What Is an Ex Parte Communication?

Ex parte (ex par-tee) means one-sided. Basically speaking, an ex parte communication is one that is made by a party outside the presence of the other party. It's any communication between a judge or juror and a party to a legal proceeding or any other person about the case made outside of the presence of the opposing party or the opposing party's attorney. In criminal cases, the parties are the criminal defendant (represented by defense counsel) and the state (represented by the prosecutor).

Ex Parte Communications in a Criminal Case

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 is also an ex parte communication.

Allowable Ex Parte Proceedings

While ex parte communications are usually prohibited, they are allowed in some circumstances. The most common example of an allowable ex parte proceeding is a hearing on an emergency restraining order in a domestic violence case. The person seeking the restraining order files an ex parte motion (one without notice to the other party) and the judge schedules a hearing, in which the applicant explains why the restraining order should be issued. The judge can issue the restraining order—usually for a limited amount of time—and then schedule a full hearing to be held relatively soon (typically days) with both parties present.

Another example of an allowable ex parte communication might occur between judges and jurors about administrative matters, such as setting dates for hearings and in emergencies (see more below).

What's Wrong With Ex Parte Communications?

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.

The Effect of Improper Ex Parte Communications on a Trial or Verdict

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 Who Participate in 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.

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