Complex Litigation

Interviewing Jurors After Trial

By Michael Hoenig - New York Law Journal - April 12, 2010

In August 2003 in our article, "When Jurors Surf the Internet (and Shouldn't),"1 we reported on the growing phenomenon of jurors or potential jurors rather easily gleaning extraneous prejudicial information from the Internet. Last October we revisited the subject observing that both the opportunity as well as juror straying had grown.2 Search engines such as Google, social networking sites such as MySpace, Facebook and Twitter, video archives such as YouTube and all manner of blogs (individual and public forum types), plus much more created a pool of easily available electronic information.

Juror forays onto the Internet is not the only form of juror misconduct that can lead to acquisition of prejudicial information. But it is an easy, opportunistic one and seemingly ubiquitous. Other traditional forms of misconduct exist, such as actual juror visits to an accident scene, experiments, independent research and quotient verdicts, among others. Each of these can lead to prejudicial influence or taint upon the jury's deliberative process.

Courts deal with the problem, by and large, with admonitions to the jurors to behave. Hopefully, all do. But we know at least some do not, from anecdotal experiences or occasional post-trial proceedings. So we perhaps lower our institutional sights and hope that most jurors will abstain from misconduct. Many judges continue to give their scant, emotionless admonitions in general terms expecting that only good behavior will result.

We know that fundamentally good people occasionally exercise poor judgment or, titillated by momentary attraction, inclination, or mere curiosity, wind up doing things they wish, in hindsight, they had not. Law-abiding folks perhaps stray when it comes to their tax returns. Orderly people will exceed the speed limit. Spouses in solid marriages occasionally wander. So too, human nature alone suggests that some jurors' curiosity will simply try to escape the insular cocoon of considering only admissible evidence. Indeed, our columns surveyed some actual incidents. But what about the ones that have not been revealed, those that have slipped by unnoticed?

How can one find out if juror misconduct has influenced the proceedings? In some jurisdictions, questioning jurors after trial is forbidden, at least without first securing permission from the court. Where juror privacy is protected by rule or practice, approaching the court with a mere hunch or conjecture is doomed. So-called "good cause" is often a minimum but where does one get the information? Even in jurisdictions where the practice is to let attorneys interview jurors, post-trial challenges to the verdict are rejected or at least strongly discouraged. Protecting verdicts and avoiding retrials means a collective judicial circling of the wagons against post-hoc juror affidavits exposing or invading the deliberative process.

Challenges raising this or that perceived item of prejudice become far less attractive as time passes. Weeks after the jurors have been discharged there is little inclination to call them back for inquiries into proceedings that are by now stale. Meaningful interviews and affidavits take time. The race against the clock is another hurdle.

Juror Experiment

Occasionally, lawyers get lucky and the purported misconduct gets exposed by one of the other jurors during trial. An example, is Altman v. Bobcat Co., a products liability case that reached the U.S. Court of Appeals for the Third Circuit but was published only recently in the Federal Appendix.3 A worker struck in the head with a backhoe bucket sued for defective design and was awarded some $3 million. On appeal, defendant complained about prejudicial information conveyed by one juror to the others regarding independent research the juror conducted by sitting in the cab of what she believed was a Bobcat machine and reporting that the operator compartment was "tight."

The jury foreperson notified the judge who dismissed the experimenting juror and conducted voir dire of the remaining jurors. After individual questioning, including some probing by counsel with their own questions, the trial judge did not find any of the remaining jurors biased, prejudiced or unable to render an impartial verdict. The appellate court deferred to the trial court's "superior position to assess the prejudicial effects of Juror 73's misconduct."

The Third Circuit observed that a new trial is warranted if the objecting party "likely suffered substantial prejudice as a result of the jury's exposure to the extraneous information." The court expressed a "preference" for "individual voir dire questioning of each potentially tainted juror." The trial judge has broad discretion to develop specific lines of questioning. Indeed, "any method is sufficient provided it is probative on the issue of impartiality."4

But this was a case where the misconduct was "almost immediately" reported by the foreperson to the judge. A judicial probe could ensue on the spot while the jurors were in service. What about cases where the prejudicial incident goes unreported? Does that happen often? How can one find out without interviewing jurors after trial?

New York courts apparently are tolerant of lawyers speaking with jurors following a trial but, as a general rule, prohibit the use of post-trial juror affidavits to impeach the jury's verdict. Thus, in Russo v. Rifkin,5 the Appellate Division, Second Department, citing higher court precedents, summarized the basics. Absent "exceptional circumstances" a juror's testimony on affidavit may not be used to attack a jury verdict. Post-trial challenges of such a nature would make a "private deliberation" the "constant subject of public investigation—to the destruction of all frankness and freedom of discussion and conference."

