Access to jury proceedings and records

Before the September 11 attacks, the biggest terrorism-related story in 2001 was the trial of those accused of working with Osama bin Laden to bomb two American Embassies in East Africa. The attacks killed 224 people, and two of the four defendants faced the death penalty. The case was so important — and so sensitive — that the Manhattan federal court decided to keep all information related to juror identities secret. According to The New York Times, “their names were not filed in court, or disclosed to the lawyers, prosecutors or even the judge.”

Despite the secrecy, The Times managed to contact 11 of the 12 jurors and conduct post-verdict interviews with nine of them, writing about the interviews in a Jan. 5, 2003 story by Benjamin Weiser entitled “A Jury Torn and Fearful In 2001 Terrorism Trial.” The interviews uncovered the fact that two jurors, “concerned about the religious implications of voting for execution, violated the judge’s directive by consulting their local pastors during deliberations.” A third juror engaged in prohibited internet research, and a fourth “confused the court during jury selection about his willingness to impose a death sentence, and from the early stages of the trial had ruled it out.” According to the Times, “his adamant refusal to consider death helped lead to the deadlocks on execution.”

Nor was this case unique. In their 1999 article Anonymous Juries: In Exigent Circumstances Only, Abraham Abramovsky and Jonathan I. Edelstein examine mobster John Gotti’s first criminal trial. When Gotti was put on trial in 1992, the New York court empanelled a fully anonymous jury because it feared Gotti or his associates might threaten, intimidate, or otherwise tamper with the composition of the jury. Unbeknownst to the court, prosecutors, or the public, one of the jurors was George Pape, a man with ties to an Irish-American organized crime group. According to Abramovsky and Edelstein, Pape contacted Gotti’s attorneys, accepted a bribe, and arranged for Gotti’s acquittal. If the public had known Pape was on the jury, they argue, “his potential for corruption might have been unearthed prior to trial.”

Similarly, in his 2000 article The Public’s Right of Access to Juror Information Loses More Ground, media lawyer Steven D. Zansberg examined several cases that highlight the role of openness in policing the jury system. For example, he wrote, “[a]ccess to juror information helped reveal that an African-American juror in Washington, D.C., refused to convict an African-American criminal defendant, regardless of the [e]vidence.” In another case, a law student on the jury erroneously instructed his fellow jurors on the law, and in a third, “news reports revealed that jurors in a civil case switched their votes late Friday afternoon from plaintiff to defendant solely to avoid having to resume deliberations after the weekend.”

Without the press and public to act as a watchdog on jury selection, the U.S. Court of Appeals in Boston (1st Cir.) wrote, some will wonder whether “jurors were selected from only a narrow social group, or from persons with certain political affiliations, or from persons associated with organized crime groups.” Moreover, “[i]t would be more difficult to inquire into such matters, and those suspicions would seem in any event more real to the public, if names and addresses were kept secret.” (In re Globe Newspaper Co.).

Secrecy in the jury process also risks the rights of the defendant because it may imply that the defendant is unusually dangerous, which in turn impairs the presumption of innocence. (Ohio v. Hill). Defense lawyers also often argue, as they did in a 1979 case called U.S. v. Barnes, that withholding juror information of any type impairs their ability to thoroughly question potential jurors.

Despite these risks to the public’s right to know and defendants’ right to a fair trial, over the past few decades trial courts have increasingly limited public access to information about jurors. This is especially true where there is an unusual risk to juror safety — as with the Gotti trial. These courts said they feared that defendants or third parties would threaten or harass jurors if their identities were not concealed. A few courts have even cited media interest in a case, alone, as sufficient reason to withhold information about juries. The Supreme Court of Delaware, for example, upheld the use of an anonymous jury simply to curtail media coverage of the jurors, though it cited no particular fear for juror safety or jury tampering. (Gannett Co. v. Delaware).

The right of access to court proceedings and records

The public and press have a First Amendment right of access to judicial proceedings in criminal cases. In the seminal 1980 case Richmond Newspapers, Inc. v. Virginia, for example, the Supreme Court said that “a presumption of openness inheres in the very nature of a criminal trial under our system of justice.”

The Supreme Court has not directly addressed whether the public and the press also have a constitutional right of access to civil cases, but many other federal and state courts have recognized a public right of access to civil proceedings and documents. The California Supreme Court, for example, found that “every lower court opinion of which we are aware that has addressed the issue of First Amendment access to civil trials and proceedings has reached the conclusion that the constitutional right of access applies to civil as well as to criminal trials.” (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court).

