Commonwealth v. Moore , 474 Mass. 541 ( 2016 )

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SJC-11582
COMMONWEALTH vs. DWAYNE MOORE.
Suffolk. February 10, 2016. - June 16, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Rules of Professional Conduct. Jury and Jurors. Practice,
Criminal, Jury and jurors, Investigation of jurors,
Deliberation of jury.
Indictments found and returned in the Superior Court
Department on January 7, 2011.
A postconviction emergency motion for judicial intervention
to prohibit inquiry of the jury, filed on July 23, 2015, was
heard by Jeffrey A. Locke, J., and questions of law were
reported by him to the Appeals Court.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Teresa K. Anderson, Assistant District Attorney (Edmond J.
Zabin, Assistant District Attorney, with her) for the
Commonwealth.
Chauncey B. Wood for the defendant.
K. Neil Austin, Caroline S. Donovan, & David A.F. Lewis,
for Massachusetts Association of Criminal Defense Lawyers,
amicus curiae, submitted a brief.
2
BOTSFORD, J. We consider here five questions reported by a
Superior Court judge to the Appeals Court concerning the effect
of an amendment to Mass. R. Prof. C. 3.5 (c), as appearing in
471 Mass. 1428 (2015) (rule 3.5 [c]), regarding an attorney's
ability to communicate, postverdict, with jurors who deliberated
on, or were discharged from, the attorney's client's case. Rule
3.5 (c) became effective on July 1, 2015.
1. Background. From February 13 to March 22, 2012, the
defendant was tried in the Superior Court in Suffolk County on
charges of murder in the first degree (four counts), G. L.
c. 265, § 1; home invasion, G. L. c. 265, § 18C; armed robbery,
G. L. c. 265, § 17; armed assault with intent to murder, G. L.
c. 265, § 18 (b); aggravated assault and battery by means of a
dangerous weapon, G. L. c. 265, § 15A (c); carrying a firearm
without a license, G. L. c. 269, § 10 (a); and trafficking in
cocaine, G. L. c. 94C, § 32E (b). The jury were deadlocked on
nine of the charges and found the defendant not guilty on the
tenth (trafficking in cocaine). The trial judge declared a
mistrial. On October 2, 2012, the defendant filed a motion for
a change of venue on account of extensive media coverage, which
was allowed in part. The defendant was retried before a jury
from Worcester County sitting in the Suffolk County Court House
from October 16 to December 18, 2012. In the middle of
deliberations, an issue concerning a deliberating juror's
3
compliance with the judge's instruction not to consult extra-
trial research arose. After individual inquiry of each
deliberating juror, the judge dismissed one juror and, based on
a finding that the remaining jurors were not affected by
exposure to extraneous information, denied the defendant's
motion for a mistrial. The jury continued to deliberate. One
week later, the jury found the defendant guilty on the four
indictments charging murder in the first degree as well as on
those charging home invasion and armed robbery, and not guilty
on the remaining three charges.1 The defendant filed a notice of
appeal on January 2, 2013; the appeal has been docketed in this
court but has not yet been briefed or argued.
On July 14, 2015, two weeks after the effective date of
rule 3.5 (c), one of the defendant's appellate attorneys sent a
letter to the assistant district attorney representing the
Commonwealth on appeal, informing her of defense counsel's
intention to contact the deliberating jurors in the defendant's
second trial pursuant to amended rule 3.5 (c), and attached a
copy of the proposed letter that counsel intended to send to the
jurors. On July 21, 2015, the defendant's appellate counsel
sent via first class mail the letters to the deliberating
jurors. Later that same day, the assistant district attorney
1
The defendant was found not guilty on the charges of armed
assault with intent to murder, aggravated assault and battery by
means of a dangerous weapon, and carrying a firearm without a
license.
4
sent an electronic mail (e-mail) message to the defendant's
appellate counsel, notifying them that the Commonwealth would
file a motion to prohibit juror communication, and further
explained that "[i]t is the Commonwealth's position that post-
conviction inquiry of jurors remains prohibited as a matter of
law."
