The Law on Poisoning the Jury Pool

 Posted on February 11, 2009 in Uncategorized

In WWDYT: The ethics of the post-trial jury reveal - Public Defender Stuff ambimb asks:

Is it ethical for a prosecutor to reveal to a jury after that the person they just convicted or acquitted had prior criminal convictions that were excluded from evidence?

Okay, listen up, Harris County prosecutors, because one of you is going to find that this is your ticket to a grievance. (Actually, it's a marvel if none of you have been grieved for this already, but the defense bar is better educated about this issue, and less reluctant to file grievances against their adversaries for the most egregious ethical violations, every year.)

This situation is covered by Texas Disciplinary Rule 3.06(d):

After discharge of the jury from further consideration of a matter with which the lawyer was connected, the lawyer shall not ask questions of or make comments to a member of that jury that are calculated merely to harass or embarrass the juror or to influence his actions in future jury service.

One of you got in trouble in the press for violating this rule a couple of years ago; your then-boss, Chuck Rosenthal, poopooed the jurors' complaints; the ADA was not fired and, as far as I know, nobody ever filed a grievance. I doubt that the new boss will be quite so understanding.

The things that the jury didn't hear about in trial, they didn't hear about for a reason. When you go into the jury room after a verdict, and you start telling the jury about those things, it's likely to influence their actions in future jury service. You and I know that your intent is to poison the jury pool so that these jurors, when they are next called, are more inclined to convict.

You might not admit that intent, and in some other states your denial might make a difference - it might not be an ethical violation to accidentally poison the jury pool.

But in Texas your denial is for naught. It doesn't matter whether you meant to influence jurors' future actions. "Calculated" doesn't just mean "intended", but also "likely" or "tending". (There's actually caselaw on point - see Commission for Lawyer Discipline v. Benton, 980 S.W.2d 425 (Tex. 1998).)

Consider this a friendly heads-up. Even if you've shared the "real" facts with juries a hundred times in the past, the next time might be the one that gets you that certified letter from Austin. You might beat the rap, but that particular ride is most assuredly not worth taking.

(There are a couple of judges who should probably expect one of those certified letters too. This heads-up is less friendly: you do realize, don't you, that even though you talk to jurors in our absence, they then reveal to us what you told them?)