UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NEW BERN DIVISION
______________________________________
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UNITED STATES OF AMERICA )
)
v. ) NO.
)
xxxxxxxxx VENTURES, INC. ) MOTION FOR JURY
d/b/a KALBRUS, ) QUESTIONNAIRE, PRE-VOIR
MAILING REQUIREMENTS, ) DIRE INSTRUCTION TO
MAILING REQUIREMENTS, M.V., ) PROSPECTIVE JURORS,
MAILING REQUIREMENTS H.A.G., ) INDIVIDUAL VOIR DIRE
MEDON VIDEO, ) ON SPECIFIC TOPICS, AND
HUMAN ARTS GUILD, ) PRE-TRIAL CONFERENCE ON
GALLERIE MACHIE VIDEO ) JURY SELECTION PROCEDURES
)
______________________________________)
COMES NOW the defendant xxxxxxxxx, through undersigned counsel, and respectfully moves this Court, pursuant to defendant's Fifth Amendment right to a trial by an impartial jury, to permit the use of a jury questionnaire and the use of individual voir dire on the subjects of sexually explicit films and other related highly emotional and personal issues, and to instruct the potential jurors regarding the basic elements of the law of obscenity and the need for candor in answering voir dire questions. In addition, defendant respectfully requests the scheduling of a pre-trial conference thirty days before the actual trial date to discuss the jury selection problems inherent in this case.
In support of this motion, defendant shows the Court the following:
1. Counsel for defendant xxxxxxxxx Ventures has consulted with counsel for all other defendants regarding this motion. All defendants join in this motion.
2. The defendant has been indicted for distributing a number of allegedly obscene videos. These videos contain graphic depictions of various sexual acts including genital intercourse, oral intercourse and anal intercourse, among others.
3. Counsel for defendant has been involved in several other obscenity trials involving such sexually explicit material. In these cases, it was apparent that a large number of potential jurors have strong feelings on the issues of obscenity, censorship and the First Amendment. Some of these feelings favor the prosecution, some favor the defense. As the Handbook on the Prosecution of Obscenity Cases, published by the National Obscenity Law Center, notes on page 49:
"Because most people have deeply held views about sex, sexual morality, and explicit material, it is extremely important to learn in voir dire the views of prospective jurors. As Schauer says:
'It is probably safe to say that it will be more difficult for a juror completely to put aside his personal views on sex and obscenity in an obscenity case than it would be for that same juror to put aside his personal feelings in a case touching less on moral and religious beliefs.'
Quoting F. Schauer, The Law of Obscenity, p. 253 (1976). Professor Schauer was one of the Commissioners on Attorney General Meese's Commission on Pornography.
4. The legal basis for defendant's motion is set forth in defendant's Memorandum of Law in Support of Motions for Specialized Jury Selection Procedures. Attached as Exhibit A to the Memorandum of Law is an affidavit prepared by a sociologist who has had extensive experience in researching juror attitudes generally, and in a number of cases involving First Amendment issues and sexually explicit material. This affidavit specifies in detail the need for specialized jury selection procedures in a case involving the dissemination of sexually explicit material, in order to safeguard defendant's Fifth Amendment right to an impartial jury, because so many potential jurors come to court with strong feelings on both sides of this emotional issue. Based upon the research and experience of this expert, such procedures should include a short jury questionnaire and individual, sequestered voir dire on several specific topics.
5. In other obscenity trials both counsel for the prosecution and counsel for the defense have found the use of a short written jury questionnaire, to be filled out by the jurors when they arrive for jury selection, to be an invaluable means of making the jury selection process both more efficient and less embarrassing to the prospective jurors. Counsel for defendant is currently in the process of attempting to construct such a questionnaire to submit for the Court's consideration.
6. Since the jurors in an obscenity case, under Miller v. California, 413 U.S. 15, 34 L. Ed. 2d 419, 93 S. Ct. 2607 (1973), must impartially watch the videos at issue in their entirety, and thus be able to judge the material as a whole, prospective jurors in such a case must be questioned to determine whether their personal views regarding such materials, and the sexual acts depicted, are such that they will be unable to view impartially the material in its entirety, as Miller requires. Neither the government nor the defense wishes to find out in the middle of the trial that some of the jurors are unable to do this, with a resultant necessity for a mistrial. To this end, the potential jurors must be given at least some indication of the nature of the material involved, so that they can realistically assess their ability to perform their function as required by Miller. To minimize the uncomfortableness of answering questions on such personal and emotional issues, to maximize juror candor on such issues, and to avoid tainting the rest of the venire as a result of the answers of some jurors, it is respectfully requested that a group voir dire be conducted on the noncontroversial aspects of jury selection, and then an individual voir dire of each juror separately be conducted on those aspects relating to their views on sexually explicit films generally and the specific activities depicted in the films. Once again, the Handbook on the Prosecution of Obscenity Cases is instructive. It notes that during sequestered voir dire, a prospective juror:
"is more likely to admit disqualifying bias or to acquiesce in excusal. On the other hand, when group voir dire is conducted prospective jurors are more likely to resist admitting that they are so biased that they cannot follow the law. In addition, when the first venireperson in a group makes his commitment to be fair and follow the law regardless of his personal views, the remaining venirepersons are much more likely to do the same. Studies of group dynamics show that such effects are real."
