A. Access to voir dire

Overview

The Supreme Court recognized a First Amendment presumption of access to voir dire in Press-Enterprise Co. v. Superior Court (“Press-Enterprise I”), 464 U.S. 501 (1984). Despite the agreement of the parties, the Supreme Court found the closure unconstitutional, noting that the “process of selection of jurors has presumptively been a public process” throughout Anglo-American history. Id. at 505. A state appellate court applied the same standards to closure of post-trial civil voir dire. Barber v. Shop-Rite of Englewood & Associates, Inc., 923 A.2d 286, 293 (N.J.Super.A.D. 2007).

Federal appellate courts have made clear that a generalized interest in juror privacy is insufficient to close voir dire. InIn re Dallas Morning News Co., 916 F.2d 205, 206 (5th Cir. 1990), for example, the court noted that “the better practice is for the district court, rather than closing a portion of the voir dire proceeding in anticipation of privacy concerns, to inform the prospective jurors carefully, in advance, that any of them may request to be questioned privately, in the presence only of court personnel, the parties, and the attorneys.” And in U.S. v. Brooklier, 685 F.2d 1162, 1169 (9th Cir. 1982), the court rejected the concern that jurors “might be less candid if questioned in public” because “if this general theory of potential prejudice were accepted as sufficient justification for closure without the necessity for finding potential prejudice based upon the circumstances of the particular case, all testimony could be taken in secret.”

New Jersey

New Jersey has recognized that the voir dire transcript must be disclosed to press after prosecution has concluded, though there may be some narrowly tailored redactions to protect privacy and the deliberative process. See U.S. v. Antar, 839 F. Supp. 293 (D. N.J. 1993).