A. Access to voir dire
The Second Circuit has held that exclusion of the public for the entire duration of voir dire violates a criminal defendant’s Sixth Amendment rights. See United States v. Gupta, 699 F.3d 682 (2d Cir. 2012); See Gibbons v. Savage, 555 F.3d 112 (2d Cir. 2009) (holding that closure of voir dire proceedings for one afternoon was too trivial to warrant vacating a criminal conviction). The Court requires that there be a sufficient factual basis for closure of voir dire examinations. ABC v. Stewart, 360 F.3d 90 (2d Cir. 2004) (vacating lower court’s order that barred the press from attending voir dire proceedings in judge’s chambers). But see United States v. King, 140 F.3d 76 (2d Cir. 1998) (affirming order withholding transcripts of in camera jury voir dire until the jury was impaneled in criminal prosecution of Don King and restricting access to transcript of voir dire in prior prosecution of defendant on the grounds that proper findings were made supporting the holding that the limited closures were necessary to ensure juror candor in the voir dire process).
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 right to a public trial is not limited to issues that arise after a jury is sworn or times when the jury is present. Rovinsky v. McKaskle, 722 F.2d 197, 201 (5th Cir. 1984). This right extends at least to those pretrial hearings and other proceedings that are an integral part of the trial, such as jury selection and motions to suppress evidence. Id. Jury selection is a critical part of a trial and should not be considered a preliminary or secondary part for purposes of openness. United States v. Ford, 824 F.2d 1430, 1436 (5th Cir. 1987).
The Fifth Circuit has, however, upheld the right to a closed voir dire. United States v. Brown, 250 F.3d 907, 914–15 (5th Cir. 2001). But closed voir dire must be rare and only when it has been shown that a particular interest outweighs the value of openness. A court cannot order a closed voir dire without consideration of alternatives to closure. In re Dallas Morning News Co., 916 F.2d 205, 206 (5th Cir. 1990). Furthermore, the Fifth Circuit has held that a court cannot close voir dire only on the expectation that prospective jurors may be less than candid in their responses because of privacy concerns. Id. Rather, a prospective juror must make an affirmative request that he or she be questioned in private. Id. Before closing voir dire, a trial court should first inform the prospective jurors in advance that if any of them wish to be questioned privately they may do so. Transcripts of closed voir dire sessions must be created, with the court then making a determination as to whether portions should be released in full or redacted for public dissemination. Id.
The media may access voir dire and may obtain a written transcript of the proceedings, but it is prohibited from photographing jurors at any time. Specifically, Rule 122(k)(2) of the Arizona Supreme Court Rules provides that “[c]ameras must be placed to avoid showing jurors in any manner.” The rule further provides that “[a]udio recordings or broadcasts of jurors’ statements or conversations are also prohibited except that a juror may expressly consent to an interview after the jury has been discharged.” Id.
The right to public trial extends to voir dire. Taylor v. State, 284 Ark. 103, 679 S.W.2d 797 (1984). Thus, the press has right of access to voir dire. Commercial Printing Co. v. Lee, 262 Ark. 87, 553 S.W.2d 270 (1977). Trial courts must take reasonable measures to accommodate public attendance during voir dire. See Schnarr v. State, 2017 Ark. 10, 13.
The press and public have a right of access to voir dire proceedings. See, e.g., Blevins v. State, 220 Ga. 720 (1965) (“The requirement that juries must be drawn in open court is a safeguard or guarantee against secret or Star Chamber court proceedings; it is a procedure which enables the public to observe the conduct of the judge in drawing juries and thus prevent any possible corruption or suspicion of corruption in this vital part of our jury system.”). See generally Presley v. Georgia, 558 U.S. 209 (2010) (“The Supreme Court of Georgia was correct in assuming that the Sixth Amendment right to a public trial extends to the voir dire of prospective jurors.”). “[T]he right to an open trial may give way in certain cases to other rights or interests, such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information.” Waller v. Georgia, 467 U.S. 39, 45 (1884). But “such circumstances will be rare, however, and the balance of interests must be struck with special care.” Id. “Trial courts are obligated to take every reasonable measure to accommodate public attendance.” Presley, 558 U.S. at 215.