On July 23, 2015, the Commonwealth filed an emergency
motion for judicial intervention to prohibit postconviction
inquiry of the jury; the defendant's appellate counsel filed an
opposition. After hearing, the motion judge, who had been the
trial judge in the defendant's second trial, agreed to report to
the Appeals Court five questions concerning rule 3.5 (c),
ordered that the defendant's appellate counsel not communicate
further with the discharged jurors pending further order of the
court, and further ordered that counsel retain sealed and unread
any written or e-mail responses they might receive from jurors
in response to the letter previously sent.
The five reported questions are the following:
"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 (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?
5
"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?"
We transferred the judge's report from the Appeals Court to
this court on our own motion.
2. Discussion. a. Attorney disciplinary rules and the
Fidler decision. Effective October 2, 1972, this court adopted
S.J.C. Rule 3:22, the Canons of Ethics and Disciplinary Rules
Regulating the Practice of Law, as appearing in 359 Mass. 796
(1971). Disciplinary Rule (DR) 7-108 (D) governed postverdict
contact with jurors. This rule permitted attorneys to initiate
communication with jurors postverdict without permission of the
court, providing that "the lawyer shall not ask questions of or
make comments to a member of that jury that are calculated
merely to harass or embarrass the juror or to influence his
actions in future jury service." S.J.C. Rule 3:22, DR 7-108
(D), as appearing in 359 Mass. 826 (1971). The text of DR 7-108
(D) was essentially identical to the Model Code of Professional
Responsibility that previously had been adopted by the American
Bar Association (ABA).
6
Seven years later, this court decided Commonwealth v.
Fidler, 377 Mass. 192 (1979). The defendant in Fidler was
convicted of armed robbery after a jury trial in the Superior
Court, and thereafter filed a motion for a new trial based on
alleged juror misconduct. See id. at 193-194. In support of
the motion, the defendant filed an affidavit of one of the
deliberating jurors. See id. The affidavit averred that the
jury considered in their deliberations matters the judge had
instructed them to disregard, and also that extraneous
information had been introduced into the jury deliberations in
the form of statements by a juror about factual matters relating
to the defendant that had not been presented in evidence at
trial. See id. The trial judge denied the defendant's motion
for a new trial without an evidentiary hearing. In considering
the defendant's appeal from this denial, this court affirmed the
common-law rule, first discussed by this court in Woodward v.
Leavitt, 107 Mass. 453, 460 (1871), but having earlier roots in
England, that inquiry into jury deliberations is prohibited.2 In
2
As stated in Woodward v. Leavitt, 107 Mass. 453, 460
(1871), this common-law principle is the following: "The proper
evidence of the decision of the jury is the verdict returned by
them upon oath and affirmed in open court; it is essential to
the freedom and independence of their deliberations that their
discussions in the jury room should be kept secret and
inviolable; and to admit the testimony of jurors to what took
place there would create distrust, embarrassment and
uncertainty." See Commonwealth v. Fidler, 377 Mass. 192, 196
(1979) ("We still adhere to our rule [expressed in Woodward]
which requires courts to protect jurors and their verdicts from
7
particular, we reiterated that it is impermissible to impeach a
jury verdict with juror testimony concerning the contents of the
jury's deliberations, and also impermissible to "permit evidence
concerning the subjective mental processes of jurors, such as
3
the reasons for their decisions." Fidler, supra at 198. After
discussing these common-law precepts, we proceeded to define and
adopt a separate rule that, going forward, would require all
postverdict contact with and interviews of jurors by attorneys
to occur under court supervision and direction, and to be
permissible "only if the court finds some suggestion that there
were extraneous matters in the jury's deliberations. . . .
[C]ounsel, litigants, and those acting for them may not
independently contact jurors after a verdict is rendered.
Counsel may investigate unsolicited information only to see if
it is a matter worth bringing to the judge's attention." Id. at
203-204.
unwarranted intrusions and which emphasizes the importance of
the finality of jury verdicts").
3
We made clear, however -- as had Woodward, 107 Mass. at
466 -- that this common-law principle did not bar juror
testimony to the effect that information extraneous to the trial
had been introduced into the jury deliberations; the prohibition
was against eliciting testimony or other evidence concerning the
impact of such extraneous information on the jurors,
individually or collectively: "[O]ur rule does not create an
absolute prohibition against juror testimony to impeach a
verdict. . . . [J]uror testimony is admissible to establish the
existence of an improper influence on the jury, but is not
admissible to show the role which the improper influence played
in the jury's decisions." Fidler, 377 Mass. at 196. See id. at
196-198.
