1

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the 

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the 

interest of brevity, portions of any opinion may not have been summarized).

Tomikia Davis v. Abbas Husain (A-34-13) (072425)

Argued September 24, 2014 – Decided December 23, 2014

LaVECCHIA, J., writing for a unanimous Court.

In this appeal, the Court considers the circumstances under which a trial court may engage in post-verdict 

discussions with discharged jurors. 

In November 2007, plaintiff Tomikia Davis filed a complaint against her former employer, defendant Dr. 

Abbas Husain. In her complaint, she alleged violations of New Jersey’s Law Against Discrimination (LAD), 

N.J.S.A. 10:5-1 to -49, based on hostile work environment, sexual harassment, and retaliation claims. At trial, when 

Husain was sworn in, he raised his right hand and spoke the oath, but did not place his left hand directly on the 

Bible. Ultimately, the jury returned a verdict in favor of Davis in the amount of $12,500. After the verdict was 

rendered and the jury was discharged, but before post-trial motions were argued and the judgment was entered, the 

trial judge had a conversation with the jurors, outside the presence of counsel, which was not recorded. During that 

discussion, one juror noted that she was surprised that defendant had not placed his hand on the Bible before he 

testified. The judge did not make a record of the juror’s observation, but later informed counsel. 

Both parties subsequently filed post-trial motions. A certification by Husain, filed in support of his posttrial motion, included a brief reference to the juror’s observation. At oral argument on the motion, the trial judge 

expressed surprise that information he had provided counsel in confidence ended up in a certification and as part of 

the trial record. Ultimately, the court denied Husain’s motion, finding the amount allocated in the verdict fair in 

light of the evidence and giving no regard to the comment the juror made in reference to the fact that Husain did not 

touch the Bible. 

After the judgment was entered, Husain appealed, raising several arguments. Relevant to the limited issue 

presented in this appeal as of right, he argued that the trial judge erred by failing to declare a mistrial on the basis of 

the juror’s comment about the fact that he did not touch the Bible. In an unpublished decision, a majority of the 

Appellate Division panel affirmed the verdict as to this issue, holding that no manifest injustice inhered in the juror’s 

observation and comment. Thus, the majority held that a new trial was not warranted. The dissenting judge 

maintained that the trial judge had violated the Code of Judicial Conduct and that the juror’s observation was 

sufficient to warrant a new trial. Husain appealed to this Court as of right.

HELD: Post-verdict discussions between the court and discharged jurors are prohibited unless those discussions are 

part of a hearing ordered on good cause shown pursuant to Rule 1:16-1. 

1. Discussions that jurors have while deliberating should remain shielded from litigants, attorneys, and the public 

eye. Therefore, only with the court’s permission, and on good cause shown, may an attorney or litigant speak to any 

juror with respect to any matter relating to the case. Requesting that a jury participate in questioning following 

discharge should only occur after a strong showing that a litigant may have been harmed by jury misconduct. This 

standard balances the litigant’s interest in ensuring an impartial jury with the importance of keeping deliberations 

secret. A judge’s ability to inquire of jurors after trial is similarly limited except where Rule 1:16-1 provides good 

cause to do so, and then only in the presence of counsel. Generally, discussions between the trial court and jurors, 

without the presence of counsel, are inappropriate and improper during and after trial. (pp. 10-11)

2. Rule 1:2-1, which controls judge and jury interactions during the pendency of trial, provides that “[a]ll trials, 

hearings of motions and other applications, pretrial conferences, arraignments, sentencing conferences . . . and 

appeals shall be conducted in open court unless otherwise provided by rule or statute.” However, once the jury has 

begun to deliberate, communications between the judge and jury, without the presence of counsel, are improper. 

While not every such communication that may occur between a trial court and a jury during deliberations requires 

reversal of the jury’s verdict, such interactions have been viewed by New Jersey’s courts with disapproval. (pp. 12-
2

14)

3. In Ertle v. Starkey, 292 N.J. Super. 1 (App. Div. 1996), following the denial of the plaintiffs’ motion for a 

judgment notwithstanding the verdict, the judge informed counsel that he would be talking with the jury informally 

about their experience as jurors, on the record, but not in the presence of the parties or their counsel. When 

plaintiffs’ counsel requested permission to listen to the judge’s conversation with the jury, the judge denied the 

request. On appeal, the plaintiffs argued that the conversation with the jurors should not have been conducted in the 

absence of counsel and that the judge violated the Code of Judicial Conduct by speaking to the jury. While the 

panel affirmed the trial court judgment, it noted that judges should refrain from such interaction so as to avoid 

allegations of judicial bias. Similarly, in State v. Walkings, 388 N.J. Super. 149 (App. Div. 2006), after the 

defendant filed a motion contending that a juror’s attempt to communicate concerns about deliberations warranted a 

new trial, the judge spoke to the juror off the record and without the knowledge or presence of any counsel. On 

appeal, the panel disapproved of the trial judge’s communication with the juror, stating that the absence of any 

recording of the conversation precluded the State and the defendant from securing a full understanding of what had 

transpired. (pp. 14-17)

