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SJC-11582

COMMONWEALTH vs. DWAYNE MOORE.

Suffolk. February 10, 2016. - June 16, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & 

Hines, JJ.

Rules of Professional Conduct. Jury and Jurors. Practice, 

Criminal, Jury and jurors, Investigation of jurors, 

Deliberation of jury.

Indictments found and returned in the Superior Court 

Department on January 7, 2011.

A postconviction emergency motion for judicial intervention 

to prohibit inquiry of the jury, filed on July 23, 2015, was 

heard by Jeffrey A. Locke, J., and questions of law were 

reported by him to the Appeals Court.

The Supreme Judicial Court on its own initiative 

transferred the case from the Appeals Court.

Teresa K. Anderson, Assistant District Attorney (Edmond J. 

Zabin, Assistant District Attorney, with her) for the 

Commonwealth.

Chauncey B. Wood for the defendant.

K. Neil Austin, Caroline S. Donovan, & David A.F. Lewis, 

for Massachusetts Association of Criminal Defense Lawyers, 

amicus curiae, submitted a brief.
2

BOTSFORD, J. We consider here five questions reported by a 

Superior Court judge to the Appeals Court concerning the effect 

of an amendment to Mass. R. Prof. C. 3.5 (c), as appearing in 

471 Mass. 1428 (2015) (rule 3.5 [c]), regarding an attorney's 

ability to communicate, postverdict, with jurors who deliberated 

on, or were discharged from, the attorney's client's case. Rule 

3.5 (c) became effective on July 1, 2015.

1. Background. From February 13 to March 22, 2012, the 

defendant was tried in the Superior Court in Suffolk County on 

charges of murder in the first degree (four counts), G. L. 

c. 265, § 1; home invasion, G. L. c. 265, § 18C; armed robbery,

G. L. c. 265, § 17; armed assault with intent to murder, G. L. 

c. 265, § 18 (b); aggravated assault and battery by means of a 

dangerous weapon, G. L. c. 265, § 15A (c); carrying a firearm 

without a license, G. L. c. 269, § 10 (a); and trafficking in 

cocaine, G. L. c. 94C, § 32E (b). The jury were deadlocked on 

nine of the charges and found the defendant not guilty on the 

tenth (trafficking in cocaine). The trial judge declared a 

mistrial. On October 2, 2012, the defendant filed a motion for 

a change of venue on account of extensive media coverage, which 

was allowed in part. The defendant was retried before a jury 

from Worcester County sitting in the Suffolk County Court House

from October 16 to December 18, 2012. In the middle of 

deliberations, an issue concerning a deliberating juror's 
3

compliance with the judge's instruction not to consult extratrial research arose. After individual inquiry of each 

deliberating juror, the judge dismissed one juror and, based on 

a finding that the remaining jurors were not affected by 

exposure to extraneous information, denied the defendant's 

motion for a mistrial. The jury continued to deliberate. One 

week later, the jury found the defendant guilty on the four 

indictments charging murder in the first degree as well as on 

those charging home invasion and armed robbery, and not guilty 

on the remaining three charges.

1 The defendant filed a notice of 

appeal on January 2, 2013; the appeal has been docketed in this 

court but has not yet been briefed or argued.

On July 14, 2015, two weeks after the effective date of 

rule 3.5 (c), one of the defendant's appellate attorneys sent a 

letter to the assistant district attorney representing the 

Commonwealth on appeal, informing her of defense counsel's 

intention to contact the deliberating jurors in the defendant's 

second trial pursuant to amended rule 3.5 (c), and attached a 

copy of the proposed letter that counsel intended to send to the

jurors. On July 21, 2015, the defendant's appellate counsel

sent via first class mail the letters to the deliberating 

jurors. Later that same day, the assistant district attorney

 

1 The defendant was found not guilty on the charges of armed 

assault with intent to murder, aggravated assault and battery by 

means of a dangerous weapon, and carrying a firearm without a 

license.
4

sent an electronic mail (e-mail) message to the defendant's 

appellate counsel, notifying them that the Commonwealth would

file a motion to prohibit juror communication, and further 

explained that "[i]t is the Commonwealth's position that postconviction inquiry of jurors remains prohibited as a matter of 

law."