 8
Fidler did not involve directly any rules of professional
conduct governing lawyers; the restrictions on attorneys'
postverdict contact with and interviews of jurors that the court
adopted there were independent of the disciplinary rules. See
Commonwealth v. Solis, 407 Mass. 398, 399, 402-403 (1990)
(attorney obtained information from juror in manner that
conflicted with Fidler restrictions but was consistent with
S.J.C. Rule 3:07, Canon 7, DR 7-108 [D], 382 Mass. 792 [1982]).
In light of the tension between Fidler and DR 7-108 (D), in
1991, the court amended DR 7-108 (D) to codify the Fidler rule
governing postverdict attorney contact and communications with
jurors. See S.J.C. Rule 3:07, DR 7-108 (D), as amended, 411
Mass. 1317 (1991).4 And when in 1998 we amended the attorney
disciplinary rules to conform generally to the ABA's Model Rules
of Professional Conduct, we retained the Fidler-inspired
limitations on postverdict contact of jurors by attorneys. See
4
The revised version of S.J.C. Rule 3:07, DR 7-108 (D),
appearing in 411 Mass. 1317 (1991), provided: "After discharge
of the jury from further consideration of a case with which the
lawyer was connected, the lawyer shall not initiate any
communication with a member of the jury without leave of court
granted for good cause shown. If a juror initiates a
communication with such a lawyer, directly or indirectly, the
lawyer may respond provided that the lawyer shall not ask
questions of or make comments to a member of that jury that are
intended only to harass or embarrass the juror or to influence
his or her actions in future jury service. In no circumstances
shall such a lawyer inquire of a juror concerning the jury's
deliberation processes."
9
Mass. R. Prof. C. 3.5 (d), as appearing in 426 Mass. 1391
(1997), effective January 1, 1998.5
Thereafter, in light of changes in 2002, 2012, and 2013 to
the ABA's Model Rules of Professional Conduct, this court asked
its Standing Advisory Committee on the Rules of Professional
Conduct (committee) to review the Massachusetts Rules of
Professional Conduct. The committee did so, and proposed
numerous revisions to our attorney disciplinary rules, including
a unanimous recommendation that we adopt the ABA's Model Rule
3.5 in place of the existing version of Mass. R. Prof. C. 3.5
and the existing rule 3.5 (d), in particular. After receiving
public comments and hearing, we adopted the committee's
recommendation. The amended rule 3.5, appearing at 471 Mass.
1428 (2015), and effective July 1, 2015, provides in relevant
part:
"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, either
directly or through communications with the judge or
otherwise, a desire not to communicate with the lawyer; or
5
The text of Mass. R. Prof. C. 3.5 (d), appearing in 426
Mass. 1391 (1997), was identical to the 1991 version of DR 7-
108 (D). See note 4, supra.
10
"(3) the communication involves misrepresentation,
coercion, duress or harassment . . . ."6
b. Effect of adoption of rule 3.5 (c) on prohibition
against attorney-originated communications with jurors. The
first three reported questions concern what, if any, substantive
changes resulted from this court's adoption of rule 3.5 (c).
Because we find the three questions to be interconnected, we
discuss them together. The first question asks whether in
adopting rule 3.5 (c),7 this court implicitly overruled the
prohibition against attorney-originated communications with
jurors set forth in Fidler. The Commonwealth argues that
Fidler's prohibition was not overruled by rule 3.5 (c), because
a revised rule of professional conduct "do[es] not and cannot
create, modify, or supersede" existing case law, here Fidler and
6
Comment 3 to Mass. R. Prof. C. 3.5, appearing in 471 Mass.
1429 (2015) (rule 3.5), relates to rule 3.5 (c). The comment
states:
"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. For
example, where a juror makes known to the judge a desire
not to communicate with the lawyer, and the judge so
informs the lawyer, the lawyer may not initiate contact
with that juror, directly or indirectly. The lawyer may
not engage in improper conduct during the communication."
7
The first reported question does not state expressly that
its focus is specifically rule 3.5 (c), but the intended focus
on this subsection of the rule is clear.
