Opinion 2204

I. QUESTION PRESENTED

Four public defender organizations jointly request a formal opinion on the following issue: Informal Ethics Opinion 1030 and 2133 “agree that Rules of Professional Conduct (“RPC”) 3.5 and 8.4(d) advise lawyers not to disclose to jurors, post-verdict, information that was excluded from evidence.”

II. BRIEF ANSWER

The Rules of Professional Conduct Committee issued the following informal opinion:

Post verdict disclosure to jurors of evidence that was excluded at trial would violate RPC 3.5(c) if the communication with the juror involves misrepresentation, coercion, duress or harassment. Post verdict disclosure of excluded evidence is not a per se violation of RPC 8.4(d); however, disclosure could constitute a violation in certain circumstances.

III. RULES OF PROFESSIONAL CONDUCT IMPLICATED

RPC 3.5 and RPC 8.4(d).

IV. DISCUSSION

A. Background

According to the inquirers, the county prosecutor's office does not have a formal policy on whether or not to disclose evidence that was excluded at trial to jurors during post verdict communications. Apparently county prosecutors recently disclosed excluded evidence to jurors during post verdict communications in two cases. On the other hand, the city attorney’s office has apparently agreed with the public defense agencies that it will not disclose evidence in discussions with jurors that was not admitted at trial. 1. Based on this inconsistency, and in light of Informal Opinions 1030 and 2133, the inquiring parties are requesting a formal opinion on this topic.

B. Analysis

1. RPC 3.5

RPC 3.5(c) governs communications with jurors:

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 a desire not to communicate; or
(3) the communication involves misrepresentation, coercion, duress or harassment . . .

Comment 3 to RPC 3.5 provides:

A lawyer may on occasion want to communicate with a juror or prospective juror after the jury has been discharged. The lawyer may do so unless the communication is prohibited by law or a court order but must respect the desire of the juror not to talk with the lawyer. The lawyer may not engage in improper conduct during the communication.

If RPC 3.5(c)(1) or (2) applies, there will be no communication with jurors. Accordingly, RPC 3.5(c)(3) is the relevant provision. RPC 3.5(c)(3) only prohibits communication with jurors that “involves misrepresentation, coercion, duress or harassment.” Applying this provision to evidence that is excluded from trial, it would be misconduct for a lawyer to disclose excluded evidence to a jury in a manner involving misrepresentation, coercion, duress or harassment. Examples might include misrepresenting the nature of the evidence or the reason for exclusion. Examples might also include disclosing the excluded evidence in a manner that is coercive, harassing or causes duress. Disclosure of excluded evidence to a juror after the conclusion of a trial would violate RPC 3.5(c) under these circumstances. 2.

2. RPC 8.4(d)

RPC 8.4(d) provides that it is professional misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice[.]” The Washington State Supreme Court has concluded that the “rule only extends to violations of practice norms and physical interference with the administration of justice.” Disciplinary Proceeding Against Curran, 115 Wn.2d 747, 766, 801 P.2d 962 (1990). 3.

Informal Ethics Opinion 1030 (1986), which was issued prior to the adoption of RPC 3.5, concluded:

A prosecutor informed a juror in discussions following the verdict of the defendant’s criminal record. The Committee was of the opinion that, pursuant to RPC 8.4(d), that prior to the end of the jury term, it is improper for a lawyer to disclose information to the jurors which is inadmissible because it is prejudicial.

Informal Ethics Opinion 2133 (2006), which was issued subsequent to the adoption of RPC 3.5, concluded:

The inquiring lawyer asks whether Informal Opinion 1030 prohibits prosecutors from informing jurors, after they have been excused from further jury duty, that the defendant has a prior criminal record.

The committee unanimously opined the following:

The right of trial counsel to communicate with jurors after verdict and discharge is governed by RPC 3.5. The content of that communication is also covered by RPC 8.4(d). Disclosure to discharged jurors of evidence that was excluded by the trial court may have a prejudicial effect on the system of justice by suggesting the juror was deprived of reliable evidence casting the juror’s verdict in doubt. This, in turn, may make jurors less willing to rely on the evidence admitted by the trial court in future trials and may decrease the willingness to limit consideration of evidence in a future case as the juror’s oath requires.

Informal Opinion 1030 reflects this concern with jurors who immediately will be subject to call on another jury in the same period of jury service.

The committee believes that the same concerns under RPC 8.4(d) may be applicable post juror service.

Informal Opinions 1030 and 2133 relied on RPC 8.4(d). Informal Opinion 1030 concluded with little analysis that disclosure of evidence that is inadmissible would violate RPC 8.4(d) if made to jurors after trial but before the jury term was over. 4.

Informal Opinion 2133 considered the same question posed in Informal Opinion 1030 as applied to jurors whose term was over. Informal Opinion 2133 concluded that disclosure of excluded evidence may be prejudicial to the administration of justice by “suggesting the juror was deprived of reliable evidence casting the juror’s verdict in doubt.” The opinion suggests that this might make jurors less willing to rely on, and limit consideration to, evidence admitted in future case as the juror’s oath requires.

