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NEW! The Court acted on many pending rule petitions at its August 29, 2017 Rules Agenda.  

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This website allows you to electronically file and monitor court rule petitions and comments and to view existing rules of court, recent amendments of those rules, and pending rule petitions and comments. Any visitor to this site may view posts on this website, but to post a petition or comment you must register and log in. To view instructions on how to register and how to file a petition or comment, please visit our Frequently Asked Questions (FAQ) page. 
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Last Post 18 Aug 2014 05:50 PM by  SDul
R-14-0008 PETITION TO ADOPT RULE 23.5, ARIZONA RULES OF CRIMINAL PROCEDURE
 10 Replies
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domanico
Posts:

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10 Jan 2014 12:27 PM
    R-14-0008

    Petition to Adopt Rule 23.5, Arizona Rules of Criminal Procedure

    Would protect trial jurors’ privacy by limiting post-verdict contact by a party to the case

    Petitioners:
    WILLIAM G. MONTGOMERY
    MARICOPA COUNTY ATTORNEY
    (FIRM STATE BAR NO. 00032000)

    MARK FAULL
    CHIEF DEPUTY
    301 WEST JEFFERSON STREET, SUITE 800
    PHOENIX, ARIZONA 85003
    TELEPHONE: (602) 506-3800
    (STATE BAR NUMBER 011474)
    domanico@mcao.maricopa.gov

    Filed January 10, 2014

    Comments due May 20, 2014.

    DENIED August 26, 2014.
    Attachments
    Johntodd
    Posts:

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    31 Jan 2014 04:07 PM
    John Pressley Todd
    Office of the Attorney General
    1275 W. Washington St.
    Phoenix, AZ 85007-2926
    john.todd@azag.gov

    Having worked on capital cases post-conviction for nearly two decades, I strong support this proposal to add Rule 23.5 to protect jurors from undue and unnecessary interference after their service is completed. If any sort of juror misconduct has occurred, it should be identified immediately so a reliable record can be made. Rule 24.1 provides for juror misconduct claims as part of a New Trial motion and requires that such claims be filed within 10 days of the verdict. This proposed Rule provides a mechanism for discovering such claims timely while precluding a baseless fishing expedition. The proposed Rule would preclude unnecesary invasion of former jurors' privacy years later, as has occurred too often in capital cases.

    rhagen
    Posts:

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    06 May 2014 10:38 AM


    Rhondi Hagen
    Yavapai County Superior Court
    Jury Office
    2840 N Commonwealth Dr
    Camp Verde AZ 86322
    (928) 554-8937
    rhagen@courts.az.gov


    Please consider rewording the Petition language to somehow include PARKING LOTS AT, ADJACENT TO OR IMMEDIATELY IN THE VICINTY OF the courthouse into the no contact restrictions in this Petition. If jurors do not want to have contact with the parties and the juror exits the courthouse, the proposed protection ceases. There is then an opporunity for the parties to chase after jurors as they head to their vehicles. If juror protection is needed which this Petition suggests, please consider giving jurors the chance to get to their vehicles.

    The proposed Rule Change states "a party to the action may initiate contact wtih any of the jurors WITHIN THE COURTHOUSE unless the court directs otherwise. However, after the jury has been discharged and the jurors HAVE DEPARTED FROM THE COURTHOUSE...".











    AZStateBar
    Posts:

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    09 May 2014 12:28 PM
    John A. Furlong, Bar No. 018356
    General Counsel, State Bar of Arizona
    4201 N. 24th St., Suite 100
    Phoenix, AZ 85016
    Telephone: (602)340-7236
    Fax: (602)271-4930
    patricia.seguin@staff.azbar.org
    Attachments
    NancyMillar
    Posts:

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    16 May 2014 04:29 PM
    Teresa Burnham, Assistant Professor of Law
    Sandra Durant, Assistant Professor of Law
    Maureen Kane, Legal Writing Coach
    Steve Gonzales, Associate Professor of Constitutional Law
    Nancy E. Millar, Assistant Professor of Law
    Keith Swisher, Associate Professor of Law
    Penny L. Willrich, Professor of Law