On July 23, 2015, the Commonwealth filed an emergency 

motion for judicial intervention to prohibit postconviction 

inquiry of the jury; the defendant's appellate counsel filed an 

opposition. After hearing, the motion judge, who had been the 

trial judge in the defendant's second trial, agreed to report to 

the Appeals Court five questions concerning rule 3.5 (c), 

ordered that the defendant's appellate counsel not communicate 

further with the discharged jurors pending further order of the 

court, and further ordered that counsel retain sealed and unread 

any written or e-mail responses they might receive from jurors

in response to the letter previously sent.

The five reported questions are the following:

"1. In revising Rule 3.5 of the Massachusetts Rules of 

Professional Conduct to permit attorney originated 

communications with discharged jurors, did the Supreme 

Judicial Court implicitly overrule the prohibition against 

attorney originated communications with jurors as set forth 

in Commonwealth v. Fidler, 377 Mass. 192, 203-204 (1979)?

"2. In generally adopting the American Bar 

Association's Model Rule 3.5 containing the language 

'prohibited by law,' did the Supreme Judicial Court intend 

Commonwealth v. Fidler to be continuing precedent?
5

"3. If the answer to question two is 'no,' then what 

types of contact with discharged jurors by an attorney, if 

any, are 'prohibited by law' under Rule 3.5(c)(1)?

"4. If the answer to question one is 'yes,' and the 

answer to question two is 'no,' does revised Rule 3.5 

permit attorneys to communicate with jurors who were 

discharged prior to July 1, 2015?

"5. If the answer to question four is 'yes,' in light 

of Commonwealth v. Fidler, are attorneys required to seek 

approval from the court prior to contacting jurors?"

We transferred the judge's report from the Appeals Court to 

this court on our own motion.

2. Discussion. a. Attorney disciplinary rules and the

Fidler decision. Effective October 2, 1972, this court adopted 

S.J.C. Rule 3:22, the Canons of Ethics and Disciplinary Rules 

Regulating the Practice of Law, as appearing in 359 Mass. 796 

(1971). Disciplinary Rule (DR) 7-108 (D) governed postverdict 

contact with jurors. This rule permitted attorneys to initiate 

communication with jurors postverdict without permission of the 

court, providing that "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." S.J.C. Rule 3:22, DR 7-108 

(D), as appearing in 359 Mass. 826 (1971). The text of DR 7-108 

(D) was essentially identical to the Model Code of Professional 

Responsibility that previously had been adopted by the American 

Bar Association (ABA).
6

Seven years later, this court decided Commonwealth v. 

Fidler, 377 Mass. 192 (1979). The defendant in Fidler was 

convicted of armed robbery after a jury trial in the Superior 

Court, and thereafter filed a motion for a new trial based on 

alleged juror misconduct. See id. at 193-194. In support of 

the motion, the defendant filed an affidavit of one of the 

deliberating jurors. See id. The affidavit averred that the 

jury considered in their deliberations matters the judge had 

instructed them to disregard, and also that extraneous 

information had been introduced into the jury deliberations in 

the form of statements by a juror about factual matters relating 

to the defendant that had not been presented in evidence at 

trial. See id. The trial judge denied the defendant's motion 

for a new trial without an evidentiary hearing. In considering 

the defendant's appeal from this denial, this court affirmed the

common-law rule, first discussed by this court in Woodward v.