When considering whether a constitutional presumption of access applies to particular proceedings or records, courts consider two factors — “whether the place and process have historically been open to the press and general public,” and “whether public access plays a significant positive role in the functioning of the particular process in question.” Where a constitutional presumption of access applies, the court may close proceedings only after making specific, on-the-record findings: (1) that closure is necessary to further a compelling governmental interest; (2) the closure order is narrowly tailored to serve that interest; and (3) that no less restrictive means are available to adequately protect that interest. (Press-Enterprise Co. v. Superior Court (“Press-Enterprise II”)).

Access to voir dire proceedings

Voir dire is the court proceeding where a jury is picked from a pool of prospective jurors (sometimes called the venire). During voir dire, prospective jurors are asked a series of questions — often touching on sensitive subjects — in order to determine whether they can serve as impartial jurors.

The Supreme Court recognized a First Amendment presumption of access to voir dire in Press-Enterprise Co. v. Superior Court (“Press-Enterprise I”), a 1984 case in which a California court closed all but three days of a six-week voir dire process in a high-profile murder prosecution. The closure was sought by both the government and the defense, out of concern for juror privacy and the defendant’s Sixth Amendment right to a fair trial.

Despite the agreement of the parties, the Supreme Court found the closure unconstitutional, noting that the voir dire has been a public process throughout Anglo-American history. The Court added that “the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known. Openness thus enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.”

The demanding standard for closure of voir dire proceedings used in Press-Enterprise I is similar to other proceedings to which a First Amendment right of access applies — the presumption of openness “may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.”

The interest must be clearly articulated “along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.” Voir dire could be closed, for example, where “interrogation touches on deeply personal matters that a person has legitimate reasons for keeping out of the public domain.”

The Press-Enterprise I Court also offered advice for trial judges concerned about particularly embarrassing voir dire questions. The Court said a trial judge should inform prospective jurors that if they believe public questioning will be embarrassing, they can ask for an opportunity to discuss the problem with the judge outside of public view but with counsel and a court reporter present. If the court then orders a limited closure, the interest in openness should still be observed “by making a transcript of the closed proceedings available within a reasonable time, if the judge determines that disclosure can be accomplished while safeguarding the juror’s valid privacy interests.”

Using this procedure, a Massachusetts court found closure was allowed under Press-Enterprise I where the trial judge “allowed the courtroom to be closed in response only to specific requests made by potential jurors to protect their privacy, and only during the discussion of private matters; [and] she immediately reopened the courtroom for any additional questioning of each of the potential jurors once questioning on the private matters was completed.” (Commonwealth v. Jaynes).

Access versus privacy

Appellate courts have made clear that a general interest in juror privacy is not a good enough reason to exclude the public from voir dire. For example, the U.S. Court of Appeals in New Orleans (5th Cir.) reversed a trial court order that closed all individual questioning to the public on the assumption that “the individual questioning of potential jurors predictably will raise questions that may infringe upon the venire members’ privacy and that their responses may be more candid if provided in private.” (In re Dallas Morning News Co.). The court found that instead of closing portions of voir dire on the assumption that there will be privacy concerns, the judge should tell prospective jurors “that any of them may request to be questioned privately, in the presence only of court personnel, the parties, and the attorneys.”

Nor may a court simply take a prospective juror’s claim of a privacy interest at face value, as the federal appellate court for Washington, D.C. made clear when it reversed a trial court judge who declined to independently evaluate jurors’ assertions of a privacy interest. The court noted that the Supreme Court’s Press-Enterprise decisions “require[] the trial court to determine whether a juror’s request is ‘legitimate.’” (Cable News Network, Inc. v. U.S.).

Access versus the right to a fair trial

A criminal defendant’s Sixth Amendment right to a fair trial can also overcome the presumption of openness under certain conditions.

The U.S. Court of Appeals in Richmond (4th Cir.) identified what it called “one of the few acceptable exceptions to a virtually unanimous rule” in favor of public voir dire in In re Greensboro News Co. The racially-charged civil rights prosecution involved allegations that the defendants — connected to the Ku Klux Klan and National Socialist Party of America — had murdered civil rights marchers. Among other reasons for closure, the court worried about coverage of the case tainting the jury and noted that alternatives were untenable under the circumstances because sequestering “750 prospective jurors at the outset of the voir dire process, while theoretically, perhaps, possible, would impose an intolerable strain.”

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A judge felt jurors might not be candid about their views on racial bias if voir dire in boxing promoter Don King’s 1987 trial was open to the public, but a similar order was overtuned in Martha Stewart’s 2004 trial because there were no “similarly sensitive” questions.

