This recent case discusses United States v. Driscoll (S.D.N.Y. 1967)

Kelley, Thomas Patrick

English

University of San Diego

JURIES-PosT-TRAL QUESTIONING OF JURORS ENJOINED WHEREFOUND A SEARCHING HOSTILE INQUIRY-CONDUCT NOT HELDUNETHICAL. United States v. Driscoll (S.D.N.Y. 1967).Daniel J. Driscoll was convicted of willful failure to file his federalincome tax returns. Shortly after defendant's conviction, a privateinvestigator had telephone conversations with three of the jurors, aswell as a more extended face to face interview with a fourth. Theseinterviews centered on the evidence and how it had impressed thejury. The United States Attorney sought an injunction to restrain thedefendant, his attorneys and investigators from further interviewingjurors concerning the reasons for their verdict. The attorneys involvedindicated that the purpose of the interviews had been to determinewhich evidence had influenced the jury, rather than to secure evidenceof any impropriety. They also expressed the view that, in their ex-perience, such interviews were "common practice among trial attor-neys."'On hearing before the Southern District Court of New York, held,injunction granted: The investigation was an annoyance and harass-ment of the jurors. United States v. Driscoll, 276 F. Supp. 333(S.D.N.Y. 1967).In granting the injunction, Judge McLean discussed two inde-pendent aspects of the problem. First, the court concerned itself withthe question of whether the requested injunction against furtherinterviewing of jurors should be granted. In condemning the activitiesof defendant's investigator, the court concluded: (1) The jury roomshould be free from outside influence, (2) such an external influencewould exist if jurors were conscious of the fact they would be subjectto interrogation as to what had occurred in the jury room, (3) thiswould result in a stifling of the jurors' freedom of debate and a check-ing of independence of thought, and (4) it is the duty of the courtsto protect jurors from the annoyance and harassment of such post-verdict interviews.Relying on a United States Supreme Court decision,8 the defendant1 United States v. Driscoll, 276 F. Supp. 333, 336 (S.D.N.Y. 1967).2 Id. at 237, 239. Accord, Bryson v. United States, 238 F.2d 657 (9th Cir. 1956),rehearing denied, 243 F.2d 837 (1957), cert. denied, 355 U.S. 817 (1957); Rakesv. United States, 169 F.2d 739, 745-46 (4th Cir. 1948), cert. denied, 335 U.S. 826(1948); State v. La Fera, 42 N.J. 97, 199 A.2d 630 (1964).8 Parker v. Gladden, 385 U.S. 363 (1966); see United States ex rel. De Lucia v.McMann, 373 F.2d 759 (2d Cir. 1967).RECENT CASESargued that, since that court considered information of juror mis-conduct which had been discovered after a defendant's conviction,the lawyer should be able to interview jurors to secure such informa-tion without impropriety. The Driscoll court, however, found theinvestigation to be "a searching hostile inquiry" and held that suchconduct must be enjoined.Next, the court addressed itself to the ethical aspects of the case,i.e., whether the attorneys who had caused the jurors to be inter-viewed should be disciplined. Referring to Canon 23 of the AmericanBar Association's Canons of Ethics4 and pertinent opinions,5 thecourt concluded the area was contradictory, confusing and ambiguous.Therefore, the court stated that it would "give these attorneys thebenefit of the doubt and [would] not recommend disciplinary actionThe Driscoll decision is in accord with the prevailing expressionof judicial disfavor and suspicion of post-trial interviewing of jurorsSee also Harnsberger, Amend Canon 23 or Reverse Opinion 109, 51 A.B.A.J. 157,158 (1965).The propriety of post-trial interviews should be, but has not always been,separated from the problem of whether a juror's testimony is competent toimpeach a verdict to which he has consented.The rationale for American Bar Association Opinion 109 (1934) was couched interms of the policy reasons against allowing jurors to impeach their verdict. Cox-MIT= ON PROFESSIoNA. ETHICS, OPINION 319, 53 A.B.A.J. 1127 (1967). "FormalOpinion 109, predicated on a finding that the law prohibited a juror from testifying asto illegalities and irregularities in reaching a verdict ... .' In the principal case, thecourt relied extensively on the reasoning of Rakes v. United States, 169 F.2d 739 (4thCir. 