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Courts sometimes use written questionnaires to help pick juries, but judges often refuse to release them to the public. From…

Courts sometimes use written questionnaires to help pick juries, but judges often refuse to release them to the public.

From the Fall 2006 issue of The News Media & The Law, page 28.

By Catherine Spratt

Juror questionnaires are increasingly used to help select juries, especially in high-profile trials. But for the media, gaining access to the questionnaires is far from easy.

Recently, The Providence Journal in Rhode Island sought copies of questionnaires given to 421 potential jurors in the manslaughter trial of the co-owner of a nightclub where 100 concertgoers died in a 2003 fire caused by a rock group’s pyrotechnics.

The co-owner averted his trial when he pleaded no contest to the charges, as did his brother, also an owner of the club. But the Journal still sought the questionnaires, which are written forms used to supplement oral questioning of potential jurors.

Joseph Cavanagh, attorney for the Journal, speculated that the answers on the questionnaires may have affected the defendants’ decision to plead.

“The plea bargain came out of the blue,” he said, “and timing-wise it was around the same time the questionnaires were being reviewed by the attorneys.”

After hearing argument on the matter, Judge Francis J. Darigan Jr. agreed to release a blank copy of the questionnaires, but still denied access to copies of the filled out forms.

The Journal’s experience is not unique. While some journalists and media lawyers said questionnaires are readily available in their areas, many said journalists tend to have trouble gaining access to the forms, particularly to the completed ones.

The use of juror questionnaires is a fairly new phenomenon. The bulk of the cases where they are used are highly publicized or capital cases, though courts increasingly employ them in more routine cases as well.

“Historically, using juror questionnaires was fairly rare,” media attorney David Schulz said. “In high-profile cases in recent years, courts have become more enamored of them.”

If a case has been highly publicized, a larger number of potential jurors need to be called because there is a high chance that the court might decide they are ineligible to serve due to impressions gleaned from pretrial publicity.

One reason courts use questionnaires is that it can be more time efficient for both the lawyers and the court to read through written questionnaires than to verbally interview each person. Some judges also employ them as a way to question jurors in a more confidential manner, reasoning that jurors are more apt to be honest when privately writing answers on forms than in open court.

‘Presumption of openness’

Published case law governing the issue is scant but tends to recognize that juror questionnaires are part of the jury selection process known as voir dire, which is presumptively open to the public.

Under this line of reasoning, when deciding whether to make juror questionnaires available to the public, a judge should use the same analysis required regarding oral voir dire.

The U.S. Supreme Court held in a 1984 case involving The (Riverside, Calif.) Press Enterprise that a “presumption of openness” applies to all voir dire in criminal proceedings.

However, the Court added, “The presumption of openness may be overcome by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.”

Potential overriding interests include juror privacy and the accused’s right to a fair trial.

Federal and state courts in California, Pennsylvania, Ohio, New York, the District of Columbia and Rhode Island have held that the Press Enterprise case applies to juror questionnaires because they are a form of written voir dire.

In 2002, in a case brought by the Akron Beacon Journal, the Ohio Supreme Court ruled: “The fact that a lawyer elicits juror responses from written questions rather than oral questions has no bearing on whether the responses are considered in accepting or rejecting a juror. Accordingly, the First Amendment right to open proceedings in criminal trials extends to prospective juror questionnaires.”

In the Rhode Island nightclub fire case, the judge agreed that, under the First Amendment, the public has a presumptive right to access both blank and completed jury questionnaires. Darigan also acknowledged that the competing interests of a juror’s right to privacy and a defendant’s Sixth Amendment right to a fair trial are subordinate to the First Amendment except in “uniquely compelling” situations.

But he refused to release the completed questionnaires, holding that, “The public release of personal information gathered from preliminary jury questionnaires would infringe on the Sixth Amendment guarantee to a fair trial by discouraging the required candor essential to the voir dire process.”

Darigan reasoned that potential jurors in future trials would not respond in a frank and forthright manner if they feared that their responses might be published in the press, then added, “This failure to answer fully and honestly would critically undermine counsels’ ability in later cases to select an unbiased jury, as mandated by the Sixth Amendment.”

Cavanagh, the Journal’s attorney, said that he is disappointed in the decision and as of mid-October was considering an appeal, saying he believes the judge “short-shrifted the First Amendment in the balancing test.”

Useful details

Despite the strong constitutional arguments supporting public access to juror questionnaires, journalists often have trouble obtaining them from courts.

Andrew Smith, deputy Long Island editor at Newsday, said that when he reported on courts, he usually did not have official access to either blank or completed juror questionnaires even if he requested them in court.

He did not formally challenge judges’ refusals to grant access, saying he reasoned it was “not worth the trouble of getting lawyers involved, and I suspect our lawyers would have told us we couldn’t get them.”

When he did obtain copies, it was usually from cooperative lawyers involved in the cases.

Smith said that reading the questionnaires is “terrifically useful” for journalists.

Completed questionnaires provide a good understanding of who is on the jury. Blank questionnaires are helpful as well, Smith said, because by reading the questions, “you can see where the lawyers might be going with the cases.”

Access advocates say public access to juror questionnaires is essential to allow proper oversight of the jury system.

Blank forms can demonstrate what factors are used to screen prospective jurors. Making them available allows the public to monitor whether inappropriate factors, such as ethnicity or religion, are being considered.

Making completed questionnaires public provides useful details about the makeup of the jury, discourages perjury, and allows reporters or others to come forward if there is misinformation.

When questionnaires are available, journalists have put them to good use.

Palm Beach Post reporter Jill Taylor said that in the area she covers in eastern Florida, journalists are often able to get copies of the questionnaires.

Due to this openness and a practice of checking the criminal records of jurors in high-profile cases, a reporter at the Post discovered that a juror in a 2002 murder trial had lied on the form about his criminal record.

As a result of the reporter’s discovery, the judge dismissed the juror and replaced him with an alternate who ended up hanging the jury. Local courts also implemented a more sound method for screening out jurors with criminal records.

Media lawyers say that when judges deny access to completed forms, they often cite concerns about juror confidentiality.

Sometimes judges promise prospective jurors their answers will be confidential and then do not want to renege on their promise when journalists seek copies of the forms.

But judges can apply principles from the Press Enterprise case to balance the potentially competing interests of juror privacy and public access to questionnaires.

For example, the Ohio Supreme Court in the Beacon Journal case said that judges should inform prospective jurors that the questionnaires will not be confidential but that jurors can request a private in camera meeting if they feel they need confidentiality in order to answer a particular question. The court should record the meeting and the judge can then decide to seal the transcript if he agrees that the privacy interests of the juror outweighs the public right to access.

Such solutions demonstrate that blanket refusals to release any portions of juror questionnaires are not necessary in order to sufficiently preserve juror privacy, advocates say. 

“The assumption that this process can be done in secret needs to be questioned,” Schulz said.