A MANUAL OF JURY TRIAL PROCEDURES - 2004
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Chapter One: Pre-Trial Considerations

1.10     Pre-Voir Dire Jury Panel Questionnaires
            A. Prescreening Questionnaires Prior to Reporting for Jury Duty
            B. Questionnaires Immediately Prior to Voir Dire
            C. Confidentiality of Questionnaires

A MANUAL OF JURY TRIAL PROCEDURES - 2004

A.  Pre-voir Dire Jury Panel Questionnaires: Prescreening Questionnaires Prior To Reporting For Jury Duty

NCJIC Materials Related To This Issues:

NCJIC 101.7 [Pornography/Obscenity]

Normally prescreening and voir dire questionnaires should be discouraged. However, because "[t]he district judge has discretion in conducting voir dire . . ." United States v. Boise, 916 F.2d 497, 504 (9th Cir. 1990), cert. denied, 500 U.S. 934 (1991), the use of a prescreening questionnaire may be considered where a lengthy trial is anticipated or there has been a great deal of pretrial publicity. The questionnaire allows each prospective juror to state in writing, and under oath, any reason why his or her service as a juror in a lengthy trial would cause undue hardship. Some questionnaires simply screen for prospective jurors who can be available for the anticipated length of the trial, others screen for the type of case, e.g., drugs, and others screen for a particular case. After a review of responses to the questionnaire, the court will excuse those prospective jurors whose responses are sufficient to show hardship or prejudice.

1. Avoids Necessity of Appearance

Prescreening does not exclude a discernible class of prospective jurors. The only difference between the use of a prescreening device and excusal based on in-court voir dire is that the prospective juror is spared the inconvenience of coming to court. Prejudice to a defendant may be avoided through counsel's ability to object to the excusal of any particular juror whose showing of hardship is thought to be insufficient. United States v. Layton, 632 F. Supp. 176, 177 (N.D. Cal. 1986).

2. Length of Trial

Notifying prospective jurors of the projected length of the trial and advising each juror to submit a written request for excusal if service would be a hardship does not permit jurors to decide for themselves before trial whether or not to serve, thereby leaving a jury that was not randomly drawn. Absent proof that the jury is other than a random cross section of the community, the district court's discretion in jury selection is broad enough to encompass consideration of hardship excusal requests. United States v. Barnette, 800 F.2d 1558, 1568 (11th Cir. 1986) (prescreening questionnaire permissible where each request for a hardship excusal was personally considered by the district court and ruled upon based on its individual merits), cert. denied, 480 U.S. 935 (1987).

A MANUAL OF JURY TRIAL PROCEDURES - 2004

B.  Pre-Voir Dire Jury Panel Questionnaires: Questionnaires Immediately Prior To Voir Dire

NCJIC Materials Related To This Issues:

NCJIC 101.7 [Pornography/Obscenity]

Immediately prior to voir dire potential jurors may be required to complete a questionnaire containing the usual inquiries bearing upon a juror's potential bias generally and specifically to describe their knowledge of the case and the source of that knowledge. United States v. Greer, 968 F.2d 433, 436 (5th Cir. 1992), cert. denied, 507 U.S. 962 (1993); United States v. Ebens, 800 F.2d 1422, 1426 (6th Cir. 1986). See also United States v. Rahman, 189 F.3d 88, 121 (9th Cir. 1999) (thorough voir dire resulted from comprehensive questionnaires regarding familiarity with parties and individualized voir dire), cert. denied, 528 U.S. 1094 (2000).

A MANUAL OF JURY TRIAL PROCEDURES - 2004

C.  Pre-Voir Dire Jury Panel Questionnaires: Confidentiality Of Questionnaires

NCJIC Materials Related To This Issues:

NCJIC 101.7 [Pornography/Obscenity]

Confidentiality of the answers to questionnaires may not be guaranteed. See, e.g., Copley Press, Inc. v. San Diego County Superior Court, 228 Cal. App. 3d 77, 84, 278 Cal. Rptr. 443 (the press is constitutionally entitled to have access to at least some of the information contained in such questionnaires, although access is not absolute), cert. denied, 502 U.S. 909 (1991). See also United States v. King, 140 F. 3d 76, 81 (2d Cir. 1998) (stating that "[t]he presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to serve higher values and is narrowly tailored to serve that interest").