Can a prosecutor get sworn statements from jurors about how they felt on the defendant's penalty, to use at sentencing?

Plain-English summary

The committee considered whether a prosecutor may secure written affidavits from jurors about their feelings on the accused's penalty, intending to use that information at sentencing, and answered no. It framed the question around the integrity of jury deliberations: the safeguards of the law concerning jurors and their deliberations must be sealed, and looking into the jury's minds after a verdict should not be tolerated except to determine that the verdict was not made by lot.

The committee tied that principle to the criminal procedure rules. Under RCr 9.84 the jury fixes the penalty unless the penalty is set by law (or the defendant pleads guilty, with an exception for death-penalty offenses), and under RCr 11.02 sentencing is to be imposed without unreasonable delay after the defendant and counsel are given an opportunity to make statements and present mitigation. The committee observed that the rules do not give the Commonwealth the same latitude as the defendant at sentencing, and it saw no reason for the prosecutor or the court to seek jurors' opinions about a penalty the jurors had already set in the verdict, since courts routinely sentence based on the jury's verdict. It concluded that neither the Commonwealth nor the defendant should probe the jury's intent or feelings, while noting that probation or revocation of probation is a different matter on which each party may offer proof. The judiciary and the bar, the committee said, should protect jurors' right to decide free from interference before or after a verdict.

Currency note

This opinion was issued in 1979 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a prosecutor get juror affidavits about how the jury felt on the penalty?

A: No, under this opinion. The committee held that probing the jury's intent or feelings about a penalty it already set is not permitted; jurors must be protected from interference after the verdict.

Q: Why did the committee bar the practice?

A: It reasoned that the integrity of jury deliberations must be preserved and that courts routinely sentence based on the jury's verdict, so there was no proper need to revisit the jurors' feelings.

Q: Did the committee treat probation proceedings the same way?

A: No. It said probation or revocation of probation is a different matter on which each party may offer proof, though it doubted either party should delve into the jury's reasoning.

Background and rules framework

The opinion applies EC 7-30 and EC 7-32 of the former Code, which address a lawyer's dealings with jurors and the integrity of the jury, together with the criminal procedure rules RCr 9.84 and RCr 11.02. The modern analog is Model Rule 3.5 (impartiality and decorum of the tribunal, including limits on communicating with jurors).

Citations and references

Rules of Professional Conduct:

• EC 7-30 and EC 7-32 (dealings with jurors); modern analog Model Rule 3.5

Statutes and rules:

• RCr 9.84 (jury fixes penalty); RCr 11.02 (sentencing procedure)

See also

• KBA Ethics Op. E-211: Prosecutor as Criminal Defense Counsel
• No additional sibling opinions yet indexed.

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-220.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-220
Issued: July 1979

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question:

May a prosecutor secure written affidavit from jurors in a criminal case regarding their feelings as to the accused’s penalty with the specific intent to use this information at the sentencing phase of the case?

Answer:

No.

References:

RCr 9.84, 11.02; EC 7-30, 7-32
OPINION

It is very important to the accused and the Commonwealth that all safeguards of the ancient law concerning jurors and their deliberations be sealed. It is impossible to keep the fountains of justice clean and pure unless the jury is free from contamination and influence. Looking into the minds of the jury after a criminal verdict should not be tolerated except to determine that the verdict was not made by lot.
Under RCr 9.84 it is the juror’s prerogative or directive to fix the penalty and punishment for a criminal offense, except where the penalty has been set by law, in which case it should be fixed by the Court. Of course if the defendant pleads guilty then the court may fix the penalty, except in cases involving offenses punishable by death.
In addition under RCr 11.02 sentencing should be imposed without unreasonable delay, and before imposing the sentence the Court should afford the Defendant and his counsel an opportunity to make statements on behalf of the Defendant and if the sentence is fixed by the Court to present any information in mitigation of punishment.
It is important to note that the Rules do not allow the Commonwealth the same latitude as the Defendant at sentencing. We do not understand why the prosecutor or the Court should be interested in the juror’s opinion regarding a penalty previously set by the jurors when they rendered the verdict of guilty and set the penalty. Since the courts ordinarily and routinely sentence a Defendant based on the verdict by the jury we can see no need of affidavits by the jurors concerning the punishment or penalty they have previously set. We do not believe that the Commonwealth or the Defendant should be allowed to probe the mind of the jury concerning their intent or feelings. Therefore, our answer to the question is no.

If the Court considers probation or the revocation of probation, then this is a different matter and each party may offer proof.
However, it is doubtful that either party should be allowed to delve into the mental gyration of the jury. The judiciary and the Bar Association should be protective of the rights of jurors to make decisions free from interference of the parties before or after a verdict.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.