Opinion 278
Question Presented
Assume these facts in a hypothetical situation: B was indicted and tried in district court on a felony charge. He was acquitted. Within a few days, the prosecuting attorney wrote identical letters to each juror. In the letter, he stated that "Unfortunately, in all criminal cases, the jury knows less about the entire case than anyone." The letter added that B had a record as a juvenile delinquent and had been indicted in prior years for another felony, and had been in various clashes with the legal authorities over a period of some eight years. The letter stated that the prosecutor, under existing law, could not bring these matters out before the jury. The letter mentioned other facts which, it said, indicated the man's background and character. The letter concluded that the prosecuting attorney was not unhappy with the decision and was writing the letter because he did not have an opportunity to visit with the jurors after the trial.
Much of the information contained in the letter had been offered at the trial and had been excluded by the trial judge. Was writing the letter to the jurors improper?
18 Baylor L. Rev. 350 (1966)
DISLOYALTY TO THE LAW - LETTERS TO JURORS.
A letter to a juror is improper if written for improper purpose, such as the purpose of suggesting that the law unjustifiably kept important, relevant evidence from the jurors in a case previously before the jurors.
Canon 29.
There are some valid reasons for a lawyer to contact jurors after the case is tried. It is legitimate, for instance, for a member to investigate jury misconduct, in Texas. But the general standards of the bar, with which lawyers should comply even though no specific canon requires it and his compliance cannot be demanded, are best upheld by refraining from writing letters to jurors unless a member has a very legitimate reason for doing so. A letter to a juror therefore cannot be said to be completely ethical if it violates the spirit of such canons as 14, 15 19, 20, 24, or 29, even though it does not actually violate their provisions and thus cannot be said to violate the bar's minimum ethical requirements. It is no justification that a letter is written as an attempt to alibi for a poor showing in court, or to present inadmissible evidence, or to curry favor for the benefit of possible future cases. A lawyer who is dissatisfied with rules of evidence owes it to the public to propose reforms through appropriate channels; compare Opinion 273 (November, 1963). But letters to jurors are not appropriate channels; more appropriate would be contacts with interested legislators and bar associations.
The statement that the jury knows less than anyone about the entire case, as well as the statements that seem to present inadmissible evidence in a way that might lead the jurors to conclude that in future cases involving weak evidence the defendant probably has a bad character and a criminal record, are, in the opinion of this committee, in violation of the express provisions of Canon 29. They involve disloyalty to the law. Jury contacts cannot properly be made which involve disloyalty to the law and which without legitimate reason are in any manner derogatory of the Court or opposing counsel. See Opinion 257 (February, 1963). (9-0.)
Bluebook Citation
Tex. Comm. On Professional Ethics, Op. 278 (1964)