Jury tampering a bad business
Improper communication with and behavior toward the opposing party, the court, or even a third person often results in the violation of ethical rules, while communicating with a juror for the purpose of influencing the outcome of a case is called “jury tampering” and often constitutes a crime.
Jury tampering can assume different forms. The most aggressive is certainly threatening or attempting to bribe a juror. Leaving jurors anonymous notes, secretly providing them with evidence, or disclosing additional information to them also constitutes jury tampering. The ethical rules and criminal law impose various restrictions intended to prevent such jury tampering.
An attorney cannot seek to influence a juror or a prospective juror by any means that are prohibited by law. Unless it is authorized by law, an attorney cannot communicate with any juror or prospective juror without notice to the other party or counsel for that party during the pendency of the legal proceedings.
This prohibition can be very strict and may include even seemingly innocent behavior such as an attorney holding the courtroom door open for a juror or offering a tissue to a sneezing juror. That is because the avoidance of even the appearance of impropriety is crucial to the administration of justice. The jury must decide a case only based on admitted evidence. Any interaction with an attorney might give that attorney a chance to provide the jurors with facts or details that were purposefully excluded by the judge.
Sometimes, an attempt to influence the jurors might occur in a courtroom. An attorney can make a statement so inflammatory that it would prevent the jurors from impartially deciding the case. For example, in a contract dispute case, an attorney may disclose the opposing party’s sexual assault conviction. Such statement would materially prejudice the jury and is prohibited as are other statements intended to unfairly influence the jurors’ decisions.
An attorney has the right after the jury has been discharged to interview the jurors to determine whether their verdict is subject to any legal challenge. However, such interview should not be intended to embarrass any juror or to influence any juror’s decision in any subsequent jury service. Furthermore, an attorney cannot communicate with a juror or prospective juror after the jury is discharged if it is prohibited by law or court order, the juror expressed a desire not to communicate, or the communication involves misrepresentation, coercion, duress, or harassment. In some states, no post-trial communication with the jurors is allowed. In others, an attorney may ask the jurors about the factors that led to the jurors’ decision in order to advance the attorney’s skills and tactics for the future.
In Nevada, an attorney may investigate the prospective jurors to establish any grounds for challenge before the jury is sworn to try the case. However, such investigation cannot involve any direct or indirect communication with prospective jurors that leads to the disclosure of any elements of the case. Indirect communication means interactions with the prospective juror’s family, friends, or employer.
Both the federal government and Nevada have criminal statutes addressing “jury tampering.” Typically, the intent to influence the outcome of a case by communicating with a juror is required for a criminal conviction. But, as officers of the court, attorneys should avoid any form of unauthorized communication with the jurors.
Natalia Vander Laan is a Minden attorney practicing estate planning, family law, and workers’ compensation.