Anatomy of a Case Part XIII: Ethical Considerations in Jury Selection

It should go without saying that attorneys are always bound by duty, our own sense of moral righteousness, and, of course, the Code of Professional Conduct, (CPC) to act ethically at all times.   For example, CPC Rule 8.4 explicitly prohibits criminal acts, conduct “involving dishonesty, fraud, deceit or misrepresentation,” and conduct that is “prejudicial to the administration of justice.”

These duties obviously extend to the courtroom, and to anything we do therein, on or off the record.  So Jury Selection is no exception.  We must be wary in our zealous advocacy to observe basic principles of ethics, without compromising our clients’ best interests.  Just as in any other area of our practice, jury selection must be approached cautiously, as well as strategically.  Failing to act ethically can not only result in disciplinary action, but can also adversely affect our clients.

One of the things we learn very early in our careers is deference and decorum.  It is arguably one of the defining characteristics of the legal profession.  Conducting ourselves with dignity and professionalism in the courtroom means deferring to the authority of the Court, and respecting the members of the bench, bar and public, which includes the jury panel.

There are several ways in which the rules of professional conduct, as well as general ethical considerations, are reflected in our general duty of respect to the court.  First and perhaps foremost, ex parte communications are off limits in most circumstances.  This is to say that communication between a lawyer and a presiding judge without your opponent or opposing counsel present, is generally prohibited.  Even if the interaction is harmless banter about the most recent football game, it raises the appearance of impropriety when you see, for example, a prosecutor whispering to the judge at sidebar with no defense counsel present.  This is something that directly impacts the public perception of impartiality in the courts.  In my experience, judges will usually dispel any misapprehensions about such innocuous communications by publicly announcing what was discussed “at sidebar”, but by no means does it happen every time that it should.  This type of communication should be avoided at all costs, regardless of which side of the v you find yourself.

There is also a very broad rule of conduct which prohibits “disruptive conduct” by attorneys.  There is not enough paper to list all of the ways in which to run afoul of this rule.  But it should be basic principles of common sense that guide us in navigating this prohibition.  Don’t yell at the judge, berate a juror, cast aspersions upon opposing counsel, or generally conduct yourself like an angry drunk during jury selection (or any other time, for that matter).  Conduct yourself with decorum, and avoid harassing prospective jurors, or other members of the bench and bar.  Remember that while an attorney may be  trying to represent their client aggressively, there is a line that can be crossed that will result in sanctions for the attorney, her client, or both.  A particularly reckless attorney may even trigger a mistrial with disruptive behavior that can greatly affect the interests of his client or himself.

Candor toward the tribunal and the parties is also an explicit, as well as implicit, ethical imperative.  Most obvious is a duty to inform the court and opposing counsel of any relationship the attorneys and/or the parties have with any of the potential jurors.  Obviously this would raise a valid area of questioning on whether the juror could still be fair and impartial.  However, remember that such relationships will not automatically exclude them from the panel.

The right to a jury trial guarantees to an accused a fair trial by a panel of “impartial and indifferent” jurors. Irvin v. Dowd, 366 U.S. 717 (1961).  Impartiality of a juror is not a technical concept as much as it is a state of mind.  United States v. Wood, 299 U.S. 123 (1936).  A defendant is denied due process where circumstances affecting a juror exists “which would offer a possible temptation to the average man to forget the burden of proof required to convict the defendant or which might lead him not to hold the balance clear and true between the state and the accused.”  Phillips v. Smith, 485 F.Supp. 1365 (S.D.N.Y.1980).  However, courts have often affirmed a trial court’s decision to seat a juror who admitted to having a relationship with one of the parties, attorneys or witnesses.  As long as the judge questions the juror, and is satisfied that, despite such relationship, the juror would be fair, there is no error.

Another area of ethical concern is contact and communication with jurors and potential jurors.  While CPC Rule 3.3 specifically discusses the ethical limitations of juror contact, it leaves a rather vague and open area of questioning as to what constitutes impermissible contact.  And even more importantly, how does an attorney’s duty to zealously advocate for their client conflict with the general rule of avoiding contact?

Among seasoned litigators, it is no secret that direct communication with any prospective juror conducted outside the controlled setting of voir dire is simply verboten.  There is almost always a generic reminder contained within the judge’s opening instructions to the newly-impaneled jury that no ex parte communication is allowed between the jurors and anyone involved in the case.  I won’t even ride in the same elevator with a juror, and most conscientious trial lawyers go out of their way to avoid any incidental or even accidental contact with even a prospective venireman.  You will often see lawyers in criminal district court hugging the opposite wall of the main hallway whenever there is a jury venire queued outside a courtroom.

