By Adrienne Meiring, Counsel | Indiana Commission on Judicial Qualifications
Juror communications can present interesting challenges for trial court judges. As court outsiders, jurors understandably have questions and concerns that arise during trial and look to the judge for answers. Judges bear tremendous responsibility at these times to preserve a defendant’s constitutional rights and to avoid the appearance of undue influence while addressing jurors’ legitimate concerns.
Judges have clear guidance for handling many juror inquiries, such as questions about interpretations of law during deliberations or questions about reviewing evidence or testimony. See Bouye v. State, 699 N.E.2d 620, 628 (Ind. 1998); I.C. § 34–36–1–6; see also Jury Rule 28 (assisting jurors at an impasse). However, judges occasionally face unusual situations necessitating communication with jurors (i.e. security, privacy, or time-limitation issues) in which there is not definitive guidance on how to respond. In the interest of expediency, a judge may be tempted to quickly consult with jurors ex parte and inform the parties and counsel later, especially if the issue does not go to the substance of the proceeding.
As a recent Second Circuit decision highlights though, a judge may do so at the peril of his or her own record. In United States v. Mehta, 919 F.3d 175 (2nd Cir. 2019)1, the Second Circuit vacated and remanded Gaurav and Isha Mehta’s convictions for marriage and immigration fraud when the district court judge had an ex parte meeting with several jurors about their safety concerns.
During a break in the trial, five jurors asked to speak with the judge, and he met them without the defendants or lawyers present. The jurors indicated that the Mehtas would follow and stare at the jurors as they walked to and from the courthouse. The judge commented on the defendants’ behavior (“That’s disturbing . . . I don’t know why they are doing that”) and promised to assign a court security officer to accompany the jurors to their cars. The judge later informed the parties’ counsel of the ex parte communication, without stating what specifically transpired, and told defense counsel to have their clients “stay the hell away” from the jurors.
The Second Circuit held that the district judge’s handling of the jurors’ inquiry resulted in a violation of the Mehtas’ constitutional right to be present at every stage of the proceedings and necessitated a new trial. While the Second Circuit did not question the judge’s conscientiousness or good faith in consulting with the jurors to address their concerns, the appellate court reasoned that the judge’s failure to require the jurors to put their inquiries in writing and his decision to meet with them ex parte resulted in a situation in which “the judge found himself required to respond to unexpected questions in a context where it was difficult to anticipate, much less contain, the direction the conversation would take.” Id. at 181. The result was that the judge made off-handed remarks which implied that he agreed with the jurors’ concerns that the defendants were dangerous.
The Second Circuit also pointed out that the district judge failed to take any action to mitigate the prejudicial effects of the ex parte meeting (i.e. asking the jurors whether they could remain impartial despite security apprehensions). Id. at 182. The Second Circuit determined that the totality of circumstances, including the judge’s remarks, could have impacted the jurors’ verdict.
To avoid the pitfalls described in the Mehta case, here are some tips for judges to help preserve a clean record and to maintain compliance with the Code of Judicial Conduct when jurors have questions on administrative or security matters:
- Require the juror(s) to put the inquiry/concern in writing.
- Notify all parties and counsel, allowing them to read the inquiry.
- If further information is needed, bring the juror(s) in individually and question the juror(s) on the record.
- Allow counsel to have an opportunity to suggest a response to the inquiry/concern and to make a record.
- Inform the parties/counsel on the record of the court’s response.
- Bring the juror (or entire jury if the inquiry pertains to the entire panel) into the courtroom and submit your response.
- If the parties (or their counsel) are not immediately available, but there is an emergency issue that must be addressed (i.e. juror has been notified that a family member has been in an accident), conduct the following proceedings on the record:
1) bring the juror into the courtroom to state the emergency,
2) state the court’s attempts to notify the parties/counsel,
3) give the court’s response, and
4) upon the parties/counsel return, give the parties/counsel an opportunity to listen to the record, voice any objections to the action that was taken, and to suggest any corrective action.
For most situations, if a trial judge follows this advice, he or she will preserve the trial record and not be faced with a retrial for inadvertent mistakes based on juror questions. As with other ethical concerns, if a judge is faced with a situation in which unintended ex parte communication has occurred with jurors, Commission staff is available to assist the judge with how to proceed.
Judicial officers seeking ethical advice on the Code of Judicial Conduct may contact firstname.lastname@example.org or 317-232-4706.
1 Although this is a federal case, the Mehta decision highlights concerns that have application to both state and federal jurisdictions regarding ex parte communications with jurors.