After a verdict, can a Colorado trial lawyer tell the jurors about evidence that was suppressed or never admitted at trial?

Plain-English summary

Opinion 70 (adopted September 21, 1985; addendum issued 1995) addressed post-verdict communication between a trial lawyer and jurors. Colorado practice allows lawyers to speak informally with willing jurors after a trial, but the Code of Professional Responsibility limits how that is done. Under DR 7-108(D), after the jury is discharged a lawyer connected with the case may not ask questions or make comments calculated merely to harass or embarrass a juror or to influence the juror's actions in future jury service. The Committee read this together with EC 7-29 through 7-32 (protecting jurors from extraneous influence and vexatious investigation) and the ABA Criminal Justice Standards, which bar a prosecutor or defense counsel from discussing a case with jurors in a way critical of the verdict.

The Committee concluded that, after a verdict, it is improper for an attorney who participated in the trial to tell the jury about information that was not presented at trial when that information is disclosed with the intention of, or in the spirit of, criticizing the jury's decision, influencing the jurors' future jury service, harassing the jury, or otherwise behaving improperly toward jurors as prohibited by the Code. This applies whether the unpresented information was suppressed, ruled inadmissible, or simply not introduced. The Committee reasoned that telling jurors about evidence pointing to a different result is, in effect, telling them they were wrong, which is calculated to embarrass them; it also noted the risk under Colorado Rule of Evidence 606(b) that informing jurors of inadmissible matter could taint any later inquiry into the validity of the verdict.

Finally, drawing on EC 7-32, the Committee concluded that a lawyer who learns of improper conduct toward a juror by another attorney has an obligation to make a prompt report to the court regarding that conduct.

Currency note

This opinion was issued in 1985 under the former Colorado Code of Professional Responsibility, before the Colorado Rules of Professional Conduct took effect on January 1, 1993, and before Colorado's 2008 revisions to those rules. A 1995 addendum mapped the opinion to Rule 3.5(a) (improperly influencing a juror), Rule 3.5(c) (conduct intended to disrupt a tribunal), Rule 4.4 (rights of third persons), and Rule 8.4(d) (conduct prejudicial to the administration of justice). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a Colorado lawyer talk to jurors after the trial ended?

A: Yes, within limits. The opinion recognized that talking informally with willing jurors after trial is a common practice in Colorado state courts, but concluded the lawyer may not ask questions or make comments calculated to harass or embarrass jurors or to influence their future jury service (DR 7-108(D)).

Q: Could a lawyer tell jurors about evidence that was kept out of the trial?

A: Not to criticize the verdict. The opinion concluded it is improper for a participating lawyer to tell jurors about information not presented at trial, including suppressed or inadmissible evidence, when done to criticize the jury's decision, influence their future service, or harass them.

Q: If a lawyer saw another attorney improperly contacting jurors, did the lawyer have to do anything?

A: Yes. The opinion concluded that under EC 7-32 a lawyer who becomes aware of improper conduct toward a juror by another attorney must make a prompt report to the court.

Background and rules framework

The opinion interpreted the then-governing Colorado Code of Professional Responsibility, principally DR 7-108(D) (post-discharge juror contact), with EC 7-29 through 7-32 and 7-36, and the ABA Criminal Justice Standards on post-trial juror interrogation. It also referenced Colorado Rule of Evidence 606(b) (limits on juror testimony about deliberations) and the mandatory jury instruction on discharge. The modern Model Rules analogs are Rule 3.5 (impartiality and decorum of the tribunal, including improper juror influence), Rule 4.4 (rights of third persons), and Rule 8.4(d) (conduct prejudicial to the administration of justice).

Citations and references

Rules of Professional Conduct:

• Colo. Code of Professional Responsibility DR 7-108(D); EC 7-29, 7-30, 7-31, 7-32, 7-36 (governing rules at issuance)
• Colo. RPC 3.5(a), 3.5(c) / Model Rule 3.5 (improperly influencing a juror; disrupting a tribunal; current analog)
• Colo. RPC 4.4 / Model Rule 4.4 (respect for rights of third persons)
• Colo. RPC 8.4(d) / Model Rule 8.4 (conduct prejudicial to the administration of justice)

Other authorities:

• Colo. R. Evid. 606(b) (juror testimony on the validity of a verdict)
• ABA Standards for Criminal Justice, The Prosecution Function, section 3.54(c) (post-trial juror interrogation)

See also

• OSB Op. 2005-143: Communicating With Jurors After Trial
• Florida Bar Op. 70-45: Hearing Required Before Juror Interview
• ABA Formal Op. 466: Reviewing Jurors' Internet Presence

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: https://www.cobar.org/Portals/COBAR/repository/ethicsOpinions/FormalEthicsOpinion_70_2011.pdf