After Rule Change, Massachusetts Lawyers May Contact Jurors Post-Trial

After 2015 adoption of ABA Model Rule 3.5(c), attorneys in Massachusetts allowed to conduct post-verdict contact with jurors without court approval or oversight

Commonwealth v. Moore, 2016 BL 190536, Mass., No. SJC-11582, 6/16/16.

   The Massachusetts Supreme Judicial Court overturned 36 years of case law that prohibited attorneys from contacting jurors by declining to extend a common law rule after the state adopted a new ethics rule. The case stemmed from an attempt by prosecutors to prevent the defense from interviewing jurors after a high-profile murder trial ended with only a portion of the charges leading to a conviction. The motion was denied and the prosecutors appealed.

    The supreme judicial court in reviewing the motion held that the common law rule against post-verdict communications with jurors was overruled by the 2015 adoption of ABA Model Rule 3.5(c), which lifted the ban on post-verdict contact of jurors. Additionally, the court emphasized that the new rule overturned years of case law completely. “[R]ule 3.5(c) allows attorneys to initiate postverdict contact with jurors without prior court permission or oversight…does not mean, as [the state] apparently fears, that the permitted inquiry is unfettered and unrestricted.” The court noted there exist limitations within the newly adopted rule, such as the prevention of communication that is barred by law, with unwilling jurors, and involving “misrepresentation, coercion, duress or harassment.”

http://www.bloomberglaw.com/public/document/Commonwealth_v_Moore_No_SJC11582_2016_BL_190536_Mass_June_16_2016.