A MANUAL OF JURY TRIAL PROCEDURES

A MANUAL OF JURY TRIAL PROCEDURES - 2004
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Chapter Six: Post-Verdict Considerations

6.1     Post-Verdict Interview Of Jurors
          A. Court Interviews
          B. Attorney Interviews
          C. Interviews by the Media

A MANUAL OF JURY TRIAL PROCEDURES - 2004

A. Post-Verdict Interview Of Jurors: Court Interviews

Many judges conduct post-trial interviews of jurors in both civil and criminal cases.

Depending on the circumstances of the case and/or the personal preference of the judge, conferences between the court and the jurors can be a valuable resource both in expanding the judiciary's understanding of juror attitudes and needs and in addressing juror concerns. While entirely permissible, and often-times productive, these conferences should be governed by certain cautionary guidelines.

Communications between the court and jurors must await the rendering of a verdict and/or dismissal of the jury panel for that particular case. While judges may, and should, express appreciation to the jurors for their services, no expression of approval or disapproval concerning the verdict is appropriate. While generic discussions of jury duty are both allowable and encouraged, the court should avoid discussing matters that could be implicated in post-trial motions, such as the merits of the case, facts, or evidence on which the jury deliberated. Conferences should, in general, be viewed by the court as an opportunity for jurors to express their concerns and offer their suggestions in the area of jury care and comfort.

A MANUAL OF JURY TRIAL PROCEDURES - 2004

B. Post-Verdict Interview Of Jurors: Attorney Interviews

NCJIC Materials Related To This Issue:

NCJIC 288.3 [Post-Verdict Communications With Jurors Should Not Be Prohibited Without A Showing Of Good Cause].

Attorneys frequently request post-trial interviews to learn how the jurors reacted to their presentation during trial and to explore whether the verdict is vulnerable to legal challenge. However, interviews are discouraged in the Ninth Circuit. Traver v. Meshriy, 627 F.2d 934, 941 (9th Cir. 1980); Smith v. Cupp, 457 F.2d 1098, 1100 (9th Cir. 1972). The local rules in some districts prohibit post-trial interviews of jurors without leave of the court.

Such interviews may have only limited value to the attorneys because a verdict may not be impeached on the basis of the jury's deliberations or the manner in which it arrived at its verdict. Federal Rule of Evidence 606(b) prohibits a juror's subsequent testimony as to matters occurring during deliberations except that a juror may testify as to extraneous prejudicial information or outside influence improperly brought to bear upon any juror. See also United States v. Williams, 990 F.2d 507, 513 (9th Cir. 1993) (once jury has been discharged, generally its verdict is no longer impeachable for lack of unanimity).

The Ninth Circuit has held that it is improper and unethical to interview jurors to discover their course of deliberations. N. Pac. Ry. v. Mely, 219 F.2d 199, 202 (9th Cir. 1954). Post-trial juror interviews may be appropriate if there is reason to believe that a juror intentionally made an untrue statement during voir dire about a material issue and, had the question been answered truthfully, it would have provided a valid basis to challenge that juror for cause. See United States v. Saya, 247 F.3d 929, 936-37 (9th Cir.) (considering juror affidavits for that purpose), cert. denied, 534 U.S. 1009 (2001); Hard v. Burlington N. R.R., 812 F.2d 482, 485 (9th Cir. 1987) (although post-verdict juror interviews to attack verdicts are disfavored, plaintiff was allowed to offer such evidence to show that juror concealed past contacts with defendant during voir dire and then interjected extraneous information during jury deliberations).

A MANUAL OF JURY TRIAL PROCEDURES - 2004

C. Post-Verdict Interview Of Jurors: Interviews By The Media

The court should avoid direct restraints on the media. See Revised Report of the Judicial Conference Committee on the Operation of the Jury System on the "Free Press--Fair Trial" Issue, 87 F.R.D. 519 (1980). News gathering is an activity protected by the First Amendment. Branzburg v. Hayes, 408 U.S. 665, 681 (1972). There is a heavy presumption against the constitutional validity of any restraint on the media. United States v. Sherman, 581 F.2d 1358, 1361 (9th Cir. 1978).

Practical Suggestion

Discharge of Jury

It has been helpful to inform the jury on their discharge as follows:

Ladies and gentlemen:

Now that the case has been concluded, some of you may have questions about the confidentiality of the proceedings. Many times jurors ask if they are now at liberty to discuss the case with anyone. Now that the case is over, you are of course free to discuss it with any person you choose. By the same token, however, I would advise you that you are under no obligation whatsoever to discuss this case with any person. If you do decide to discuss the case with anyone, I would suggest you treat it with a degree of solemnity in that whatever you do decide to say, you would be willing to say in the presence of the other jurors or under oath here in open court in the presence of all the parties. Also, always bear in mind if you do decide to discuss this case, that the other jurors fully and freely stated their opinions with the understanding they were being expressed in confidence. Please respect the privacy of the views of the other jurors.