However, attorneys are not free to communicate with jurors in any manner as long as they disclaim an intent to embarrass, harass or influence from future jury service. The intent of the attorney in communicating with jurors regarding excluded evidence may he inferred from the circumstances. The Committee does not underestimate the legitimacy of the concern regarding communications between counsel and jurors after the conclusion of trial. An unbiased jury is an essential element of our judicial system. Securing citizens for jury service is a difficult task under the best of circumstances.
Jurors serve at significant expense and inconvenience to themselves.
Care must be taken to assure that jurors are not burdened by unwarranted intrusions by counsel. However, counterbalanced against the right of jurors to be free from harassment or embarrassment is the First Amendment right of free speech protecting the right of a lawyer and a former juror to communicate. Absent a substantial basis to restrict free speech as is set forth in rule 7-106 and other statutory or judicial restrictions on communications with jurors, a lawyer and a former juror have a constitutionally protected right to speak to each other about the proceedings in which they have participated including evidence admitted or excluded at trial. Such evidence may often be a matter of public record to which former jurors, like any member of the public, would have unencumbered access subsequent to the completion of jury service. It is not unusual for trial counsel to discuss the events of the trial with jurors after completion of jury service.