11
its progeny,8 until this court expressly overrules those
decisions. The Commonwealth consequently reasons that Fidler's
rule prohibiting attorneys from communicating with jurors
postverdict without judicial supervision remains part of the
definition of "prohibited by law" in rule 3.5 (c) (1). We
disagree.
Contrary to the Commonwealth's argument, we answer the
first reported question in the affirmative: by 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. In
our view, the text of rule 3.5 (c) and the associated commentary
by themselves make this point clearly even without any mention
of Fidler by name, but by way of further explanation, we add
that the Fidler rule was not a statement of common-law principle
but rather a rule that we adopted pursuant to our authority and
responsibility to supervise the practice of law by attorneys in
the Commonwealth, independent of common law or statute. See,
e.g., Opinion of the Justices, 375 Mass. 795, 813 (1978) (court
retains "the ultimate authority to control [attorneys'] conduct
in the practice of law"). To the extent that the Fidler rule
operated to define a manner of contact and communication with
8
See, e.g., Commonwealth v. Bresnahan, 462 Mass. 761, 769-
770 (2012); Commonwealth v. Solis, 407 Mass. 398, 403 (1990);
Commonwealth v. Dixon, 395 Mass. 149, 153 (1985); Cassamasse v.
J.G. Lamotte & Son, 391 Mass. 315, 317-319 (1984).
12
jurors postverdict that was "prohibited by law" before the
adoption of rule 3.5 (c), the latter effectively superseded the
Fidler rule and the prohibition against unsupervised,
postverdict attorney communication that the Fidler rule had
imposed.
This is not to say, however, that rule 3.5 (c) implicitly
overruled this court's opinion in Fidler in its entirety, a
point that leads us to the second reported question. We
interpret this question to be asking whether, in adopting rule
3.5 (c), this court intended Fidler "to be continuing precedent"
in any respect. Our answer is yes. As we have noted, Fidler,
in addition to establishing the rule of conduct relating to
unsupervised postverdict contact with jurors by attorneys,
discusses and reaffirms the court's continuing adherence to the
common-law principle barring inquiry into the contents of jury
deliberations and thought processes of jurors and the
impeachment of jury verdicts based on information that might be
gained from such inquiry. See Fidler, 377 Mass. at 196-198.
Our adoption of rule 3.5 (c) leaves the viability of this
common-law principle undisturbed. The secrecy of jury
deliberations has served as a bedrock of our judicial system,
and inquiry into the "jury's deliberative processes . . . would
intrude improperly into the jury's function." Solis, 407 Mass.
at 403. See, e.g., Commonwealth v. Pytou Heang, 458 Mass. 827,
13
858 (2011). The common-law principle that "it is essential to
the freedom and independence of [jury] deliberations that their
discussions in the jury room should be kept secret and
inviolable," Fidler, supra at 196, quoting Woodward, 107 Mass.
at 460, was not, and arguably could not be, overruled by rule
3.5 (c).
That rule 3.5 (c) allows attorneys to initiate postverdict
contact with jurors without prior court permission or oversight,
however, does not mean, as the Commonwealth apparently fears,
that the permitted inquiry is "unfettered and unrestricted."
Rule 3.5 (c) explicitly limits the inquiry: it bars
communications prohibited by law, communications with jurors who
have made known an unwillingness to communicate, and
communications involving "misrepresentation, coercion, duress or
harassment." Mass. R. Prof. C. 3.5 (c) (1)-(3). The third
reported question seeks further clarification of the first of
these proscriptions, asking "what types of contact with
discharged jurors by an attorney, if any, are 'prohibited by
law' under [r]ule 3.5(c)(1)?" We answer that 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. See, e.g., Adams
v. Ford Motor Co., 653 F.3d 299, 307 (3d Cir. 2011) (suggesting
14
that "prohibited by law" under ABA-derived rule 3.5 includes
court orders and local rules of court); Williams v. Lawton, 288
Kan. 768, 794-795 (2009) ("attorneys may discuss a trial with
willing jurors after their discharge . . . unless contrary
[court] orders have been given").9
The Commonwealth contends that States that have adopted ABA
Model Rule 3.5 (c) nonetheless restrict communication with
jurors in a variety of ways; the thrust of the argument is that
the adoption of rule 3.5 (c) does not have (or at least should
not have) the practical effect of permitting attorneys
independently to communicate with jurors. It is true that a
court may further tailor the limitations of attorney-initiated
contact with jurors beyond those referenced in rule 3.5 (c).
