UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

CENTRAL DIVISION

______________________________________

)

)

UNITED STATES OF AMERICA; ) NO.

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Plaintiff, )

) MOTION FOR WRITTEN JURY

) QUESTIONNAIRE AND FOR

v. ) LIMITED INDIVIDUAL VOIR

) DIRE ON SPECIFIC TOPICS

) AND INCORPORATED

xxxxxxxxxxxxxxxxxx, ) MEMORANDUM OF LAW

a North Carolina Corporation, )

Defendants. )

)

______________________________________)

Defendant xxxxxxxx., through undersigned counsel, respectfully moves this Court, pursuant to defendant's Sixth Amendment right to a trial by an impartial jury, to permit the use of a written jury questionnaire to obtain relevant background and attitude information from the prospective jurors. In addition, defendant respectfully requests that prospective jurors be questioned individually, out of the presence of other jurors, regarding sensitive or controversial issues relating to possible biases or inability to serve in this case, in order to promote candor and to avoid tainting the remaining prospective jurors.

In support of this motion, defendant shows the Court the following:

I.

BACKGROUND

1. Counsel for defendant xxxxxxxx. 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 magazines and one video. These materials contain graphic depictions of various sexual acts. There is no dispute that defendant in fact disseminated the indicted material. The primary issue at trial will be whether these materials are protected by the First Amendment, or whether they are legally obscene. This will require jurors to apply concepts such as the "average person," "community standards," "patent offensiveness" and "appeal to a prurient interest." Miller v. California, 413 U.S. 15 (1973). It is crucial that jurors put aside their own views of the material. The Supreme Court "has emphasized on more than one occasion that a principal concern in requiring that a judgment be made on the basis of "contemporary community standards" is to assure that the material is judged neither on the basis of each juror's personal opinion, nor by its effect on a particularly sensitive or insensitive person or group." Hamling v. United States, 418 U.S. 87, 107 (1974).

3. Applying such concepts is very different from the typical fact-based determinations that jurors in criminal cases normally are required to make, such as whether the defendant on trial actually distributed an illegal drug, or was part of a conspiracy to do so. In applying such concepts, there is a substantial danger that strongly held personal beliefs and biases will improperly affect a juror's judgement.

4. Counsel for defendant has been involved in several other obscenity trials involving such sexually explicit material. In these cases, it was apparent that a number of potential jurors have strong feelings on the issues of pornography, 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 for the use of prosecutors, 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 1985 Commission on Pornography.

5. Over at least the past four years, the availability and dissemination of sexually oriented materials has been the subject of extensive negative publicity in Utah. A representative sample of such publicity, consisting of approximately 100 articles from just the Salt Lake Tribune, is attached as Exhibit A.

6. These articles confirm that this issue is a controversial and emotional one, on which a number of people already have deeply held views. Some people, for example, believe that the availability of sexually explicit material has caused the moral decay of and threatens the existence of our society. Some believe that it actually causes rape and other violent crimes. On the other extreme, some people believe that any attempt to regulate sexually explicit material is the first step on the road to censorship, and must be resisted at all costs.

7. That a number of prospective jurors will already have views on the distribution of sexually explicit material is further confirmed by research conducted over the past five years on public attitudes about sexually oriented materials. Public opinion surveys conducted by respected public opinion research firms, such as the Gallup Organization, and major news organizations, such as the Associated Press, have found that between 22% and 29% of the adult population nationwide believe that magazines that simply show nudity should be totally banned for sale to adults, while 33% to 36% believe X-rated videocassettes should be banned. A summary of some of the relevant survey results are attached as Exhibit B. Obviously, people who feel such materials should be totally banned for sale to adults will be prejudiced to some degree against the material at issue in this case. Indeed, a 1987 survey found that 11% of the adult population between the ages of 18 and 44 were concerned enough about sexually explicit materials that they "would be willing to take an active personal role" in the anti-pornography cause, while a 1989 national survey conducted by the Los Angeles Times reported that 18% of the adult population were more upset about depictions of nudity and sex in entertainment materials than about any other depictions, including depictions of drugs or violence. Exhibit B.