Leavitt, 107 Mass. 453, 460 (1871), but having earlier roots in 

England, that inquiry into jury deliberations is prohibited.2 In 

 

2 As stated in Woodward v. Leavitt, 107 Mass. 453, 460 

(1871), this common-law principle is the following: "The proper 

evidence of the decision of the jury is the verdict returned by 

them upon oath and affirmed in open court; it is essential to 

the freedom and independence of their deliberations that their 

discussions in the jury room should be kept secret and 

inviolable; and to admit the testimony of jurors to what took 

place there would create distrust, embarrassment and 

uncertainty." See Commonwealth v. Fidler, 377 Mass. 192, 196 

(1979) ("We still adhere to our rule [expressed in Woodward] 

which requires courts to protect jurors and their verdicts from 
7

particular, we reiterated that it is impermissible to impeach a 

jury verdict with juror testimony concerning the contents of the 

jury's deliberations, and also impermissible to "permit evidence 

concerning the subjective mental processes of jurors, such as 

the reasons for their decisions." 3 Fidler, supra at 198. After 

discussing these common-law precepts, we proceeded to define and 

adopt a separate rule that, going forward, would require all

postverdict contact with and interviews of jurors by attorneys 

to occur under court supervision and direction, and to be 

permissible "only if the court finds some suggestion that there 

were extraneous matters in the jury's deliberations. . . .

[C]ounsel, litigants, and those acting for them may not 

independently contact jurors after a verdict is rendered. 

Counsel may investigate unsolicited information only to see if 

it is a matter worth bringing to the judge's attention." Id. at 

203-204.

 

unwarranted intrusions and which emphasizes the importance of 

the finality of jury verdicts").

3 We made clear, however -- as had Woodward, 107 Mass. at 

466 -- that this common-law principle did not bar juror 

testimony to the effect that information extraneous to the trial

had been introduced into the jury deliberations; the prohibition 

was against eliciting testimony or other evidence concerning the 

impact of such extraneous information on the jurors, 

individually or collectively: "[O]ur rule does not create an 

absolute prohibition against juror testimony to impeach a 

verdict. . . . [J]uror testimony is admissible to establish the 

existence of an improper influence on the jury, but is not 

admissible to show the role which the improper influence played 

in the jury's decisions." Fidler, 377 Mass. at 196. See id. at 

196-198.
8

Fidler did not involve directly any rules of professional 

conduct governing lawyers; the restrictions on attorneys' 

postverdict contact with and interviews of jurors that the court 

adopted there were independent of the disciplinary rules. See 

Commonwealth v. Solis, 407 Mass. 398, 399, 402-403 (1990) 

(attorney obtained information from juror in manner that 

conflicted with Fidler restrictions but was consistent with

S.J.C. Rule 3:07, Canon 7, DR 7-108 [D], 382 Mass. 792 [1982]). 

In light of the tension between Fidler and DR 7-108 (D), in 

1991, the court amended DR 7-108 (D) to codify the Fidler rule

governing postverdict attorney contact and communications with 

jurors. See S.J.C. Rule 3:07, DR 7-108 (D), as amended, 411 

Mass. 1317 (1991).4 And when in 1998 we amended the attorney

disciplinary rules to conform generally to the ABA's Model Rules 

of Professional Conduct, we retained the Fidler-inspired 

limitations on postverdict contact of jurors by attorneys. See 

 

4 The revised version of S.J.C. Rule 3:07, DR 7-108 (D), 

appearing in 411 Mass. 1317 (1991), provided: "After discharge 

of the jury from further consideration of a case with which the 

lawyer was connected, the lawyer shall not initiate any 

communication with a member of the jury without leave of court 

granted for good cause shown. If a juror initiates a 

communication with such a lawyer, directly or indirectly, the 

lawyer may respond provided that the lawyer shall not ask 

questions of or make comments to a member of that jury that are 

intended only to harass or embarrass the juror or to influence 

his or her actions in future jury service. In no circumstances 

shall such a lawyer inquire of a juror concerning the jury's 

deliberation processes."
9

Mass. R. Prof. C. 3.5 (d), as appearing in 426 Mass. 1391 

(1997), effective January 1, 1998.

5

Thereafter, in light of changes in 2002, 2012, and 2013 to 

the ABA's Model Rules of Professional Conduct, this court asked 

its Standing Advisory Committee on the Rules of Professional 

Conduct (committee) to review the Massachusetts Rules of 

Professional Conduct. The committee did so, and proposed 

numerous revisions to our attorney disciplinary rules, including 

a unanimous recommendation that we adopt the ABA's Model Rule 

3.5 in place of the existing version of Mass. R. Prof. C. 3.5

and the existing rule 3.5 (d), in particular. After receiving 

public comments and hearing, we adopted the committee's 

recommendation. The amended rule 3.5, appearing at 471 Mass. 