The U.S. Court of Appeals in New York (2nd Cir.) reached a similar result in a case involving celebrity boxing promoter Don King. The court worried that prospective jurors would be hesitant to speak honestly about their views on race if they knew their statements would be made public. It found that “this is that unusual case where the fairness of a trial, or at least the voir dire phase, that is usually promoted by public access is seriously at risk of being impaired unless some modest limitation on access is imposed.” The court added that “surely the public interest in a trial not affected by racial bias will be fostered, in the case of that particular juror, if he or she can express racial views or feelings candidly.” (U.S. v. King).

Similarly, the Michigan court hearing the first post-Sept. 11 case involving allegations of terrorism to go to trial relied on Don King’s case in closing voir dire. The court said that it “found that a sizeable number of prospective jurors have strong views about the Middle East, persons of Middle Eastern descent, the Government and terrorism,” adding that “[t]he jurors’ complete candor is absolutely essential to flesh out their views and biases.” The court ruled that a transcript of voir dire would be released after the jury was seated. (U.S. v. Koubriti).

But the U.S. Court of Appeals in New York (2nd Cir.) went the other way in Martha Stewart’s criminal prosecution, overturning an order closing voir dire. The court said that in Don King’s case “the district judge recognized that potential jurors were unlikely to admit openly to harboring racist views.” There was no similar risk to Stewart’s right to a fair trial, the court said, because “[n]o similarly sensitive or contentious lines of questioning were here identified by the district court.” Moreover, closure requires a specific showing of a particularly acute risk of prejudice. (ABC, Inc. v. Stewart).

Nearly all reported cases deal with access to voir dire in criminal cases. However, a New Jersey appellate court applied the same standards for closure of civil voir dire, though this case dealt with questioning after the jury was empanelled and reached a verdict. The court reversed an order closing voir dire because “there is a presumptive right of access to a civil post-verdict jury voir dire” and it found “no compelling, overriding interest which would rebut the presumption of access and … the well-founded concerns of the trial judge could be adequately addressed through less restrictive alternatives than requiring closure.” (Barber v. Shop-Rite of Englewood & Associates, Inc.).

Voir dire transcripts

The press and the public also enjoy a First Amendment presumption of access to the transcripts of voir dire proceedings. The presumption may be overcome by a compelling interest that outweighs the First Amendment right of access. The court must determine that the limitations imposed are both necessary to and effective in protecting that interest.

The Supreme Court in Press-Enterprise I recognized a constitutional right of access to voir dire transcripts as well as proceedings, noting that in the unusual circumstance where voir dire must be held behind closed doors, the First Amendment requires the judge to release transcripts whenever possible. The federal appellate court in Philadelphia (3rd Cir.) expanded on this in U.S. v. Antar, noting “[i]t would be an odd result indeed were we to declare that our courtrooms must be open, but that transcripts of the proceedings occurring there may be closed, for what exists of the right of access if it extends only to those who can squeeze through the door?”

In that case, voir dire was opened to the public, but reporters complied with the judge’s request to leave the courtroom due to space limitations and were not able to learn the juror information given in open court, including the names of prospective jurors and the towns from which they came. The press requested transcripts that would reveal the information, but they were sealed by the trial court. The appellate court ordered the transcripts opened, finding no meaningful distinction between voir dire proceedings themselves and the transcripts of those proceedings. It concluded that “[t]rue public access to a proceeding means access to knowledge of what occurred there.”

As a practical matter, transcripts are often difficult (and expensive) to obtain from the court reporter even if the court unseals them. Reporters should check with the parties to see if they have already ordered transcripts. Alternatively, courts sometimes have funds set aside to pay for transcripts or the ability to waive fees. Where a hearing has been closed, the court may be willing to make arrangements to minimize the burden on the press and public.

Jury Questionnaires

Courts will sometimes ask jurors to fill out questionnaires, which can be a more efficient way of getting basic information on prospective jurors than asking questions in open court. These questionnaires are part of voir dire and thus presumptively public. But courts may redact highly personal information that does not serve the goals of openness, such as Social Security numbers.

The Supreme Court has not addressed whether jury questionnaires are subject to the same presumption of openness as voir dire proceedings, but lower courts have. In Lesher Communications, Inc. v. Superior Court, a California court concluded that the presumption of openness applies to questionnaires as well as to oral questioning, because “[t]he fact that a lawyer does not orally question a juror about a certain answer does not mean that the answer was not considered in accepting or rejecting the juror.”

The Ohio Supreme Court agreed, reasoning that “[t]he 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.” The court cited cases from around the country and added that “virtually every court having occasion to address this issue has concluded that such questionnaires are part of voir dire and thus subject to a presumption of openness.” (Beacon Journal Publishing v. Bond).

