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Nevada Supreme Court Wades Into Media Access to Juror Questionnaires

By Katerina Milenkovski, Litigation News Associate Editor – February 25, 2010

The Supreme Court of Nevada recently ruled that the district court had erred in denying the media access to juror questionnaires in the case, Stephens Media v. Dist. Ct.. The court held that “juror questionnaires used in jury selection are, like the jury-selection process itself, presumptively subject to public disclosure.”

The case involved the highly publicized trial of O.J. Simpson and Charles “CJ” Stewart for various criminal offenses related to the theft of Simpson memorabilia from a Nevada hotel room.

District Court Order
In preparation for the trial, the district court issued a decorum order establishing rules and guidelines for the press and other observers. That order provided, among other things, that nothing was to be disclosed that might reveal the identity of jurors or prospective jurors, and indicated that a sample copy of the jury questionnaire would be provided after the jury was seated and sworn.

Response from the Press
The press filed an emergency application to intervene for the limited purpose of modifying the decorum order as it related to the issue of juror questionnaires. The press sought access to a blank juror questionnaire before jury selection began and access to the completed questionnaires of the jurors and alternates who were selected.

The district court denied the application, citing fairness and privacy concerns. The press filed an emergency writ of prohibition or mandamus challenging the district court’s denial.

Appellate Court Holding
The appellate court found that “the use of the questionnaires is merely a part of the overall voir dire process, subject to public access and the same qualified limitations as applied to oral voir dire.”

The court went on to note, however, that the public’s right of access is not absolute. Citing the U.S. Supreme Court decision in Press-Enterprise Co. v. Superior Court of California, the court held that the presumption of openness may be overcome if the court makes specific findings, on the record, to demonstrate that there is a substantial probability that the defendant would be deprived of a fair trial by the disclosure of the questionnaires and if the court considers whether alternatives to total suppression would protect the interests of the accused.

The court also addressed juror privacy concerns, noting that jurors should be instructed to inform the judge, in camera, with counsel present and on the record, when they believe public questioning may prove damaging because of embarrassment, in which case accommodations can be made.

Analysis of the Decision
“The Nevada court got it right,” says George Freeman, New York, cochair of the ABA Section of Litigation’s First Amendment and Media Litigation Committee. “They followed the U.S. Supreme Court precedent. Jury questionnaires, just because written, shouldn’t be any different than any other part of voir dire.”

“I approach this from the point of view of the ABA Commission on the American Jury Project, which I have been involved with since I chaired the Litigation Section in 2004–2005,” says Dennis J. Drasco, Roseland, NY, cochair of the Section of Litigation’s Special Committee on Jury Innovation.

“That group has developed the ABA Principles for Juries and Jury Trials [PDF] to encourage participation of citizens in the jury process and also to enhance jury comprehension and to protect the privacy of jurors,” Drasco says.

Juror Privacy
“One of the principles addresses privacy issues when dealing with prospective jurors, which is an issue that has made the average citizen more reluctant to participate in the jury process. The use of jury questionnaires goes to the heart of that—who has access, how much information is enough, what do lawyers need to make intelligent selections of jurors without going beyond what is necessary and invading their privacy rights,” he notes.

“My view,” states Drasco, “is that privacy should prevail over the media’s ability to delve into a juror’s back ground—in any case, let alone a high-profile case.”

“My experience in New Jersey and in New York, where I have selected juries, is that jurors fill out questionnaires but then we voir dire them at side bar. Only the lawyers and the judge get to hear the responses. Even other jurors don’t get to hear each other’s answers,” he says.

“Members of the public who have access to the courtroom will hear some info, but things that people want to keep confidential—their involvement in past lawsuits, whether they’ve been victims of crime, more personal questions—those are addressed at side bar, on an individual basis. It is all on the record, but not in open court. I think jurors appreciate that and are more apt to give open answers that way,” observes Drasco.

“In Arizona, where I practice, trial judges must make sure that “the privacy of prospective jurors is reasonably protected” during voir dire questioning—a responsibility that should extend to written responses to questions from counsel,” says Thomas Gilson, Phoenix, cochair of the Section’s Criminal Litigation Committee.

“But the key word there is ‘reasonably.’ As we can see from the Stephens Media case, the privacy rights of jurors are not absolute,” Gilson says.

Judicial Discretion
“Judges have a lot of discretion over what information to release to the media, as long as they strike an appropriate balance between competing constitutional issues, including freedom of the press and (in criminal cases) the right to a fair trial. As practitioners draft jury questionnaires, they should keep these considerations in mind—and know there is a chance that the judge may release some juror information to the media,” he says.

Public Interest
“I think people forget that the trial is not for the benefit of the two parties and the judge alone,” says Freeman.

“The public pays for the trial. The public wants to be assured that justice is done. And the public ultimately has to live with the results,” he reminds.

“The notion that we have to do everything for the convenience of the parties involved is kind of short-sighted,” Freeman opines.

“In the end, it’s the perception that the legal system works fairly that is preeminent. To have justice done in private, particularly in big cases, where there is more attention from the public, will result in the opposite. That’s true at any stage of trial, including voir dire,” says Freeman.

Keywords: Litigation, jury selection, press



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