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New Jersey Judges Not Permitted to Speak Ex Parte with Jurors

January 15, 2015

On December 23, 2014, the New Jersey Supreme Court held that New Jersey state court judges are not permitted to speak with jurors after a verdict has been issued, except in very limited circumstances where a showing is made that the jury’s decision may have been tainted by misconduct. The Court stated, “[w]e … prohibit, as part of our constitutional supervisory authority over the conduct of civil and criminal trials in this State, ex parte post-verdict communications between a trial judge and jurors.”

The decision arose out of employment litigation in which the plaintiff alleged her former employer, Dr. Abbas Husain, had engaged in sexual harassment against her. The jury returned a verdict in favor of the plaintiff in the amount of $12,500 and also awarded $68,000 in attorneys’ fees. After the verdict was rendered and the jury was discharged, but before post-trial motions were argued and judgment was entered, the trial judge had a conversation with the jurors, outside the presence of counsel. During that discussion, one juror noted that she was surprised that the defendant had not placed his hand on the Bible before he testified. The judge did not make a record of the juror’s observation but informed counsel about the juror’s comment later.

On appeal, Dr. Husain argued that the trial judge erred by failing to declare a mistrial on the basis of the juror’s comment about the fact that he did not touch the Bible. A majority of the Appellate Division panel affirmed the verdict as to this issue, holding that no manifest injustice was inherent in the juror’s observation and comment.

The New Jersey Supreme Court reversed and remanded the case to the trial court (a new judge) so that it could make a determination as to whether a mistrial was warranted. In addition, the Court held that post-verdict discussions between the court and discharged jurors are prohibited unless those discussions are part of a hearing ordered on good cause shown pursuant to New Jersey Court Rule 1:16-1, and then only in the presence of counsel. Rule 1:16-1 permits a limited inquiry into the events surrounding the jury’s decision to prevent injustice where a showing is made that the jury’s decision was tainted by misconduct. The Court noted that any investigation must be limited to the effect of the improper extraneous matter and should not include probing the mental processes of the jurors.

To the extent that judges wish to thank jurors for their service to the trial process in which they have just participated, that should be done in open court in the presence of counsel.

This ruling may come as a surprise to some New Jersey judges who routinely engage in an informal discussion with jurors after a verdict is rendered simply to get a sense of what arguments and evidence they found convincing and the dynamics of juror deliberations. These communications are sometimes shared with counsel, who often find them valuable. This decision eliminates any uncertainty as to the proprietary of such communications in New Jersey, as the Court specifically noted that the purported “education” purpose cannot justify these conversations.

Derek is a partner in our Philadelphia office and his practice includes the defense of high exposure products liability and complex casualty defense litigation, in addition to representing clients in construction, professional liability, commercial and coverage litigation.