Still, courts may — and sometimes must under local or state rules — redact highly personal information that doesn’t further the objectives underlying the right of access. Thus, the Ohio Supreme Court found that despite the presumption of openness in questionnaires, “certain questions will invariably elicit personal information that is relevant only to juror identification and qualification, rather than for the selection of an impartial jury.” The court said that “these questions — such as those that elicit [a] Social Security number, telephone number, and driver’s license number — are not properly part of the voir dire process and should be redacted from the questionnaires prior to disclosure.”

Absent unusual circumstances, media intervenors seeking access to questionnaires generally have no objection to redacting Social Security numbers and similarly sensitive information. Indeed, it is often good strategy to suggest such redactions as less restrictive alternatives to sealing.

Interviewing Jurors

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Reporters were barred from contacting jurors after the 2001 mistrail of Rabbi Fred J. Neulander, who was later convicted of hiring a hitman to kill his wife. The New Jersey Supreme Court ruled that interviews might prejudice a subsequent jury.

Another question courts struggle with is the extent to which they can control contact between jurors and the press, both during and after the trial. Such restrictions pit the First Amendment rights of jurors and journalists against the interest of the court in the fair and efficient administration of justice.

During trial, the fair administration of justice is generally considered more important than free speech rights and courts clearly have the authority to prevent the press from interviewing jurors about the proceedings. For this reason, a Colorado appellate court affirmed a contempt citation against reporters who attempted to interview jurors that were preliminarily qualified for the jury, requiring the court to dismiss the jury and repeat the juror selection process. The court found that “once the trial process had begun, respondents’ First Amendment rights did not extend to permit communication with prospective jurors who had been admonished not to discuss the pending case” because “the risk of prejudice to the fair administration of justice is so high if such conduct were permitted … that any benefit to be derived by the public from the publication of the jurors’ views is overridden.” (In re Stone).

But after a verdict is rendered, there is no more jury deliberation to protect. Post-verdict limitations on interviewing jurors are considered presumptively invalid “prior restraints” on speech, and the party seeking to limit juror interviews must show that such interviews would “pose[ ] a clear and present danger or a serious and imminent threat to a protected competing interest.” In addition, the restraint must be as narrow as possible “and no reasonable alternatives, having a lesser impact on First Amendment freedoms, must be available.” Thus, the U.S. Court of Appeals in San Francisco (9th Cir.) struck down an order prohibiting the media from contacting jurors (sometimes called a “no-contact order”) because after trial “there was no possibility that allowing the jurors to speak to newsmen would deprive [the defendants] of a fair trial.” (U.S. v. Sherman).

Similarly, the U.S. Court of Appeals in New Orleans (5th Cir.) invalidated a trial court rule that prohibited questions concerning the deliberations or the verdict of the jury. The court noted that it might approve “a rule narrowly tailored to prevent the disclosure of the ballots of individual jurors or some other paramount value,” but added that the worry “[t]hat unrestrained post-verdict inquiry into every juror’s vote and every jury’s deliberations in every trial might be harmful cannot validate a categorical denial of all access.” (In re Express News Corp.). And in Journal Publishing Company v. Mechem, the U.S. Court of Appeals in Denver (10th Cir.) invalidated a post-trial no-contact order as it applied to press, finding that “while a court may broadly proscribe attorney and party contact with former jurors, it does not have the same freedom to restrict press interviews with former jurors.”

Still, courts have occasionally approved limited restrictions in unusual cases, allowing limitations on repeated requests for interviews or discussions of jury deliberations or other juror’s votes. For example, the Mechem court said that a judge can instruct jurors that they may refuse interviews or tell them “not to discuss the specific votes and opinions of noninterviewed jurors in order to encourage free deliberation in the jury room.”

In a high-profile case involving the murder of a federal judge, the federal appellate court in New Orleans (5th Cir.) upheld an order that prohibited repeated requests for interviews, as well as questioning one juror about how others voted. (U.S. v. Harrelson). The court reasoned that “[f]reedom of debate might be stifled and independence of thought checked if jurors were made to feel that their arguments and ballots were to be freely published to the world.” The same court later upheld a rule prohibiting reporters from asking about “the discussions about the case occurring among jurors within the sanctity of the jury room” but allowed questions about a juror’s own “general reactions” to the proceedings. (U.S. v. Cleveland).

In an unusual case, the New Jersey Supreme Court upheld restrictions on press contact with jurors following an inconclusive murder trial that was certain to result in the defendant’s imminent retrial. That court allowed restrictions on media contact with jurors, on the ground that interviews might “reveal some insight into the jury’s deliberative process that would afford the prosecution a significant advantage at the retrial,” which would violate the defendant’s Sixth Amendment right to a fair trial. (New Jersey v. Neulander).

Of course, jurors are always free to decline interviews with the press, and the court may instruct them that they can refuse to speak with the press.