Massachusetts State House.
Boston Bar Journal

Commonwealth v. Moore: SJC Weighs In on Postverdict Juror Contact under Mass. R. Prof. Cond. 3.5

August 24, 2016
| Special Edition 2016 Vol. 60 #4

austin_neildonovan_carolineby Neil Austin and Caroline Donovan

Case Focus

Attorneys can initiate post-verdict contact with jurors without court permission or supervision, in the wake of the Supreme Judicial Court’s holding in Commonwealth v. Moore, 474 Mass. 541 (2016).  Nearly one year after the revised Massachusetts Rules of Professional Conduct went into effect on July 1, 2015, the SJC confirmed that Rule 3.5(c) worked a change in practice, allowing attorneys to communicate with jurors without requesting permission from the trial judge.  Still, in other important areas, some constraints on juror contact remain.

Before the recent revisions to the Rules of Professional Conduct, attorneys in Massachusetts could initiate contact with jurors only with the permission of the trial judge, and then only on some suggestion that the jury had improperly considered extraneous material.  See Commonwealth v. Fidler, 377 Mass. 192 (1979).  In 2013, the SJC asked the Standing Advisory Committee on the Rules of Professional Conduct to re-examine the Massachusetts rules in light of changes to the ABA’s Model Rules.  The committee considered two proposed versions of Rule 3.5(c), one that allowed post-discharge juror contact and the other that affirmed Fidler’s prohibition on juror contact without the permission and supervision of the court.  By unanimous vote, the committee recommended the version liberalizing juror contact. Following a comment period and argument, the SJC adopted the rule.  Effective July 1, 2015, attorneys in Massachusetts may contact jurors post-verdict subject to three exceptions: (1) if the communication was “prohibited by law or court order”; (2) if the juror made known his desire not to communicate with the attorney, either directly or indirectly; or, (3) if the communication involved “misrepresentation, coercion, duress or harassment.”

New Rule 3.5(c) was soon tested.  In mid-July 2015, appellate counsel to Dwayne Moore sought to communicate with the jurors who had convicted Moore of murder in 2012.  On July 14, 2015, two weeks after the effective date of revised Rule 3.5(c) and while Moore’s appeal was pending, defense counsel sent the Commonwealth the letter he planned to send the jurors.  The proposed letter asked whether the jurors had been exposed to any extraneous information during the trial and deliberations, including information about the mass shooting at Sandy Hook Elementary School.  Having received no response from the Commonwealth, defense counsel sent the letter to the jurors one week later.  That same day, the Commonwealth’s attorney e-mailed defense counsel, notifying him that the Commonwealth would file a motion to prohibit juror contact, which it viewed as still impermissible under the revised rule.

The trial judge heard argument on the Commonwealth’s motion and reported five questions to the Appeals Court (which were then transferred to the SJC):

  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, 385 N.E.2d 513 (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?

Commonwealth v. Moore, SUCR2011-10023 (July 27, 2015), slip op. at 13-14.

On the first question, the Court said that, in “adopting rule 3.5 (c), we effectively overruled our rule, first stated in Fidler, that prohibited attorney-initiated, postverdict contact of and communications with jurors free from court oversight.”  Commonwealth v. Moore, 474 Mass. 541, 547 (2016).  Second, the Court held that Fidler continues as precedent to the extent that, like Fidler, Rule 3.5(c) prohibits inquiries into the jury’s deliberations.  More specifically, “prohibited contact and communication include those that violate common-law principles, such as inquiries into the substance of jury deliberations, and communications that violate statutory law, other court rules, or specific court orders.”  Id. at 549.  Finally, the Court held that Rule 3.5(c) applies to attorneys seeking to contact jurors discharged before July 1, 2015, the rule’s effective date, if the case was pending on appeal on July 1, 2015, or if the appeal period had not yet run.  Id.  at 551.  If either of those conditions is met, no court permission is required to contact jurors discharged before July 1, 2015.  Id.

Beyond simply answering the trial court’s questions, the SJC sought to provide procedural guidelines to counsel.  Most notably, the Court required that a lawyer provide opposing counsel with five business days’ notice of the lawyer’s intent to contact the jurors. That notice should specify the proposed manner of communication and the substance of the inquiry, including, “where applicable, a copy of any letter or other form of written communication the attorney intends to send.”  Id. at 551-552.  The Court stated that the preferred method of juror contact is by written letter, which should include a statement that the juror may decline to respond to such communication.  While the Court observed that opposing counsel may seek relief if the proposed communication appears improper, the Court sought to tamp down routine challenges to proposed communications, underscoring that “[o]ur 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.”  Id. at 552.

Thus, lawyers in Massachusetts may now contact jurors without the permission or supervision of the trial court, including jurors discharged prior to July 1, 2015, if the direct appeal was then pending or the appeals period had not yet run.  But before doing so, counsel must first provide opposing counsel notice of their intent to contact the jurors, and opposing counsel has an opportunity to move the court for relief.  When counsel does make contact, he or she cannot inquire about the substance of the jury’s deliberations; that subject continues to be off-limits.  Moore provided preliminary answers and guidance concerning the implementation of Rule 3.5(c).  Whether there will be additional litigation surrounding lawyer-initiated postverdict contact with jurors remains to be seen.

Neil Austin is a partner in the litigation department of Foley Hoag LLP, where he specializes in commercial litigation and government investigations.

Caroline Donovan is an associate in the Litigation Department at Foley Hoag, where she maintains a practice in complex civil litigations and investigations.