Just two days after it released Abrano, the SJC released its holding in Commonwealth v. Moore. The case was before the SJC on a report of questions submitted by Superior Court Judge Jeffrey Locke as to whether Rule 3.5 of the MRPC as amended and effective July 1, 2015, overruled Commonwealth v. Fidler, 377 Mass. 192, 203-04 (1979). The case facts revolve around defendant Dwayne Moore, who was convicted by a jury on four counts of first-degree murder, home invasion, and armed robbery in Superior Court on December 17, 2012. On November 21, 2013, the defendant filed a direct appeal, and on July 14, 2015, an attorney from the firm representing defendant Moore sent notice to the Assistant District Attorney, which was received on July 17, that he would be contacting the jurors, and included a copy of the letter she would be sending them. On July 21, 2015, the defendant’s appellate attorneys sent the letter to the discharged jurors seeking information about their jury service.
On July 23, the Commonwealth filed an emergency motion for judicial intervention to prohibit the jury inquiry and the defendant filed an opposition. On July 24, Judge Locke held a hearing and ruled from the bench that he would report questions to an appellate court.
Prior to July 1, 2015, MRPC Rule 3.5 stated:
A lawyer shall not:
(d) after discharge of the jury from further consideration of a case with which the lawyer was connected, initiate any communication with a member of the jury without leave of court granted for good cause shown. If a juror initiates a communication with such a lawyer, directly or indirectly, the lawyer may respond provided that the lawyer shall not ask questions of or make comments to a member of that jury that are intended only to harass or embarrass the juror or to influence his or her actions in future jury service. In no circumstances shall such a lawyer inquire of a juror concerning the jury’s deliberation processes.
Effective July 1, 2015, Mass. R. Prof. C. 3.5 was revised, and now states:
A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror, or other official by means prohibited by law;
(b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order;
(c) communicate with a juror or prospective juror after discharge of the jury if:
(1) the communication is prohibited by law or court order;
(2) the juror has made known to the lawyer, either directly or through communications with the judge or otherwise, a desire not to communicate with the lawyer; or
(3) the communication involves misrepresentation, coercion, duress or harassment; or
(d) engage in conduct intended to disrupt a tribunal.
The Fidler case states that post-verdict interviews of jurors “should only be initiated if the court finds some suggestion that there were extraneous matters in the jury’s deliberation.” Since Fidler, the common law has developed to give judges discretion to determine whether post-verdict juror inquiry is warranted – generally requiring “some showing of illegal or prejudicial intrusion into the jury process.”
Judge Locke analyzed whether the SJC’s adoption of the revised rule would overrule the common law regime. He examined the ABA Model Rules on which the revised MRPC rule was based as well as comments on the proposed revision from the Committee for Public Counsel Services (CPCS) and the Massachusetts Academy of Trial Attorneys (MATA). He noted that the CPCS and MATA comments indicated that the SJC was “at least aware that one of the purposes for amending Rule 3.5 was to allow attorneys to contact discharged jurors to determine whether they were exposed to extraneous influences during trial.” He then turned to the BBA Ethics Committee’s comments as evidence that the SJC had notice that simply adopting the revised Rule 3.5 might not be enough to supersede the common law.
Judge Locke reported the following questions after the hearing on July 24:
- In revising Rule 3.5 of the Massachusetts Rules of Professional Conduct to permit attorney originated communications with discharged jurors, did the Supreme Judicial Court implicitly overrule the prohibition against attorney originated communications with jurors as set forth in Commonwealth v. Fidler, 377 Mass. 192, 203-204 (1979)?
- In generally adopting the American Bar Association’s Model Rule 3.5 containing the language “prohibited by law,” did the Supreme Judicial Court intend Commonwealth v. Fidler to be continuing precedent?
- If the answer to question two is “no,” then what types of contact with discharged jurors by an attorney, if any, are “prohibited by law” under Rule 3.5 (c)(1)?
- If the answer to question one is “yes,” and the answer to question two is “no,” does revised Rule 3.5 permit attorneys to communicate with jurors who were discharged prior to July 1, 2015?
- If the answer to question four is “yes,” in light of Commonwealth v. Fidler, are attorneys required to seek approval from the court prior to contacting jurors?