1428 (2015), and effective July 1, 2015, provides in relevant 

part:

"A lawyer shall not:

". . . 

"(c) communicate with a juror or prospective juror after

discharge of the jury if:

"(1) the communication is prohibited by law or court order;

"(2) the juror has made known to the lawyer, either

directly or through communications with the judge or 

otherwise, a desire not to communicate with the lawyer; or

 

5 The text of Mass. R. Prof. C. 3.5 (d), appearing in 426 

Mass. 1391 (1997), was identical to the 1991 version of DR 7-

108 (D). See note 4, supra.
10

"(3) the communication involves misrepresentation,

coercion, duress or harassment . . . ."

6

b. Effect of adoption of rule 3.5 (c) on prohibition 

against attorney-originated communications with jurors. The 

first three reported questions concern what, if any, substantive 

changes resulted from this court's adoption of rule 3.5 (c). 

Because we find the three questions to be interconnected, we 

discuss them together. The first question asks whether in 

adopting rule 3.5 (c),

7 this court implicitly overruled the 

prohibition against attorney-originated communications with 

jurors set forth in Fidler. The Commonwealth argues that

Fidler's prohibition was not overruled by rule 3.5 (c), because 

a revised rule of professional conduct "do[es] not and cannot 

create, modify, or supersede" existing case law, here Fidler and 

 

6 Comment 3 to Mass. R. Prof. C. 3.5, appearing in 471 Mass. 

1429 (2015) (rule 3.5), relates to rule 3.5 (c). The comment 

states:

"A lawyer may on occasion want to communicate with a 

juror or prospective juror after the jury has been 

discharged. The lawyer may do so unless the communication 

is prohibited by law or a court order but must respect the 

desire of the juror not to talk with the lawyer. For 

example, where a juror makes known to the judge a desire 

not to communicate with the lawyer, and the judge so 

informs the lawyer, the lawyer may not initiate contact 

with that juror, directly or indirectly. The lawyer may 

not engage in improper conduct during the communication."

7 The first reported question does not state expressly that 

its focus is specifically rule 3.5 (c), but the intended focus 

on this subsection of the rule is clear.
11

its progeny,8 until this court expressly overrules those 

decisions. The Commonwealth consequently reasons that Fidler's 

rule prohibiting attorneys from communicating with jurors 

postverdict without judicial supervision remains part of the 

definition of "prohibited by law" in rule 3.5 (c) (1). We 

disagree.

Contrary to the Commonwealth's argument, we answer the 

first reported question in the affirmative: by adopting rule 

3.5 (c), we effectively overruled our rule, first stated in

Fidler, that prohibited attorney-initiated, postverdict contact 

of and communications with jurors free from court oversight. In 

our view, the text of rule 3.5 (c) and the associated commentary 

by themselves make this point clearly even without any mention 

of Fidler by name, but by way of further explanation, we add 

that the Fidler rule was not a statement of common-law principle 

but rather a rule that we adopted pursuant to our authority and 

responsibility to supervise the practice of law by attorneys in 

the Commonwealth, independent of common law or statute. See, 

e.g., Opinion of the Justices, 375 Mass. 795, 813 (1978) (court 

retains "the ultimate authority to control [attorneys'] conduct 

in the practice of law"). To the extent that the Fidler rule 

operated to define a manner of contact and communication with 

 

8 See, e.g., Commonwealth v. Bresnahan, 462 Mass. 761, 769-

770 (2012); Commonwealth v. Solis, 407 Mass. 398, 403 (1990); 

Commonwealth v. Dixon, 395 Mass. 149, 153 (1985); Cassamasse v. 

J.G. Lamotte & Son, 391 Mass. 315, 317-319 (1984).
12

jurors postverdict that was "prohibited by law" before the 

adoption of rule 3.5 (c), the latter effectively superseded the 

Fidler rule and the prohibition against unsupervised, 

postverdict attorney communication that the Fidler rule had

imposed.