4. The Code of Judicial Conduct urges judges to perform the duties of judicial office impartially and diligently, and 

states that a judge should neither initiate nor consider communications concerning a pending or impending 

proceeding outside of the presence of counsel. As this case demonstrates, the issue of post-verdict communications 

between a trial court and jurors, outside of the presence of counsel, calls for an unambiguous rule. Such 

conversations are incompatible with our system of open and public court proceedings, in which parties’ interests are 

protected through their presence and that of their counsel. Therefore, as part of its constitutional supervisory 

authority over the conduct of civil and criminal trials, the Court henceforth prohibits post-verdict communications 

between a trial judge and jurors outside of the presence of counsel. To the extent that judges wish to thank jurors for 

their invaluable service to the public trial process in which they have just participated, that should be done in open 

court in the presence of counsel. (pp. 18-20)

5. Despite the general disinclination to allow post-verdict inquiry of jurors, Rule 1:16-1 does permit a limited 

inquiry into the events surrounding the jury’s decision to prevent injustice. Such inquiry is only permitted where a 

good cause showing is made that the jury’s decision was tainted by misconduct. A showing of good cause includes 

information that is communicated to jurors – by another juror or by an outsider – that is extraneous to the issues the 

jury is deciding and would be sufficiently prejudicial to warrant a new trial if considered by the jury. Any 

investigation must be limited to the effect of the improper extraneous matter and should not include probing the 

mental processes of the jurors. (pp. 20-22)

6. Here, because there was no public inquiry of the juror, the record is unacceptably sparse. The way to properly 

handle such an inquiry depends on the individual juror’s credibility. It also depends on the juror’s answers to 

questions about the comment, what the juror may have said to other jurors, and what those jurors themselves might 

have expressed about the administration of the oath to Husain. However, all that is contained in the present record is 

the judge’s comments during colloquy with counsel as part of the post-verdict motion practice. Under these 

circumstances, the Court is compelled to remand this matter for further proceedings to allow a proper inquiry to be 

conducted by the judge to whom this matter will be assigned on remand. A new judge must consider afresh the 

import of the juror’s observation and comment, along with all other relevant factors bearing on whether a Rule 1:16-

1 formal inquiry is warranted. (pp. 22-23)

7. The Court finds the current status of this matter troubling, given the amount of time that has passed since trial, the 

size of the verdict, and the fact that the problematic posture of this matter would have been avoided by seeking relief 

under Rule 1:16-1 by way of a motion for a new trial, timely filed when the trial had more recently occurred. 

Therefore, the Court declines to presume that prejudice occurred. All concerns appropriate to a Rule 1:16-1 

assessment must be factored into the court’s application when considering the extraordinary remedy of a grant of a 

mistrial. The court on remand is instructed to engage in a practical and efficient means of illuminating the facts that 

have been presented on appeal. (pp. 23-24)

As to the limited issue considered in this appeal as of right, the matter is REMANDED to the trial court for 

proceedings consistent with this opinion. In all other respects, the judgment of the Appellate Division is 

AFFIRMED.
3

CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, FERNANDEZ-VINA, and 

SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE LaVECCHIA’s opinion. 
1

SUPREME COURT OF NEW JERSEY

A-34 September Term 2013

072425

TOMIKIA DAVIS,

Plaintiff-Respondent,

v.

ABBAS HUSAIN, M.D.,

Defendant-Appellant.

Argued September 24, 2014 – Decided December 23, 2014

On appeal from the Superior Court, Appellate 

Division.

Lynda M. Yamamoto argued the cause for 

appellant.

Deborah L. Mains argued the cause for 

respondent (Costello & Mains, attorneys).

JUSTICE LaVECCHIA delivered the opinion of the Court.

This appeal addresses a trial judge’s post-verdict ex parte

discussion with the jury. During the discussion, one juror 

commented about a witness’s conduct when the witness took the 

oath prior to testifying. Counsel were informed of the comment. 

Concerns about the substance of the comment, as well as how it 

should have been handled, arose during post-verdict motion 

practice; those same concerns divided the Appellate Division 

majority and dissent in this appeal as of right. 
2

Notwithstanding prior discouragement of such post-verdict 

ex parte discussions between a trial judge and jurors, the 

practice persists, as this matter demonstrates. To bring an end 

to such practices, we hold that under no circumstances may postverdict discussions occur between the court and discharged 

jurors, unless those discussions are part of a hearing ordered 

on good cause shown pursuant to Rule 1:16-1. For the reasons 

that follow, we remand this matter for further proceedings.

I.

The trial in this matter focused on plaintiff Tomikia 

Davis’s claims of sexual harassment advanced against her former 

employer, defendant Dr. Abbas Husain. 