1948), which involved a motion for new trial based on affidavits of jurors as totheir misconduct; and State v. La Fera, 42 N.J. 97, 199 A.2d 630 (1964), whichinvolved defendant trying to impeach the verdict by showing a juror's prejudice. Thus,it appears that whenever a question of the propriety of post-trial interviews is raised thecourts apply the same policy arguments as used when considering the problem ofreceiving testimony of jurors to impeach their verdict.4 ABA CANONS OF PROFESSIONAL ETHICS No. 23.5 ABA Coins. ON PROFESSIONAL ETHICS, OPINIONS, No. 109 (1934); ABACOMM. ON PROFESSIONAL ETHICS, INFORMAL DECISION, No. 535 (1962); COMuITTEEON PROFESSIONAL ETHICS OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEWYORK, OPINION 285 (Sept. 28, 1933), and OPINION 767 (Jan. 14, 1952).6 276 F. Supp. at 340.7 Stein v. New York, 346 U.S. 156, 178 (1953) (court referred to such investiga-tions as "inquisitions"); McDonald v. Pless, 238 U.S. 264, 267-68 (1914) (if theinterviewing of jurors as to what occurred in the jury room were allowed, it would cause"the destruction of all frankness and freedom of discussion and conference" in jurydeliberations); Primm v. Continental Cas. Co., 143 F. Supp. 123, 127 (W.D. La.1956) (post-trial discussions with jurors are "improper, unethical, and subject topunishment for contempt.. ."). See Northern Pac. Ry. v. Mely, 219 F.2d 199 (9thCir. 1954); United States v. Nystrom, 116 P. Supp. 771 (W.D. Pa. 1953), a/fId, 237F.2d 218 (3rd Cir. 1956); United States v. 120,000 Acres of Land, 52 F. Supp. 212(N.D. Tex. 1943); Sindle v. 766 Ninth Ave. Corp., 127 N.Y.S.2d 258 (Sup. Ct.1953); Caldwell v. Yeatman, 19 N.H. 150, 15 A.2d 252 (1940); contra, Patrick v.SAN DIEGO LAW REVIEW[For example, the court refused to accept the attorney's explanationthat the interviewing was done for educational purposes only. Also,in response to one juror's testimony that he did not feel the investiga-tor had harassed him, Judge McLean stated, "[i]t is 'searchinghostile inquiry,' whether juror Martin recognized it as such or not."8The disfavor is primarily based on the judicial belief that post-trialinterviewing of jurors threatens the efficiency of the jury system itself.Therefore, the courts respond to these threats in terms of the publicpolicy to be served by protecting the jury systemYNotwithstanding strong judicial opinion to the contrary, the Amer-ican College of Trial Lawyers' ° and, recently, the American BarAssociation," express the belief that such interviewing, properlyconducted within certain limits, is an acceptable practice and affrontsno ethical standards. The result of the conflict in viewpoint betweenthe bench and bar is a decision such as Driscoll; conduct sufficientlyimproper to warrant an injunction and, yet, still within the realm ofethical behavior.To the attorney, the practice of post-trial interviewing of jurorsserves useful and lawful purposes which fall short of any attemptto obstruct or destroy the jury system. Studies of juror behavior maybe helpful in improving the functions of juries' 2 which would im-Yellow Cab Co., 102 Ohio App. 312, 114 N.E.2d 735 (1953). "[Tlhere is no ruleor provision of law or public policy that prohibits the informal interrogation of a jurorafter the return of the verdict."8 276 F. Supp. at 338.9 United States v. Nystrom, 116 F. Supp. 771, 777 (W.D. Pa. 1953). "[TIhe courtmust choose between redressing the injury of the private litigant and inflicting thepublic injury which would result if jurors were permitted to testify as to what hadhappened in the jury room. I am compelled to unequivocally disapprove the practice ofinterviewing a juror after a trial as to his state of mind during the trial." State v.La Fera, 42 N.J. 97, 199 A.2d 630 (1964) (where it was reasoned that the promiseof secrecy of deliberation insures free debate in the jury room which public policyrequires); Rex v. Armstrong, [19222 2 K.B. 55, 568 (the revelation of jury delibera-tions would diminish