In addition to observing court proceedings and obtaining court records, you may contact and interview many of the participants in a civil lawsuit or criminal case. Bear in mind that the participants may not want to talk with you about the case, and that you cannot compel them to do so. We address some of the details below.
You have a First Amendment right to observe the jury selection process, called voir dire in legal terminology. This process takes place in court, and generally involves lawyers asking questions to determine whether prospective jurors could make a fair decision. If the lawyers or the court asks the jurors to fill out questionnaires or other paperwork, you usually have a right to inspect these materials as well. You may find these rights valuable in identifying jurors and gathering background information about them.
In rare cases, a judge may deny access to all identifying information about jurors when there is a serious threat to the jurors' welfare. For example, in the 1977 trial of Leroy Barnes, who charged with violating multiple federal narcotics and firearms laws, a federal district court withheld jurors' names and addresses after the judge determined that the case presented an unusual risk to the jurors. See U.S. v. Barnes, 604 F.2d 121 (1979). For more information about this issue, read the Reporters Committee for Freedom of the Press' article on anonymous juries.
You do not have a right to view or obtain information about a jury’s deliberations during the course of those deliberations. Once a jury has been empaneled, the judge will instruct the jury not to discuss the case with anyone or use the media to learn more about the case for the duration of the trial. This rule reflects a concern that discussion with outsiders may improperly influence the jury's process of deliberation and affect the jury's independence.
Generally, you may contact jurors after the trial has ended and discuss the deliberation process, once the threat of tainting the jury's deliberations has passed. Not all jurors will want to talk with you. While judges cannot prohibit the media from talking with jurors after the trial without a compelling reason, many judges advise jurors not to talk about the deliberations process and to keep jury room discussions confidential.
Witnesses and Parties
In general, you may speak with the witnesses and parties involved in a case. A court may limit your ability to do so, however, if it issues a gag order, which is discussed below.
You may speak with the lawyers involved in a case, but they may not be able to answer all of your questions. Lawyers may discuss freely certain aspects of a case, such as the claims, offenses, or defenses involved, whether the case is in progress, and other information that is a matter of public record (i.e., reflected in the court files). But legal ethics rules prevent lawyers from talking to the press about other matters that might improperly influence the court or jury. For example, Rule 3.6 of the American Bar Association's Model Rules of Professional Conduct requires that a lawyer "not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter." Note that prosecutors have an additional responsibility under the Model Rules not to make statements outside the courtroom that would tend to heighten public condemnation of the accused. See Rule 3.8.
A court may limit your ability to speak with the lawyers in a case, however, if it issues a gag order, which is discussed below.
In all likelihood, judges will be unwilling to speak with you about a case pending before them. Judicial ethics rules prohibit judges from speaking with the public about the substantive aspects of cases they are overseeing. For example, an ethical rule requires federal judges to "avoid public comment on the merits of a pending or impending action" until the completion of all appeals in the case. Code of Conduct for United States Judges, Canon 3A(6). Another ethical rule requires judges to refrain from making, during a pending case, any statement "that might reasonably be expected to affect its outcome or impair its fairness." American Bar Association's Model Code of Judicial Conduct, Canon 3(B)(9). Judges take these obligations extremely seriously.
If a judge issues a gag order, the lawyers, witnesses, and parties in a case may not speak with you. A court may only issue a gag order under limited circumstances, when it determines that the release of information will have an improper affect on the proceedings.
If you wish to challenge a gag order, you should get legal assistance to determine how best to proceed. The Reporters Committee for Freedom of the Press has a good description of the process for challenging a gag order, and a list of the cases in which gag orders have been denied.