Sending Questionnaire to Prospective Members of Jury
Opinion rules that a lawyer may not send a jury questionnaire directly to prospective members of the jury but, if the questionnaire is sent out by the court, such communications are not prohibited.
Attorney A, who is the plaintiff's counsel in a personal injury case, would like to submit a jury questionnaire, prior to trial, to the people who are on the potential jury list. The questions on the questionnaire are neutral. Receiving answers to the questionnaire would save a significant amount of time in jury selection because both defense counsel and plaintiff's counsel could limit jury voir dire to questions about areas of concern disclosed by the questionnaire and matters involving particular facts of the case. The counsel for the defendant has reviewed the questionnaire and does not object to the questionnaire being sent to prospective members of the jury. Does Rule 7.8(a) prohibit Attorney A from submitting the written questionnaire to prospective members of the jury?
Rule 7.8(a) contains a blanket prohibition on communications by a lawyer connected with the trial of a case with "anyone he knows to be a member of the venire from which the jury will be selected for the trial of the case." As noted in the Comment to the rule, "veniremen and jurors should be protected against extraneous influences" in order to "safeguard the impartiality that is essential to the judicial process." It would appear that Rule 7.8(a) prohibits Attorney A from sending the questionnaire himself to prospective members of the jury even if it is done in a way that avoids identifying who is sending the questionnaire. However, the ban of Rule 7.8(a) does not apply to communications with prospective members of the jury by the court since the prohibition is only directed towards extrajudicial communications. Therefore, if the court approves of the questionnaire and agrees that the questionnaire will be sent out under the court's direction and letterhead, it would not be a violation of Rule 7.8(a) even if the lawyer pays for the cost of distribution.