public confidence in the jury system). See discussion of FormalOpinion 109, ABA Comm. ON PROFESSIONA. ETHIcs, OPNIONS, No. 109 (1934).10 AmEaicAN COLLEGE OF TRIuAL IAWYERS, CODE TRIAL CONDUCT 6 (1963)."1 Opinion 319, 53 A.B.A.J. 1127 (1967):Where the law governing the procedure for an action allows the testimonyof a juror by affidavit or otherwise to be used in support of or against amotion for a motion for new trial, it is not unethical for a lawyer after trialto talk to or question members of the jury. In states where it is not illegal, alawyer may communicate with jurors after the trial for the purpose of self-education. The lawyer must not in either case harass, entice, induce or exertimproper influence on the juror.12 Harnsberger, Amend Canon 23 or Reverse Opinion 109, 51 A.B.A.J. 157, 158(1965): "The people and the Bar must have information regarding it [the jury system]in order to debate intelligently its value and proposed changes in its methods ofoperation."[Vol. 5RECENT CASESprove the overall judicial process of which the jury system is a part.Also, by interviewing jurors as to their response to his presentation,the lawyer may be able to improve his personal efficiency in futuretrials. Further, the attorney may prevent a miscarriage of justice bybeing sure there was no juror misconduct during the course of hisclient's trial. The question is how this can be accomplished withoutinterviewing the jurors themselves.Thus, the situation arises where the lawyer is pursuing seeminglylegitimate objectives that the courts are weighing against the advan-tages which result from having a jury system with its traditionalconcepts of secrecy of deliberations and freedom of debate. Yet theonly judicial guidelines given the attorney are such as were set forthin Rakes v. United States;14He who makes studied inquiries of jurors as to what occurred thereacts at his peril, lest he be held as acting in obstruction of theadministration of justice.15This statement appears to express a philosophy of do it if you wantbut watch out if someone complains.ABA Formal Opinion 31916 appears to be a compromise position.It recognizes the judicial disfavor of interviewing jurors as well asthe lawyer's needs, and attempts to limit each by the other. If thecourts will accept its dictates, Driscoll may be looked to for a factualexpansion of the type of conduct which will exceed the limits ofOpinion 319. Initially, the investigator should inform the juror thathe need not discuss the case if he does not wish to. Secondly, theinvestigator should avoid mention of any previous trial of thedefendant and what the jury decided in that instance. The Driscollcourt was inclined to believe that questioning along these lines wasequivalent to an implied criticism of this jury's decision. Also, theinvestigator should not argue a particular plea to the juror, lest hebe held as attempting to entice the juror to change his mind. Gener-ally, any conduct or questioning which may give the impression thatthe investigator is simply "fishing" for something with which toimpeach the verdict should be avoided. Finally, it should be kept in13 In speaking of the absolute privilege of jurors to have kept secret their delibera-tions, Justice Cardozo, in Clark v. United States, 289 U.S. 1, 14 (1932), states thatabsolute protection is "paying too high a price for the assurance to a juror of serenity ofmind."14 169 F.2d 739 (4th Cir. 1948).15 Id. at 745, 746.16 See note 11 supra.1968]400 SAN DIEGO LAW REVIEWmind that whether the interrogation is held to amount to harassment,enticement or inducement will be determined on the basis of what theusually skeptical judge thinks and not what the attorney or even thejuror feels.THOMAS PATRCK KELLEY

Juries - Post-Trial Questioning of Jurors Enjoined Where Found a Searching Hostile Inquiry–Conduct Not Held Unethical. United States v. Driscoll (S.D.N.Y. 1967).

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Juries - Post-Trial Questioning of Jurors Enjoined Where Found a Searching Hostile Inquiry–Conduct Not Held Unethical. United States v. Driscoll (S.D.N.Y. 1967).

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