8. In an obscenity case, therefore, it is critically important for the defendants to have information concerning prospective jurors' feelings about sexually explicit materials generally, and about any particularly controversial aspects of those materials, such as interracial sex or homosexual relations between women. ⁽¹⁾ If a prospective juror feels so strongly about these topics that he or she would be biased in favor of the prosecution, the defendant would be entitled to a challenge for cause. Equally important, however, the defendant needs such information in order to intelligently exercise his or her peremptory challenges where a cause challenge would not be mandated.

9. The need for such information is particularly acute in this case. Common sense tells us, and the studies document, that a person's views about sexually explicit materials are strongly affected by religious training and family influences. See e.g., D'Emilio and Freedman, Intimate Matters: A History of Sexuality in America, Harper and Row (1988); Jelen, "Fundamentalism, Feminism and Attitudes Towards Pornography," Reviews of Religious Research 28 (1986); McConahay, "Pornography and Public Opinion: How Many and Who Would Ban What?," 1988 (Working Paper, Institute of Policy Sciences and Public Affairs, Duke University). See Affidavit of Marjorie Fargo, Exhibit C, ¶ 17. Research conducted by social psychologists over the past 20 years indicates that "religion is a strong predictor not only of matters of faith," but also of how people feel about "moral, social and political issues." Smith, "Classifying Protestant Denominations," Review of Religious Research, Vol. 31, No. 3, pp. 225-245 (March, 1990). For example, because the most conservative religions believe in a strict and traditional sense of sin, active members of these religions "are most likely to condemn homosexual, extramarital and premarital sex, and to favor outlawing pornography." ⁽²⁾ Smith, "America's Religious Mosaic," American Demographics, Vol. 6, No. 6, pp. 19-23 (June 1984) (emphasis added).

10. As this Court is aware, approximately 60% of the jury pool will consist of members of the Church of Jesus Christ of Latter Day Saints. Over the past 25 years, the leadership of the Church has been extremely vociferous in condemning sexually explicit materials, and in urging members of the Church to do so, in official Church statements and publications. For example, a pamphlet entitled "Statements by Leaders of the Church of Jesus Christ of Latter Day Saints Concerning Pornography," published by the Church in 1986 and again in 1988, and disseminated by the Church to its members, contains excerpts of statements condemning sexually explicit materials by the President, the First Presidency, the Counselor in the First Presidency, members of the Quorum of the Twelve Apostles, the General President of the Young Women, and Bishops of the Church. See Sample of Latter Day Saints Church Views on Sexually Explicit Material, attached as Exhibit D. The following are a few representative examples:

Pornography or erotic stories and pictures are worse than filthy or polluted food. The body has defenses to rid itself of unwholesome food. With a few fatal exceptions, bad food will only make you sick but do no permanent harm. In contrast, a person who feasts upon filthy stories or pornographic or erotic pictures and literature records them in this marvelous retrieval system we call a brain. The brain won't vomit back filth. Once recorded it will always remain subject to recall, flashing its perverted images across your mind and drawing you away from the wholesome things in life.

Elder Dallin H. Oaks, Member of the Quorum of the Twelve Apostles

Pornography is a tool of the devil to twist instincts to forbidden ends. . . . The real purpose of its creation is to put dollars in the pockets of its creators. The result of its use is to warp the minds and excite the passions of those who fall into its trap.

President Gordon B. Hinckley, Counselor in the First Presidency

We need to constantly guard against immorality, pornography, and sexual permissiveness that would destroy the purity of the family members young and old . . ..

. . . We must be constantly alert to their evil presence in our homes and destroy them as we would the germs and filth of disease. We must hunt them from the closets of our minds, freeing ourselves of such worldliness, quenching the embers of wickedness before they become destructive flames . . ..

Members of the Church everywhere are urged to not only resist the widespread plague of pornography, but as citizens to become actively and relentlessly engaged in the fight against this insidious enemy of humanity around the world.

President Spencer W. Kimball

These statements are echoed again and again by Church leaders, in this pamphlet and in others. One entitled "To Young Men of the Priesthood" urges young adults of the Church "not to pollute your minds with such degrading matter, for the mind through which this filth passes is never the same afterward. Don't see R-rated movies or vulgar videos . . .." See Exhibit D. Another notes that "certain sins are of such gravity that they can put your membership in the Church and your eternal life at risk. Sexual sins are among those of such seriousness." It also notes that "lesbian activities are sinful and an abomination to the Lord (see Romans 1:26-27, 31)." See pamphlet entitled "For the Strength of Youth," Exhibit D.