In November 2007, Davis filed a complaint against Husain, 

as well as her other employer, Dr. Mira Kheny, with whom Husain 

shared medical office space. The complaint alleged violations 

of New Jersey’s Law Against Discrimination (LAD), N.J.S.A. 10:5-

1 to -49, based on hostile work environment, sexual harassment,

and retaliation claims. Husain and Kheny filed separate 

answers; Kheny subsequently settled with Davis.

The trial on the claims against Husain largely turned on 

credibility. Davis testified and described the alleged

instances of harassment; Husain testified and denied each such

incident. Husain also produced co-workers who claimed that they 

neither saw any incidents occur nor heard Davis complain that 
3

they had occurred. In particular, the following evidence was 

adduced at trial. 

Husain conducted a private medical practice located in 

Merchantville, New Jersey, where he rented out a portion of his

office space to Kheny for her separate medical practice. The 

doctors shared a waiting area, but maintained separate exam 

rooms, reception areas, and file storage space. 

In March 2005, Kheny hired Davis as a full-time medical 

assistant. In addition, Davis cleaned Kheny’s office on a parttime, one-day-a-week basis. Husain also hired Davis, on a parttime basis, to clean his office space once a week and to 

substitute as his medical assistant when Husain’s assistant was 

unable to work. 

According to Davis, Husain’s sexually harassing conduct 

began with sexual comments. She testified that after she had 

been working for both Kheny and Husain for approximately six 

months, Husain approached her one day while she was working at 

her desk. He asked for help in finding him a date, adding that 

he liked women with large breasts. Davis replied that she did 

not help people find dates and walked away, ending further 

discussion. Davis stated that she did not believe that there 

was any supervisor to whom she could complain who “ha[d] the 

power to discipline [Husain]” and she feared losing her job if 

she complained. A few months later, Husain made another comment 
4

about women’s breasts to Davis. Davis testified at trial that

she avoided Husain as much as possible after that. 

According to Davis, Husain made yet another sexually 

harassing statement to her when he uttered unsolicited comments 

about the vaginal moisture of women of different ethnicities. 

Davis testified that she found the experience “humiliating” and

that it “scared” her because “it was the third time [and she]

just didn’t know what to do.” 

The final straw came in June 2006 when, according to Davis,

she was subjected to an instance of unwanted touching. She 

testified that while she was filing papers, Husain placed his

hand on her buttocks. She turned to confront him and “told him 

not to do that.” Husain allegedly responded, “calm down, we 

play like that,” to which she replied, “I don’t play like that.” 

According to Davis, she was upset and Husain tried to calm her

down as she gathered her belongings to leave. She stopped 

working at the doctors’ office shortly afterward. This lawsuit 

followed.

Importantly for purposes of this appeal, when Husain was 

sworn in prior to giving his testimony he did not place his left 

hand directly on the Bible for reasons that were not addressed 

at the time of trial.1 He did raise his right hand and speak the 

 

1 Husain’s certification, submitted during post-verdict motion 

practice, indicates that Husain’s action was based on his 
5

oath. The jury returned a verdict in favor of Davis in the 

amount of $12,500. 

After the verdict was rendered and the jury was discharged,

but before post-trial motions were argued and the judgment was 

entered, the trial judge conducted an ex parte discussion with 

the jurors, which was not recorded. According to the judge, one 

juror noted during that discussion that she was surprised that 

defendant had not placed his hand on the Bible before he 

testified. The judge did not make a record of the juror’s 

observation, but he did inform counsel as later events reveal. 

Post-trial motions were filed by both parties. Davis filed 

a motion to enter judgment and fix fees, costs, and interest. 

She also filed a motion for a trial on punitive damages. Husain 

filed a motion for a remittitur, arguing among other things that 

Davis was not a prevailing party because she had commented 

during her testimony that she was not concerned with whether she 

was awarded any monetary damages on her claim. A certification

by Husain filed in support of that motion by Husain’s trial 

counsel included a brief reference to the juror’s observation. 

At oral argument on the remittitur motion, the trial judge 

expressed surprise that information he had apparently provided 

 

religious beliefs. He states that it is his “religious belief 

that the left hand should never be placed on a holy book.” He 

also states that he is “of Indian descent and the left hand is 

not used for any official purpose because of our culture.” 
6

counsel “in confidence” would end up in a certification and as 

part of the trial record. 

THE COURT: What you’re talking about is my 

sharing with the lawyers in confidence the 

comment that a juror made, when I spoke with 

the jury, expressing her surprise that your 

client didn’t actually touch the Bible when he 

swore to tell the truth. 

. . . .

. . . [T]he fact -- the fact that -- by way of 

what I view as my continuing responsibility to 

educate myself and educate the bar, I shared 

with counsel the fact that one of the jurors, 

as we were leaving, mentioned that she noticed 

that he didn’t touch the Bible. I am not a 

witness. There was no one else on the jury 

that was affected by that, nor did anyone 

shake their heads, nor did anyone on the jury 

indicate, oh, yeah, I saw that, too, nor was 

there any indication that anybody else noticed 

that, or that it was discussed in jury 

deliberations.