    ARIZONA SUMMIT LAW SCHOOL*
    One North Central Avenue
    Suite 1400
    Phoenix, Arizona 85004
    Phone: 602-682-6907
    Email: nmillar@azsummitlaw.edu

    Attachments
    amykalman
    Posts:

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    16 May 2014 06:07 PM
    ARIZONA ATTORNEYS FOR CRIMINAL JUSTICE
    23 PO Box 41213
    Phoenix, AZ 85080-1213
    TEL: (480) 812-1700
    SAMBO DUL, SB# 030313
    sdul@perkinscoie.com
    AMY KALMAN, SB#024978
    kalmana@mail.maricopa.gov

    ARIZONA CAPITAL REPRESENTATION PROJECT
    101 East Pennington Street, Suite 201
    Tucson, AZ 85701
    TEL: (520) 229-8550
    NATMAN SCHAYE, SB# 00795
    natman@azcapitalproject.org



    Attachments
    EOrtiz123
    Posts:

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    19 May 2014 11:27 AM
    SHEILA SULLIVAN POLK (007514)
    ELIZABETH ORTIZ (012838)
    ARIZONA PROSECUTING ATTORNEYS’ ADVISORY COUNCIL
    1951 W. CAMELBACK RD. SUITE 202
    PHOENIX, ARIZONA 85015
    TELEPHONE: (602) 542-7222
    FAX: (602) 274-4215
    Sheila.Polk@yavapai.us
    Elizabeth.Ortiz@apaac.az.gov
    Attachments
    JGarcia
    Posts:

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    20 May 2014 05:27 PM
    Jon M. Sands
    Federal Public Defender - District of Arizona
    Jennifer Y. Garcia (Ariz. Bar No. 021782)
    850 West Adams, Suite 201
    Phoenix, AZ 85007
    (602) 382-2816
    Fax: (602) 889-3960
    Jennifer_Garcia@fd.org
    Attachments
    jzick1
    Posts:

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    20 May 2014 07:10 PM
    THOMAS C. HORNE
    ATTORNEY GENERAL
    JEFFREY A. ZICK
    CHIEF COUNSEL
    JULIE A DONE
    ASSISTANT ATTORNEY GENERAL
    Capital Litigation Section
    1275 W. Washington
    Phoenix, Arizona 85007–2997
    (602) 542–4686
    CADocket@azag.gov

    COMMENTS IN SUPPORT OF PETITION TO ADOPT RULE 23.5, ARIZ. R. CRIM. P.
    Attachments
    RichRobertson
    Posts:

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    05 Aug 2014 08:54 PM
    As a defense investigator, I and my firm have frequently been engaged to conduct post-verdict juror interviews in all court levels.

    I find the vast majority of jurors understand it is important to evaluate every part of the justice system, including the jury's role. I have had many interesting conversations with jurors who are genuinely interested in discussing their case. Some do not. I - and other investigators I know -- always fully identify ourselves, explain the reason for the contact and remind them that when they were dismissed they were told they could talk about the case if they chose, or *not* talk about the case if they chose. It is entirely up to them. If they decline, we respect their decision and move on.

    Conducting interviews (not "interrogations" as Mr. Montgomery rhetorically characterizes them) is the only way to find whether there was juror misconduct or misunderstandings of evidence or instructions. We have learned about everything from undisclosed background information, inappropriate independent research and drug abuse during deliberations -- information that had not been previously known.

    These are not "fishing expeditions," they are investigations. The role of all investigations, whether pre-trial or post-verdict, is to uncover previously unknown facts.

    It is clear that the prosecutors' primary objective with this rule change is not to protect jurors. It is to protect their verdict.

    As evidence of that, the Yavapai County Attorneys Office had no qualms recently about assigning its in-house investigator to conduct post- mistrial juror interviews in a murder case that was about to be retried. Juror privacy apparently was not an issue for them.

    Jurors don't belong to prosecutors. I urge you to reject this one-sided rule change.

