First Amendment

Do Lawyers Have 1st Amendment Right to Interview Jurors? 10th Circuit Says Maybe


In a novel case sure to catch the attention of trial lawyers and researchers, the Denver-based 10th U.S. Circuit Court of Appeals says that attorneys may have a First Amendment right to interview jurors involved in trials in which they did not participate.

But the right may extend only to lawyers whose purpose is to educate a segment of the bar, the National Law Journal (sub. req.) reports.

The underlying case involves a request by the Oklahoma Employment Lawyers Association, which sought to contact jurors three years after they considered an ADA job bias case, Clyma v. Sunoco Co. (PDF). OELA claimed a First Amendment right to the information. But a lower court rejected the bar’s request to access jurors. A court rule prohibits lawyers from contacting jurors without first obtaining authorization.

In a likely case of first impression, the 10th Circuit ordered the lower court to reconsider its previous ruling and decide again, in a “meaningful exercise of its discretion in support of its ultimate determination.”

In its ruling, the panel noted that the bar’s “alleged First Amendment right to juror access for the exclusive benefit of its members and the trial bar more generally, apparently raised within both a professional and commercial context, surely does not match the media’s right to access information for the purpose of informing the political thought and behavior of the general public.”

The panel, however, also noted that the bar’s request, “in order to prepare a program to educate a segment of the bar, despite countervailing concerns related to juror privacy and the administration of justice, may not be entirely devoid of First Amendment implications.”

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