A. Access to voir dire
The public’s First Amendment right of access extends to voir dire. In re Greensboro News Co., 727 F.2d 1320, 1322 (4th Cir. 1984); In re Wash. Post Co., 807 F.2d 383, 388 (4th Cir. 1986).
Where the defendant’s Sixth Amendment right to a fair trial is sufficient to overcome the public’s First Amendment right of access to voir dire, a transcript should be made of the jury selection process and disclosed to the public without substantial delay once a jury has been chosen and seated. See In re Greensboro News Co., 727 F.2d 1320, 1321 n.2 (4th Cir. 1984).
The Idaho Supreme Court has not addressed constitutional rights of access to voir dire in civil proceedings, although it has recognized a First Amendment right of access to criminal voir dire proceedings. See Bradbury v. Idaho Judicial Council, 136 Idaho 63, 70, 28 P.3d 1006, 1013 (citing Press-Enter. Co. v. Super. Ct., 464 U.S. 501 (1984)). It is likely that a court faced with a motion to close voir dire in a civil proceeding would consider such motion under the same procedural and substantive requirements of Press-Enterprise.
The First Amendment right of access extends to voir dire. See Commonwealth v. Berrigan, 501 A.2d 226, 232 (Pa. 1985) (citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984)). Generally, the court must justify closure of voir dire as a “strict and inescapable necessity.” Commonwealth v. Johnson, 455 A.2d 654 (Pa. Super. 1982). However, a court “may impose restrictions to maintain the integrity of the proceedings in the courtroom” so long as “the basic guarantees of fairness are preserved such as by the presence of the press and the making of a record for later review.” Berrigan, 501 A.2d at 232-234 (affirming trial court’s exclusion of members of the general public from voir dire proceedings). Thus, a court may elect to conduct voir dire in a room separate from the main courtroom as a way to “efficiently use judicial resources” without violating access rights, provided that the court does not explicitly prohibit any member of the public from observing the voir dire. See Commonwealth v. Harris, 703 A.2d 441, 444 (Pa. 1997). The trial court may not deny the public access to voir direfor fear of juror intimidation unless it specifically finds that the presence of the public would result in intimidation. See Johnson, 455 A.2d at 662-63. However, even if the court determines that the release of the names of potential jurors is likely to result in outside intimidation, the most effective way to protect them is through sequestration. See Commonwealth v. Genovese, 487 A.2d 364, 368 (Pa. Super. 1985).
The Pennsylvania Supreme Court has held that voir dire transcripts are public judicial records. Harris, 703 A.2d at 445-46. Therefore, the transcripts are presumptively open to the public and the press.
A Pennsylvania statute provides the names and addresses for persons assigned to a jury array (i.e., a pool from which prospective jurors are selected to serve on a jury) shall be made publicly available at the Pennsylvania office of the jury selection commission “no later than 30 days prior to the first date on which the array is to serve.” 42 Pa. Cons. Stat. § 4524.
In Press-Enterprise Co. v. Superior Court of California, Riverside Cty., 464 U.S. 501 (1984) (Press-Enterprise I), the United States Supreme Court held that the public has a qualified right of access under the First Amendment to jury selection. The Virginia Supreme Court has never squarely held that the public’s qualified right of access extends to voir dire, but it has indicated its agreement with Press-Enterprise I. See Buchanan v. Commonwealth, 238 Va. 389, 400, 384 S.E.2d 757, 764 (1989) (holding that the trial court did not err in refusing to conduct closed voir dire and observing that doing so would have been fraught with problems of a constitutional nature.”) (citing Press-Enterprise I). Furthermore, both the Virginia Code and the Rules of the Supreme Court of Virginia contemplate voir dire being public. See Va. Code § 8.01-358 (allowing parties to question the venire about potential prejudice and bias and providing that “A juror, knowing anything relative to a fact in issue, shall disclose the same in open court.”) (emphasis added). See also Va. Sup. Ct. R. 3A:14.1(a)(1) (allowing the trial court to restrict disclosure of juror identification information in criminal cases for good cause sufficient to a warrant departure from “the norm of open proceedings”) (emphasis added).
The Virginia Court of Appeals has held that the public has a constitutional right of access to voir dire. See In re Times-World Corp., 7 Va. App. 317, 327, 373 S.E.2d 474, 479 (Va. Ct. App. 1988), abrogated by Hertz v. Times-World Corp., 259 Va. 599, 528 S.E.2d 458 (2000); see also In re Times-World Corp., 25 Va. App. 405, 413, 488 S.E.2d 677, 681 (Va. Ct. App. 1997) (citing Press-Enterprise I for the proposition that the public’s qualified right of access extends to voir dire).