United States District Court, D. Arizona
Douglas L. Rayes United States District Judge
before the Court in this federal habeas review of
Petitioner's state capital conviction is Respondents'
Motion to Preclude Juror Contact Absent a Showing of Good
Cause. (Doc. 10.) Respondents request that the Court order
Petitioner not to contact any jurors other than by leave of
Court upon a showing of good cause that juror misconduct may
have occurred during the trial proceedings. (Id.)
Petitioner has filed a response in opposition asserting that
Respondents' reasons for requesting preclusion are not
sufficient to prohibit Petitioner's counsel from fully
investigating his case. (Doc. 13.) Respondents did not file a
reply. The motion is denied for the following reasons.
courts have long recognized that “very substantial
concerns support the protection of jury deliberations from
intrusive inquiry.” Tanner v. United States,
483 U.S. 107, 127 (1987). Respondents' position is that
this Court should regulate post-verdict juror contact in this
federal habeas case as a matter of policy based on the same
“long-recognized and very substantial concerns”
central to the decision in Tanner, which seek to
prevent juror harassment and protect jury deliberations from
intrusive inquiry. In Tanner, the Supreme Court
recognized that post-verdict investigation into jury
misconduct would lead in some instances to the discovery of
improper juror behavior, but expressed concern that
allegations “raised for the first time days, weeks, or
months after the verdict, [would] seriously disrupt the
finality of the process” and could undermine
“full and frank discussion in the jury room,
jurors' willingness to return an unpopular verdict, and
the community's trust in a system that relies on the
decisions of laypeople.” Id. at 120-21;
see also McDonald v. Pless, 238 U.S. 264, 267-68
(1915) (noting that public investigation of juror
deliberations would lead to “the destruction of all
frankness and freedom of discussion and conference”).
a verdict may not be impeached on the basis of the jury's
internal deliberations or the manner in which it arrived at
its verdict. Traver v. Meshriy, 627 F.2d 934, 941
(9th Cir. 1980). Rule 606(b) of the Federal Rules of
Evidence, which prohibits a court from receiving testimony
from a juror regarding statements made during deliberations,
the effect of anything on a juror's vote, or any
juror's mental processes concerning the verdict, is
grounded in this common-law rule against admission of jury
testimony to impeach a verdict. On the other hand, although
jurors may not be questioned about their deliberations and
most matters related thereto, they may be questioned
regarding any extraneous influence on their verdict.
Tanner, 483 U.S. at 117; Traver, 627 F.2d
at 941. Accordingly, Federal Rule of Evidence 606(b) allows
jury testimony in limited circumstances to show that (1)
extraneous prejudicial information was improperly brought to
the jury's attention, (2) an outside influence was
improperly brought to bear upon any juror, or (3) there was a
mistake in the verdict form. See Tanner, 483 U.S. at
121; Fed.R.Evid. 606(b).
jurors may not give evidence on their internal deliberations
or decision, the practice of counsel in propounding questions
on these subjects to jurors after trial is discouraged.
Traver, 627 F.2d at 941. Where there has been no
specific claim of jury misconduct, “there is no federal
constitutional problem involved in the denial of a motion to
interrogate jurors.” Smith v. Cupp, 457 F.2d
1098, 1100 (9th Cir. 1972). However, unlike some courts that
strictly prohibit all post-verdict interviews of jurors,
see e.g. United States v. Kepreos, 759 F.2d 961, 967
(1st Cir. 1985) (prohibiting the post-verdict interview of
jurors by counsel, litigants or their agents except under the
supervision of the district court, and then only in such
extraordinary situations as are deemed appropriate), there is
no absolute prohibition of post-verdict interviews of jurors
in the Ninth Circuit. See Hard v. Burlington Northern
R.R., 812 F.2d 482, 485 (9th Cir. 1987) (explaining that
the Ninth Circuit has not joined other courts in holding that
evidence acquired in post-verdict interviews conducted
without leave of the court makes the evidence obtained
inadmissible), abrogated on other grounds by Warger v.
Shauers, 135 S.Ct. 521 (2014). Though it may be
“the better practice . . . for the attorney to seek
leave of the court to approach the jury, ” the Ninth
Circuit indicated that the district court could not refuse to
consider the evidence obtained in that case from post-verdict
juror interviews on that ground. Id. at 485 &
district courts have “‘wide discretion' to
restrict contact with jurors to protect jurors from
‘fishing expeditions' by losing attorneys, ”
see United States v. Wright, 506 F.3d 1293, 1303
(10th Cir. 2007) (quoting Journal Pub. Co. v.
