Can a prosecutor write to the jurors after an acquittal to tell them about the defendant's record and the evidence the law kept out?

Plain-English summary

In the hypothetical, B was tried on a felony charge and acquitted. Within days the prosecuting attorney wrote identical letters to each juror saying that "in all criminal cases, the jury knows less about the entire case than anyone," reciting that B had a juvenile-delinquency record, had been indicted earlier for another felony, and had clashed with the authorities for some eight years, and explaining that existing law had barred him from putting these matters before the jury. Much of the information had been offered at trial and excluded by the judge. The question was whether writing the letters was improper.

The Committee concluded the letters were improper. It acknowledged some valid reasons to contact jurors after trial, such as investigating jury misconduct, but said the bar's general standards are best upheld by refraining from writing jurors absent a very legitimate reason, and that a letter can offend the spirit of canons such as 14, 15, 19, 20, 24, or 29 even without breaching their literal terms. It rejected as justifications writing to alibi a poor showing, to present inadmissible evidence, or to curry favor for future cases, and said a lawyer dissatisfied with the rules of evidence should seek reform through legislators and bar associations, not letters to jurors. The Committee held that the statement that the jury knows less than anyone, and the statements presenting inadmissible evidence in a way suggesting that weak-evidence defendants probably have bad character and criminal records, violated the express provisions of Canon 29 and involved disloyalty to the law. The Committee ruled 9-0.

Currency note

This opinion was issued in 1964, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. 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 Treat this page as historical context, not current guidance.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: Can a lawyer write to jurors after the trial is over?

A: The Committee said there are some valid reasons, such as investigating jury misconduct, but that lawyers should refrain from writing jurors without a very legitimate reason; a letter written for an improper purpose is improper.

Q: Why were the prosecutor's letters improper here?

A: The Committee held that telling jurors the law had unjustifiably kept out relevant evidence, and presenting the defendant's excluded record, violated the express provisions of Canon 29 and involved disloyalty to the law.

Q: What should a lawyer unhappy with the rules of evidence do instead?

A: The Committee said such a lawyer owes it to the public to propose reforms through appropriate channels, such as contacts with interested legislators and bar associations, not letters to jurors.

Background and rules framework

The opinion interprets former Texas Canon 29, on upholding the honor of the profession and loyalty to the law, as applied to a lawyer's letters to jurors after a verdict. The modern analog is ABA Model Rule 3.5, which governs a lawyer's communications with jurors and conduct affecting the impartiality of the tribunal.

Citations and references

Rules of Professional Conduct:

• MR 3.5 (impartiality and decorum of the tribunal; communication with jurors), as the modern analog
• Texas Canon 29 (former canon), and Canons 14, 15, 19, 20, and 24 referenced as to their spirit

Other opinions cited:

• Texas Opinion 273 (Nov. 1963): proposing reforms through appropriate channels
• Texas Opinion 257 (Feb. 1963): jury contacts that are derogatory of the court or opposing counsel

See also

• TX Ethics Op. 279: Collection Letter Enclosing a Copy of a Petition Prepared for Filing
• TX Ethics Op. 281: Delinquent-Tax Attorney Representing a Defendant in His Own Tax Suit

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-278/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_278.pdf

Original opinion text

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

QUESTION PRESENTED

Assume these facts in a hypothetical situation: B was indicted and tried in district court on a felony charge. He was acquitted. Within a few days, the prosecuting attorney wrote identical letters to each juror. In the letter, he stated that "Unfortunately, in all criminal cases, the jury knows less about the entire case than anyone." The letter added that B had a record as a juvenile delinquent and had been indicted in prior years for another felony, and had been in various clashes with the legal authorities over a period of some eight years. The letter stated that the prosecutor, under existing law, could not bring these matters out before the jury. The letter mentioned other facts which, it said, indicated the man's background and character. The letter concluded that the prosecuting attorney was not unhappy with the decision and was writing the letter because he did not have an opportunity to visit with the jurors after the trial.

Much of the information contained in the letter had been offered at the trial and had been excluded by the trial judge. Was writing the letter to the jurors improper?

18 Baylor L. Rev. 350 (1966)

DISLOYALTY TO THE LAW - LETTERS TO JURORS.
A letter to a juror is improper if written for improper purpose, such as the purpose of suggesting that the law unjustifiably kept important, relevant evidence from the jurors in a case previously before the jurors.

Canon 29.

There are some valid reasons for a lawyer to contact jurors after the case is tried. It is legitimate, for instance, for a member to investigate jury misconduct, in Texas. But the general standards of the bar, with which lawyers should comply even though no specific canon requires it and his compliance cannot be demanded, are best upheld by refraining from writing letters to jurors unless a member has a very legitimate reason for doing so. A letter to a juror therefore cannot be said to be completely ethical if it violates the spirit of such canons as 14, 15 19, 20, 24, or 29, even though it does not actually violate their provisions and thus cannot be said to violate the bar's minimum ethical requirements. It is no justification that a letter is written as an attempt to alibi for a poor showing in court, or to present inadmissible evidence, or to curry favor for the benefit of possible future cases. A lawyer who is dissatisfied with rules of evidence owes it to the public to propose reforms through appropriate channels; compare Opinion 273 (November, 1963). But letters to jurors are not appropriate channels; more appropriate would be contacts with interested legislators and bar associations.

The statement that the jury knows less than anyone about the entire case, as well as the statements that seem to present inadmissible evidence in a way that might lead the jurors to conclude that in future cases involving weak evidence the defendant probably has a bad character and a criminal record, are, in the opinion of this committee, in violation of the express provisions of Canon 29. They involve disloyalty to the law. Jury contacts cannot properly be made which involve disloyalty to the law and which without legitimate reason are in any manner derogatory of the Court or opposing counsel. See Opinion 257 (February, 1963). (9-0.)

Tex. Comm. On Professional Ethics, Op. 278 (1964)