Davis v. Husain, 220 N.J. 270 (2014). “Post-verdict ex parte communication between the trial court and jurors cannot be countenanced.” That is the holding of today’s opinion, for a unanimous Supreme Court, by Justice LaVecchia. Even if a judge merely wants to thank jurors for “their invaluable service to the public trial process,” that must be done in open court, in the presence of counsel for the parties. The only exception to this “bright-line directive” is the need for a hearing regarding jury misconduct, which is authorized for “good cause” by Rule 1:16-1 but is considered to be an “extraordinary procedure.”
The Court issued this ruling as an exercise of its constitutional authority over the courts and civil and criminal trials conducted in those courts. Before reaching that conclusion, Justice LaVecchia discussed and endorsed two prior Appellate Division cases that had “expressed clear disapproval” of post-verdict, ex parte communications between judges and jurors.
The core of the Court’s reasoning was as follows. “The informality of such encounters, however benign their intended purpose, creates the possibility for the innocent remark or question to spark an attempt to plumb jurors’ decision-making processes. Ex parte inquiries prevent the proper presentation of information otherwise subject to the rigorous scrutiny of a Rule 1:16-1 formal inquiry. The asserted salutary purpose of ‘education’ of the bench and bar cannot justify this ex parte communication practice. ‘Off the record’ conversation between the judge and jury is incompatible with our entire system of open and public court proceedings, in which parties’ interests are protected through their presence and that of their counsel.”
The particular case before the court involved a plaintiff’s verdict in a hostile work environment case. After the jury awarded plaintiff $12,500 and the jurors were discharged, but before post-trial motions were presented, the trial judge met by himself with the jurors in an unrecorded session. At that time, one of the jurors expressed surprise that the defendant had not placed his hand on the Bible when called to testify. The judge reported that comment to the attorneys, and defendant used it as a basis for his post-trial motions. The trial judge denied those motions.
Defendant appealed on several grounds, including this one. The Appellate Division affirmed by a 2-1 vote. The dissenting judge contended that the trial judge had violated Canon 3 of the Code of Judicial Conduct, which states that judges may, “except as authorized by law, neither initiate nor consider ex parte communications concerning a pending or impending proceeding.” Based on the dissent, defendant appealed to the Supreme Court as of right. Finding the need for further proceedings, the Court remanded to the Law Division the issue of the juror’s comment.
Justice LaVecchia noted that “notwithstanding prior discouragement of such post-verdict ex parte discussions between a trial judge and jurors, the practice persists.” After today’s resounding rejection of such communications by the Supreme Court, that should no longer be so.