Issues around pretrial publicity polluting the jury pool were at the forefront in the recent case against Floridian George Zimmerman for the killing of an unarmed teenager. Attorneys handling high-profile cases are presented with a dilemma during voir dire: should they ask about pretrial publicity or not?
When a case involves prejudicial pretrial publicity, the trial attorney must decide whether to question the jurors at length about the extent and scope of their knowledge of pretrial publicity. The upside is getting a clear picture of the jurors’ knowledge and whether they might be prejudiced. The downside is it will alert the jurors to the publicity and fix those facts firmly in their minds. And once the jury leaves the courtroom, a juror who is ignorant of the publicity may be tempted to satisfy the curiosity that such questions would naturally arouse.
Here are some solutions to this dilemma:
- Have the judge conduct the questioning. It may be preferable to have the judge conduct the examination of individual jurors about whether they have seen or heard the pretrial publicity. If the judge carefully and individually questions the jurors about their opinions and knowledge of pretrial publicity, a juror is less likely to infer that the lawyers are trying to hide something.
- Conduct individual voir dire. Courts may use individual voir dire to ask about the nature and extent of the juror’s knowledge of pretrial publicity and how, if at all, the publicity may affect the juror. Consider asking the court to voir dire the jurors individually on the issue of pretrial publicity.
- Use juror questionnaires. Juror questionnaires are increasingly used to gather information about the jurors before oral voir dire begins. Consider using questionnaires to gather information about each juror’s exposure to and attitude about pretrial publicity. This process will help avoid having one juror’s answers influence the others and tainting jurors who have not been exposed to the publicity by the responses of those who have.
- Challenge for cause. A challenge for cause because of knowledge of publicity, even if the court denies the challenge, can form the basis to renew motions to change venue or to continue the trial. The challenge can also be the basis for a future motion for mistrial, a motion for new trial, and appeal.
- Exhaust all peremptory challenges. No reversible error occurs by the erroneous denial of a challenge for cause unless all peremptory challenges are exhausted and it appears that a party wanted to exercise an additional peremptory challenge. If all peremptory challenges are not exercised, the appellate court may assume that counsel was satisfied that the jury was fair and impartial.
As a practical matter, when the publicity is extremely widespread and well known throughout the community, a prospective juror’s answer on voir dire of never having heard of the case is suspect. It may be preferable to have an honest juror who says that he or she will try to disregard pretrial publicity. Recognize, however, that it is human nature for a juror to be influenced to some degree by preexisting knowledge of certain events, even if the juror promises to be fair and impartial.
For more on the issues relating to publicity, prejudice, and getting a fair trial, turn to CEB’s California Trial Practice: Civil Procedure During Trial, chap 2.
Related CEB blog posts:
- Social Media Adds a New Twist to PreTrial Publicity Ethical Issues
- No Comment: How to Deal with Media
- What I Learned from Jury Duty About Voir Dire
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