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Opinion 231

A practicing attorney requests an opinion on the ethical propriety of trial judges meeting privately with jurors following the return of a verdict.

This request possesses an issue of first impression for this Commission and insofar as the same may involve issues of law, is beyond the jurisdiction of this Commission. The ethical issue herein posed is addressed as follows:

A careful review of the Code of Judicial Conduct reveals no language which explicitly prohibits a trial judge from meeting privately with jurors following the return of a verdict. However Rule 2.8(C) specifically provides:

Judges shall not commend or criticize jurors for their verdict other than in a court order or opinion in a proceeding, but may express appreciation to jurors for their service to the judicial system and the community. (Emphasis added)

The rationale for this provision is found in the Commentary which notes:

Commending or criticizing jurors for their verdict may imply a judicial expectation in future cases and may impair a juror’s ability to be fair and impartial.

These provisions clearly limit verbal communications between a trial judge and jurors to a simple expression of appreciation for their service and absent a court order or written opinion, nothing more. While this may well be all that occurs in private meetings between trial judges and jurors, the fact remains that neither the litigants, their lawyers, not the public can ever know with a certainty when such conduct occurs behinds closed doors. As noted in Judge Beasley’s special concurrence in Bowden v. State, 202 Ga. App. 802, 803, 415 S.E.2d 527, 528 (1991):

Considering the matter from the perspective of the public and of the persons who are to be tried, as well as the effect on fairness which open proceedings serve to achieve, jury orientation should not be conducted behind closed doors. The concern that court communication with juries be open has been expressed by both of our appellate courts. See, e.g., Forehand v. State, 188 Ga. App. 527 (1), 373 S.E.2d 382 (1988); Berryhill v. State, 235 Ga. 549, 554 (12), 221 S.E.2d 185 (1975).

Forehand involved the trial judge going to the jury room after the jury had been dismissed for the purpose of answering any questions the jurors might have. In that case then Judge Benham opined as follows:

Although we find no harmful error here and approve of the trial court’s desire to educate the jurors, we share the concern expressed in Berryhill and suggest that the trial court answer questions in open court rather than in the jury room.

More recently, in Hanifa v. State, 269 Ga. 797, 505 S.E.2d 731 (1998), a case in which the trial court judge met privately with the jury during the State’s closing argument, Chief Justice Benham said:

We state again: all communications with the jury are discouraged except in open court with all persons present . . . (citations omitted).

The Commission recognizes the distinction to be made between a judge’s communicating privately with jurors prior to the end of the trial, and a judge’s communicating privately with the jurors after a trial is concluded and the jury has been dismissed from service in the matter. Both practices have been strongly discouraged by the case law cited in this opinion, although the current Code of Judicial Conduct contains no absolute prohibition against private meetings between trial judges and jurors.

The Commission makes no presumption that any judge has engaged or intends to engage in improper communications with jurors after a case is over. Nevertheless, it concludes that the far better practice is for all communications between judges and juries to occur in open court rather than in the jury room. Such a practice will do much to instill public confidence in the openness and fairness of all judicial proceedings in this State and is strongly recommended to the careful consideration of all trial judges.

[Pertinent Code of Judicial Conduct provisions: Canon 2.]

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