdict? Why? No judge has allowed me to get answers to both Qs.

    I, former juror in 2 cases, and my wife in 2 cases, have both second-guessed our verdicts.

    I want to know if a venire person who voted one way in one trial would be disposed to not vote that way in a later trial?

    Your Honor, would you [Judge Bennet] permit both these Qs to be answered? Why, or why not?

    TIA,
    Barry

  8. In my opinion, the squib quoted shows why the NJSC is dead wrong. Assuming (solely for the sake of argument) the juror’s comment revealed a problem that should have been dealt with in a post-trial motion or on appeal, then why on earth would the New Jersey Supreme Court want information of that type suppressed in future cases? The NJ rule does not prevent problems–it prevents finding out about problems. In other words, it prevents solutions.

    It reminds me of when Homer Simpson’s check-engine light came on, and he “fixed” the issue by covering the light with black electrical tape. “There. Problem solved.”

    Or, assuming (again solely for the sake of argument) the juror’s comment is either not problematic or (more likely) not the kind of problem that can be redressed, then the judge’s communication with the former jurors should be considered “no harm, no foul.”

  9. Ethan,

    Once the jury is excused, and assuming the bail skip was a matter of public record, I don’t think the judge did anything wrong by telling you what happened. As for asking why the jury did what it did, I don’t ask that question because it is not part of the reason why I meet with jurors post verdict. All the best.

    RGK

  10. Barry,

    I don’t know the answers to your questions as I need more to think about them. But, I probably would allow such questions and answers. Remember, there is no law that prohibits former jurors from talking about their decisions. In fact, I personally ask prospective jurors whether they have previous jury experience and the verdict of the jury in the cases they sat on. I also ask whether anyone served as a foreperson. I stress that all cases are different, and that the law and the facts in each case is different.

    All the best.

    RGK

  11. Judge–my point was that it could. And while the dramatic facts of the New Jersey case are vanishingly rare, I suspect that there are lots of instances in which jurors comment on the facts of the case they just judged, or their view of the witnesses, or the behavior of the attorneys, and that those opinions relate to matters that are then raised on post-trial motions. Do those conversations affect the judge’s view of the case? They might.

    In Massachusetts, it is considered unethical for the lawyers to initiate contact with jurors, and most judges invite the jurors to speak to them in the jury room after the case is over; some of us think that is a way to keep jurors from approaching counsel (in which case we may at least listen to what they have to say). I know a lawyer who has tied his shoe in front of the courthouse for upwards of half an hour, hoping to get one or more of the jurors to approach him. The significance of such ex parte contact between judge and jurors may be debatable, but as our system relies on avoiding even the appearance of partiality, if judges want to speak to jurors they should do so only in the presence of counsel. I, for one, would be happy to spend another twenty minutes or half an hour in order to obtain insight to how the jurors reached their verdict. (For one thing, when judges have spoken to our local association of plaintiffs’ employment lawyers, they often say that jurors always comment on the attorneys” shoes, but they never tell us what the jurors say. I want to find out!)

    All the best,

    (by the way, my name was truncated in my earlier comment, because I was using my iPad, and it sent the message prematurely. So much for the latest technology.)

  12. I am with Judge RGK on this.

    I was sued once in a civil matter. The jury rendered a verdict in my favor (10-2). I cordially asked the two who did not vote for the verdict about their vote. The both said they wanted the plaintiff to give me money.

    Go figure.

  13. “…communicated directly with the juror’s outside the presence of the attorneys…”

    It appears the court proofread the opinion about as well as they thought about it.

  14. In 1959-60 there was a similar problem in Tucson AZ involving bribery of a county supervisor. Both parties were indicted by a grand jury but a judge nullified the supervisors indictment. The other party was convicted but to my knowledge the supervisor was not even though he was indicted again by another grand jury.

    One of the problems was if members of the first grand jury could testify before the second grand jury.

  15. Old prosecutor, the line you complain of does not seem to be a direct quote from NJ S Ct..

  16. “Do those conversations affect the judge’s view of the case? They might.”

    Judges are frequently exposed to all sorts of extracurricular information.
    They’re privy inadmissible evidence. They have longstanding relationships — friendships, even —with many attorneys who appear before them. They spend months putting up with counsel (which may include whining, bickering, dubious motions, promiscuous use of exclamation points, etc.). And the walls of the deliberation room are often … thin. And yet, judges manage to put all that aside. In any event, how conversations with jurors relates to judicial partiality eludes me.

    I’m generally skeptical of such arguments, but this seems like one of the times a lack of trial experience on the bench resulted in an unfortunate appellate decision. Attending to the less technical aspects — like post-trial collegial debriefing, or having the judge personally inform them their service isn’t needed after a mistrial — is what helps jurors feel their service is appreciated. This in turn probably helps spread the word that jury service isn’t such a bad lot, and helps judges refine their practices. Trials can be overwhelming. Hovering lawyers (and you do hover) hardly aid de-compression.

  17. A few years back, after my one and only experience as a juror, the judge pulled me and the other alternate into his chambers for a chat. He asked us a few questions, like why the other alternate tried to avoid serving on the jury, and he answered our questions about what we’d seen in the trial, like why the defendant’s priors were brought up, and we got to see the look on the Judge’s face when the bailiff delivered a jury message asking if they could declare a deadlock after talking for a half hour.
    The discussion in his chambers was the one time in the whole process where I didn’t feel like cheap labor, and I’m grateful for it. It was an effective way of saying “thank you” because he gave up some of his time to talk with us.