    Rich Robertson
    R3 Investigations
    136 W. Main St. Ste 102
    Mesa, AZ 85201
    480-726-3961
    SDul
    Posts:

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    18 Aug 2014 05:50 PM
    ARIZONA ATTORNEYS FOR CRIMINAL JUSTICE
    PO Box 41213
    Phoenix, AZ 85080-1213
    TEL: (480) 812-1700
    FAX: (480) 812-1736
    SAMBO DUL, SB# 030313
    sdul@perkinscoie.com
    AMY KALMAN, SB#024978
    kalmana@mail.maricopa.gov

    ARIZONA CAPITAL REPRESENTATION PROJECT
    101 East Pennington Street, Suite 201
    Tucson, AZ 85701
    TEL: (520) 229-8550
    NATMAN SCHAYE, SB# 07095
    natman@azcapitalproject.org

    Arizona Attorneys for Criminal Justice (“AACJ”) and the Arizona Capital Representation Project (“ACRP”) wish to draw the Court’s attention to supplemental authority lending further support to AACJ and ACRP’s Comment in opposition to the Petition to Adopt Proposed Rule 23.5.

    On August 5, 2014, the Arizona Court of Appeals, Division 1, issued its decision in American Power Products, Inc. v. CSK Auto, Inc., 1 CA-CV 12-0855, 2014 WL 3877037, 692 Ariz. Adv. Rep. 22, (Ariz. Ct. App. Aug. 5, 2014). In that case, plaintiff sued defendant over the sale of electric scooters and sought $5 million in damages. The trial lasted 12 days and involved thousands of pages of exhibits and 24 witnesses. Following trial, the jury deliberated for an hour or two and then returned a 6-2 verdict for plaintiff in the amount of $10,733. Plaintiff’s investigator interviewed several jurors post-verdict and obtained two affidavits stating that the deliberations were not fair and that most of the jurors refused to consider the evidence and just wanted to go home. One affidavit further stated that, during deliberations, the bailiff entered the room and was asked how long deliberations usually last, to which the bailiff responded “an hour or two should be plenty.” The trial court denied plaintiff’s request for a new trial and an evidentiary hearing regarding whether jury deliberations were improperly curtailed as a result of the bailiff’s comment. In remanding the case, the Court of Appeals acknowledged that Arizona Rule of Evidence 606(b)(1) prohibits impeachment of a jury verdict with jurors’ affidavits concerning deliberations. However, Rule 606(b)(2) permits consideration of juror testimony to determine whether “extraneous prejudicial information was improperly brought to the jury’s attention.” Thus, though the content of the affidavits concerning the deliberations themselves was inadmissible, the bailiff’s comment regarding the usual length of deliberation was admissible on the issue of prejudice. The Court of Appeals explained that a statement from a bailiff regarding how long the jury should deliberate relates to a substantive procedural issue and violates Arizona Rule of Civil Procedure 39(e)’s limitations on the communications a bailiff may have with jurors. Accordingly, the Court of Appeals remanded for the trial court to determine whether an evidentiary hearing would be feasible considering the passage of time since trial and to determine whether plaintiff suffered prejudice from the improper ex parte communication, warranting a new trial.

    Though this example of juror misconduct occurred in the context of a civil, rather than criminal, matter, such misconduct may also arise in criminal cases, and would similarly not be discovered absent a party’s post-verdict investigation and communication with willing jurors. In American Power Products, the misconduct would not have been discovered had plaintiff not engaged investigators to interview willing jurors post-verdict. If Proposed Rule 23.5 were to be adopted, criminal defendants and their counsel would be barred from engaging in the very investigation performed by plaintiff in American Power Products that lead to discovery of misconduct necessitating an evidentiary hearing and, potentially, a new trial. As discussed in detail in AACJ and ACRP’s Comment, such a prohibition would both impede defense attorneys’ ability to thoroughly and competently represent their clients and prevent discovery and presentation of valid constitutional claims in violation of criminal defendants’ rights.
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