COMMONWEALTH vs. DWAYNE MOORE.
SJC-12002
Supreme Judicial Court of Massachusetts
Suffolk. February 10, 2016. - June 16, 2016.
474 Mass. 541 (2016)
Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.
Discussion of the rules and case law governing attorneys’ postverdict contact with jurors. [544-547]
This court concluded that the adoption of
INDICTMENTS found and returned in the Superior Court Department on January 7, 2011.
A postconviction emergency motion for judicial intervention to prohibit inquiry of the jury, filed on July 23, 2015, was heard by Jeffrey A. Locke, J., and questions of law were reported by him to the Appeals Court.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Teresa K. Anderson, Assistant District Attorney (Edmond J. Zabin, Assistant District Attorney, also present) for the Commonwealth.
K. Neil Austin, Caroline S. Donovan, & David A.F. Lewis, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.
BOTSFORD, J. We consider here five questions reported by a Superior Court judge to the Appeals Court concerning the effect of an amendment to
1. Background. From February 13 to March 22, 2012, the defendant was tried in the Superior Court in Suffolk County on charges of murder in the first degree (four counts),
On July 23, 2015, the Commonwealth filed an emergency motion for judicial intervention to prohibit postconviction inquiry of the jury; the defendant‘s appellate counsel filed an opposition. After hearing, the motion judge, who had been the trial judge in the defendant‘s second trial, agreed to report to the Appeals Court five questions concerning
The five reported questions are the following:
“1. In revising Rule 3.5 of the Massachusetts Rules of Professional Conduct to permit attorney originated communications with discharged jurors, did the Supreme Judicial Court implicitly overrule the prohibition against attorney originated communications with jurors as set forth in Commonwealth v. Fidler, 377 Mass. 192, 203-204 (1979)?
“2. In generally adopting the American Bar Association‘s Model Rule 3.5 containing the language ‘prohibited by law,’ did the Supreme Judicial Court intend Commonwealth v. Fidler to be continuing precedent?
“3. If the answer to question two is ‘no,’ then what types of contact with discharged jurors by an attorney, if any, are ‘prohibited by law’ under Rule 3.5(c)(1)?
“4. If the answer to question one is ‘yes,’ and the answer to question two is ‘no,’ does revised Rule 3.5 permit attorneys to communicate with jurors who were discharged prior to July 1, 2015?
“5. If the answer to question four is ‘yes,’ in light of Commonwealth v. Fidler, are attorneys required to seek approval from the court prior to contacting jurors?”
We transferred the judge‘s report from the Appeals Court to this court on our own motion.
2. Discussion. a. Attorney disciplinary rules and the Fidler decision. Effective October 2, 1972, this court adopted S.J.C. Rule 3:22, the Canons of Ethics and Disciplinary Rules Regulating the Practice of Law, as appearing in 359 Mass. 796 (1971). Disciplinary Rule (DR) 7-108 (D) governed postverdict contact with jurors. This rule permitted attorneys to initiate communication with jurors postverdict without permission of the court, providing that “the lawyer shall not ask questions of or make comments to a member of that jury that are calculated merely to harass or embarrass the juror or to influence his actions in future jury service.” S.J.C. Rule 3:22, DR 7-108 (D), as appearing in 359 Mass. 826 (1971). The text of DR 7-108 (D) was essentially identical to the Model Code of Professional Responsibility that previously had been adopted by the American Bar Association (ABA).
Seven years later, this court decided Commonwealth v. Fidler, 377 Mass. 192 (1979). The defendant in Fidler was convicted of armed robbery after a jury trial in the Superior Court, and thereafter filed a motion for a new trial based on alleged juror misconduct. See id. at 193-194. In support of the motion, the defendant filed an affidavit of one of the deliberating jurors. See id. The affidavit averred that the jury considered in their deliberations matters the judge had instructed them to disregard, and also that extraneous information had been introduced into the jury deliberations in the form of statements by a juror about factual matters relating to the defendant that had not been presented in evidence at trial. See id. The trial judge denied the defendant‘s motion for a new trial without an evidentiary hearing. In considering the defendant‘s appeal from this denial, this court affirmed the common-law rule, first discussed by this court in Woodward v. Leavitt, 107 Mass. 453, 460 (1871), but having earlier roots in
Fidler did not involve directly any rules of professional conduct governing lawyers; the restrictions on attorneys’ postverdict contact with and interviews of jurors that the court adopted there were independent of the disciplinary rules. See Commonwealth v. Solis, 407 Mass. 398, 399, 402-403 (1990) (attorney obtained information from juror in manner that conflicted with Fidler restrictions but was consistent with S.J.C. Rule 3:07, Canon 7, DR 7-108 [D], 382 Mass. 792 [1982]). In light of the tension between Fidler and DR 7-108 (D), in 1991, the court amended
Thereafter, in light of changes in 2002, 2012, and 2013 to the ABA‘s Model Rules of Professional Conduct, this court asked its Standing Advisory Committee on the Rules of Professional Conduct (committee) to review the Massachusetts Rules of Professional Conduct. The committee did so and proposed numerous revisions to our attorney disciplinary rules, including a unanimous recommendation that we adopt the ABA‘s Model Rule 3.5 in place of the existing version of
“A lawyer shall not:
. . .
