Ex-jurors after the trial

Most ex-jurors want to “fade back into the woodwork” when the trial is over. But even in routine cases that attract no public interest, often the lawyers would like to talk with the jurors to see why the jurors decided as they did. And in high-profile cases, many more people, including news reporters, often want to talk with the jurors about the case.

The most fundamental principle in this context is that ex-jurors are never required to talk with anyone about the case (except in rare instances when a court holds a hearing concerning alleged juror misconduct, and requires the ex-jurors to answer questions). Just as there is a First Amendment right to speak, there is also a First Amendment right not to speak. In fact, at the end most cases, judges instruct jurors that they are under no obligation to speak with anyone about the case.

Sometimes judges take measures beyond merely informing ex-jurors that they need not speak to anyone about the case. These measures often raise constitutional issues because of a juror's right of free speech, and the press’s right of access to information. Examples of such measures include:

• Keeping the names and addresses of the jury members secret (an “anonymous jury”)
• Forbidding all interviews of ex-jurors by anyone
• Forbidding all interviews of ex-jurors by the press
• Forbidding interviews about the deliberations but not about the verdict
• Forbidding interviews of a hung jury that resulted in a mistrial until after the case was retried

Usually forbidding all interviews of ex-jurors by anyone is reversed on appeal for being too restrictive of constitutional rights. But measures short of this are often upheld on appeal.

Prof. Nicole B. Casarez, in a recent and comprehensive article, summarized the arguments on both sides of the issue of forbidding interviews of ex-jurors:

Judicial and scholarly critics of post-verdict juror interviews generally rely on three arguments to support their position: first, that post-verdict juror interviews jeopardize defendants’ fair trial rights; second, that post-verdict interviews invade jurors’ privacy; and third, that post-verdict interviews distort the public perception of and confidence in jury verdicts.  Supporters of post-verdict juror interviews counter that post-verdict interviews enhance jury accountability, advance First Amendment interests belonging to both jurors and the press, and increase community trust in the integrity of jury verdicts by furthering public understanding of the justice system.

Nicole B. Casarez, Examining the Evidence: Post-Verdict Interviews and the Jury System, 25 Hastings Commun. & Entertainment L. J. 499 (2003). 

Further reading

Jennifer Adair, Post-Verdict Contacts with Jurors by Attorneys, 23 J. Legal Prof. 337 (1998-1999).

Nancy S. Marder, Deliberations and Disclosures: A Study of Post-Verdict Interviews of Jurors, 82 Iowa L. Rev. 465 (1997).

Copernicus T. Gaza, Getting Inside the Jury’s Head: Media Access to Jurors After the Trial, 12 N. Y. L. School J. Hum. Rts. 311 (1995).

Abraham S. Goldstein, Jury Secrecy and the Media: The Problem of Postverdict Interviews, 1993 U. Ill. L. Rev. 295.