I am surprised that comment that I made out of 

my continuing concern for education winds up 

in a brief in a certification. I’m going to 

rule on all these applications, and then 

counsel can do with my rulings what they wish.

. . . .

. . . [Defense counsel], do you want to file 

a separate motion for a new trial, or do you 

want the Court to address is [sic] now?

. . . .

[DEFENSE COUNSEL]: Well, I was trying not to 

bring the issue up in the papers. I only 

wanted Your Honor to know why he didn’t touch 

the Bible, and that’s why I didn’t bring it up 

in that motion. If that’s clearly on the table 

I think --
7

THE COURT: I mean, to me it’s clearly on the 

table.

[DEFENSE COUNSEL]: Yes. And, quite frankly, 

Judge, I feel --

THE COURT: What would be the basis for seeking 

a new trial? I’m not making you do this right 

now. You can go back to your office and think 

about it and file another motion. I don’t 

want to -- under the circumstances I don’t 

want to put you in that kind of box.

. . . .

[DEFENSE COUNSEL]: . . . I had no idea that 

[Husain] had a problem with his left hand, 

although I understand that it was out of 

respect for the holy books that he didn’t 

touch the book.

THE COURT: Well, that’s what his affidavit 

says. If that’s your basis for granting a new 

trial the Court’s ruling is it has nothing to 

do with any of the decisions made by the jury, 

it has nothing to do with the testimony. It 

was not part of the trial. And if that’s the 

sole basis there is no basis for a new trial.

. . . .

I’m not going to consider this as the formal 

application for a new trial. I’ll consider 

this -- if you want to file something, file 

something. I’m not stopping you from filing 

something, but I’m ruling that that as a basis 

for a new trial is insignificant, 

unsubstantial, didn’t have the capacity to 

cause injustice, doesn’t shock the conscience.

The court denied Husain’s motion for remittitur, finding 

the amount allocated in the verdict fair in light of the 

evidence, “giving no regard for the comment made by one juror 
8

. . . about noticing that Dr. Husain didn’t touch the Bible,”

and noting that “that [was] not part of their considerations.” 

The court also adjusted the counsel fees awarded to Davis and 

denied Davis’s separate motion for a trial on punitive damages. 

Husain never filed a motion for a new trial as far as the record 

discloses. After judgment was entered, defendant appealed, 

raising several arguments. Relevant to the limited issue in 

this appeal as of right, defendant argued that the trial judge 

erred by failing to declare a mistrial on the basis of the 

juror’s comment about defendant and the Bible.

In an unpublished opinion, a majority of the Appellate 

Division affirmed the verdict. The panel held that no manifest 

injustice inhered in the juror’s observation and comment,

determining that the remark does not express clear and 

unambiguous evidence of bigotry and noting that the trial judge 

viewed the jury’s verdict as consistent with the evidence 

adduced at trial. Thus, the majority held, the extraordinary 

remedy of a new trial was not warranted. 

The dissenting judge maintained that the trial judge had 

violated the Code of Judicial Conduct and that the juror’s 

observation was sufficient to warrant a new trial. The dissent 

suggested that, rather than assume that no harm to defendant 

flowed from the juror’s observation, the assumption should be 

that there was harm. The dissent also asserted that a new trial 
9

is the only feasible remedy because the verdict was rendered too 

long ago to obtain meaningful, determinative information bearing 

on the jurors’ decision making. Finally, the dissent stated 

that reversal would send a strong message of deterrence in 

respect of the inappropriate practice of ex parte communications

with jurors.

II.

Based on the dissent in the Appellate Division, defendant 

Husain contends that a new trial is warranted due to the trial 

court’s failure to refrain from ex parte communication with the 

jurors, to make a record of the information the court learned 

during that ex parte communication, and to take steps to cure 

the court’s errors by conducting an investigation into the role, 

if any, that the juror’s observation had in assessing Husain’s 

credibility. Plaintiff, on the other hand, emphasizes the high 

standard that must be met in order to grant a mistrial or even 

to engage in post-judgment inquiry into a juror’s thought 

processes. Davis maintains that nothing that occurred in this 

matter merits those forms of extraordinary relief.

III.

At the center of the errors found by the dissenting judge 

of the panel, highlighted in Husain’s arguments in this appeal, 

is the problematic informal post-judgment interaction that 

occurred between the trial court and the jurors. Hence we begin 
10

by turning to the safeguards in place governing interactions 

with jurors after a verdict.

A.

Pursuant to Rule 1:16-1,

[e]xcept by leave of court granted on good 

cause shown, no attorney or party shall 

directly, or through any investigator or other 

person acting for the attorney, interview, 

examine, or question any grand or petit juror 

with respect to any matter relating to the 

case.