“(c) communicate with a juror or prospective juror after discharge of the jury if:
“(1) the communication is prohibited by law or court order;
“(2) the juror has made known to the lawyer, either directly or through communications with the judge or otherwise, a desire not to communicate with the lawyer; or
“(3) the communication involves misrepresentation, coercion, duress or harassment ....”6
b. Effect of adoption of rule 3.5 (c) on prohibition against attorney-originated communications with jurors. The first three reported questions concern what, if any, substantive changes resulted from this court‘s adoption of
Contrary to the Commonwealth‘s argument, we answer the first reported question in the affirmative: by adopting
This is not to say, however, that
That
The Commonwealth contends that States that have adopted ABA Model Rule 3.5 (c) nonetheless restrict communication with jurors in a variety of ways; the thrust of the argument is that the adoption of
“In general, changes in the common law brought about by judicial decisions are given retroactive effect.” Halley v. Birbiglia, 390 Mass. 540, 544 (1983). Because
d. Whether court approval is required prior to contacting jurors. The fifth reported question builds on the fourth and asks whether, assuming at least some attorneys are permitted to communicate with jurors who were discharged prior to July 1, 2015, those attorneys are required to seek approval from the court prior to initiating contact. We answer the question no. As is the case with attorneys who, pursuant to
e. Guidelines for implementation of rule 3.5 (c). To assist attorneys and judges in working with
i. Going forward, on request of any party, the trial judge shall instruct the jury regarding an attorney‘s right to contact and communicate with jurors after trial and a juror‘s right to decline to speak with an attorney postverdict. A suggested instruction is included as an Appendix to this opinion.
ii. Although an attorney may initiate postverdict contact with jurors without prior court approval under
The purpose of requiring prior notice is to permit opposing counsel (or an unrepresented opposing party) to seek relief from the court if the proposed communication appears to be beyond the scope of permissible inquiry or otherwise improper, or if there is a compelling reason, specific to that case, that communicating with the jurors would be inappropriate.12 See Hall v. State, 151 Idaho 42, 48 (2011) (“Trial courts have the inherent authority to review . . . letters and enclosures [to be sent by counsel to discharged jurors] and order counsel to make modifications accordingly“). In stating that an opposing counsel or party may seek relief from a court, we do not intend to suggest that we anticipate a general need to do so. Our mention of the availability of judicial intervention and relief is not intended to serve as an invitation to counsel to seek it as a matter of course.
iii. If, after communicating with a juror, an attorney wishes to secure an affidavit from the juror concerning alleged extraneous influences on the jury deliberation process, the attorney may do so without seeking or obtaining prior court approval, but any such affidavit must focus on extraneous influences, and not the substance of the jury‘s deliberations or the individual or collective thought processes of the juror or the jury as a whole. See Mass. G. Evid. § 606(b) (2016).13 See also
3. Conclusion. We summarize here the answers to the reported questions.
(1) The adoption of
(2) The common-law principles that limit postverdict inquiry of jurors to matters relating to extraneous influences and prohibit inquiry into the individual or collective thought processes of jurors, the reasons for their decision, or the substance of their deliberations, discussed in Fidler, 377 Mass. at 196-198, remain as continuing precedent. As Fidler notes, however, inquiry is permissible to establish the existence of an improper influence, “but . . . not . . . to show the role which the improper influence played in the jury‘s decisions.” Id. at 196.
(3) The common-law limitations on postverdict juror inquiry discussed in Fidler, supra at 196-198, address a type of communication “prohibited by law” within the meaning of
(4)
(5) If an attorney is entitled to initiate contact with jurors who were discharged prior to July 1, 2015, because the case at issue is pending on appeal or the appeal period has not yet run, the attorney is treated the same as an attorney contacting jurors discharged after July 1, 2015; the attorney is not required to seek prior court approval, but is required to adhere to the notice requirements set out in this opinion.
The case is remanded to the Superior Court for further proceedings consistent with this opinion.
So ordered.
Suggested Jury Instruction
“Now that your service is concluded, the question may arise whether you may discuss this case with the lawyers who presented it to you. Whether you discuss your jury service on this case with anyone is entirely up to you. The attorneys may desire to talk with the members of the jury. For your guidance, you are advised that it is entirely proper for you to talk with the attorneys, and you are at liberty to do so. However, you are not required to do so and may decline to speak with an attorney. Whether you do so or not is entirely a matter of your own choice. If you choose to talk with the attorneys, please do not discuss the substance or content of the jury‘s deliberations, including the reasons for the jury‘s verdict. However, in the unlikely event that any juror during deliberations provided information about the case or any party to the case that was not in evidence, you may tell the attorneys what information was provided, but you may not discuss the effect this information had on jury deliberations. If you prefer not to be contacted by an attorney after you are discharged, you may inform me or a court officer in person or in writing, and we will communicate this to the attorneys. Further, if you decline to discuss the case, either today or in the future, and an attorney persists in discussing the case over your objection or becomes critical of your service as a juror, please report the incident to the court.”
Notes
“(b) During an Inquiry into the Validity of a Verdict or Indictment.
“(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury‘s deliberations, the effect of anything on that juror‘s or another juror‘s vote, or any juror‘s mental processes concerning the verdict or indictment. The court may not receive a juror‘s affidavit or evidence of a juror‘s statement on these matters.
“(2) Exceptions. A juror may testify about whether
“(A) extraneous prejudicial information was improperly brought to the jury‘s attention or
“(B) an outside influence was improperly brought to bear on any juror.”