Delaware Trial Handbook § 26:2. COMMUNICATION WITH JURORS

It is a misdemeanor for a lawyer or any other person to communicate with a juror outside of the official proceedings in an attempt to influence the juror in his or her consideration of the case.5 Similarly, it is a misdemeanor for a juror to agree to vote for a party with whom or with whose lawyer the juror has been in communication, directly or indirectly, however initiated.6 Beyond the criminal aspect, it is improper for a party or for counsel for a party to have any ex parte communication with a prospective juror called for service for the period during which the case is expected to be tried and until the juror has been discharged from consideration of the case.7 It is also improper for an attorney, after the jury has been discharged from the case, to ask questions of or make comments to any member of that jury.8 It is not believed, however, that the rule overrides considerations of ordinary civility, such as an exchange of greetings where the lawyer and the juror pass each other on the street or enter the same elevator. Any contact between a juror and a lawyer in a case will not be grounds for a mistrial or setting aside a verdict, provided that the party guilty of the contact shows on the record that the communication was of a non-prejudicial character, such as where there is no conversation about the case.9 Contact with the jurors prior to the verdict will be deemed prejudicial where the subject matter of the conversation relates to the content or procedure of the jury’s deliberation or extra-record facts relating to the case.10

In one case, communication between a deliberating juror and a police witness during a lunch break was deemed to be prejudicial, warranting a new trial, notwithstanding that there was no discussion of the case. The key circumstances were that (i) the witness was the primary investigating officer responsible for the investigation which ultimately led to the defendant’s arrest, (ii) the juror had personal contact with the witness for approximately twenty minutes, and (iii) the communication occurred during the deliberative period, with no opportunity for the judge to intervene, investigate or offer a curative instruction.  These circumstances permitted the juror to make a determination as to the credibility, character and competency of the witness beyond that gained from the testimony in court.10.1

Similarly, it is improper for the trial judge to communicate with the jurors in the absence of counsel.11 Contact with a jury by a judge, however, will only require a mistrial or new trial if such conduct was prejudicial.12 Discussion with a juror by a judge or court personnel about ministerial matters generally is deemed not prejudicial.13

In criminal cases where the jury sends the judge a note, any communication between the trial judge and the deliberating jury implicates the defendant’s right to the assistance of counsel, the right to be present when the jury is instructed, and the right to be tried by an entire panel of properly instructed jurors.  Thus, the Supreme Court has set forth the following procedure:  Before the jury retires to deliberate, the trial judge should instruct the jurors to communicate any questions regarding matters not personal to a particular juror in writing through the foreperson. The jury should be instructed that any notes are to be given to the bailiff for delivery to the trial judge.  Upon receiving a note from the jury, the judge should notify counsel immediately.  The note should be marked as a court exhibit and made part of the record.  The colloquy between counsel and the trial judge with regard to answering the note should also be part of the record.  The trial judge should inform counsel of the court’s proposed response on the record and provide counsel with an opportunity to object or otherwise be heard.  Finally, the trial judge’s response to the jury’s note should be delivered in open court, on the record, with all jurors, the defendant and counsel present.13.1

5. 11 Del. C. § 1266.

6. 11 Del. C. § 1267.

7. Del. R. Prof. Cond. 3.10(a),(b).

8. Del. R. Prof. Cond. 3.10(d).

9. Pritchard v. Henderson, 50 A. 217, 224 (Del. Super. 1901). See also State v. Robinson, 417 A.2d 948, 952-53 (Del. 1980) (juror discussion with spectator improper but not prejudicial where there is no discussion of the facts); Cephas v. State, No. 39, 1983, slip op. at 3, Moore, J. (Del. Dec. 16, 1983) (ORDER), disposition reported at 474 A.2d 138 (Del. 1987) (TABLE) (improper juror discussion with prosecutor not prejudicial where one juror merely asked directions to restroom and other juror only discussed remodeling of the courthouse); McCool v. Gehret, C.A. No. 91C-05-209, slip op. at 7-8, Del Pesco, J. (Del. Super. June 3, 1994) (no prejudice shown from conversation between policewoman whose baby had been delivered by the defendant and juror where there was no discussion about the case and juror specifically told policewoman that juror could not discuss the case), rev’d on other grounds, 657 A.2d 269 (Del. 1995).

10. McLain v. General Motors Corp., 586 A.2d 647, 654 (Del. Super. 1988).

10.1. State v. DeShields, Cr. A. Nod. 95-07-0213 & 95-07-0214, Carpenter, J. (Del. Super. Sept. 30, 1996).

11. Anderson v. State, 695 A.2d 1135, 1139 (Del. 1997); Jacobs v. State, 418 A.2d 988 (Del. 1980); Loatman v. Patillo, 401 A.2d 91, 92 (Del. 1979); Hyman Reiver & Co. v. Rose, 147 A.2d 500, 505 (Del. 1958); Slater v. State, No. 166, 1991, slip op. at 12, Holland, J. (Del. Apr. 8, 1992) (ORDER), disposition reported at 610 A.2d 727 (Del. 1992) (TABLE).

12. Anderson v. State, 695 A.2d 1135, 1139 (Del. 1997); Jacobs v. State, 418 A.2d 988 (Del. 1980). See also Van Arsdall v. State, 486 A.2d 1, 10 (Del. 1984) vacated on other grounds, 475 U.S. 673 (1986) (judge driving juror to overnight accommodation outside presence of counsel was improper but harmless).

13. Anderson v. State, 695 A.2d 1135, 1139 (Del. 1997); Slater v. State, No. 166, 1991, slip op. at 12, Holland, J. (Del. Apr. 8, 1992)(ORDER), disposition reported at 610 A.2d 1992) (TABLE) (judge discussing scheduling with jurors before deliberations begin and with notice to and consent of counsel not prejudicial); McLain v. General Motors Corp., 586 A.2d 647, 654 (Del. Super. 1988).

13.1. Anderson v. State, 695 A.2d 1135, 1138-39 (Del. 1997).

© 2010  David L. Finger