Calling back a jury for questioning following discharge is an 

“extraordinary procedure,” to be utilized “only upon a strong 

showing that a litigant may have been harmed by jury 

misconduct.” State v. Athorn, 46 N.J. 247, 250 (1966), cert. 

denied, 384 U.S. 962, 86 S. Ct. 1589, 16 L. Ed. 2d 674 (1966); 

see also State v. Harris, 181 N.J. 391, 503 (2004), cert. 

denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 

(2005); State v. Koedatich, 112 N.J. 225, 288 (1988). That 

exacting standard balances the litigant’s interest in ensuring 

an impartial jury with the importance of keeping deliberations 

secret. See Harris, supra, 181 N.J. at 503. 

Secrecy in deliberations “encourage[s] each juror to state 

his thoughts, good and bad, so that they may be talked out. 

‘Freedom of debate might be stifled and independence of thought 

checked if jurors were made to feel that their arguments and 

ballots were to be freely published to the world.’” State v. 
11

LaFera, 42 N.J. 97, 106 (1964) (quoting Clark v. United States, 

289 U.S. 1, 13, 53 S. Ct. 465, 469, 77 L. Ed. 993, 999 (1933)). 

Generally, discussions that jurors have while deliberating

remain shielded from litigants, attorneys, and the public eye,

and may not provide grist for overturning the jury’s verdict. 

Athorn, supra, 46 N.J. at 250-51; see also State v. LaRocca, 81 

N.J. Super. 40, 42-45 (App. Div. 1963) (affirming denial of 

defendant’s motion to question jury post-verdict because “no 

credible information” was presented “which would indicate that 

improper, extraneous factors were injected into the jury room”).

Similarly, a judge’s ability to inquire of jurors after 

trial is limited except where Rule 1:16-1 provides a good-cause

basis to do so, and then only in the presence of counsel. Ex 

parte discussions between the trial court and jurors are

inappropriate and improper, both during trial and after the jury 

is discharged. Rule 1:16-1 contemplates public proceedings 

based on good cause if, and only if, a post-verdict inquiry of a 

juror is shown to be warranted. It does not authorize postverdict ex parte communications by judges. Inquiring into any 

juror’s thought process is a significant intrusion into the 

deliberative process. The rigors of determining whether good 

cause exists for such an intrusion militate against any 

informality in the manner by which juror information is

disclosed. 
12

During the pendency of the trial, the rules speak with 

crystal clarity. Rule 1:2-1 controls judge and jury

interactions, and it provides that “[a]ll trials, hearings of 

motions and other applications, pretrial conferences, 

arraignments, sentencing conferences . . . and appeals shall be 

conducted in open court unless otherwise provided by rule or 

statute.” 

Once the jury is in the midst of deliberations, ex parte 

communications between judge and jury are improper. Jury 

inquiries during deliberations necessitate the involvement of 

counsel; similarly, judicial responses or communications with 

the jury require counsel’s presence. See, e.g., State v. 

Morgan, 217 N.J. 1, 15 (2013) (finding ex parte discussions 

between judge and jury in jury room “plainly improper”); State 

v. Gray, 67 N.J. 144, 148-49 (1975) (finding error in trial 

court’s answering of question from deliberating jury without 

consulting counsel); State v. Auld, 2 N.J. 426, 431-32 (1949) 

(finding trial judge’s written communication with deliberating 

jury improper); State v. Basit, 378 N.J. Super. 125, 130-34

(App. Div. 2005) (declaring trial court’s ex parte, unrecorded 

response to jury question erroneous); State v. Brown, 275 N.J. 

Super. 329, 331-34 (App. Div.) (finding court to have acted 

improperly when clarifying jury’s written question without 

having counsel present), certif. denied, 138 N.J. 269 (1994); 
13

Guzzi v. Jersey Cent. Power & Light Co., 36 N.J. Super. 255, 264 

(App. Div.) (holding judicial officer’s ex parte communication 

with jury, delivered on behalf of trial judge, improper), 

certif. denied, 19 N.J. 339 (1955). Many pitfalls are

associated with the practice of allowing ex parte communications 

between a judge and a deliberating jury: 

[I]t is difficult to contain, much less to 

anticipate, the direction the conversation 

will take at such a meeting. Unexpected 

questions or comments can generate unintended 

and misleading impressions of the judge’s 

subjective personal views which have no place 

in his instruction to the jury -- all the more 

so when counsel are not present to challenge 

the statements.

[United States v. U.S. Gypsum Co., 438 U.S.

422, 460, 98 S. Ct. 2864, 2885, 57 L. Ed. 2d 

854, 884 (1978).]

While not every ex parte communication that may occur 

between a trial court and a jury during deliberations has 

required reversal of the jury’s verdict, we recently explained 

in a criminal appeal setting that, 

(1) if the record affirmatively reveals that 

the defendant was prejudiced, reversal is 

required; (2) if the record does not show 

whether the ex parte contact was prejudicial, 

prejudice is presumed; and (3) if the record 

affirmatively discloses “that the 

communication had no tendency to influence the 

verdict,” the outcome should not be disturbed.

