D. Interviewing jurors
The Tenth Circuit has recognized that trial courts cannot “issue a sweeping restraint forbidding all contact between the press and former jurors without a compelling reason.” Journal Publ’g Co. v. Mechem, 801 F.2d 1233, 1237 (10th Cir. 1986) (noting that a narrowly tailored order instructing “jurors not to discuss the specific votes and opinions of noninterviewed jurors in order to encourage free deliberation in the jury room” would be acceptable).
There is no general prohibition on the media interviewing jurors.
The right of a party to interview jurors is governed by Federal Rule of Evidence 606, which “prohibit[s] the interrogation of jurors except with regard to ‘whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror.’” United States v. Gravely, 840 F.2d 1156, 1159 (4th Cir. 1988).
The federal courts have generally disfavored post-verdict interviews of jurors. Haeberle v. Texas Int’l Airlines, 739 F.2d 1019, 1020 (5th Cir. 1984). This disfavor is primarily directed at counsel and not at journalists, since counsel are not seeking interviews in order to serve the public’s right to know. Id. However, the accused’s right to a fair trial and jurors’ interest in privacy and protection from harassment can outweigh the press’s First Amendment rights in certain circumstances. Id.
Jurors, even after completing their service, are entitled to privacy and to protection against harassment. United States v. Harrelson, 713 F.2d 1114, 1116 (5th Cir. 1985). For these and other reasons, the Fifth Circuit has upheld various restrictions on interviewing jurors. Among these are that a court could order jurors not to speak about jury deliberations (United States v. Brown, 250 F.3d 907, 920-21 (5th Cir. 2001)); a court could ask jurors if they wished to remain anonymous and instruct them that they were under no obligation to discuss the case with the media (Id. at 921); a court could ban the media from repeatedly requesting (“wheedling and importuning”) interviews after a juror had expressed his or her desire not to be interviewed (United States v. Harrelson, 713 F.2d 1114, 1117 (5th Cir. 1985); a court could prohibit media inquiries into the specific vote of any juror other than the juror being interviewed, (Id.); and a court could forbid counsel from interviewing jurors post-verdict without the court’s permission. Haeberle v. Texas Int’l Airlines, 739 F.2d 1019, 1020 (5th Cir. 1984).
Despite these decisions, not all restrictions on juror interviews are permissible in the Fifth Circuit. Restrictions must be limited in scope. Therefore while, a court could order jurors not to discuss deliberations (deliberations being defined as discussions and debates about the case that occurred within the sanctity of the jury room—United States v. Cleveland, 128 F.3d 267, 270 (5th Cir. 1997))—a court cannot order jurors not to discuss any aspect of the case or the verdict with the media. United States v. Brown, 250 F.3d 907, 920-21 (5th Cir. 2001). Prohibiting any and all discussion would be overbroad, and a violation of the jurors’ and the media’s First Amendment rights, as would an order that prohibits relatives, friends, and associates from talking to the media. In re Express News Corp., 695 F.2d 807, 810 (5th Cir. 1982).
Unlike most trial closure orders, a court does not have to conduct an evidentiary hearing or make fact-findings in order to impose limitations on the media’s ability to question a jury post-verdict. United States v. Harrelson, 713 F.2d 1114, 1116 (5th Cir. 1985). This is because it is considered relatively obvious that in particularly newsworthy cases, reporters are persistent in pursuing information regarding the nonpublic portions of legal proceedings. Id.
As for grand jury interviews, the Fifth Circuit has not specifically addressed the question, but the Circuit has repeatedly affirmed the general rule of secrecy for grand jury proceedings. The Fifth Circuit has also noted that it is doubtful that a court should ever order that grand jury members submit to examinations, even in civil cases where it might be of considerable value to one or both of the parties. Shields v. Twiss, 389 F.3d 142, 147 (5th Cir. 2004).
In United States v. Blagojevich, No. 08 CR 888, 2011 WL 812116 (N.D. Ill. Feb. 28, 2011), the district judge presiding over the high-profile trial of Illinois Governor Blagojevich ordered that the names of jurors would not be released until the next calendar day after the verdict was announced; the judge observed that in a prior trial, “[m]ost jurors reported that media were waiting outside their homes before they arrived home” and that “[o]ne juror who refused to give an interview was subjected to several hours of phone calls, and someone from the media knocked on her door at regular intervals until almost midnight.” Id. at *1. The court agreed to provide a “courthouse space for jurors who are willing to meet with the press to do so immediately after the verdict,” but observed that in the prior trial “not one juror was willing to meet with the media immediately after the verdict.” Id. at *1 n. 1.
