Concerns against public access?

Assuming a court decides that a presumption of access applies to the questionnaires, that court still must decide whether there are any overriding interests that weigh against disclosing the questionnaires. Illston’s order in the Bonds case considered this issue as well, ultimately concluding that there was reason to withhold the names of the potential jurors until after the trial was complete.

Documenting the high publicity aspect of the case, the court found two “compelling government interests” supported the temporary withholding of the juror’s names: juror privacy and the defendant’s right to a fair trial. The court concluded that the jurors would have difficulty avoiding interactions with the public if their names were released. “As with any high profile case, there is a risk that jurors will themselves receive attention during the trial, which might distract them from the case,” Illston said. In addition, disclosing the jurors’ names during the trial also could lead some people to try to influence the jurors. Illston said that, although such concerns in a typical case may not warrant withholding the jurors’ names, the specifics of the high-profile case and evidentiary matters made such a ruling warranted here.

“This restriction is intended to lessen the risk that jurors will be approached during the trial, either for the purpose of obtaining information from the jurors or for the purpose of influencing the verdict in the case,” Illston said. “By releasing the names of the jurors only after they have been dismissed, any risk to the integrity of the process is considerably minimized.”

Importantly, the court’s order also identified and addressed the reasons why it concluded that there were no other less-restrictive means available to protect these compelling interests. The court stated that it had considered “more burdensome” measures, such as sequestering the jury, but found them to not be sufficiently tailored to the concerns she had.

Whether more courts will adopt the approach taken by the Bonds and California courts remains to be seen. But until the U.S. Supreme Court addresses the issue, courts are likely to continue to address access to juror questionnaires inconsistently.

McCormick Legal Fellow Derek D. Green is on a leave of absence for the duration of his fellowship from Davis Wright Tremaine, the firm that represented the media coalition in the Bonds case.