[Morgan, supra, 217 N.J. at 12 (quoting Auld,

supra, 2 N.J. at 432).]

B.
14

To the extent that ex parte judge-juror interactions postverdict have been examined in this state, such interactions have 

been viewed with disapproval. Two published Appellate Division 

cases have expressed clear disapproval of the practice. 

In Ertle v. Starkey, 292 N.J. Super. 1, 5-6 (App. Div. 

1996), a slip-and-fall negligence action, the jury returned a 

no-cause-of-action verdict, finding that the plaintiff was 

eighty percent liable for his injuries. Following the verdict, 

the plaintiffs moved for a judgment notwithstanding the verdict, 

which the court denied. Ibid. Following the denial, the judge 

informed counsel that he would be talking with the jury 

informally about their experience as jurors, on the record, but 

not in the presence of the parties or their counsel. Id. at 6. 

The plaintiffs’ counsel requested permission to listen to the 

judge’s conversation with the jury, which the judge advised 

against, alluding to the likelihood that the plaintiffs would be 

moving for a new trial in the future. Ibid. While talking to 

the jury, “one or more of the jurors indicated that they would 

have liked to have been able to ask questions during the trial, 

such as whether there was any other person that had fallen on 

the stairs at issue.” Ibid. Other jurors expressed skepticism 

about the plaintiffs’ claim. Ibid.

On appeal, the plaintiffs argued that the conversation with 

the jurors should not have been conducted in the absence of 
15

counsel and that the judge violated Canon 3A(6) of the Code of 

Judicial Conduct by speaking to the jury. Ibid. In affirming 

the trial court judgment, the Appellate Division found no 

violation of the Code of Judicial Conduct, reasoning that 

[t]he judge was neither conducting a hearing 

nor seeking advice on any pending legal 

matter. Inasmuch as the jury had completely 

discharged its function, the case was over as 

far as it was concerned. Indeed, the record 

of the colloquy with the jurors demonstrates 

that the judge was simply trying to enlighten 

the members of the jury as to the legal 

proceeding in which they had been asked to 

participate as part of the judicial process. 

Although we do not endorse the procedure used 

here, we can fully appreciate that in many 

situations this is desirable in order to help 

jurors to understand the nature of legal 

proceedings, which thereby promote their 

confidence in the judicial system. By no 

means was this, nor should it have been, a 

formal judicial inquiry into trial matters 

warranting the presence of counsel. 

Nonetheless, we are of the view that trial 

judges should refrain from such interaction in 

the future so as to avoid the type of 

allegations of judicial bias that have been 

made in this appeal or other claimed grounds 

for appeal.

[Id. at 7.]

The panel further determined that the trial judge’s discussion 

with the jury was not clearly capable of producing an unjust 

result because there was no indication that the conversation had 

an “effect on the trial judge’s impartiality or his subsequent

ruling with respect to the new trial motion.” Id. at 8. 
16

Post-verdict ex parte communication between judge and jury 

was considered again, a decade later, in a criminal context. 

There, similar to the Ertle court, the appellate panel could not 

conclude from the record before it that the challenged

communication affected the defendant’s due process rights. In 

State v. Walkings, 388 N.J. Super. 149 (App. Div. 2006), the 

defendant was convicted of third-degree drug offenses and 

resisting arrest. Id. at 151-52. Shortly after the jury 

rendered the verdict, a juror left a message for the assistant 

prosecutor, who forwarded the message to an investigator. Id.

at 155. The investigator contacted the juror and advised him

that the conversation was being taped and that the assistant 

prosecutor could not speak to him. Ibid. The investigator 

informed the juror that the fact of the call would be brought to 

the attention of “the appropriate authority”; in fact, the trial 

court was informed of the incident. Ibid. 

After the defendant in Walkings filed a motion contending 

that the juror’s attempt to communicate concerns about 

deliberations warranted a new trial, ibid., the judge spoke to 

the juror “off the record” and without the knowledge or presence 

of any counsel, id. at 155-56. During oral argument on the 

defendant’s motion, the judge’s conversation with the juror was 

revealed, apparently for the first time, when the court stated: 
17

THE COURT: As to the juror--my telephone 

conversation with that juror really just was 

the juror recounting a dynamic of what jury 

deliberations are all about, a concern that 

there was--at least some concern on the part 

of that juror that a result would not be 

reached, and, of course, concluded with the 

fact that there was a unanimous verdict 

ultimately. There is no showing of any 

tampering of any kind. That’s not even 

suggested by any stretch of the imagination. 

The phone call to the prosecutor said nothing 

about that. This was simply, perhaps, someone 

inexperienced in the experience of jury 

deliberations who was retelling their account, 

so it didn’t even border on the kind of 

information that I thought would require the 

Court to expose the juror and the jury 

deliberative process to scrutiny, and so for 

that reason I took no further action.