Though the anti-impeachment rule can cause an "unjust result" at times, it is necessary to prevent post-trial harassment of jurors and "chaos" which would result from the instability of verdicts. Jurors would be hounded by lawyers and investigators for both parties in an attempt to obtain details of what is "best shrouded in secrecy."

Such practical fears reflect valid policy judgments. Imagine, for example, a multi-party case with third-party claims and cross-claims where jurors could be pursued post-trial by investigators or attorneys for each party. Most of us would not like that kind of intrusion after weeks of public service. But note that the Russo court did insert a caveat to the general anti-impeachment rule: "absent exceptional circumstances." That opening pre-supposes that juror interviews will be conducted by responsible attorneys or their investigators to flush out the "exceptional circumstances."

There are thus some inconsistent tensions here. The courts' "message" seems to be, "don't go to the trouble of bothering the jurors because we are not going to accept their affidavits to overturn the verdict." Yet, "if you want to find those 'exceptional circumstances,' how else to do so but to interview the jurors?" The main intent seems to be that the basic anti-impeachment rule will create inertia against hounding jurors. So, how does one intuit the existence of an "exceptional circumstance" or a miscarriage of justice? Now especially, with jurors easily surfing the Internet and doing private, home-based research with dazzling speed, can counsel in important cases truly forego engaging in juror interviews to uncover the potential that extraneous prejudicial information may have tainted the verdict?

One problem with efforts to secure post-trial juror affidavits is that, arguably, this interview process may itself introduce outside influences into the discharged juror's thoughts. This possibility was raised in Moisakis v. Allied Building Products Corp.,6 where the Second Department was troubled by counsel's ex parte contacts with the discharged jurors: "The problems with permitting such a procedure is apparent here. After the jurors were discharged, they received extrajudicial communications from counsel for the parties, and therefore were exposed to outside influences of the most prejudicial sort. They then had the entire weekend to rehash the deliberations and formulate second thoughts." Clearly, one-sided and suggestive questioning could perhaps shape second-thoughts in the minds of particularly suggestible persons.

Policy Issues

Though jurors often are willing to chat with interested counsel immediately after the trial at the courthouse and apparently such conversations seem to be tolerated, pursuit of jurors weeks after trial arguably might be viewed differently. Some early New York case law observed that, after jurors have been discharged and "mingled with the public," permitting them to discredit the verdict they solemnly rendered in open court would make no verdict safe. Judgments would rest on a "very uncertain foundation." The consequences would be "most mischievous." It would open the door to tampering with jurors and would make it easy for a corrupt or dissatisfied juror to destroy the very verdict he agreed to under sanction of an oath. "Every trial lawyer," said one court, "knows full well how easy it would be to find some complacent juror who would yield to such appeal." Few verdicts would survive and "there would be no end to litigation."7 Sometimes, reference was made to canons of ethics frowning upon attorney interviews of discharged jurors.8

An article in the ALR 4th, "Propriety of Attorney's Communications With Jurors After Trial,"9 surveys case law, state and federal, and observes that practices vary among courts, state and federal, from the prohibition of contacts to first requiring court permission or to strict regulation, to allowance of post-trial interviews. In the federal courts, post-verdict interviews have generally been disfavored, sometimes with sharp language about the process, such as "afterwards ransacking the jurors in search of some new ground, not previously supported by evidence, for a new trial."10

But this policy-based attitude was formulated at a time when juror misconduct regarding extraneous, out-of-court, prejudicial material was obtained at some effort and where such attempts might be considered occasional. The computer/Internet age plainly has changed the playing field on the potential for juror misconduct. A juror can "visit" the scene of an accident while sitting at her dining room table munching dinner. An expert's in-court testimony can be researched for "truth" or "correctness" by a juror pedaling an exercycle. The court proceedings can be subjects of blog discussions by jurors with outsiders who profess opinions or "superior knowledge." How are we to know whether such misadventures occurred without contacting jurors?

One neat question is whether the news media have unrestricted First Amendment rights to interview jurors post-trial. A Fifth Circuit decision, In re Express-News Corp.,11 held that a district court's denial of leave for a reporter to interview jurors was unconstitutional.