National Obscenity Law Center, Handbook on the Prosecution of Obscenity Cases, pp. 52-53 (1985). (1)
7. Prior to conducting the voir dire, it is respectfully requested that the jurors as a group be given a preliminary instruction by the Court regarding the case and the obscenity statute. Such a preliminary instruction is critical in this case because prospective jurors generally have some everyday definition of what is "obscene" that differs from the legal definition, and because the prospective jurors must understand the basic elements of the law of obscenity in order to determine in their own minds whether they will be able to put aside their personal feelings about sexually explicit materials (pro or con) and follow the law. A proposed preliminary jury instruction based upon the pattern instructions is attached as Exhibit A. In addition, defendant respectfully requests that the Court emphasize to the jury its desire for honesty and candor in juror responses to questions asked during voir dire. Two examples of such an instruction given by other United States District Judges are attached as Exhibits B and C.
8. Counsel respectfully suggests that a pre-trial conference to discuss the jury selection problems inherent in this case, scheduled approximately one month before the actual trial date, would be in the interests of the fair and efficient administration of justice.
WHEREFORE the defendant respectfully requests that the Court permit the use of a jury questionnaire and the use of individual voir dire on the subjects of sexually explicit films and other related highly emotional and personal issues, instruct the potential jurors regarding the basic elements of the law of obscenity and the need for candor in answering voir dire questions, and schedule a pre-trial conference thirty days before the actual trial date to discuss the jury selection problems inherent in this case.
This the ____ day of October, 1989.
RUDOLF & MAHER, P.A.
________________________________
David S. Rudolf, Bar # 8587
Thomas K. Maher, Bar # 12771
312 West Franklin Street
Chapel Hill, NC 27516
(919) 967-4900
Attorneys for Defendant xxxxxxxxx Ventures
CERTIFICATE OF SERVICE
This is to certify that the undersigned has this date served this document in the above-captioned action upon all other parties to this cause by depositing a copy hereof, postage prepaid, in the United States Mail, properly addressed to the attorney for each party.
This the ___ day of October, 1989.
___________________________________
RUDOLF & MAHER, P.A.
88-056.P05
EXHIBIT A
DEFENDANT'S REQUESTED INSTRUCTION
TO POTENTIAL JURORS ON THE
ELEMENTS OF OBSCENITY
Members of the jury panel, you have been summoned as potential jurors in the trial of a criminal case. Shortly we will begin the process of selecting the persons who will serve as jurors. This trial involves charges that the defendants distributed allegedly obscene videos through the United States mails and through the United Parcel Service.
In order to help all of us determine whether you can impartially apply the law in this case, I am going to instruct you on the definition of obscenity, because one of the things the government will be required to prove in this case is that the videos are legally obscene.
Whether the videos in your personal opinion are good or bad, moral or immoral, and whether you like or dislike the material may not be considered by you in determining whether the material is legally obscene. Nor may you determine that a video is obscene merely because it is indecent. Rather, for a video to be obscene, the government must prove the following three things beyond a reasonable doubt:
(1) that the material depicts sexual conduct in a patently offensive manner when judged by contemporary community standards concerning the depiction of such activity;
(2) that the average person, applying contemporary community standards, would find the material, taken as a whole, appeals to a prurient interest in sex; and
(3) that the material, taken as a whole, lacks serious literary, artistic, political or scientific value.
In assessing whether you will be able to put aside your personal feelings and apply this test impartially, you must keep in mind the following:
(1) You may only find the material obscene if you find that it contains patently offensive depictions of sexual conduct. The test is not simply whether the film contains depictions of sexual conduct, or whether these depictions are indecent, but rather whether you find these depictions are clearly offensive under the community standards in the Eastern District of North Carolina.
(2) The second element the government must prove is that the material, taken as a whole, appeals to a prurient interest in sex. A prurient interest in sex is a shameful or morbid interest in sex. You must judge this from the standpoint of the average person, applying contemporary community standards. You must view the videos in their entirety, and you must be able to put aside your personal views of whether the material appeals to a prurient interest in sex, and instead be willing to apply the view of the average person, applying contemporary community standards.
