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David Mittleman
David Mittleman
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Rule Prohibiting Lawyers From Speaking With Jurors May Be Unconstitutional

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The jury trial is a fundamental component of our justice system. In most cases, the litigants have a right to present their arguments to a jury composed of ordinary people. It is believed that jurors are uniquely qualified to determine the facts of a case based on their everyday experiences and common sense. As any trial lawyer will tell you, however, juries can be completely unpredictable.

In order to better understand the dynamics of a jury and the reasoning involved in their decisions, lawyers frequently want to interview jurors after a trial is completed. Most states, including Michigan, permit attorneys to speak to jurors after the trial is over, though the jurors are not obligated to discuss the case and can simply walk away at any time.

A local court rule in Oklahoma expressly prohibited lawyers from discussing a case with jurors, even after the case was over, unless the court authorized it. The rule extended to all lawyers, even those not involved in the case. As it turns out, the court rule might be unconstitutional.

A group of Oklahoma employment lawyers wished to speak with three jurors three years after their decision in an employment discrimination case. The lawyers contended that they had a First Amendment right to speak with the former jurors. They would then use what they learned to educate other employment lawyers about jury behavior for use in other cases. The federal district court in Oklahoma denied their request without explanation.

The case was appealed to the 10th Circuit Court of Appeals. That court avoided addressing the constitutional issue, but sent the case back to the district court for a more thorough review. Depending on the district court’s next action, a full-blown First Amendment controversy might be percolating in Oklahoma.

Attorneys have a duty to do what is best for their clients. In order to be able to do that, they have to understand how juries reach their decisions. Hopefully the courts in Oklahoma will recognize that lawyers should be allowed to discuss cases with jurors after the completion of a case.