Defense Attorneys Have the Right (and often the duty) to Interview Jurors to Investigate Potential Juror Misconduct
By Al Menaster
The rules governing contact with jurors are very clear. However, prosecutors often misstate or misunderstand those rules. There is a recent high-profile murder case where prosecutors sought sanctions against private defense counsel based on contact with jurors. The prosecutors misstated the rules and the media reported the motion for sanctions, restating the erroneous description of the rules. In essence, the prosecutors claim that any contact with jurors somehow violates the statutes governing jury contact, and that contacting the jurors relying on information we obtained during trial is improper. The judge apparently ruled that once he sealed the juror information, that barred the defense from contacting jurors, even if that contact was made through information disclosed in open court. All of these points are dead wrong. In some, perhaps many, of our cases, especially high-profile and capital cases, jury misconduct arises. It is important that we understand what the rules actually are, since there are many cases where we should be reaching out to jurors to investigate potential misconduct.
Code of Civil Procedure section 206 clearly anticipates contact with jurors apart from reliance on the sealed juror information. Section 206 expressly provides, “Following the discharge of the jury in a criminal case, the defendant, or his or her attorney or representative, or the prosecutor, or his or her representative, may discuss the jury deliberation or verdict with a member of the jury, provided that the juror consents to the discussion and that the discussion takes place at a reasonable time and place.” (Code of Civ. Proc. sec. 206, subd. (b).) The restrictions on that contact are described below in DeHoyos, and you must ensure that your investigator strictly complies with those requirements.
The Court of Appeal has described our right to contact and attempt to interview jurors:
“....[S]ection 206 has made clear that a defendant’s right to discuss the case with any juror is conditioned on the juror’s consent. The statute requires that jurors be informed, prior to their discharge, that they have the absolute right to discuss or not discuss their deliberation or verdict with anyone. (§ 206, subd. (a).) The statute also expressly provides that the defendant and his or her attorney are permitted to discuss the jury’s deliberation with any juror as long as the juror consents and the discussion take place at a reasonable time and place. (§ 206, subd. (b).) Any unreasonable contact with a juror, without the juror’s consent, must be immediately reported to the trial judge and is treated as the violation of a lawful court order. (§ 206, subds. (d) and (e); § 206, former subds. (c) and (d).)
Effective in 2001, section 206 added a requirement that if a discussion about the deliberation or verdict occurs more than 24 hours after the verdict was returned, the defendant (or prosecutor) and any attorney or representative of either party, is required to inform the juror of the identity of the case, the name of the party he or she represents, the subject of the interview, the right of the juror to either discuss or not discuss the deliberations or verdict, and the juror's right to have a copy of any declaration filed with the court. (§ 206, subd. (c).) (DeHoyos v. Superior Court (2020) 50 Cal.App.5th 71, 79.)
Another Court of Appeal has said, “After a jury convicts a defendant, defense counsel may attempt to contact jurors to discuss the case with them in an effort to determine whether there was juror misconduct.” The court further said, “If counsel wish to speak to jurors and are unable to locate them, counsel may file a petition under Code of Civil Procedure section 237, seeking access to jurors’ contact information.” (People v. Russell (2017) 9 Cal.App.5th 1050, 1057.)
Our ability to contact jurors is separate and apart from the court’s obligation to seal juror information. On that topic, in 1999 the California Supreme Court summarized this area:
Thus, Code of Civil Procedure sections 237 and 206, as presently written, require that the personal information of jurors, such as their names, addresses and telephone numbers, be sealed automatically following the recording of the verdict in a criminal case. (§ 237, subd. (a)(2).) ‘Any person’ seeking such information must petition the court and show good cause for disclosure. (Id., subd. (b).) More specifically, a criminal defendant or defense counsel may obtain this information if he or she petitions the court and demonstrates such information is ‘necessary’ for a new trial motion or “any other lawful purpose.” (§ 206, subd. (f).) Attorney contact with jurors is permissible, but subject to sanctions for nonconsensual or unreasonable contact. (§ 206, subds.(a)—(d).)
(Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1087.)
To restate this topic. We can talk to jurors about their deliberations without getting prior permission from the judge, so long as this is done in compliance with the restrictions described in DeHoyos. We are free to contact jurors based on information we obtain from any source. Personal information of the jurors must be sealed by the judge. That information may only be unsealed on a showing of the need for disclosure for a motion for a new trial. Our initial contact with jurors often leads to precisely the information we need for the showing to unseal the juror information.
But the claim that we are somehow engaging in misconduct by contacting jurors without first obtaining permission from the court or requesting unsealing of their personal information is obvious nonsense.