There is the potential that the concerns expressed in Informal Opinion 2133 could be realized. However, to assume that disclosing excluded evidence will cause problems for future jurors presumes that jurors do not know or understand that evidence is often excluded from trial for various reasons, and also presumes that jurors would disregard their oath as well as jury instructions in future cases. In fact the contrary presumption is true. Jurors are presumed to follow the court’s instructions. State v. Lord, 117 Wn.2d 829, 861, 822 P.2d 177 (1991). These instructions include deciding the facts based only on the evidence admitted at trial and disregarding any evidence that was not admitted. 5.

Accordingly, there should not be a per se violation of RPC 8.4(d) any time a lawyer discloses excluded evidence to a juror after the conclusion of a trial. Rather, whether RPC 8.4(d) is implicated should depend on the specific facts of the disclosure and whether under the circumstances the lawyer’s conduct was “prejudicial to the administration of justice.” See Curran, 115 Wn.2d at 766. Although there are arguments in favor of a policy of strict non-disclosure, such a rule seems more appropriately addressed by way of a court rule. 6.

V. CONCLUSION

It is common practice in Washington state court for lawyers to engage in post verdict communication with jurors. Jurors often ask the lawyers questions that touch on excluded evidence. Lawyers may discuss the case, including excluded evidence, as long as they are careful to do so in a manner that does not violate RPC 3.5(c) (communication involving misrepresentation, coercion, duress or harassment) or RPC 8.4(d) (conduct prejudicial to the administration of justice).

Informal Ethics Opinions 1030 and 2133 are hereby withdrawn.

Footnotes:
1. While the county example involves evidence excluded from trial, the city example involves evidence that was not admitted at trial – which could include excluded evidence as well as evidence that was not offered by either party for whatever reason. Because the inquiry asks about excluded evidence, this memorandum is limited to that question.

2. Other states have concluded that post verdict disclosure of excluded evidence is prohibited if made with an improper intent. For example, California Formal Opinion No. 1987-95 concludes:

. . . [A]bsent a court directive to the contrary, an attorney may disclose to jurors after the trial evidence which was excluded at trial as long as in doing so the attorney does not intend to harass or embarrass or influence the juror in future jury service.

Colorado Formal Opinion No. 70 (1985)(Addendum Issued 1995) concluded:

After a verdict has been returned, it is improper for an attorney who has participated in the trial to tell the jury about information that was not presented at trial, if such information is disclosed to the jury with the intention of or in the spirit of criticizing the jury’s decision, influencing the actions of jurors in future jury service, harassing the jury, or otherwise behaving improperly toward jurors in any manner prohibited by the Code of Professional Responsibility. This rule applies whether the information not presented was suppressed or inadmissible pursuant to a ruling by the judge in the case.

A Texas Ethics opinion concluded that “[a] letter to a juror is improper if written for improper purpose, such as the purpose of suggesting that the law unjustifiably kept important, relevant evidence from the jurors in a case previously before the jurors.” Opinion 278 (1964).

3. The Curran Court explained:

Decisions in this jurisdiction show that conduct deemed prejudicial to the administration of justice has generally been conduct of an attorney in his official or advocatory role or conduct which might physically interfere with enforcing the law. See, e.g., In re Johnson, 114 Wn.2d 737, 738-42, 790 P.2d 1227 (1990) (conversion of trust fund money to personal use); In re Lynch, 114 Wn.2d 598, 600-01, 789 P.2d 752 (1990) (taking photos of undercover police to show to a friend who had a cocaine problem); In re Krogh, 85 Wn.2d 462, 464, 536 P.2d 578 (1975) (conspiracy in official capacity to violate civil rights by breaking into the office of Daniel Ellsberg's psychiatrist and stealing documents).

Curran, 115 Wn.2d at 764-65.

4. RPC 3.5 did not exist at the time Informal Opinion 1030 was issued and did not incorporate the conclusion of Informal Opinion 1030.

5. Washington Pattern Jury Instructions Criminal (WPIC) 1.02 (2008) provides in part:

It is your duty to decide the facts in this case based upon the evidence presented to you during this trial. . . .
. . .
The evidence that you are to consider during your deliberations consists of the testimony that you have heard from witnesses and the exhibits that I have admitted during the trial. If evidence was not admitted or was stricken from the record, then you are not to consider it in reaching your verdict.
. . .

6. The local civil rules for the United States District Court, Western District of Washington prohibit any post verdict contact with jurors, absent leave of court. The rule provides: “counsel shall not contact or interview jurors or cause jurors to be contacted or interviewed after trial without first having been granted leave to do so by the court.” Local Rules W.D. Wash. CR 47(b). The note following the rule explains that this prohibition is based on federal law:

In Smith v. Cupp, 457 F.2d 1098[,1100] (9th Cir. 1972) the Court of Appeals for the Ninth Circuit stated:

". . . this court has held, in a federal case, that it is improper and unethical for lawyers to interview jurors to discover what was the course of deliberations of a trial jury. Northern Pacific Railway Co. v. Mely, 210 F.2d 199, 202 (9th Cir. 1954).”

Florida similarly prohibits contact with jurors “after the discharge of the jury for any purpose before filing notice with the court.” Opinion 69-17 (1969).