Presumptively public?

Juror questionnaires are presumptively public documents because the jury selection process is itself presumptively public, Illston ruled. Her analysis began by recognizing the historical presumption of public access to criminal court proceedings, including jury selection. She then examined the extent to which juror questionnaires should be afforded the same presumption.

To the degree that the questionnaires are used to select jurors, the questionnaires are part of the jury selection process, Illston said. “Written jury questionnaires are meant to help facilitate the jury selection,” she said. Explaining that the questionnaires serve as an extension of the voir dire process for all potential jurors who are seated for questioning, the court ruled that the questionnaires of any potential juror actually seated for questioning were presumptively open.

In contrast, Illston declined to release juror questionnaires of those individuals who were not questioned during voir dire. Using reasoning also used by some California courts, Illston said that potential jurors questioned in court stand in a different position than other potential jurors. “Although other individuals will have filled out questionnaires in preparation for possible participation in the voir dire process, they will not actually have participated in the criminal trial, and their questionnaires will have served ‘no function in the selection of the jury,’” Illston said.

The key to Illston was that the questionnaires of those potential jurors actually seated for voir dire were a substitute for the oral voir dire process.

“The questionnaires are a proxy for an extended oral voir dire, and should be treated as such,” Illston said. “Just as it is important for the press and the public to be able to ‘attend, listen, and report on’ voir dire generally, it is important for the press and public to be able to have access to, see, and report on the jury questionnaires that are actually part of the jury selection process.”

Illston’s opinion then set out specific procedures for allowing public access to copies of the questionnaires.