After a criminal trial ends, can a prosecutor tell jurors about facts that were kept out of evidence, like the defendant's prior convictions?

Currency note

This opinion was issued in 1976, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. The opinion interprets former California Rule 7-106(D) and (E) (communication with jurors) and ABA Code DR 7-108 and Canon 9, the predecessors to current California Rule 3.5 and Model Rule 3.5. 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 Treat this page as historical context, not current guidance.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 or requirement mentioned here.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The committee was asked whether a prosecuting attorney may, after a criminal trial, inform individual jurors of facts not admissible at trial that are prejudicial or aggravating, such as the defendant's prior convictions for similar crimes. The committee concluded such conduct is improper and unethical.

It first applied former Rule 7-106(D), which barred a lawyer, after the jury's discharge, from asking questions of or making comments to a juror intended to harass or embarrass the juror or to influence the juror's actions in future jury service. If the prosecutor's comments were so intended, they were clearly proscribed, and the committee cited ABA Code DR 7-108 to the same effect.

The committee went further and concluded that even if the inadmissible information was not so intended, the conduct was still improper, citing Texas State Bar Ethics Opinion No. 278 (1964). It reasoned that the law has long excluded certain facts, such as prior crimes, because they have an excessive and undue impact on a jury, and that this impact may be just as significant after discharge, potentially influencing a juror's state of mind in future service. Because a lawyer should avoid even the appearance of impropriety (ABA Code Canon 9), the committee concluded a prosecutor should refrain from making such comments even where they are not intended to harass, embarrass, or influence the juror.

Common questions

Q: Can a prosecutor talk to jurors after a verdict in California?

A: The opinion did not bar all post-trial juror contact; it addressed informing jurors of inadmissible prejudicial facts. The committee concluded telling discharged jurors about facts like the defendant's prior convictions is improper, citing former Rule 7-106(D) and Canon 9.

Q: What if the prosecutor does not intend to influence the juror's future service?

A: The committee said it is still improper. It reasoned that inadmissible facts such as prior crimes can have an undue impact even after discharge and may influence a juror's state of mind in future service, so a prosecutor should refrain from such comments regardless of intent.

Q: Which rule did the committee rely on?

A: Primarily former Rule 7-106(D) (and (E)), supported by ABA Code DR 7-108 and Canon 9 (avoiding even the appearance of impropriety), and the persuasive authority of Texas Opinion No. 278 (1964).

Background and rules framework

The opinion interprets former California Rule 7-106(D) and (E), which governed a lawyer's communications with jurors after their discharge and barred comments intended to harass or embarrass a juror or influence the juror's future jury service. The committee read those provisions together with ABA Code DR 7-108 and Canon 9 (avoiding even the appearance of impropriety). These concerns are now addressed by California Rule 3.5 and Model Rule 3.5 on the impartiality and decorum of the tribunal, including post-discharge communication with jurors.

Citations and references

Rules of Professional Conduct:

• Former California Rule 7-106(D) and (E)
• ABA Code of Professional Responsibility, DR 7-108 and Canon 9
• Current analogs: Model Rule 3.5 / California Rule 3.5

Other opinions cited:

• Texas State Bar Ethics Opinion No. 278 (1964), 18 Baylor L. Rev. (1966) pp. 350-351

See also

• CA Ethics Op. 1972-30: Requesting a Trial Date a Lawyer Does Not Intend to Keep

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Original opinion: https://www.calbar.org/ethics/Opinions/1976-39.htm

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 1976-39

ISSUE:

Ethical considerations involved in communicating with jurors after the trial of a criminal case.

DIGEST:

It is ethically improper after the trial of a criminal case to inform a juror of inadmissible facts of a prejudicial or aggravating nature.

AUTHORITIES INTERPRETED:

Rule 7-106(D) and (E) of the Rules of Professional Conduct of the State Bar.

DISCUSSION

This Committee has been asked whether it is proper for a prosecuting attorney to inform individual members of the jury, after the trial of a criminal case, of facts not admissible at the trial which are of a prejudicial or aggravating nature, such as the defendant's prior convictions for similar crimes. We are of the opinion that such conduct is improper and unethical.

Rule 7-106(D) of the Rules of Professional Conduct provides that a lawyer, after the discharge of the jury, "[s]hall not ask questions of or make comments to a member of [the] jury that are intended to harass or embarrass the juror or to influence the juror's actions in future jury service." If the prosecuting attorney's comments to a juror "are intended to harass or embarrass the juror or to influence the juror's actions in future jury service," then they are clearly improper and proscribed by rule 7-106(D) of the Rules of Professional Conduct. (See also ABA Code of Prof. Responsibility, DR 7-108.)

Even if the inadmissible information given to the juror is not so intended, we believe the conduct is improper. (Cf. Texas State Bar Ethics, opn. No. 278 (1964), printed in 18 Baylor L.Rev. (1966) pp. 350-351.)

The law has long recognized that certain facts, such as prior crimes, have an excessive and undue impact on a jury and has excluded such facts from the evidence presented to the jury. We believe that the impact may be just as significant after the discharge of the jury and that the state of mind of a juror in future jury service may be influenced. Accordingly, because a lawyer should avoid even the appearance of impropriety (ABA Code of Prof. Responsibility, canon 9), we believe a prosecuting attorney should refrain from making such comments, even in circumstances where it is not intended to harass, embarrass or influence the juror.

This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.