Ex parte communication means one party contacts a judge or juror without the other present. Find out why these one-sided conversations aren't allowed.
If a prosecutor privately tells a judge something about your case—and your attorney isn't in the room—that's a problem. It's called an ex parte communication, and it's one of the most direct ways the fairness of a criminal proceeding can be compromised.
Ex parte (pronounced "ex par-tee") is Latin for "one-sided." In legal terms, it refers to any communication about a case made to a judge or juror by one party, without the other party or their attorney present. These communications aren't allowed in criminal cases because they deny the opposing party a chance to respond, which cuts against the constitutional guarantee of due process. That said, not every ex parte communication is illegal or harmful. Some, like emergency restraining order hearings or routine scheduling discussions, are permitted under specific circumstances. And not every prohibited communication leads to a conviction being overturned. Courts weigh whether the communication actually affected the outcome.
Ex Parte Communications in a Criminal Case: What's Prohibited?
Ex parte communications are generally prohibited. To avoid charges of ex parte communications, all parties (or their attorneys) should be present when:
- the judge discusses the case with a party, an attorney, a witness, or anyone other than the judge’s own staff
- the judge is giving instructions to the jury, or
- the judge (or any other person) is talking to the jury about the case.
For example, if the prosecutor talks to a judge about a criminal defendant’s case when neither the criminal defendant nor the defendant’s attorney is present, that is an ex parte communication. If a juror runs into a witness at the grocery store during a trial and asks the witness a question about the witness’s testimony, that's also an ex parte communication.
Why Are Ex Parte Communications Prohibited? Due Process
The Constitution guarantees “due process” in all criminal proceedings. This simply means that proceedings must be fair. An ex parte communication undermines the fairness of a judicial proceeding by introducing new information to the decision-maker (the judge or jury) without giving the other party an opportunity to explain or respond.
Not all ex parte communications result in due process violations. Generally, an ex parte communication will constitute a due process violation only if the communication actually affected the verdict in the case. For example, it is probably not a due process violation for a judge to correctly explain a legal term for the jury outside the presence of the prosecutor and defense counsel, although this does constitute an ex parte communication. Similarly, an exchange between a judge and a lawyer about the weather, in the absence of the other side's lawyer, would generally not amount to a violation. In short, no harm, no foul.
How Do Ex Parte Communications Affect a Trial?
If an ex parte communication is discovered during trial, there will be a hearing to determine what was said and to whom. If the communication involves jurors, the judge may tell the jury to disregard the communication or have the particular juror who received or made the communication dismissed. If the communication involves the judge, the judge could merely agree to disregard it. In very serious situations, the judge could agree to recuse him or herself (step down) from the trial or there could be a mistrial. Usually, a case is retried following a mistrial.
Sometimes, the fact of the ex parte communication does not come to light until after the conviction. Criminal verdicts may be overturned if the appellate court finds that the ex parte communication influenced the verdict and violated the defendant’s due process rights.
Consequences for Lawyers or Judges: Improper Ex Parte Communications
The rules of judicial conduct prohibit judges from engaging in ex parte communications. Lawyers are also prohibited by the rules of legal ethics from communicating with a judge or juror outside of the presence of opposing counsel. Judges and lawyers may be disciplined for engaging in improper ex parte communications.
Obtaining Legal Assistance
If you are charged with a crime, the best way to protect your due process rights is to work with an experienced criminal defense attorney. An attorney can explain the legal process to you and tell you what information you can share and with whom. An attorney can help you navigate the criminal justice system and obtain the best possible outcome in your case.
