F. Interviewing petit jurors and grand jurors

Overview

Petit jurors. The court’s interest in the administration of justice generally trumps any speech interests during trial, and courts have the authority to prevent the press from interviewing jurors about the proceedings. For example, the court in In re Stone, 703 P.2d 1319, 1322 (Colo. App. 1985), held that “once the trial process had begun, [the media’s] First Amendment rights did not extend to permit communication with prospective jurors who had been admonished not to discuss the pending case.” But “the threat to justice caused by news media contact with jurors is much lower after trial than it is during trial.”Journal Pub. Co. v. Mechem, 801 F.2d 1233, 1236 (10th Cir. 1986). Post-verdict limitations on interviewing jurors are presumptively invalid prior restraints on speech, and the party seeking a no-contact order “must show that the activity restrained poses a clear and present danger or a serious and imminent threat to a protected competing interest; the restraint must be narrowly drawn and no reasonable alternatives, having a lesser impact on First Amendment freedoms, must be available.” U.S. v. Sherman, 581 F.2d 1358, 1361 (9th Cir. 1978) (internal citations omitted).

Courts have occasionally approved narrowly tailored orders in unusual cases, especially limitations on repeated requests for interviews or discussions of jury deliberations or other juror’s votes. The court in Journal Pub. Co. v. Mechem, 801 F.2d 1233, 1236 (10th Cir. 1986), for example, held that a trial court could permissibly tell “jurors not to discuss the specific votes and opinions of noninterviewed jurors in order to encourage free deliberation in the jury room.” And in U.S. v. Harrelson, 713 F.2d 1114, 1118 (5th Cir. 1983), the court upheld an order that prohibited repeated requests for interviews or inquiries “into the specific vote of any juror other than the juror being interviewed.” The court is also free to instruct them that “[a] juror may speak or remain silent as he desires.” U.S. v. Sherman, 581 F.2d 1358, 1361, 1362 (9th Cir. 1978).

Grand jurors. The rule governing federal grand jury secrecy, Federal Rule of Criminal Procedure 6(e), places no restriction on witnesses. These rules recognize the Supreme Court’s admonition in Butterworth v. Smith, 494 U.S. 624, 626 (1990), that witnesses have a First Amendment right to publish the details of their grand jury testimony. In that case, the Court held that “insofar as the Florida law prohibits a grand jury witness from disclosing his own testimony after the term of the grand jury has ended, it violates the First Amendment,” reasoning that “the interests advanced by the portion of the Florida statute struck down are not sufficient to overcome respondent’s First Amendment right to make a truthful statement of information he acquired on his own.” Id. at 626, 636.

Some courts, however, have narrowly interpreted Butterworth to permit grand jury witnesses to divulge only what they knew before they testified, drawing a line “between information the witness possessed prior to becoming a witness and information the witness gained through her actual participation in the grand jury process.” Hoffmann-Pugh v. Keenan, 338 F.3d 1136, 1140 (10th Cir. 2003).

New Jersey

New Jersey courts may prohibit the press from interviewing jurors until the conclusion of the trial (and even retrial) in order to protect the defendant’s Sixth Amendment rights. See State v. Neulander, 801 A.2d 255 (N.J. S. Ct. 2002).