[Id. at 157.]

The Appellate Division examined the entire colloquy from the

argument, noted that the record did not reveal the juror’s 

statements or specific concerns about the deliberations, and 

concluded that the matter needed to be remanded for “a further 

exploration of the issues, including the creation of a record 

that would disclose all the communications between and among the 

juror, the prosecutor’s office and the trial judge.” Id. at 

157-58.

In addition, the panel in Walkings disapproved of the trial 

judge’s ex parte communication with the juror, stating that the 

absence of any “recording of the conversation precluded the 

State and the defendant from securing a full understanding of 
18

what transpired.” Id. at 158. The panel noted that “the fact 

that the conversation occurred out of the presence of the 

defendant and his counsel may have -- depending upon whether the 

remand proceedings can provide a sufficient re[-]creation of 

what occurred -- imperiled defendant’s due process rights.” 

Ibid. Notwithstanding that the existing state case law only 

addressed communications with jurors during the course of 

deliberations, ibid., the panel stated that it “[saw] no 

principled reason for permitting ex parte communications 

concerning the jury’s deliberations once a verdict has been 

rendered and the jury discharged,” id. at 158-59.

With that experience in mind, we turn to the present 

appeal.

IV.

A.

Generally stated, avoiding the aura of irregularity that 

arises from ex parte judge-juror interactions has always been a 

goal in and of itself. Canon 3 of the Code of Judicial Conduct

exhorts judges to “perform the duties of judicial office 

impartially and diligently,” and specifically states, under 

adjudicative responsibilities identified in Canon 3A(6), that

“[a] judge should accord to every person who is legally 

interested in a proceeding, or that person’s lawyer, full right 

to be heard according to law, and, except as authorized by law, 
19

neither initiate nor consider ex parte or other communications 

concerning a pending or impending proceeding.” As starkly 

raised in this case, the issue of post-verdict ex parte 

communications between a trial court and jurors calls for an 

unambiguous rule that provides clear guidance to judges and 

litigants. 

Our holding is simply stated. Post-verdict ex parte 

communication between the trial court and jurors cannot be 

countenanced. The informality of such encounters, however 

benign their intended purpose, creates the possibility for the 

innocent remark or question to spark an attempt to plumb jurors’ 

decision-making processes. Ex parte inquiries prevent the 

proper presentation of information otherwise subject to the 

rigorous scrutiny of a Rule 1:16-1 formal inquiry. The asserted 

salutary purposes of “education” of the bench and bar cannot

justify this ex parte communication practice. “Off the record” 

conversation between the judge and jury is incompatible with our 

entire system of open and public court proceedings, in which

parties’ interests are protected through their presence and that 

of their counsel. 

We therefore prohibit, as part of our constitutional

supervisory authority over the conduct of civil and criminal 

trials in this State, ex parte post-verdict communications 

between a trial judge and jurors. N.J. Const. art. 6, § 2, ¶ 3;
20

Pasqua v. Council, 186 N.J. 127, 152 (2006) (“Article VI, 

Section 2, Paragraph 3 of the New Jersey Constitution invests 

the Supreme Court with the authority to make rules for the 

‘practice and procedure’ of the courts.”); see also State v. 

Lazo, 209 N.J. 9, 28 (2012) (relying on “supervisory powers 

under Article VI, Section 2, Paragraph 3 of the State 

Constitution” in mandating certain trial procedure); State v. 

Henderson, 208 N.J. 208, 254 (2011) (requiring eyewitness 

identification procedure pursuant to authority granted by 

Article VI, Section 2, Paragraph 3 of New Jersey Constitution). 

This bright-line directive shall provide guidance henceforth for 

all judges. To the extent that judges wish to thank jurors for 

their invaluable service to the public trial process in which 

they have just participated, that should be done in open court 

in the presence of counsel.

B.

Turning to the matter at hand, we begin by noting that 

despite the general disinclination to allow post-verdict inquiry 

of jurors, exceptions perforce exist. Rule 1:16-1 recognizes 

the public interest in maintaining secrecy in jury 

deliberations, but authorizes action to avoid “‘gross injustice 

by permitting inquiry into the events surrounding the jury’s 

decision only where’” a good cause showing is made that the 

jury’s decision was tainted by misconduct. State v. R.D., 345 
21

N.J. Super. 400, 405 (App. Div. 2001) (quoting Pressler, Current 

N.J. Court Rules, comment 1 on R. 1:16-1 (2002)). 

“Good cause” under the rule refers to some information that 

enters jury deliberations and has the capacity for prejudice. 

See State v. Loftin, 146 N.J. 295, 381 (1996); see also State v. 

Kociolek, 20 N.J. 92, 100 (1955). A showing of good cause 

includes information that is communicated to jurors -- by 

another juror or by an outsider -- that is extraneous to the 

issues that the jury is deciding, and that would be sufficiently 

prejudicial to warrant a new trial if such information were 

considered by the jury. See Kociolek, supra, 20 N.J. at 100. 