Mechem, 801 F.2d 1233, 1236 (10th Cir. 1986)), this
Court's local rules do not prohibit Petitioner's
federal habeas counsel from contacting and interviewing
jurors from Petitioner's state criminal trial. Federal
Rule of Evidence 606(b) provides the rationale for this
Court's local rule restricting post-verdict contact with
jurors. Rule 39.2 of the District of Arizona's Local
Rules Civil provides as follows:
Interviews with jurors after trial by or on behalf of parties
involved in the trial are prohibited except on condition that
the attorney or party involved desiring such an interview
file with the Court written interrogatories proposed to be
submitted to the juror(s), together with an affidavit setting
forth the reasons for such proposed interrogatories, within
the time granted for a motion for a new trial. Approval for
the interview of jurors in accordance with the
interrogatories and affidavit so filed will be granted only
upon the showing of good cause. See Federal Rules of
Evidence, Rule 606(b).
Local Rule of Civil Procedure 39.2(b), does not apply to
Petitioner. The language of LRCiv 39.2(b), which provides
that proposed interrogatories must be submitted to the Court
“within the time granted for a motion for a new trial,
” indicates that the rule was drafted to govern contact
with federal jurors following trials in federal district
court. This conclusion is strengthened when the rule is read
together with Local Rule of Civil Procedure 39.1, which
governs the procedure for trial by jury in federal district
court. See LRCiv 39.1.
also assert, correctly, that there “is no federal
right, constitutional or otherwise, to discovery in habeas
proceedings as a general matter.” See Campbell v.
Blodgett, 982 F.2d 1356, 1358 (9th Cir. 1993) (citing
Harris v. Nelson, 394 U.S. 286, 296 (1989)).
“A habeas petitioner, unlike the usual civil litigant
in federal court, is not entitled to discovery as a matter of
ordinary course.” Bracy v. Gramley, 520 U.S.
899, 904 (1997). However, because Petitioner is not at this
time requesting formal discovery, Rule 6(a), Rules Governing
Section 2254 Cases-which requires leave of court upon a
showing of good cause to conduct formal discovery-does not
restrict Petitioner's informal interviews of jurors.
though post-verdict contact with jurors is not prohibited,
that is not to say it is entirely without constraint.
Arizona's rules of ethics, made applicable to counsel in
this case by Local Rule of Civil Procedure 83.2(e), require
that a lawyer “shall not . . . communicate with a juror
or prospective juror after discharge of the jury if . . . the
juror has made known to the lawyer a desire not to
communicate; or . . . the communication involves
misrepresentation, coercion, duress or harassment.”
Ariz. R. Sup. Ct. 42, E. R. 3.5 (“E.R. 3.5”).
Counsel “may on occasion want to communicate with a
juror . . . after the jury has been discharged . . . and may
do so unless the communication is prohibited by law or a
court order but must respect the desire of the juror not to
talk with the lawyer, ” and “may not engage in
improper conduct during the communication.” Ariz. R.
Sup. Ct. 42, E.R. 3.5, 2003 cmt 3. Petitioner's counsel
have represented to the court that they will follow these
ethical rules and be respectful of each juror's right not
to discuss the case.
in holding that it is improper and unethical for lawyers to
make public the transaction in the jury room or to interview
jurors to discover the course of deliberation, the Ninth
Circuit recognizes that, except where the inquiry is
authorized by statute, “intrusion into the
‘expressions, arguments, motives, and beliefs' of
jurors during retirement is unanimously condemned.'
” Northern Pac. Ry. Co. v. Mely, 219 F.2d 199,
205 (9th Cir. 1954) (quoting 8 Wigmore on Evidence §
2348, et seq. (3rd Ed., 1940)). This Court concludes that
investigation directed at discovering the inadmissible
considerations of motives and influences that led to a
juror's verdict, including questions designed to elicit a
juror's thoughts on what their verdict might have been in
response to evidence presented to jurors post-trial, may very
well be deemed harassing and unethical, and thus counsel
should consider, to the extent they make such an inquiry,
whether they are in compliance with E.R. 3.5. Cf. Com. v.
Moore, 474 Mass. 541, 52 N.E.3d 126 (2016) (holding that
communications “prohibited by law” under state
ethical rules include communications in violation of
statutory law, specific court orders and court rules, and
common-law limitations on post-verdict juror inquiry).
conclusion, Petitioner's federal habeas counsel is not
required to show good cause prior to informally interviewing
jurors from Petitioner's state criminal trial.
Accordingly, IT IS ORDERED that ...