June 28, 1989
Opinion No. 89/13
Post-trial comments to or discussion with jurors
In your recent inquiry you posed two questions:
Is it proper for the presiding judge in any jury trial to informally address the jury after court is adjourned for the purpose of thanking the jurors for their service and answering their questions?
If so, when should the contents of the Judge-Juror conversation be disclosed to counsel?
It is evident that your inquiry is motivated by a post-trial conversation with a juror revealing information "which could constitute an impropriety (non-criminal) warranting a new trial." That aspect of your letter generated two concerns among the committee's members:
1) The impeachment of a jury verdict; and
2) The nature and extent of conversations between the trial judge and the jurors.
Because the impeachment of a verdict involves questions of law, five of the committee's members have expressed the view that your inquiry does not fall within the scope of the committee's responsibility. See, e.g., State v. Ramirez, 73 So.2d 218 (Fla.1954). I have enclosed a copy of the Second District's opinion in Department of Transportation v. Weggies Banana Boat, No 88-02684 (Fla. 2d DCA June 21, 1989). The committee's role is confined to answering questions associated only with implementation of the Code of Judicial Conduct.
A majority of the committee's members have suggested, however, that the trial judge should confine his comments to thanking the jurors and commending them for fulfilling their civic responsibility, but the judge must refrain from commenting upon or discussing the substance of any aspect or feature of the trial and should cautiously respond to juror's questions. If the suggested practice is assiduously observed, the judge would most likely avoid a dilemma involving the disclosure to counsel of matters associated with execution of the jury's function. Your attention is directed to Canon 3A(4).
The committee is expressly charged with rendering advisory opinions interpreting the application of the Code of Judicial Conduct to specific circumstances confronting or affecting a judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and to the judiciary at large. Conduct that is consistent with an advisory opinion issued by the committee may be evidence of good faith on the part of the judge, but the Judicial Qualifications Commission is not bound by the interpretive opinions issued by the committee. Petition of the Committee on Standards of Conduct for Judges 327 So2d 5 (Fla. 1976).
Richard H. Frank, Chairman
Committee on Standards of Conduct Governing Judges
cc: All Committee Members
Participating Members: Judges Green, Tolton, Booth, Dell, Doughtie,Frank, Simons, Shutter, Goldstein, and Clarke, Esquire.
All reference to the inquiring judge is deleted from the copies sent to the following individuals.
Mr. Sid White, Clerk of the Supreme Court of Florida
Linda Yates, Managing Editor, The Florida Bar Journal
Brooke S. Kennerly, Executive Director, Judicial Qualifications Commission.
Hon. Walter K. Stapleton, Chairman, Ethics Advisory Panel of the Judicial Conference of the United States .
Jeffrey M. Shaman, Esquire, Director, Center for Judicial Conduct Organizations
Ms. Jean Underhill, Librarian, Broward County Law Library
Mr. Robert Wallace, Librarian, Dade County Law Library
Mr. Brian Polley, Librarian, Supreme Court of Florida
Mr. Richard Kuhn, Court Administrator, Lee County
Hon. Thomas H . Barkdull , Jr ., Third District Court of Appeal
Ms. Georgeanne Marsh, Center for Professional Responsibility, American Bar Association