The reasoning was that the "public has no less a right under the First Amendment to receive information about the operation of the nation's courts than it has to know how other governmental agencies work and to receive other ideas and information." Indeed, many litigators base their post-trial motions upon leads furnished by news reports or on affidavits obtained after a news story has been published. Nonetheless, said the court, countervailing considerations may outweigh the press' rights. Among those considerations are the accused's Sixth Amendment right to a fair trial and the "jurors' interest in privacy and protection from harassment."

An even neater question is whether attorneys can contact discharged jurors for self-educational purposes. Attorneys who want to become better trial masters want to know what works, what does not, which expert convinces jurors and which one flops. This quest is particularly apt in federal courts where much has been made recently about the "vanishing federal jury trial." Fewer cases are being tried to jury conclusion. This makes opportunities for lawyers to cut their teeth, let alone to perfect trial techniques, during meaningful trial experiences a rarity.

When only self-education is involved, do lawyers have a First Amendment right to interview jurors? In Haeberle v. Texas International Airlines,12 the court held, "no." The interests of litigants and counsel to satisfy curiosity or to improve their advocacy were outweighed by the jurors' interest in privacy and the public's interest in well-administered justice.

In Clyma v. Sunoco Inc.,13 a decision by the Tenth Circuit issued in February, a non-party group of employment lawyers called "Oklahoma Employment Lawyers Association" (OELA), seeking to provide continuing legal education to its litigator-members, submitted an application to a federal district court for permission to interview jurors "for instructional purposes."

OELA asserted a First Amendment right to juror access following an employment discrimination trial. The district court denied OELA's application in a minute order and the group petitioned for a writ of mandamus. The Tenth Circuit labeled the issue a "substantial question" that "may be one of first impression." Could the lawyers who did not participate in the underlying litigation access jurors to assist the litigators in preparing an educational program for the use and benefit of a professional organization? The Tenth Circuit suggested that a narrowly tailored order could perhaps be framed permitting access but the panel was "uncomfortable" deciding the "novel issue" without the district court having exercised any meaningful discretion. It had issued only a minute order of denial so this was considered an abuse of discretion. The writ was granted and the district court was directed to reconsider the application pursuant to a "meaningful exercise of its discretion."

Conclusion

The normal, long-standing rules disfavoring post-trial juror interviews have proceeded on the basis of policies trying to protect the integrity and privacy of the jury's deliberative process. This has come at the expense of some litigants' rights to a fair trial. In jurisdictions where juror contacts are permitted but where the anti-impeachment-of-a-verdict rule is rigidly applied, the overall objective seems the same except that juror access occasionally can ferret out the exceptional case where strong evidence of prejudice can be shown. For most cases the result, however, is the same.

However, the Internet, computers, blogs and encyclopedic information speedily available to jurors in the digital age may have changed the playing field and made the effort to misbehave little more than the touch of a button. Stronger juror admonitions probably are needed. Perhaps, too, before jurors are discharged they routinely should be made to answer probing questions about potential misconduct (not termed as such) either orally in open court or via a simple, brief written questionnaire drafted by pattern jury instruction committees. These answers will give some clues as to whether further juror access and post-trial proceedings might be warranted. More importantly, they may uncover a beehive of misconduct of which the courts are unaware.

Michael Hoenig is a member of Herzfeld & Rubin.

Endnotes

1. New York Law Journal, Aug. 11, 2003, p. 3.
2. Hoenig, "Juror Misconduct on the Internet," NYLJ, Oct. 8, 2009, p. 3.
3. Altman v. Bobcat Co., 349 Fed'l Appendix 758 (3d Cir. 2009).
4. 349 Fed'l Appendix at 761.
5. 113 A.D.2d 570, 574-575 (2d Dep't 1985).
6. 265 A.D.2d 457, 458 (2d Dep't 1999).
7. See Sindle v. 761 Ninth Ave. Corp., 127 N.Y.S.2d 258, 260 (Sup. Ct. N.Y. Co. 1953) (quoting from Payne v. Burke, 236 App. Div. 527, 529).
8. See Sindle, 127 N.Y.S.2d at 260 (quoting from ABA Canons of Ethics); Tartacower v. N.Y. City Transit Auth., 169 N.Y.S.2d 695 (Sup. Ct. Kings Co. 1957) (citing Sindle).
9. Dale R. Agathe, 19 A.L.R. 4th 1209 (originally published in 1983 and cum. supp. 2009).
10. Haeberle v. Texas Int'l Airlines, 739 F.2d 1019, 1021 (5th Cir. 1984).
11. 695 F.2d 807, 809 (5th Cir. 1982).
12. 739 F.2d 1019 (5th Cir. 1984).
13. 594 F.3d 777 (10th Cir. 2010).

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