However, at this point in time, this rule has been in effect in
the Commonwealth for somewhat less than two years, and without
further experience with the rule in operation, we are not
inclined to consider adopting limitations on the scope and
9
Although "prohibited by law" is not defined in the
Massachusetts Rules of Professional Conduct, a previous version
of the American Bar Association's Model Rules provided that
"[c]onduct 'prohibited by law' clearly includes violations of
criminal law and presumably includes other acts that violate
statutes, court rules, or other legal norms." Annotated Model
Rules of Professional Conduct, at 232 (1984).
15
character of unsupervised postverdict attorney contact with
jurors beyond those that rule 3.5 (c) sets out.10,11
c. Application of rule 3.5 (c) to jury trials completed
before July 1, 2015. The fourth reported question asks whether
rule 3.5 (c) permits attorneys to communicate with jurors
discharged prior to July 1, 2015, the effective date of the
rule.
"In general, changes in the common law brought about by
judicial decisions are given retroactive effect." Halley v.
Birbiglia, 390 Mass. 540, 544 (1983). Because rule 3.5 (c)
effects a change in an ethical rule governing lawyer conduct
rather than a substantive change in the common law,
retroactivity principles applicable to the common law do not
strictly apply here. As a general matter, "[d]isciplinary rules
operate prospectively, not retroactively." Matter of the Estate
10
We do not question that, when appropriate, a judge in a
particular case may restrict or even prohibit attorneys'
unsupervised communication with jurors postverdict; such a court
order is expressly contemplated by rule 3.5 (c) (1) (lawyer
shall not communicate with juror after trial if "the
communication is prohibited by law or court order" [emphasis
added]).
11
A number of the cases cited by the Commonwealth
addressing practices in other States appear to reflect a fair
degree of judicial willingness to permit postverdict contact
with jurors. See, e.g., Stewart v. Rice, 47 P.3d 316, 325
(Colo. 2002) ("jurors are free to discuss any aspect of their
service they care to"); State v. Thomas, 813 S.W.2d 395, 397
(Tenn. 1991) (local rule that all interviews with jurors by
lawyers are prohibited except with permission of court
contravenes State Supreme Court rule; court permission not
necessary to communicate with jurors postverdict).
16
of Southwick, 66 Mass. App. Ct. 740, 747 (2006). Nevertheless,
in contrast to a case such as Southwick, the issue here is not
whether the propriety of an attorney's conduct should be judged
by more restrictive ethical rules than those in operation when
the attorney acted. Rather, it is whether a less restrictive
rule that effectively broadens a litigant's opportunity to
explore the possibility that a jury verdict was marred by the
intrusion of extraneous influences should apply to trials
completed before the rule's effective date. In this context,
general retroactivity principles offer guidance. To borrow from
the retroactivity lexicon applicable to criminal cases, rule 3.5
(c) is a "new rule" in the sense that the rule was not "dictated
by precedent existing at the time the defendant's conviction
became final." Commonwealth v. Bray, 407 Mass. 296, 303 (1990),
quoting Teague v. Lane, 489 U.S. 288, 301 (1989). See
Commonwealth v. Sylvain, 466 Mass. 422, 434 (2013), S.C., 473
Mass. 832 (2016). In the context of the criminal law, such new
rules generally apply to cases that are pending, are on direct
appeal, or for which the appeal period has not run. See, e.g.,
Commonwealth v. Figueroa, 413 Mass. 193, 202 (1992), S.C., 422
Mass. 72 (1996). See also Commonwealth v. Augustine, 467 Mass.