The Alabama Code provides that “[n]o past or present grand juror . . . shall willfully at any time . . . reveal, disclose or divulge or attempt or endeavor to reveal, disclose or divulge or cause to be revealed, disclosed or divulged, any knowledge or information pertaining to any grand juror’s questions, considerations, debates, deliberations, opinions or votes on any case, evidence, or other matter taken within or occurring before any grand jury of this state.” Ala. Code § 12-16-215 (2019). Additionally, “[n]o past or present grand juror . . . shall willfully . . . reveal, disclose or divulge or endeavor to reveal, disclose or divulge or cause to be revealed, disclosed or divulged, any knowledge of the form, nature or content of any physical evidence presented to any grand jury of this state or any knowledge of the form, nature or content of any question propounded to any person within or before any grand jury or any comment made by any person in response thereto or any other evidence, testimony or conversation occurring or taken therein.” Ala. Code § 12-16-216 (2019).
The media is not permitted to interview trial participants while the proceedings are ongoing. See KPNX Broadcasting Co. v. Superior Court, 139 Ariz. 246, 256, 678 P.2d 431, 441 (1984) (“[I]nterviewing trial participants falls outside of the right of access.”). If a juror consents, the media may interview that individual after the jury has been discharged. See Ariz. R. Supreme Ct. 122(k)(2).
Generally, at the end of all jury trials in Idaho, judges instruct jurors “that whether you talk to the attorneys or to anyone else is entirely your own decision. It is proper for you to discuss this case if you wish to but you are not required to do so and you may choose not to discuss the case with anyone at all. If you choose to talk to someone about this case you may tell them as much or as little as you like about your deliberations or the facts that influenced your decisions.” IDJI2d 1.17. The court also instructs jurors to contact it if “anyone persists in discussing the case over your objection or becomes critical of your service.” Id. In contrast, grand jurors are not permitted to discuss “whatever was said or done in grand jury proceedings and which manner each grand juror may have voted on a matter before them.” Idaho Crim. R. 6.4(c).
The issue of post-verdict contact between defense attorneys and jurors in a capital murder case came before the Idaho Supreme Court in Hall v. State, 151 Idaho 42, 253 P.3d 716 (2011). There, attorneys for a criminal defendant who had been found guilty of first-degree murder, first-degree kidnapping and rape and sentenced to death sought permission to interview jurors post-trial. The trial court denied such motion, and the attorneys appealed arguing that in the absence of a statute or rule prohibiting such contact, the trial court’s order violated their First Amendment rights. The Idaho Supreme Court disagreed and affirmed the trial court’s order prohibiting such contact with jurors, finding that trial courts have “inherent authority to enter an order restricting contact with the jury, including post-verdict contact.” Id. at 46, 253 P.3d at 720. The Court recognized that the attorneys had limited First Amendment rights, but such rights were outweighed by the public policy interests in preserving a full and fair trial, protecting juror privacy and protecting the finality of verdicts. Id. at 48, 253 P.3d at 722.
Kansas courts generally preclude jurors from being interviewed by journalists during trial. A bar association guide for jurors says they
"should not use social media to talk about the trial or express any views while the case is pending. Jurors must try to avoid and never let TV, radio, newspaper or internet articles on the trial affect any decision. They may be incomplete or biased and a miscarriage of justice could result. During the trial, do not read, view, or listen to news reports or search the internet relating to the case or trial."
A Juror’s Rights and Responsibilities, Kansas Bar Association, https://cdn.ymaws.com/www.ksbar.org/resource/resmgr/Public_Services/pamphlets/jurors_rights_responsibilities/JurorsRightsResponsibilities.pdf.
Model instruction to jurors in criminal cases have included one saying: “[Y]ou must not communicate with anyone about this case or your jury service, and you must not allow anyone to communicate with you.” See 50.010 Instruction for Impaneled Jurors, Pattern Instructions Kansas – Criminal 2012, Kansas Judicial Council.
For jurors in civil cases, model instructions have included one saying:
"Until all of the evidence has been presented and the final instructions given by the judge, jurors must not discuss the case among themselves or with anyone else, including anyone outside the courthouse. If anyone attempts to talk with a juror about the case, the juror should tell this person that such conversation is not proper and should cease. The juror should also report the matter to the bailiff at the earliest opportunity."
101.02 Handbook for Jurors/IX. Conduct of the Jury During Trial, Pattern Instructions Kansas – Civil 2011, Kansas Judicial Council.