This is not to say, however, that rule 3.5 (c) implicitly 

overruled this court's opinion in Fidler in its entirety, a 

point that leads us to the second reported question. We 

interpret this question to be asking whether, in adopting rule 

3.5 (c), this court intended Fidler "to be continuing precedent"

in any respect. Our answer is yes. As we have noted, Fidler, 

in addition to establishing the rule of conduct relating to 

unsupervised postverdict contact with jurors by attorneys,

discusses and reaffirms the court's continuing adherence to the 

common-law principle barring inquiry into the contents of jury 

deliberations and thought processes of jurors and the 

impeachment of jury verdicts based on information that might be 

gained from such inquiry. See Fidler, 377 Mass. at 196-198. 

Our adoption of rule 3.5 (c) leaves the viability of this 

common-law principle undisturbed. The secrecy of jury 

deliberations has served as a bedrock of our judicial system, 

and inquiry into the "jury's deliberative processes . . . would 

intrude improperly into the jury's function." Solis, 407 Mass. 

at 403. See, e.g., Commonwealth v. Pytou Heang, 458 Mass. 827, 
13

858 (2011). The common-law principle that "it is essential to 

the freedom and independence of [jury] deliberations that their 

discussions in the jury room should be kept secret and 

inviolable," Fidler, supra at 196, quoting Woodward, 107 Mass. 

at 460, was not, and arguably could not be, overruled by rule 

3.5 (c).

That rule 3.5 (c) allows attorneys to initiate postverdict 

contact with jurors without prior court permission or oversight, 

however, does not mean, as the Commonwealth apparently fears,

that the permitted inquiry is "unfettered and unrestricted." 

Rule 3.5 (c) explicitly limits the inquiry: it bars

communications prohibited by law, communications with jurors who 

have made known an unwillingness to communicate, and 

communications involving "misrepresentation, coercion, duress or 

harassment." Mass. R. Prof. C. 3.5 (c) (1)-(3). The third 

reported question seeks further clarification of the first of 

these proscriptions, asking "what types of contact with 

discharged jurors by an attorney, if any, are 'prohibited by 

law' under [r]ule 3.5(c)(1)?" We answer that prohibited contact 

and communication include those that violate common-law 

principles, such as inquiries into the substance of jury 

deliberations, and communications that violate statutory law, 

other court rules, or specific court orders. See, e.g., Adams

v. Ford Motor Co., 653 F.3d 299, 307 (3d Cir. 2011) (suggesting 
14

that "prohibited by law" under ABA-derived rule 3.5 includes 

court orders and local rules of court); Williams v. Lawton, 288 

Kan. 768, 794-795 (2009) ("attorneys may discuss a trial with 

willing jurors after their discharge . . . unless contrary 

[court] orders have been given").

9

The Commonwealth contends that States that have adopted ABA 

Model Rule 3.5 (c) nonetheless restrict communication with 

jurors in a variety of ways; the thrust of the argument is that

the adoption of rule 3.5 (c) does not have (or at least should 

not have) the practical effect of permitting attorneys 

independently to communicate with jurors. It is true that a 

court may further tailor the limitations of attorney-initiated 

contact with jurors beyond those referenced in rule 3.5 (c). 

However, at this point in time, this rule has been in effect in 

the Commonwealth for somewhat less than two years, and without 

further experience with the rule in operation, we are not 

inclined to consider adopting limitations on the scope and 

 

9 Although "prohibited by law" is not defined in the 

Massachusetts Rules of Professional Conduct, a previous version 

of the American Bar Association's Model Rules provided that

"[c]onduct 'prohibited by law' clearly includes violations of 

criminal law and presumably includes other acts that violate 

statutes, court rules, or other legal norms." Annotated Model 

Rules of Professional Conduct, at 232 (1984).
15

character of unsupervised postverdict attorney contact with 

jurors beyond those that rule 3.5 (c) sets out.10,11

c. Application of rule 3.5 (c) to jury trials completed 

before July 1, 2015. The fourth reported question asks whether 

rule 3.5 (c) permits attorneys to communicate with jurors 

discharged prior to July 1, 2015, the effective date of the 

rule.