230, 257-258 (2014), S.C., 470 Mass. 837 and 472 Mass. 448
(2015). Adopting this new rule approach to determine the scope
of rule 3.5 (c)'s retroactivity offers a helpful way to balance
17
the competing interests at play here -- the interest of the
defendant (and indeed every litigant) in being tried by an
impartial jury, on the one hand, and society's recognized
interests in the finality of jury verdicts and protecting jurors
from harassment. See Commonwealth v. Bresnahan, 462 Mass. 761,
769 (2012), and cases cited. Accordingly, we answer the fourth
question by stating that rule 3.5 (c) applies to attorneys who
represented a litigant in a jury trial in which the jurors were
discharged before July 1, 2015, if the case was on appeal as of
that date or the appeal period had not run. These attorneys,
therefore, are permitted to contact jurors in accordance with
the terms of the amended rule.
d. Whether court approval is required prior to contacting
jurors. The fifth reported question builds on the fourth and
asks whether, assuming at least some attorneys are permitted to
communicate with jurors who were discharged prior to July 1,
2015, those attorneys are required to seek approval from the
court prior to initiating contact. We answer the question no.
As is the case with attorneys who, pursuant to rule 3.5 (c),
seek to communicate, postverdict, with jurors discharged after
July 1, 2015, attorneys who seek postverdict contact with jurors
who were discharged before July 1, 2015, may do so without
permission from the court. However, and again as is true of
attorneys seeking contact with jurors discharged after July 1,
18
2015, any proposed contact is subject to the notice requirements
set forth in the following section of this opinion.
e. Guidelines for implementation of rule 3.5 (c). To
assist attorneys and judges in working with rule 3.5 (c), we
offer some procedural guidelines. Cf. Commonwealth v. Jordan,
469 Mass. 134, 147 (2014).
i. Going forward, on request of any party, the trial
judge shall instruct the jury regarding an attorney's right to
contact and communicate with jurors after trial and a juror's
right to decline to speak with an attorney postverdict. A
suggested instruction is included as an Appendix to this
opinion.
ii. Although an attorney may initiate postverdict contact
with jurors without prior court approval under rule 3.5 (c), the
attorney must -- as the defendant's appellate attorneys did in
the present case -- send prior notice of the attorney's intent
to initiate such contact to counsel for the opposing party or
parties (or directly to the opposing party or parties, if not
represented by counsel) five business days before contacting any
juror. The notice is to include a description of the proposed
manner of contact and the substance of any proposed inquiry to
the jurors, and, where applicable, a copy of any letter or other
form of written communication the attorney intends to send. The
preferred method of initiating contact with a juror is by
19
written letter, and the letter is to include a statement that
the juror may decline any contact with the attorney or terminate
contact once initiated. If the attorney seeks to initiate
contact through an oral conversation (whether in person, by
telephone, or otherwise), the attorney is nonetheless required
to provide opposing counsel or opposing parties with prior
notice of the substance of the intended communication.
The purpose of requiring prior notice is to permit opposing
counsel (or an unrepresented opposing party) to seek relief from
the court if the proposed communication appears to be beyond the
scope of permissible inquiry or otherwise improper, or if there
is a compelling reason, specific to that case, that
communicating with the jurors would be inappropriate.12 See Hall
v. State, 151 Idaho 42, 48 (2011) ("Trial courts have the
inherent authority to review . . . letters and enclosures [to be
sent by counsel to discharged jurors] and order counsel to make
modifications accordingly"). In stating that an opposing
counsel or party may seek relief from a court, we do not intend
to suggest that we anticipate a general need to do so. Our
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.
12
Of course, opposing counsel (or an unrepresented opposing
party) may not contact jurors upon receipt of the notice without
first providing notice to the other side.
20
iii. If, after communicating with a juror, an attorney
wishes to secure an affidavit from the juror concerning alleged
extraneous influences on the jury deliberation process, the
attorney may do so without seeking or obtaining prior court
approval, but any such affidavit must focus on extraneous
influences, and not the substance of the jury's deliberations or
the individual or collective thought processes of the juror or
the jury as a whole. See Mass. G. Evid. § 606(b) (2016).13 See
also Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501
(2001). Nothing in rule 3.5 (c) changes the standards governing
requests for and the conduct of postverdict evidentiary
13
Massachusetts Guide to Evidence § 606(b) (2016) provides:
"(b) During an Inquiry into the Validity of a Verdict or
Indictment.
