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Attorneys: Don't speak when you are spoken to (by a juror)Victor A. Afanador

A recent case highlighted the issue of whether a lawyer could respond to a juror who sought to solicit a conversation on why the jury decided the way it did in a case the lawyer had tried. Montone v. City of Jersey City, 2018 WL 3377158 (D.N.J. July 11, 2018). The lawyer asked the court’s permission to respond in order to ask whether the jury deliberation process had been tainted. The lawyer attempted to equate the potential conversation with the juror with a typical communication that could be had at a coffee shop.

The court denied the lawyer’s request to reach back out to the juror. In doing so, the court relied upon New Jersey Federal Local Rule of Civil Procedure 47.1(e), which bars questioning by a lawyer of a juror about the deliberative process, as well as on Federal Rule of Evidence 606(b)(1).

Local Civil Rule 47.1(e) states:

(e) No attorney or party to an action shall personally or through any investigator or other person acting for such attorney or party, directly or indirectly interview, examine or question any juror, relative, friend or associate thereof during the pendency of the trial or with respect to the deliberations or verdict of the jury in any action, except on leave of Court granted upon good cause shown.

The court rightly focused on the portion of the rule that prevents any questioning of a juror regarding the jury’s deliberative process without the express permission of the court. Thus, any communication between lawyer and juror would be barred if based upon the jury process that they both had just completed. The lawyer’s query here, however, appears to be rational, as an effort to elicit if there was taint in the jury process.

After considering the “taint” argument, the court referenced the criminal case of Tanner v. United States, 483 U.S. 107, 118-20 (1987), which denied an attempt to hold a hearing as to the internal deliberations and process of the jury even when there was evidence of the jury’s use of alcohol and illicit drugs. The court’s decision also spotlighted the goal of Evidence Rule 606 to “preserve the privacy of jury deliberations as well as the integrity and finality of the verdict.”

The court found it irrelevant that the juror had solicited the lawyer and not the other way around. In the end, the sanctity of the jury’s deliberative process cannot be probed by a lawyer at any time even if one juror questions the process.

This ruling is consistent with the District of New Jersey’s tone on this topic. As a previous case said, where “the validity of a verdict may only be conducted under two conditions: (1) when extraneous prejudicial information has been brought to the jury’s attention; or (2) when an outside influence was improperly brought to bear upon any juror. Fed. R. Evid. 606(b). Inquiry is not permissible when the information regards jury deliberations or related to how the jury arrived at this verdict.” Suarez v. Mattingly, 212 F. Supp. 2d 350, 355 (D.N.J. 2002); see also Quintana v. Adm’r, 2017 WL 4329736 (D.N.J. Sept. 29, 2017).