"In general, changes in the common law brought about by 

judicial decisions are given retroactive effect." Halley v. 

Birbiglia, 390 Mass. 540, 544 (1983). Because rule 3.5 (c) 

effects a change in an ethical rule governing lawyer conduct 

rather than a substantive change in the common law, 

retroactivity principles applicable to the common law do not 

strictly apply here. As a general matter, "[d]isciplinary rules 

operate prospectively, not retroactively." Matter of the Estate 

 

10 We do not question that, when appropriate, a judge in a 

particular case may restrict or even prohibit attorneys' 

unsupervised communication with jurors postverdict; such a court 

order is expressly contemplated by rule 3.5 (c) (1) (lawyer 

shall not communicate with juror after trial if "the 

communication is prohibited by law or court order" [emphasis 

added]).

11 A number of the cases cited by the Commonwealth 

addressing practices in other States appear to reflect a fair 

degree of judicial willingness to permit postverdict contact 

with jurors. See, e.g., Stewart v. Rice, 47 P.3d 316, 325

(Colo. 2002) ("jurors are free to discuss any aspect of their 

service they care to"); State v. Thomas, 813 S.W.2d 395, 397 

(Tenn. 1991) (local rule that all interviews with jurors by 

lawyers are prohibited except with permission of court 

contravenes State Supreme Court rule; court permission not 

necessary to communicate with jurors postverdict).
16

of Southwick, 66 Mass. App. Ct. 740, 747 (2006). Nevertheless, 

in contrast to a case such as Southwick, the issue here is not 

whether the propriety of an attorney's conduct should be judged 

by more restrictive ethical rules than those in operation when 

the attorney acted. Rather, it is whether a less restrictive 

rule that effectively broadens a litigant's opportunity to 

explore the possibility that a jury verdict was marred by the 

intrusion of extraneous influences should apply to trials 

completed before the rule's effective date. In this context, 

general retroactivity principles offer guidance. To borrow from 

the retroactivity lexicon applicable to criminal cases, rule 3.5 

(c) is a "new rule" in the sense that the rule was not "dictated 

by precedent existing at the time the defendant's conviction 

became final." Commonwealth v. Bray, 407 Mass. 296, 303 (1990), 

quoting Teague v. Lane, 489 U.S. 288, 301 (1989). See 

Commonwealth v. Sylvain, 466 Mass. 422, 434 (2013), S.C., 473 

Mass. 832 (2016). In the context of the criminal law, such new 

rules generally apply to cases that are pending, are on direct 

appeal, or for which the appeal period has not run. See, e.g., 

Commonwealth v. Figueroa, 413 Mass. 193, 202 (1992), S.C., 422 

Mass. 72 (1996). See also Commonwealth v. Augustine, 467 Mass. 

230, 257-258 (2014), S.C., 470 Mass. 837 and 472 Mass. 448 

(2015). Adopting this new rule approach to determine the scope 

of rule 3.5 (c)'s retroactivity offers a helpful way to balance 
17

the competing interests at play here -- the interest of the 

defendant (and indeed every litigant) in being tried by an 

impartial jury, on the one hand, and society's recognized 

interests in the finality of jury verdicts and protecting jurors 

from harassment. See Commonwealth v. Bresnahan, 462 Mass. 761, 

769 (2012), and cases cited. Accordingly, we answer the fourth 

question by stating that rule 3.5 (c) applies to attorneys who 

represented a litigant in a jury trial in which the jurors were 

discharged before July 1, 2015, if the case was on appeal as of 

that date or the appeal period had not run. These attorneys, 

therefore, are permitted to contact jurors in accordance with 

the terms of the amended rule.

d. Whether court approval is required prior to contacting 

jurors. The fifth reported question builds on the fourth and 

asks whether, assuming at least some attorneys are permitted to 

communicate with jurors who were discharged prior to July 1, 

2015, those attorneys are required to seek approval from the 

court prior to initiating contact. We answer the question no. 