"(1) Prohibited Testimony or Other Evidence. During an
inquiry into the validity of a verdict or indictment, a
juror may not testify about any statement made or incident
that occurred during the jury's deliberations, the effect
of anything on that juror's or another juror's vote, or any
juror's mental processes concerning the verdict or
indictment. The court may not receive a juror's affidavit
or evidence of a juror's statement on these matters.
"(2) Exceptions. A juror may testify about whether
"(A) extraneous prejudicial information was improperly
brought to the jury's attention or
"(B) an outside influence was improperly brought to bear on
any juror."
21
hearings. See Fidler, 377 Mass. at 201. See also Commonwealth
v. Kincaid, 444 Mass. 381, 386 (2005).14
3. Conclusion. We summarize here the answers to the
reported questions.
(1) The adoption of rule 3.5 (c) in effect overruled the
rule established by Fidler, 377 Mass. at 203-204, requiring
attorneys to seek leave of court before contacting jurors
postverdict, and to do so only under court supervision and
direction.
(2) The common-law principles that limit postverdict
inquiry of jurors to matters relating to extraneous influences
and prohibit inquiry into the individual or collective thought
processes of jurors, the reasons for their decision, or the
substance of their deliberations, discussed in Fidler, 377 Mass.
at 196-198, remain as continuing precedent. As Fidler notes,
however, inquiry is permissible to establish the existence of an
14
Finally, although the reported questions do not address
specifically the postverdict letter sent by the defendant's
appellate counsel to the jurors, the Commonwealth argues here
that that the letter represents an inappropriate or improper
fishing expedition. The criticism appears overblown. The
dismissal of one deliberating juror due to failing to follow the
judge's instructions concerning consideration of extra-trial
information, the significant publicity surrounding the trial,
and the particular circumstance of the shooting at Sandy Hook
Elementary School in Connecticut occurring in the middle of
deliberations all provide support for the questions posed by
appellate counsel in their letter that, it appears, was focused
on exploring the possibility of extraneous influences having
been introduced into the jurors' deliberations, and not the
jurors' deliberative processes.
22
improper influence, "but . . . not . . . to show the role which
the improper influence played in the jury's decisions." Id. at
196.
(3) The common-law limitations on postverdict juror inquiry
discussed in Fidler, supra at 196-198, address a type of
communication "prohibited by law" within the meaning of rule 3.5
(c) (1); other communications "prohibited by law" include
communications in violation of statutory law as well as specific
court orders and court rules.
(4) Rule 3.5 (c) generally applies to attorneys in their
representation of litigants in trials on and after July 1, 2015,
but an attorney representing a party in a case that was tried to
a jury and concluded before that date may contact jurors on that
case pursuant to rule 3.5 (c) if the case was pending on appeal
as of July 1, 2015, or the appeal period had not run as of that
date.
(5) If an attorney is entitled to initiate contact with
jurors who were discharged prior to July 1, 2015, because the
case at issue is pending on appeal or the appeal period has not
yet run, the attorney is treated the same as an attorney
contacting jurors discharged after July 1, 2015; the attorney is
not required to seek prior court approval, but is required to
adhere to the notice requirements set out in this opinion.
23
The case is remanded to the Superior Court for further
proceedings consistent with this opinion.
So ordered.
Appendix.
Suggested Jury Instruction
"Now that your service is concluded, the question may arise
whether you may discuss this case with the lawyers who presented
it to you. Whether you discuss your jury service on this case
with anyone is entirely up to you. The attorneys may desire to
talk with the members of the jury. For your guidance, you are
advised that it is entirely proper for you to talk with the
attorneys, and you are at liberty to do so. However, you are
not required to do so and may decline to speak with an attorney.
Whether you do so or not is entirely a matter of your own
choice. If you choose to talk with the attorneys, please do not
discuss the substance or content of the jury's deliberations,
including the reasons for the jury's verdict. However, in the
unlikely event that any juror during deliberations provided
information about the case or any party to the case that was not
in evidence, you may tell the attorneys what information was
provided, but you may not discuss the effect this information
had on jury deliberations. If you prefer not to be contacted by
an attorney after you are discharged, you may inform me or a
court officer in person or in writing, and we will communicate
this to the attorneys. Further, if you decline to discuss the
case, either today or in the future, and an attorney persists in
discussing the case over your objection or becomes critical of
your service as a juror, please report the incident to the
court."