Thus, one example is when a juror interjects into the jury’s 

collective deliberations facts, correct or not, that are outside 

the trial record. See Athorn, supra, 46 N.J. at 251-52 (citing 

Brandimarte v. Green, 37 N.J. 557 (1962); Kociolek, supra, 20 

N.J. at 92). 

An indication that jurors have used improper information in 

deliberations may require an inquiry into the information’s 

effect on the jury’s decision making. See Brandimarte, supra,

37 N.J. at 561-63 (finding trial judge prematurely denied motion 

for new trial where adequate investigation was not performed 

into extent defendant’s lack of insurance coverage was 

considered in deliberations). Also, an indication that a 

juror’s comments in the jury room manifested unlawful bigotry 
22

against a defendant can provoke a similar need for inquiry by 

the trial judge. See Athorn, supra, 46 N.J. at 251-52 (citing 

State v. Levitt, 36 N.J. 266 (1961)). Either set of 

circumstances can be the basis for overturning a jury verdict. 

Id. at 251. 

That said, any investigation must be narrow to serve the 

interest in maintaining jury-deliberation secrecy: “[the] 

inquiry is limited to the effect of the improper extraneous 

matter and [does] not include probing the mental processes of 

the jurors.” State v. Onysko, 226 N.J. Super. 599, 603 (App. 

Div. 1988) (citing Brandimarte, supra, 37 N.J. at 563-65). If a 

court determines that there is good cause to question the jury, 

this Court has emphasized that it is the trial judge who must be 

charged with questioning the jury because “[p]robing into a jury 

room is too delicate a task to be carried out in the framework 

of adversary proceedings.” Brandimarte, supra, 37 N.J. at 565; 

see also Levitt, supra, 36 N.J. at 271 (“Because of the delicacy 

of the questioning of jurors, we think the proper practice would 

be for the trial judge to take the testimony of the jurors 

himself in the presence of counsel, rather than expose jurors to 

questioning by others.”).

In this matter, the record for review is unacceptably 

abridged. There was no inquiry of the juror on the record, or 

inquiry of any of the other jurors if their decision making was 
23

impacted by the individual juror’s actions or comments. The way 

to properly handle such an inquiry depends on the individual 

juror’s credibility. It also depends on her answers to 

questions about her comment and what, if anything, she said to 

other jurors, or what those jurors themselves might have 

expressed about the administration of the oath to Husain. 

However, all that is in the present record is the judge’s 

comments during colloquy with counsel as part of the postverdict motion practice. Under these circumstances, we are 

compelled to remand this matter for further proceedings to allow 

a proper inquiry to be conducted by the judge to whom this 

matter will be assigned on remand. A new judge must consider 

afresh the import of the juror’s observation and comment, along 

with all other relevant factors bearing on whether a Rule 1:16-1 

formal inquiry is warranted. 

It is an understatement that the present status of this 

matter is troubling. We note the considerable amount of time 

that has passed since trial, the size of the verdict, and the 

fact that the present problematic posture of this matter would 

have been avoided by seeking relief under Rule 1:16-1 by way of 

a motion for a new trial, timely filed when the trial had more 

recently occurred. We are reluctant to engage in a presumption 

of prejudice under these circumstances. All concerns

appropriate to a Rule 1:16-1 assessment must be factored into 
24

its application when considering the extraordinary remedy of a 

grant of a mistrial. See State v. Winter, 96 N.J. 640, 647-48 

(1984). In conclusion, we trust that the court on remand will 

engage in a practical and efficient means of illuminating the 

murky facts that have been presented on appeal. Our holding 

today prohibiting ex parte post-verdict communications between 

trial judge and jurors is intended to prevent the repetition of 

circumstances such as these by keeping exchanges public, on the 

record, and in the presence of counsel.

V.

The matter is remanded for further proceedings solely on 

this issue. In all other respects, the Appellate Division 

judgment is affirmed. We do not retain jurisdiction. 

CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, FERNANDEZVINA, and SOLOMON; and JUDGE CUFF (temporarily assigned) join in 

JUSTICE LaVECCHIA’s opinion.
1

 SUPREME COURT OF NEW JERSEY

NO. A-34 SEPTEMBER TERM 2013

ON APPEAL FROM Appellate Division, Superior Court

TOMIKIA DAVIS,

Plaintiff-Respondent,

v.

ABBAS HUSAIN, M.D.,

Defendant-Appellant.

DECIDED December 23, 2014

Chief Justice Rabner PRESIDING

OPINION BY Justice LaVecchia

CONCURRING/DISSENTING OPINION BY 

DISSENTING OPINION BY 

CHECKLIST REMAND/AFFIRM

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE PATTERSON X

JUSTICE FERNANDEZ-VINA X

JUSTICE SOLOMON X

JUDGE CUFF (t/a) X

7