52 N.E.3d 126
Mass.2016Background
- Dwayne Moore was tried twice in Suffolk Superior Court; a second trial (Oct–Dec 2012) resulted in convictions on multiple counts, and an appeal was filed in January 2013.
- During deliberations in the second trial, one juror was dismissed for consulting extraneous materials; the judge denied a mistrial after finding remaining jurors unimpaired.
- New Mass. R. Prof. C. 3.5(c) became effective July 1, 2015, permitting attorney-initiated postverdict communications with jurors unless the communication is "prohibited by law," the juror refuses, or the communication involves coercion, misrepresentation, duress, or harassment.
- After the rule took effect, Moore’s appellate counsel notified the prosecutor and sent letters to deliberating jurors seeking information about possible extraneous influences; the Commonwealth moved for emergency judicial intervention to prohibit contact.
- The trial judge reported five legal questions about the interplay between amended Rule 3.5(c) and prior case law (chiefly Commonwealth v. Fidler) and stayed further juror contact pending resolution.
- The Supreme Judicial Court transferred the matter to itself and issued guidance answering the reported questions and providing implementation procedures for postverdict juror contact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether adoption of Mass. R. Prof. C. 3.5(c) implicitly overruled Fidler's prohibition on attorney-initiated postverdict juror contact | Commonwealth: Fidler remains binding; disciplinary rule cannot override case law; Fidler’s court-supervision requirement still governs and is encompassed by "prohibited by law" | Moore: Rule 3.5(c) permits attorneys to initiate contact without prior court permission; it supersedes Fidler’s procedural bar | Court: Yes — Rule 3.5(c) effectively supersedes Fidler’s rule requiring court leave for any attorney-initiated postverdict juror contact |
| Whether Fidler’s substantive common-law prohibition on inquiry into jury deliberations remains good law | Commonwealth: Fidler’s core common-law protections should survive any disciplinary-rule change | Moore: Rule change does not and should not allow inquiry into jurors’ deliberative mental processes | Court: Fidler’s common-law rule barring inquiry into the substance of deliberations and jurors’ mental processes remains binding; only the procedural supervisory requirement was superseded |
| What "prohibited by law" in Rule 3.5(c)(1) includes | Commonwealth: Includes the Fidler supervisory rule and substantial restrictions used by other states; thus many contacts remain forbidden | Moore: Limited to statutes, court orders, and explicit prohibitions; does not resurrect Fidler’s prior supervisory requirement | Court: "Prohibited by law" covers common-law limits (e.g., inquiries into deliberations), statutes, court orders, and court rules; Fidler’s substantive prohibitions are included but its leave requirement is not |
| Retroactivity and need for prior court approval for jurors discharged before July 1, 2015 | Commonwealth: Rule should not apply to pre-rule cases; attorneys must seek court approval to contact jurors from earlier trials | Moore: Rule should apply to cases on appeal or with unexpired appeal periods; no court approval needed, only notice | Court: Rule 3.5(c) applies to cases pending on appeal or with appeal periods unexpired as of July 1, 2015; no prior court approval required, but notice procedures apply |
Key Cases Cited
- Commonwealth v. Fidler, 377 Mass. 192 (1979) (adopted rule restricting postverdict attorney contact with jurors and reaffirmed common-law bar on probing deliberative processes)
- Woodward v. Leavitt, 107 Mass. 453 (1871) (formative common-law principle protecting secrecy of jury deliberations)
- Commonwealth v. Solis, 407 Mass. 398 (1990) (discussed tension between attorney disciplinary rules and Fidler limitations)
- Commonwealth v. Pytou Heang, 458 Mass. 827 (2011) (reaffirmed impropriety of intruding into jury deliberative processes)
- Adams v. Ford Motor Co., 653 F.3d 299 (3d Cir. 2011) (interpreting ABA-derived rule language to include court orders and local rules within "prohibited by law")