(3) The third element the government must prove is that the material lacks serious literary, artistic, scientific or political value. This is an objective test, and you may not find that the material lacks serious value simply because you find it distasteful. Rather, you must evaluate whether any reasonable person would find serious value in the videos.
In order to serve as a juror you must be able to view each of these videos in its entirety, and with an open mind. The videos are each approximately (insert time), and contain depictions of explicit sex acts, including genital intercourse, oral intercourse, anal intercourse, masturbation, ejaculation, group sex, lesbian sexual acts and interracial sex acts.
I have given you this description of the activities in the videos, and these instructions on the definition of obscenity, so that you may honestly answer questions concerning your ability to put aside your personal feelings about material that contains such explicit sex, and any feelings you may have about whether such material should be subject to regulation, watch such videos in their entirety with an open mind, and impartially follow the law as it is given to you.
AUTHORITY FOR INSTRUCTION
Miller v. United States, 413 U.S. 15, 24 (1973)
("[obscenity must] be limited to works which, taken as a whole, appeal to a prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political or scientific value.")
Smith v. United States, 431 U.S. 291, 301 (1977)
("[C]ontemporary community standards must be applied by juries in accordance with their own understanding of the tolerance of the average person in the community.")
Pope v. Illinois, 481 U.S. _____, 95 L.Ed 2d 434 (1987)
(Value of work is not judged by community standards).
Sable Communications of California, Inc., v. F.C.C., 492 U.S. ___, 106 L.Ed.2d 93 (1989) (sexual expression which is indecent but not obscene is protected by the First Amendment).
88-056.P05
EXHIBIT B
PRELIMINARY INSTRUCTION
TO PROSPECTIVE JURORS ON NEED
FOR CANDOR IN RESPONSES TO
VOIR DIRE QUESTIONS*
Ladies and gentlemen, I am going to briefly talk with you this morning, and then we will ask your indulgence while we ask individual prospective jurors questions. You have already filled in the questionnaires, and we have those, but it is necessary to ask additional questions.
The process we are about to begin is known as voir dire. You will be asked questions regarding your qualifications to serve. As I indicated, some of it will be done individually. You should understand that although it is your duty as a citizen to serve on juries, it is also your duty as a citizen not to serve on a jury if there is any reason whatsoever that you cannot do so in fairness to the government, the defendant, or to yourself.
With respect to the questions that you will be asked, I want to emphasize that there are no right and wrong answers; that this is not the giving of a test; that I have no expectation from you as to what your answer ought to be; that you shouldn't in any way . . . feel that you should strive to give an answer that will be acceptable to me, or to the lawyers, or others involved in the case. None of us want that, and that's not what this is all about.
What this is all about is to get your honest, straightforward feelings when we ask you what they are, or straightforward answers as to your opinions or a factual response, honest factual response, if the question calls for that. I emphasize that, because . . . it has been suggested by those who have studied the process that prospective jurors may feel that the authoritarian figure of the judge may play a role that is not really helpful to the process, and I can assure you that that's not my purpose. It will be a very informal atmosphere in which the questions are given to you, or put to you, and your only obligation is to answer truthfully. There are no right and wrong answers. What is important is that you be as honest as you can in your responses, as I have been indicating.
The purpose of voir dire is to give the prosecution and the defense an opportunity to learn something about each of you. You have already answered some questions about your family, your occupational background and interests in the questionnaire you have completed. You will be given some follow-up questions on those matters for clarity. You will be asked some questions about your views on some issues involved in this case that might affect your evaluation of the evidence one way or another.
If you don't understand a question, just speak up and it will be clarified. What is most important is that you be as honest and forthright as you possibly can. Many of you will be excused from this jury. It should not be an embarrassment to you in any way if you are excused. It carries with it no disqualification, no suggestion of disqualification -- certainly no stigma. To carry away any such notion would, indeed, be very foolish, and I know that none of you will. It does not mean that you cannot serve on a future jury. What we ask is that above all you be, again, honest and forthright in stating your opinions and feelings.
88-056.P05
EXHIBIT C
PRELIMINARY INSTRUCTION TO
PROSPECTIVE JURORS ON NEED
FOR CANDOR IN RESPONSES TO
VOIR DIRE QUESTIONS
Preliminary instruction given by United States District Judge John T. Nixon in United States v. Toushin, No. 3-88-00094 (M.D. Tn., May 1989)
88-056.P05
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1. Despite recognizing that sequestered voir dire is more likely to produce juror candor regarding bias, the Handbook notes that "[s]equestered voir dire should be opposed" by prosecutors. Id. at 52.