Participants in proceedings of a Kansas grand jury generally are prohibited from making disclosures. They “may disclose matters occurring before the grand jury only when so directed by the court preliminarily to or in connection with a judicial proceeding or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury.” K.S.A. 22-3012. Kansas appellate courts have not specifically addressed whether K.S.A. 22-3012 is intended to silence participants in grand jury proceedings after the grand jury’s session has ended. The Kansas Supreme Court only has indicated that it may narrowly construe K.S.A. 22-3012, which says, “No obligation of secrecy may be imposed upon any person except in accordance with this rule.” See State ex rel. Brant v. Bank of America, 31 P.3d 952, 956 (Kan. 2001).
In 2006, a Kansas district court judge issued a protective order to prevent media access to grand jurors. An evangelical group successfully had petitioned to empanel the grand jury after raising concerns about allegedly pornographic enterprises. The judge who issued the protective order told the jurors, “It was ‘extremely important’ not to tell family members, friends, reporters or anyone else about grand jury business, saying disclosure could allow someone to escape, allow destruction of evidence and damage an innocent person. Confidentiality also is to protect jurors from ‘improper contacts.’” Steve Fry, Rare Grand Jury Chosen, Topeka Capital-Journal (June 8, 2006).
In this case, In re Grand Jury Petition, 2006 WL 1620461 (Kan. Dist. Ct. 2006), the judge observed that the press customarily is excluded from grand jury proceedings, citing Brangburg v. Hayes, 408 U.S. 665, 684–85 (1972), and that grand jury secrecy is “‘indispensable’ to the administration of justice,” citing United States v. Johnson, 319 U.S. 503, 513 (1943). Privacy and safety of the grand jurors are “of paramount importance,” the judge said. He ordered the media not to photograph or interview grand jurors while they were in session and not to enter the grand jury room. The judge also prohibited news reporters from making “reports to their news agencies” in the vicinity of the grand jury on “any day in which it was in session.” In re Grand Jury Petition, 2006 WL 1620461 at *1–2.
Petit jurors. The court’s interest in the administration of justice generally trumps any speech interests during trial, and courts have the authority to prevent the press from interviewing jurors about the proceedings.
In United States v. Harrelson, 713 F.2d1114, 1118 (5th Cir. 1983), the court upheld an order that prohibited repeated requests for interviews or inquiries “into the specific vote of any juror other than the juror being interviewed.”
Grand jurors. The rule governing federal grand jury secrecy, Federal Rule of Criminal Procedure 6(e), places no restriction on witnesses. These rules recognize the Supreme Court’s admonition in Butterworth v. Smith, 494 U.S. 624, 626 (1990), that witnesses have a First Amendment right to publish the details of their grand jury testimony. In that case, the Court held that “insofar as the Florida law prohibits a grand jury witness from disclosing his own testimony after the term of the grand jury has ended, it violates the First Amendment,” reasoning that “the interests advanced by the portion of the Florida statute struck down are not sufficient to overcome respondent’s First Amendment right to make a truthful statement of information he acquired on his own.” Id. at 626, 636.
Although New Mexico courts have not spoken directly to the issues of interviewing petit and grand jurors, the Tenth Circuit has addressed both. In Journal Pub. Co. v. Mechem, the court held that “the threat to justice caused by news media contact with jurors is much lower after trial than it is during trial.” 801 F.2d 1233, 1236 (10th Cir. 1986). There, the Tenth Circuit determined that the trial court could permissibly tell “jurors not to discuss the specific votes and opinions of noninterviewed jurors in order to encourage free deliberation in the jury room.” Id. New Mexico courts have not spoken directly on the permissibility nor outlined the contours of interviewing on courthouse grounds. In state court, jurors are regularly approached for interviews following a trial, although judges regularly inform them that they have no obligation to discuss the trial with the media. Per New Mexico Court Rules, neither the jury nor any member of the jury may be filmed in or near the courtroom, nor shall the jury selection process be filmed. Rule 23-107(A)(3) NMRA.
In Commonwealth v. Genovese, 487 A.2d 364, 368-69 (Pa. Super. 1985), the Superior Court struck down an order temporarily enjoining members of the press from interviewing jurors in a high-profile murder trial. While the court held that the order, which would automatically dissolve upon the completion of the trial, was not a prior restraint, it nonetheless concluded that there was no evidence showing that the order “was necessary to protect the jurors or to guarantee a fair trial.”
There is no prohibition in Wisconsin on interviewing jurors after their service is completed. Wis JI-Civil 197: Instruction After Verdict Is Received:
Your service in this case is completed. Many jurors ask if they are allowed to discuss the case with others after receipt of the verdict. Because your role in the case is over, you are not prohibited from discussing the case with anyone. However, you should know that you do not have to discuss the case with anyone or answer any questions about it from anyone other than the court. This includes the parties, lawyers, the media, or anyone else.