DEFENDANT’S MOTION TO PRECLUDE PROSECUTORS FROM MAKING
POST-VERDICT STATEMENTS CONCERNING ANY ARREST AND/OR
CRIMINAL CONVICTION RECORD OF THE DEFENDANT TO MEMBERS
OF THE JURY AFTER VERDICT IS RENDERED OR A MISTRIAL GRANTED
TO PREVENT HARASSMENT AND TAINTING THE JURY BY NEGATIVE INFLUENCING FUTURE JURY SERVICE
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, the Defendant, by and through his/her undersigned retained counsel, and respectfully moves this Honorable Court, to preclude the prosecuting attorney(s) of the __________County CrimDA/CtyAtty Office, in the above-styled and numbered cause from making any comment to the jury relating in any way to Defendant’s prior arrests and/or criminal conviction record after the jury has rendered its verdict or a mistrial is granted. In support hereof, the Defendant would show:
The above referenced cause will be tried to a jury. The Defendant in this case has prior arrests and/or a criminal conviction record. The jury will not hear any evidence concerning these arrests or convictions due to Defendant’s Motion in Limine which was granted by this Court and also because such evidence is excluded by Tex.R.Evid.403 because the “probative value” of such evidence “is substantially outweighed by the danger of unfair prejudice” and it would “confuse the issues” and “mislead the jury”. Tex.R.Evid 404(b) further provides that “[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” As persuasive authority, Tx.R.Evid. 609(a) allows for impeachment by evidence of conviction of a crime “but only if the crime was a felony or involved moral turpitude.” The Defendant’s criminal record does not reflect any conviction involving either a felony or a crime of moral turpitude.
Post-verdict statements by prosecuting attorneys concerning arrests or convictions of a Defendant are expressly prohibited by Texas Rule of Professional Conduct 3.06(d), which provides:
After discharge of the jury from further consideration of a matter with which the lawyer was connected, the lawyer shall not ask questions of or make comments to a member of that jury that are calculated merely to harass or embarrass the juror or to influence his actions in future jury service. (emphasis added)
Post-verdict statements concerning arrests and/or criminal conviction record have no relevance and can only be couched in terms that are calculated to embarrass these jurors and to influence their actions in future jury service. Any statement by a prosecuting attorney would also undermine his/her duty to seek justice and his/her duty to abide by the Texas Rules of Evidence that excluded information concerning a prior arrest and/or conviction because its “probative value was substantially outweighed by the dander of unfair prejudice,” would, “confuse the issues” and “mislead the jury.” Such post-verdict statements would instill a tainted memory of our judicial system with the jurors, making them inclined to disbelieve in our system and abandon their duties for future jury service. As a result, there exists a substantial likelihood of material prejudice to the administration of justice, e.g., the juror would be baited into believing that any future defendant he judged as a juror had a prior record and was predisposed to commit the crime charged.
Any material prejudice harbored by a juror relating from post-verdict statements after previous jury service would prevent a future Defendant from receiving a fair trial guaranteed to her by the United States Constitution. “Few, if any, interest under the Constitution are more fundamental than the right to a fair trial by ‘impartial’ jurors, and an outcome affected by extrajudicial statements would violate that fundamental right.” Gentile v. State Bar of Nev., 501 U.S. 1030, 1075, 111 S.Ct. 2720 (opinion of Rehnquist, C.J.).
It is well established in case law that measures to curtail speech of lawyers has been upheld under First Amendment challenges. The Constitutionality of Rule 3.06(d), supra, was recently upheld by the Supreme Court of Texas in Commission for Lawyer Discipline v. Benton, 980 S.W.2d 425 (Tex. 1998). Furthermore, the United States Supreme Court upheld restrictions used to curtail speech of lawyers in Gentile v. State Bar of Nev., 501 U.S. 1030, 111 S.Ct. 2720.
Under the GentileStandard, the application of Rule 3.06(d) to a prosecutor’s statements does not violate the First Amendment because the statements would create a “substantial likelihood of material prejudice.” It is well established in case law that post-verdict speech can also pose a sufficiently significant threat to the fairness of jury trials to justify curtailing the would-be speakers’ constitutional interest. Commission for Lawyer Discipline, at 431.
For example, in Haeberle v. Texas International Airlines, 739 F.2d 1019 (5th Cir. 1984), the court rejected a First Amendment challenge to a local rule that prohibited lawyers from questioning discharged jurors about their verdict. The lawyers in Haeberle, having lost a jury trial, sought permission to interview jurors to learn why their presentation of the case had not been persuasive. See id. The court upheld the local rule, citing the need “to protect [judicial] processes for prejudicial outside interferences,” id at 1022 (quoting Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507 (1966), and “ the jurors’ interest in privacy and the public’s interest in well administered justice.” ibid. In Tanner v. United States, 483 U.S. 107, 107 S.Ct. 2739 (1987), the Supreme Court concluded that the government’s interest in preserving “full and frank discussion in the jury room, juror’s willingness to return an unpopular verdict, and the community’s trust in a system that relies on the decisions of laypeople,” id at 120-21, 107 S.Ct. 2739 (emphasis added). Moreover, Rule 3.06(d) seeks to protect the “purity and efficiency” of the jury system as required by Tex.Const. art. I, §15.
The Supreme Court of Texas in Commission for Lawyer Discipline, 980 S.W. 2d at 432-33, found the following cases establish the principle that the constitutional rights of parties and the media to communicate with discharged jurors for various purposes must sometimes yield to the competing constitutional interest in preventing damage to the jury system. Like Rule 3.06(d), these and related cases specifically recognize that the state’s interest in protecting the jury system includes preventing post-verdict juror harassment. See Tanner, 483 U.S. at 120, 107 S.Ct. 2739 (quoting McDonald v. Pless, 264, 238 U.S. at 268, 35 S.Ct. 783, (1915)); United States v. Antar, 38 F.3d 1348, 1363 (3d Cir.1994); United States v. Kepreos, 759 F.2d 961, 967 (1st Cir. 1985); United States v. Harrelson, 713 F.2d 1114, 1116 (5th Cir. 1983); United States v. Moten, 582 F.2d 654, 666 (2d Cir. 1978). These cases recognize that impartial jury decisions may be endangered by events taking place after the jury has rendered its verdict, as well as before.
Texas Rule of Professional Conduct 8.03(a) provides:
Except as permitted in paragraphs (c) or (d), a lawyer having knowledge that another lawyer has committed a violation of applicable rules of professional conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority (emphasis added).
Any lawyer, whether a judge, prosecutor or defense attorney, witnessing another lawyer making post-verdict and/or post-mistrial statements calculated merely to harass or embarrass the juror or to influence his actions in future jury service is obliged to report such statements to the State Bar of Texas.
Honorable Court find and thereafter, order that all attorneys of the ____________ County District Attorney’s Office be precluded from commenting in any manner, or making any inference, relating in any way to Defendant’s prior arrests and/or criminal conviction record.
I hereby certify that a true and correct copy of the above and foregoing Motion has been delivered, faxed, or mailed, postage prepaid to the CrimDA/CtyAtty of __________ County, Texas on the _____ day of ________, 200__.
THE STATE OF TEXAS
§ IN THE ____________COURT
§ _____________ COUNTY, TEXA
ORDER On this day came on to be heard Defendant’s Motion to Preclude Prosecutors from Making Post-Verdict Statements Concerning Any Arrest and/or Criminal Conviction Record of the Defendant to Members of the Jury After Verdict is Rendered or a Mistrial Granted to Prevent Harassment and Tainting the Jury by Negatively Influencing Future Jury Service, and the Court having considered the same it is hereby: