A MANUAL OF JURY TRIAL PROCEDURES

A MANUAL OF JURY TRIAL PROCEDURES - 2004
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Chapter Two: Jury Selection

2.2 Voir Dire Regarding Pretrial Publicity

A suggested procedure for conducting examination of prospective jurors regarding pretrial publicity is as follows:

1. The scope and detail of the court's voir dire on pretrial publicity is dictated by the level of such publicity. In cases involving little pretrial publicity, general questions addressed to the entire panel followed by individual questioning of those who respond affirmatively is sufficient when few prospective jurors have knowledge about the case. United States v. Baker, 10 F.3d 1374, 1403 (9th Cir. 1993), cert. denied, 513 U.S. 934 (1994), overruled on other grounds by United States v. Nordby, 225 F.3d 1053 (9th Cir. 2000); United States v. Giese, 597 F.2d 1170, 1183 (9th Cir.), cert. denied, 444 U.S. 979 (1979).

2. In circumstances where pretrial publicity has been great, the trial judge must conduct a careful individual voir dire of each prospective juror, preferably out of the presence of the other members of the panel. A general question addressed to the panel as a whole is inadequate. The jurors' subjective assessment of their impartiality is insufficient. Giese, 597 F.2d at 1183; Silverthorne v. United States, 400 F.2d 627, 635-640 (9th Cir. 1968). Questions concerning the content of the pretrial publicity to which the prospective juror has been exposed might be helpful to trial judges in assessing impartiality, but the failure to make this specific inquiry does not deny a defendant his right to an impartial jury or to due process. Mu'Min v. Virginia, 500 U.S. 415, 431 (1991).

3. Inquire of the entire panel if any venireperson has heard anything about the case. Indicate that the venirepersons are to respond only by stating "yes" or raising their hands so the response can be recorded. After the response is recorded, ask the venirepersons if any of them have heard anything about the case through a medium other than radio, television, or newspapers. After that response is recorded, ask those who responded affirmatively if they have already formed an opinion about the case. If they respond in the affirmative, ask them if they feel they can set that opinion aside and judge the case solely on the basis of the evidence presented during the trial. At that point, the judge will have narrowed the issues to be discussed with the respective jurors during individual voir dire.

4. The court should caution prospective jurors not to disclose the substance of any pretrial publicity to which they have been exposed. If only one or two prospective jurors answer affirmatively to the questions about publicity, then consider questioning those individuals at sidebar. If a substantial number of prospective jurors answered the questions affirmatively or indicated familiarity with the case, then the judge may wish to consider bringing each of the prospective jurors into the courtroom outside the presence of the rest of the panel or into a separate room designated for that purpose, such as the jury room, at which time the prospective jurors can be examined individually.

5. At the time the judge examines each venireperson individually, caution that juror not to discuss the questions or responses given to the questions with any of the other prospective jurors.