GR 9 COVER SHEET

            A.        Name of Proponent.  The Washington Association of Criminal Defense Lawyers (WACDL) requests this rule change.

            B.        Spokesperson.  Joseph A. Campagna, on behalf of WACDL, will serve as spokesperson for the proposed rule.

            C.        Purpose. 

1.         Post-trial disclosure of excluded evidence creates a high risk of prejudice to the jury system.

            Post-trial disclosure to jurors of excluded evidence undermines confidence in the fairness of our trial system and prejudices the administration of justice.  It suggests to jurors in the present case that they were deprived of important information in reaching their verdict.  It implies that if they had received fuller information, they might have reached a different verdict.  As a result it may cause jurors to question in future trials whether they are being similarly deprived, and may decrease the willingness to limit consideration of evidence as the juror’s oath requires.  There are no legitimate countervailing reasons for the disclosures.  There are also presently no clear rules governing this sort of contact.  As a result, the proposed rule is necessary.

            The attached declarations demonstrate several recent examples of prejudicial post-trial disclosures.  The declarations provided represent only a small sample of reported disclosures of which WACDL is aware.  They are intended to illustrate, not to exhaustively document, the problem.  As the supporting materials demonstrate, disclosures harmful to the trial process have occurred in municipal, district, and superior courts throughout Washington.  The perceived effects of these disclosures included leaving the jurors visibly upset, and causing them to resent the defense for withholding information, to feel that they are never told the full truth, to wonder whether they can trust the system, and even to question their decision to acquit.  These sort of retains, from jurors who may be called again in future service, are significantly damaging to a fair trial process.3

            2.         Prior attempts to address the problem have met with limited success.

            Prior attempts to address this problem have not been adequate.  The Rules of Professional Conduct currently prohibit post-discharge contact with jurors that “involves misrepresentation, coercion, duress or harassment.”  RPC 3.5(c)(3).  The Rules also prohibit “conduct that is prejudicial to the administration of justice.”  RPC 8.4(d).  Informal Ethics Opinion 1030 (1986) concluded that under RPC 8.4(d), “it is improper for a lawyer to disclose information to the jurors which is inadmissible because it is prejudicial,” where the juror was subject to call on another jury in the same period off jury service.  Information Ethics Opinion 2133 (2006) extended this reasoning to disclosures post-jury service.  The committee reasoned that:

Disclosure to discharged jurors of evidence that was excluded by the trial court may have a prejudicial effect on the system of justice by suggesting the juror was deprived of reliable evidence casting the juror’s verdict in doubt.  This, in turn, may make jurors less willing to rely on the evidence admitted by the trial court in future trials and may decrease the willingness to limit consideration of evidence in a future case as the juror’s oath requires.

            In 2006, relying on Information Opinion 2133, the Seattle City Attorney’s Office and several public defender agencies directed their attorneys to refrain from commenting on or disclosing matters that are not part of the evidentiary record.  The directive adopted Opinion 2133’s conclusion that the disclosure of excluded evidence tended to undermine a jury’s confidence in their verdict, and consequently prejudicial to the administration of justice.

            Opinion 2133 was short lived.  In 2010, Advisory Opinion 2204 withdrew Opinions 1030 and 2133, concluding that, because jurors are presumed to follow the court’s instructions, post-trial disclosure of exclude evidence should not constitute a per se violation of RPC 8.4(d).  The Committee noted, however, that “[a]though there are arguments in favor of a policy of strict non-disclosure, such a rule seems more appropriate addressed by way of a court rule.”  Presently, lacking any guiding rule, trial courts have been reluctant to grant motions in limine limiting post-trial disclosures.

3.         The proposed rule addresses the risk of prejudice with minimally restrictive limits on post-trial contact.

            The proposed rule places appropriate and reasonable limits on post-trial disclosures.  First, as shown by the attached supporting documents, and as discussed in Opinion 2133, the potential prejudice is high.  Second, there are not legitimate countervailing interests to balance against the potential prejudice.  There are generally two legitimate reasons to have post-trial contact with jurors – to determine whether the verdict may be subject to legal challenge and to obtain informal feedback and evaluation on the lawyer’s performance.  See, e.g., ABA Standards for Criminal Justice, Prosecution Function and Defense Function, (3d Ed. 1993), Prosecution Function Standard 3-5.4(c) and Defense function Standard 4-7.3(c).  Post-trial disclosures of excluded information serve neither of these purposes.  Finally, the restrictions on disclosures are minimal.  The proposed rules does not limit post-trial contact entirely, as many federal courts do.  For instance, Western District of Washington Local Civil Rule 47(d) and Local Criminal Rule 31(f) both prohibit any post-trial contact with jurors without prior leave of the court, except in criminal cases with a hung jury.  The proposed rule does not limit contact to this degree, but rather continues to permit contact with former jurors for all appropriate reasons and without first obtaining judicial approval.

            D.        Hearing.  The proponents request a public hearing on this matter.  Changes to rules affecting the jury trial process implicate fundamental constitutional rights and are the appropriate subject of public hearing and comment.

            E.        Expedited consideration.  WACDL does not request expedited consideration of the proposed rule.