On July 31, the Supreme Judicial Court (SJC) took the case sua sponte. On October 22, the SJC released a request for amici raising the following issues:
Whether the 2015 amendment to S.J.C. Rule 3:07 (Rules of Professional Conduct), Rule 3.5 – which provides in relevant part that “[a] lawyer shall not . . . communicate with a juror . . . after discharge of the jury if . . . the communication is prohibited by law or court order” – effectively superseded the holding in Commonwealth v. Fidler, 377 Mass. 192, 201-204 (1979), that counsel may not contact jurors after a verdict is rendered except as directed and supervised by the judge; if so, whether the rule now permits attorneys to initiate contact with jurors who were discharged prior to the effective date of the amendment.
On February 10, 2016, the SJC held oral argument in this case. Teresa Anderson argued for the Commonwealth that the Court should not overturn the rule laid out in Fidler. Instead, she claimed, the only advisable change to the pre-2015 version of Rule 3.5 limiting postverdict juror would be to remove the requirement of a showing of “extraneous influence” as a standard to be met before an attorney could ask a court’s permission to contact jurors. She justified her reading of the current Rule 3.5 because of its language in subsection (c)(1), prohibiting juror contact if “the communication is prohibited by law or court order,” here by the common law as explained in Fidler.
Attorney for the appellant, Chauncey Wood, argued that the Court had the power to overturn its own prior holdings in adopting the revised Rule 3.5. When asked if he felt there should be any limits on what a lawyer can do in contacting jurors, he quoted from the rule, including that the communication could not involve “misrepresentation, coercion, duress or harassment,” and gave opposing views on whether attorneys could discuss juror deliberations. He noted that historically juror deliberations were considered basically “sacrosanct” in Massachusetts legal history, but also explained that the Massachusetts Association of Criminal Defense Lawyers (MACDL) amicus brief made a strong argument that the old Rule 3.5 explicitly barred discussing juror deliberations, while the new rule was silent on the issue, leaving the door open.
Wood also spoke on application of the rule, pushing for a “short and sweet” instruction to jurors, retroactive application of the new rule, and certain safeguards such as giving notice to the opposing party, and a recommendation that contact be in writing while acknowledging that other forms of communication may be better suited in certain situations and should be permissible with judicial oversight.
On June 16, the SJC released its decision, holding that attorneys can have unsupervised postverdict contact with jurors, without special court permission, but with some limits – both those contained in the rule and some from the common law. To this end, the new Rule 3.5 operates in tandem with Fidler, as argued by Attorney Wood, which provides the common-law principles barring inquiry into the contents of jury deliberations and thought processes of jurors, and the impeachment of jury verdicts based on information that might be gained from such inquiry. The Court left open the possibility of future restrictions on the rule, but adopted a wait-and-see approach since the rule had been in operation for less than two-years.
On the question of rule application, the Court held that the rule would apply only prospectively from the July 1, 2015, effective date but also to cases in which the jurors were discharged before the effective date if the case was on appeal as of that date or the appeal period had not run.
Finally, the Court offered guidelines for the use of Rule 3.5(c). In brief they are:
- A trial judge will give the jury instructions regarding both their rights and the rights of the attorneys at the request of any party. The opinion includes a sample jury instruction.
- An attorney initiating postverdict contact must send prior notice of their intent to the opposing party or parties five business days before contacting a juror regardless of the method of communication. The notice must include a description of the proposed manner and substance of the contact as well as a copy of any letter or other written communication the attorney intends to send. The preferred method of juror contact is via letter, and should include a statement that the juror may decline any contact with the attorney or terminate contact once initiated.
- An attorney wishing to secure an affidavit from the juror concerning alleged extraneous influence on the jury deliberation process may do so without seeking or obtaining prior court approval, but the affidavit must focus on extraneous influence and not on the substance of the jury’s deliberations or the individual or collective thought processes of the juror or the jury as a whole.
In an appendix to the decision, the SJC included a suggested jury instruction. It begins by stressing to jurors that it is their choice at any time whether or not they want to speak to attorneys. Next, it prohibits jurors from discussing the substance or content of the jury’s deliberations with attorneys, except to tell an attorney if a juror provided outside information about the case or parties that was not contained in presented evidence. The instruction goes on to inform jurors wishing to avoid attorney contact that they can do so by telling the judge or a court officer. Finally, the instruction requests that jurors contact the court if an attorney persists in requests to discuss the case over their objection and/or becomes critical of the juror’s service.
We are interested to see how practice will evolve with this ruling and whether the SJC will end up revisiting it either in future cases or rule changes. We look forward to keeping you posted on these issues.
– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association