Update (May 3, 2018): (Maybe a lawyer’s right to speak to jurors (or, more precisely, a judge’s prohibition on a lawyer’s right to talk to jurors?) implicates the First Amendment?) Recent discussion of the issue covered in the original post, below.)
Original post (April 11, 2018): After a recent jury verdict in favor of women’s hockey coach, Shannon Miller, in a lawsuit against the University of Minnesota, defense lawyers sought permission of U.S. District Court Judge Patrick J. Schiltz (D. Minn.) to contact jurors.
Judge Schiltz’s response:
My policy regarding contacts with jurors is as follows: I do not forbid attorneys to contact jurors. At the same time, I do not provide contact information to attorneys. Moreover, when I speak to jurors after trials, I discourage them from talking with anyone who contacts them about the case.
Does that sound like the right approach to you?
The judicial position on post-verdict jury interviews has been a controversial subject for many years. See, for example, Benjamin M. Lawsky, Limitations on Attorney Postverdict Contact with Jurors: Protecting the Criminal Jury and Its Verdict at the Expense of the Defendant, 94 Columbia Law Review 1950-1977 (October, 1994). Lawsky’s law review article begins with the anecdote of a jury verdict in a criminal prosecution that was compromised by a juror’s lying during voir-dire. The lie would not have come out were it not for lawyers contacting other jurors after the verdict. Lawsky argues that forbidding or discouraging post-verdict contact with jurors threatens criminal defendants’ Sixth Amendment rights by putting up a barrier to uncover jury misconduct.
On the other hand, there is a widespread recognition that jury duty can be challenging and difficult. Adding on top of jury duty a post-verdict burden of additional interviews (how many? of what duration?) seems excessive.
Further, giving free rein to lawyers to interview jurors after verdicts raises the threat of opening another front in litigation as trial losers attempt to escape the verdict by challenging the jurors’ decision-making process in one way or another.
As it stands, it seems every judge establishes his or her own rules about post-verdict juror contact. They differ widely and they might even differ in their position in one case rather than another. Given the various implicated (and inconsistent) policies, maybe this is unsurprising and for the best. If lawyers really want to get into the minds of juries, they can and should investigate trying the case before a few mock juries first.