Opening statements had just ended and members of the trial team were beginning to return from their lunch breaks. The attorney we were working with for this shadow jury and I got on the elevator in the parking garage and he began telling me about the upcoming witness testimony. As people (some of whom presumably could be jurors) piled into the elevator on the next floor, the attorney stopped our conversation, looked over at me and whispered, “I’ll take the stairs to get some exercise.” I knew what he meant.
Most attorneys are extremely careful when it comes to avoiding contact with members of the jury, not only because such contact is one of the worst ethical and professional violations that can be committed, but also because almost any contact between a lawyer and an empaneled juror on his or her case has the potential to result in a mistrial and selection of a new jury – a costly and stressful ordeal.
The Gray Area of Attorney-Juror Contact
When an interaction does occur, it is usually benign, like being on the elevator at the same time. However, in a few scenarios, the lines are more blurred. We all know that, generally speaking, the term “jury tampering” refers to the intent to influence the decision of a juror during the course of a trial through means other than the evidence presented in court. So what would you do if you were the attorney in this real-life situation?
In the middle of a trial, after court had been dismissed for the day, one of the jurors returned to the parking lot to find that her car battery was dead. The juror noticed one of the attorneys from trial walking to his car nearby and asked if he had any cables so that he could jumpstart her car. The attorney responded that he was not allowed to talk to the juror, but that he would go inside, inform a court officer of the situation, and find somebody to help. This was the entirety of the contact between the two. By the time the attorney had come back out of the courthouse, the juror already had obtained assistance from someone else. On the request of opposing counsel, the juror was questioned by the court and assured the judge that the incident would have no effect on her ability to be fair and impartial. The court concluded that the juror could remain a member of the panel (LaChapelle v. McLoughlin, 2009).
In this case, the attorney did exactly the right thing by walking away and informing a court official immediately. He removed himself from the situation, but he also sought help for the juror. Even with such limited and, frankly, insignificant contact, the opposing party attempted to have the case ruled a mistrial.
In another real-life scenario, we were walking to our cars after court and saw one of the jurors trip and fall down the slope of the parking lot sliding down the asphalt. What do you do? Walk away? Call for help? Help her up? These are difficult choices when one is bound to no contact with a juror but out of common decency wants to help someone who is injured. We called for help and asked if she was alright, understanding the potential consequences of our actions. We reported it to the court, and nothing came of the incident.
Bathroom encounters are also awkward. Running into jurors at the sink is unavoidable but eye contact should be avoided, and fortunately such avoidance comes naturally there.
Solutions to Attorney-Juror Contact
One of the keys to proactively limiting attorney-juror contact is to seek the court’s assistance in addressing the topic, as those who have never served may be unaware that they cannot speak to the attorneys on breaks, etc. Some states and judges use language similar to this, which is read to jurors by a court official at the beginning of trial:
“Jurors should not loiter in the corridors of the courthouse. If juror identification badges are provided, they should be worn in the courthouse at all times. If any outsider attempts to talk with a juror about a case in which he or she is sitting, the juror should do the following:
(1) Tell the person it is improper for a juror to discuss the case or receive any information except in the courtroom;
(2) Refuse to listen if the outsider persists; and
(3) Report the incident at once to the judge.”
Attorney-Juror Contact at a Mock Trial
Now, while I have been talking about actual trial-based scenarios, we also employ the same no-contact rules during our mock trials to ensure realism of the court environment, helping our mock jurors take the research project seriously. The more we can duplicate the conditions at trial, the more we can increase the external validity of our test results. For instance, if jurors see counsel for “both sides” talking conversationally or walking arm and arm after lunch (two situations that have occurred during a mock trial), this can cause jurors to question the realism of the research and potentially introducing bias among the jurors. Therefore, our research needs to imply the same rules of conduct to ensure the results of our research aren’t adversely affected.
Any appearance of contact with a juror can be misinterpreted and become an opportunity for opposing counsel. When in doubt, seek the court’s assistance, as no one wants to be accused of juror tampering.
By: Jessica Baer, M.A. – Consultant