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.
In State v. Dixon, 112 P.3d 883 (Kan. 2005), the Kansas Supreme Court reaffirmed a presumption in favor of access to court proceedings and approvingly cited Press-Enterprise I, 464 U.S. 501 (1984), which held that voir dire is presumed to be open.
Note: State v. Dixon was disapproved on other grounds by State v. Wright, 224 P.3d 1159 (Kan. 2010).
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.
Federal appellate courts have made clear that a generalized interest in juror privacy is insufficient to close voir dire. In In 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.”
Reporters in Mississippi may attend jury selection but are not permitted to take photographs or make audio or video recordings inside the courtroom. Additionally, the Mississippi Rules for Electronic and Photographic Coverage of Judicial Proceedings (MREPC) prohibit photographing, videotaping or recording serving jurors inside or outside the courtroom until the jurors are discharged from service.
The Mississippi Supreme Court has held that peremptory challenges should be exercised at the bar in open court unless compelling reasons dictate otherwise; if compelling reasons exist, the court must follow notice and hearing procedures for closure. In re Gannett River States Publ’g Corp., 27 Media L. Rep. 1096 (Miss. 1998).
The Mississippi Supreme Court also held that a trial court erred in a murder prosecution by conducting individual voir dire of prospective jurors without first docketing such request for closure, without holding a pre-closure hearing, and without issuing findings of fact and conclusions of law. In re Gannett River States Publ’g Corp., 630 So. 2d 351 (Miss. 1994).
Nevada generally follows the “historic tradition of open and oral voir dire proceedings.” Stephens Media, LLC v. Eighth Judicial Dist. Court of State ex rel. Cty. of Clark, 125 Nev. 849, 865, 221 P.3d 1240, 1251 (2009). District courts are required to satisfy the Press-Enter. Co. v. Superior Court of California for Riverside County, 106 S. Ct. 2735 (1986) balancing test requiring it to make specific findings to support a denial of access to voir dire. Stephens Media, 125 Nev. at 866, 221 P.3d at 1252.
Neither the jury nor any member of the jury may be filmed in or near the courtroom, nor shall the jury selection process be filmed. Rule 23-107 NMRA. New Mexico has ruled that prior restraint on publication concerning the names of jurors selected in criminal case must be based upon imperative circumstances supported by the record that clearly demonstrates that defendant's right to fair trial will be jeopardized. It must further demonstrate that there are no other reasonable alternatives to protect that right. The mere speculation that publishing names of jurors selected in criminal cases might expose them to intimidation during trial is insufficient reason to justify a prior restraint on the media. State, ex rel. N.M. Press Ass'n v. Kaufman, 1982-NMSC-060, ¶ 35, 98 N.M. 261, 267, 648 P.2d 300, 306 (holding that the trial court erred in restricting the publication of names of jurors selected in the case where the names were announced in open court and filed as public record).
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).
See State ex rel. La Crosse Tribune v. Circuit Court for La Crosse County, 115 Wis. 2d 220, 340 N.W.2d 460 (Wis. 1983):
Looking then at the plain language of the statute [Wis. Stat. § 757.14], we conclude that it is the public policy of this state that a sitting of a court which encompasses the voir direprocedure is presumptively to be open to the public.
Cf. State ex rel. Storer Broadcasting Co. v. Gorenstein, 131 Wis. 2d 342, 388 N.W.2d 633 (Wis. App. 1986) (footnotes omitted):
It is clear that a trial court judge, in his or her discretion, may close the sitting of a court. Voir dire of a jury panel, although a pretrial proceeding, has been held to be a sitting of the court. For a trial court to order closure, however, the reasons must be compelling, substantial, and “weighty and overwhelming.” Such reasons must be sufficient to overcome the presumption that a jury voir dire will be open to the public.