  18. Robert,

    Thanks for your comment from the perspective of a juror. I am glad to hear about it. It confirms my bias that these talks were worth the effort. All the best.

    RGK

  19. I recently tried a case in state district court in which the trial judge was very interactive with the jurors during the trial. The judge would play trivial pursuit during breaks – just one or two questions about legal topics, such as first Chief Justice, etc. At the end of the trial, she would invite any jurors who wished to stay behind and talk about whatever they were curious about. The respective lawyers were invited to stay. The talk was interesting. Mostly, the jurors asked about the process, what the clerk does and that sort of thing. Then the judge asked the jurors to mention one thing we as lawyers did well and one thing not so well. I appreciated the feedback. More importantly, it shows the jurors they are part of the process, not just the “hired help.” Absolutely, you are doing the right thing, Judge.

  20. Judge I am absolutely amazed at the New Jersey decision.

    A brief background, about 16 years ago, I had two bad cases within 3 months, one civil one criminal. The losing side send private detectives (sorry but here they are normally on the sleazy side) to interrogate the former jurors and to inquire as to why they reached that verdict. Many jurors were approached at home at night and were frightened. Unfortunately, Alabama does not have a law, a rule of court, or lawyer’s ethical provision which prevents post trial contact with jurors, but I instructed jurors then that they did not have to speak with anyone, etc. Of course, impeaching a jury verdict with a juror’s testimony is almost impossible. Contrary to our local administrative rule, the loosing lawyer subpoenaed a juror from each of these trials down to testify on their motion for a new trial, claiming the juror in one case had “lied during voir dire.” The question was (it was a FELA case: back injury) “Have you or any member of your immediate family suffered from an injury to your back which resulted in a disability”? Several hands were raise but a very nice 83 year old, African American great grandmother did not raise her hand. She got on the jury. The jury returned a fairly large award, thus the interrogations began behind my back. The African American great-grandmother, the “liar” was in court. Her “LIE”? Her daughter, who lived with her, was so obese that she had back pain which result in her disability. I held that was not a lie and was affirmed.

    At that hearing, I probably was not as touchy-feely as I usually am, in fact I was damn mad for them to accuse a citizen who had done their duty and served, of being a liar. The other case was similar except the juror stated he would never serve again as this experience had been so upsetting (the underlying criminal case was ghastly but he served his state)..

    This is a long way to get to my point of at that minute I decided: no more. I was not going to have “my jurors” abused like that. After days of research by the best law clerk I ever had (now a city judge) I draft a “Post Trial Jury Contact Order” which is very detailed but that prohibits anyone involved in that case (agents, employees, etc.) from making any sort of contact with the jurors after the trial. The exception is I let the lawyers stand in the hall and tell the jurors if they want to talk to them, not about their deliberations, they can in the hall, but if they choose not to the Court Police will escort them through the employees exit. I have allowed for exceptions to send questionnaires out, which I approve, where a lawyer may have 10 similar cases pending, or it is his first trial and wants to see how he performed. Before I hear people screaming 1st Amendment, the press is not covered, and it is the jurors’ choice. If they want to talk to a lawyer or litigants they are not bound by this order. By the way not one of the 12 other trial judges of this circuit adopted such an order I assume as one told me “that is a good way to get an opponent in the election”. My duty is to protect those jurors, not get re-elected (I have been elected 4 times without opposition).

    But a wise judge told me many years ago to go to the jury room after they were excused to give them their checks and “politic”. I started doing that. I quickly found I was a psychological crutch. An example I remember, a jury convicted a man of raping a child. He did not testify because of his 5 other sex felonies against children and he was on probation at the same time. It seemed a close call to them and a hard call for the jury. I told them, this does not have anything to do with your case but you probably want to know that during sentencing I must consider his record of ……….. Every female started crying. I am sure I affirmed their verdict. I never tell a capital jury that their verdict is “advisory” and that I make the call (I think we are the only state left that allows that). Many judges tell them but I want them to think that they will be pulling the switch so they will have the weight of the world on them. When I have handed out checks I tell them that we have a sentencing hearing and IF this man is executed it will be because of ME not you all, that will they are a very important part of the process but it is my decision and I will make it, so do not let this eat at you . Generally, it is a very emotional experience for them and often for me. I think it helps them get over what they have been through, which most were not prepared for.

    I did chuckle when I read the Bible and witness oath issue. Here in the heart of the “Bible Belt” (and I always tell my jurors this) neither the Alabama Constitution of 1901, the Alabama Code, or Rules have ever required or suggested that a witness be sworn using a Bible. Same applies to the oath of office of a public official (I believe the US Constitution does not require a Bible or “So help me God” for the President to be sworn in, that was Washington’s touch) In fact, it leaves it to the judge to actually draft the oath. Being old fashioned, mine is always “Do you solemnly swear or affirm that the testimony you are about to give in this cause will be the truth, the whole truth, and nothing but the truth. So help you God?” Of course, modified for non-Judea-Christians and those not believing in a creator.

    I’ll keep doing what I am doing as New Jersey has never been my model on how to do business.

  21. I’ll add this to my last post. I am always surprised at how shocked the jury is that a “JUDGE” would come in, shake their hands, and talk to them as equals. That is my personality which I can’t change but obviously Judge Kopf, me and a small number of judges bother to treat juries with the respect they deserve. During the trial (mostly when the lawyers are not ready) I tell them about court history, procedure, and try to make it interesting as most know little about the judicial branch.

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