As is the case with attorneys who, pursuant to rule 3.5 (c), 

seek to communicate, postverdict, with jurors discharged after 

July 1, 2015, attorneys who seek postverdict contact with jurors 

who were discharged before July 1, 2015, may do so without 

permission from the court. However, and again as is true of 

attorneys seeking contact with jurors discharged after July 1, 
18

2015, any proposed contact is subject to the notice requirements 

set forth in the following section of this opinion.

e. Guidelines for implementation of rule 3.5 (c). To 

assist attorneys and judges in working with rule 3.5 (c), we 

offer some procedural guidelines. Cf. Commonwealth v. Jordan, 

469 Mass. 134, 147 (2014).

i. Going forward, on request of any party, the trial 

judge shall instruct the jury regarding an attorney's right to 

contact and communicate with jurors after trial and a juror's 

right to decline to speak with an attorney postverdict. A 

suggested instruction is included as an Appendix to this 

opinion.

ii. Although an attorney may initiate postverdict contact 

with jurors without prior court approval under rule 3.5 (c), the 

attorney must -- as the defendant's appellate attorneys did in 

the present case -- send prior notice of the attorney's intent 

to initiate such contact to counsel for the opposing party or 

parties (or directly to the opposing party or parties, if not 

represented by counsel) five business days before contacting any 

juror. The notice is to include a description of the proposed 

manner of contact and the substance of any proposed inquiry to 

the jurors, and, where applicable, a copy of any letter or other 

form of written communication the attorney intends to send. The 

preferred method of initiating contact with a juror is by 
19

written letter, and the letter is to include a statement that 

the juror may decline any contact with the attorney or terminate 

contact once initiated. If the attorney seeks to initiate 

contact through an oral conversation (whether in person, by 

telephone, or otherwise), the attorney is nonetheless required 

to provide opposing counsel or opposing parties with prior 

notice of the substance of the intended communication.

The purpose of requiring prior notice is to permit opposing 

counsel (or an unrepresented opposing party) to seek relief from 

the court if the proposed communication appears to be beyond the 

scope of permissible inquiry or otherwise improper, or if there

is a compelling reason, specific to that case, that 

communicating with the jurors would be inappropriate.12 See Hall

v. State, 151 Idaho 42, 48 (2011) ("Trial courts have the 

inherent authority to review . . . letters and enclosures [to be 

sent by counsel to discharged jurors] and order counsel to make 

modifications accordingly"). In stating that an opposing 

counsel or party may seek relief from a court, we do not intend 

to suggest that we anticipate a general need to do so. Our 

mention of the availability of judicial intervention and relief 

is not intended to serve as an invitation to counsel to seek it 

as a matter of course.

 

12 Of course, opposing counsel (or an unrepresented opposing 

party) may not contact jurors upon receipt of the notice without 

first providing notice to the other side.
20

iii. If, after communicating with a juror, an attorney 

wishes to secure an affidavit from the juror concerning alleged 

extraneous influences on the jury deliberation process, the 

attorney may do so without seeking or obtaining prior court 

approval, but any such affidavit must focus on extraneous 

influences, and not the substance of the jury's deliberations or 

the individual or collective thought processes of the juror or 

the jury as a whole. See Mass. G. Evid. § 606(b) (2016).

13 See 

also Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 

(2001). Nothing in rule 3.5 (c) changes the standards governing 

requests for and the conduct of postverdict evidentiary 

 

13 Massachusetts Guide to Evidence § 606(b) (2016) provides:

"(b) During an Inquiry into the Validity of a Verdict or 

Indictment.

"(1) Prohibited Testimony or Other Evidence. During an 

inquiry into the validity of a verdict or indictment, a 

juror may not testify about any statement made or incident 

that occurred during the jury's deliberations, the effect 

of anything on that juror's or another juror's vote, or any 

juror's mental processes concerning the verdict or 

indictment. The court may not receive a juror's affidavit 

or evidence of a juror's statement on these matters.