Of course most of this is done to avoid the mere appearance of impropriety, as mentioned above.  There is no rule that we hide in a closet every time a jury badge appears around the corner.  But we want to make damn sure that if our opponent happens to be around the opposite corner that he doesn’t see us brush shoulders with a potential juror and contemplate what vicious gossip we must have secretly whispered in their ear as we passed.  Best to leave no room for speculation.

But the more important, but less obvious, discussion is whether we violate any ethical rules by conducting research on prospective jurors.  And to what extent may we go in our efforts before it is considered impermissible contact.  There are numerous cases that discuss the ability of attorneys to search public records for any information on jurors, especially if the attorney or party has concerns about the impartiality of one or more of the jurors.  See e.g. Boudreaux v. Pettaway, 108 So.3d 486 (Ala. 2012).

These questions are especially apt in this new era of social media.  It is estimated that more than 2/3 of Americans with internet access use social media, be it Facebook, Twitter, Instagram or the like.  Thus, it is fairly likely that at least 2 out of 3 of your prospective jurors are also social media users.  The question that remains, then, is whether it is permissible to investigate your jurors on social media, and if it is permissible, is it necessary.

Let’s first discuss whether a juror’s social media account would even be relevant in a jury selection process.  I think the obvious answer is yes, in that we can fairly quickly get an idea of their work history, religious or political affiliations, educational background, as well as any group memberships that may be indicative of their potential biases.  Let’s face it, people are probably a lot more open and honest about their true (often deepest and darkest) feelings on a subject on Facebook or Twitter than you will ever get out of a jury box.  So of course, these platforms can be a treasure trove of potential information to guide an attorney’s voir dire, or to question a juror’s veracity.

But is it permissible?  It would seem that certain actions would definitely run afoul of ethical rules and norms.  For instance, tweeting to a juror, or posting on a juror’s Facebook page, or “friending” the juror would likely all be considered forms of ex parte communication.  Likewise, any deep dive into the juror’s account settings, or history, or violating their privacy settings, would also likely be considered improper (maybe even illegal).  However, simply searching for their names in a public search, and browsing their public posts and public information should be ethically sound.

And what if you do find information that reveals a juror’s answers to questions were dishonest.  Do you have a duty to report that to the Court?  The answer is likely yes.  Especially if the information could disqualify a juror and result in a mistrial.  In fact, a rule has been developed that if information becomes available that a juror has been dishonest, and the party who discovered the information withholds it from the court and opposing counsel, then that party has waived the Sixth Amendment right to an impartial jury and may not later request a new trial as a result.  See United States v. Daugerdas, 867 F.Supp.2d 445 (S.D.N.Y. 2012).

Finally, we come to the meat of the jury selection process.  Every step competent attorneys take in every case, should be with an eye toward trial and, hopefully, victory.  It requires zealous advocacy, and unending persistence toward that singular goal.  During the jury selection process, which is itself a tricky scenario, we are no less bound by our duty of zealous representation.  But how far can an attorney go?  Can we hint at the evidence?  Or take a jab at opposing counsel, adverse witnesses or the judge?

The rules of ethics at the very least require that attorneys avoid alluding to inadmissible evidence in the jury selection process, and prohibit asking any questions, or make any statements that you know would be sanctionable, and which may result in a mistrial. We should also refer CPC Rule 8.4, which states, in pertinent part:

“It is professional misconduct for a lawyer to…(c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation… [or] (d) Engage in conduct that is prejudicial to the administration of justice…”

Certainly this rule applies to limiting questions to prospective jurors to permissible subjects, and not prejudicing the proceedings by our zeal. Voir dire questioning is designed to discover grounds for challenges for cause and to secure information for an intelligent exercise of peremptory challenges.  State v. Allen, 633 So.2d 325 (La. App. 1 Cir. 1993).  A defendant’s right to intelligently exercise cause and peremptory challenges may not be curtailed by the exclusion of non-repetitious voir dire questions which reasonably explore the juror’s potential prejudices, predispositions, or misunderstandings relevant to the central issues of the particular case.  Id.

All of this is to say that in questioning a panel of jurors, attorneys should feel free to be zealous advocates, and work strategically to expose juror prejudice or bias, but at the same time avoid arguing, berating or otherwise harassing potential jurors.  In fact, the ultimate backfire would be to purposefully piss off a juror in the hopes of getting them struck, only to have your efforts fail, and having that angry juror seated on your jury.  Talk about awkward.

Of course there are many other duties and responsibilities that may arise in a given voir dire examination.  The best an attorney or party can do is always conduct themselves in accordance with their own ethical sensibilities, and steer clear of any violations of the Code of Professional Responsibility.  Again, Rule 8.4 can be particularly instructive, albeit not at all exhaustive.  Just as long as they do not intentionally disrupt the administration of justice, and knowingly perpetrate fraud or deceit upon the court, attorneys should feel free to conduct broad and open voir dire, as an attorney’s ethical obligations begin and end with their zealous advocacy for their clients.

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