"(2) Exceptions. A juror may testify about whether

"(A) extraneous prejudicial information was improperly 

brought to the jury's attention or

"(B) an outside influence was improperly brought to bear on 

any juror."
21

hearings. See Fidler, 377 Mass. at 201. See also Commonwealth

v. Kincaid, 444 Mass. 381, 386 (2005).14

3. Conclusion. We summarize here the answers to the 

reported questions.

(1) The adoption of rule 3.5 (c) in effect overruled the 

rule established by Fidler, 377 Mass. at 203-204, requiring 

attorneys to seek leave of court before contacting jurors 

postverdict, and to do so only under court supervision and 

direction.

(2) The common-law principles that limit postverdict 

inquiry of jurors to matters relating to extraneous influences 

and prohibit inquiry into the individual or collective thought 

processes of jurors, the reasons for their decision, or the 

substance of their deliberations, discussed in Fidler, 377 Mass.

at 196-198, remain as continuing precedent. As Fidler notes,

however, inquiry is permissible to establish the existence of an 

 

14 Finally, although the reported questions do not address 

specifically the postverdict letter sent by the defendant's 

appellate counsel to the jurors, the Commonwealth argues here 

that that the letter represents an inappropriate or improper

fishing expedition. The criticism appears overblown. The 

dismissal of one deliberating juror due to failing to follow the 

judge's instructions concerning consideration of extra-trial 

information, the significant publicity surrounding the trial, 

and the particular circumstance of the shooting at Sandy Hook 

Elementary School in Connecticut occurring in the middle of 

deliberations all provide support for the questions posed by 

appellate counsel in their letter that, it appears, was focused 

on exploring the possibility of extraneous influences having

been introduced into the jurors' deliberations, and not the 

jurors' deliberative processes.
22

improper influence, "but . . . not . . . to show the role which 

the improper influence played in the jury's decisions." Id. at 

196.

(3) The common-law limitations on postverdict juror inquiry 

discussed in Fidler, supra at 196-198, address a type of 

communication "prohibited by law" within the meaning of rule 3.5 

(c) (1); other communications "prohibited by law" include 

communications in violation of statutory law as well as specific 

court orders and court rules.

(4) Rule 3.5 (c) generally applies to attorneys in their 

representation of litigants in trials on and after July 1, 2015, 

but an attorney representing a party in a case that was tried to 

a jury and concluded before that date may contact jurors on that 

case pursuant to rule 3.5 (c) if the case was pending on appeal 

as of July 1, 2015, or the appeal period had not run as of that 

date.

(5) If an attorney is entitled to initiate contact with 

jurors who were discharged prior to July 1, 2015, because the 

case at issue is pending on appeal or the appeal period has not 

yet run, the attorney is treated the same as an attorney 

contacting jurors discharged after July 1, 2015; the attorney is 

not required to seek prior court approval, but is required to 

adhere to the notice requirements set out in this opinion.
23

The case is remanded to the Superior Court for further 

proceedings consistent with this opinion.

So ordered.
Appendix.

Suggested Jury Instruction

"Now that your service is concluded, the question may arise 

whether you may discuss this case with the lawyers who presented 

it to you. Whether you discuss your jury service on this case 

with anyone is entirely up to you. The attorneys may desire to 

talk with the members of the jury. For your guidance, you are 

advised that it is entirely proper for you to talk with the 

attorneys, and you are at liberty to do so. However, you are 

not required to do so and may decline to speak with an attorney. 

Whether you do so or not is entirely a matter of your own 

choice. If you choose to talk with the attorneys, please do not 

discuss the substance or content of the jury's deliberations, 

including the reasons for the jury's verdict. However, in the 

unlikely event that any juror during deliberations provided 

information about the case or any party to the case that was not 

in evidence, you may tell the attorneys what information was 

provided, but you may not discuss the effect this information 

had on jury deliberations. If you prefer not to be contacted by 

an attorney after you are discharged, you may inform me or a 

court officer in person or in writing, and we will communicate 

this to the attorneys. Further, if you decline to discuss the 

case, either today or in the future, and an attorney persists in 

discussing the case over your objection or becomes critical of 

your service as a juror, please report the incident to the 

court."