11. Such statements, and others like them, have been widely disseminated to Church members in Utah through the General Conferences held each year, through articles in Church publications such as The Ensign and Church News, and undoubtedly through leaders in local stakes and wards. See Exhibit D for a small sample of such articles. In addition, in January 1987 the Church produced several half-hour radio and television documentaries "on the plague of pornography" to distribute "as widely as possible as free public affairs programs." See The Ensign, January 1987, p. 75, attached as part of Exhibit D. The views of the Church leaders have also been reported in the Salt Lake Tribune, and no doubt in other news media in Utah, with headlines such as "Church Officials Denounce the 'Deluge' of Porn." In one such article, the General President of the Young Women was quoted as saying that "pornography is not only a moral issue, but an issue of survival - survival for the individual, the family and the nation." See Exhibit D.

12. Given the official position of the Church on sexually oriented materials, and the widespread dissemination of that position in Utah, it is likely that at least some members of the prospective jury pool will have strong moral or religious objections to sexually explicit materials, which may affect their ability to be fair and impartial jurors. The result is the same as in the case of widespread prejudicial publicity about a trial -- a number of the prospective jurors will come into Court biased against what they will be asked to judge. Indeed, for those members of the Church who are particularly devout in their beliefs, finding that graphic depictions of sexual acts between men and women, and between two women, did not appeal to a "prurient" interest in sex would put them in direct conflict with what they sincerely believe to be God's view. Others, given their religious beliefs, would simply be unable to view the material at all.

13. For all of these reasons, defendants have moved that the Court utilize a written jury questionnaire to elicit relevant background and attitude information from prospective jurors efficiently and confidentially. This will eliminate any need for standard group voir dire on these topics. Instead, defendants request that the answers on the written questionnaire be used to focus the voir dire on those sensitive or controversial topics that involve potential bias, and that questions on such topics be asked of the prospective jurors individually, out of the presence of the other jurors, to promote candor and avoid any problems of taint.

II.

THE VOIR DIRE CONDUCTED IN A CRIMINAL CASE MUST BE SUFFICIENT TO ALLOW FOR THE INFORMED AND INTELLIGENT EXERCISE OF BOTH CAUSE AND PEREMPTORY CHALLENGES

14. Under the Sixth Amendment to the United States Constitution, the accused in a criminal case is entitled to a voir dire that ensures trial by a fair and impartial jury.

In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, 'indifferent' jurors. . . In the language of Lord Coke, a juror must be 'as indifferent as he stands unsworn.'

Irvin v. Dowd, 366 U.S. 717, 722, 6 L.Ed. 2d 751, 755, 81 S. Ct. 1639 (1961) (emphasis added). "The opportunity to prove actual bias is a guarantee of a defendant's right to an impartial jury." Dennis v. United States, 339 U.S. 162, 171-172, 94 L.Ed. 734, 742, 70 S. Ct. 519 (1950).

15. Thus, under the Sixth Amendment, it is clear that any prospective juror who cannot put aside his or her personal feelings or beliefs about a matter relevant to the case must be excused for cause. And, in conducting the voir dire, the trial court must insure that any potential biases of prospective jurors are adequately explored. As the Tenth Circuit has recognized:

The principles governing the sufficiency of voir dire questions derive from the Sixth Amendment guarantee of an impartial jury in criminal prosecutions. The function of voir dire is to lay the predicate for both the judge's and counsel's judgment about the qualifications and impartiality of potential jurors.

United States v. Williams, 638 F.2d 198, 200 (10th Cir. 1980) (emphasis added).

16. It is therefore not sufficient in a case involving controversial issues to simply ask the prospective jurors themselves whether they could set aside their personal feelings, or whether they could be fair and impartial. This would improperly substitute the juror's judgment of this issue for the Court's and counsel's, in contravention of Williams. A number of courts have recognized this, and held that "the voir dire must not simply call for the jurors' subjective assessment of their own impartiality, and it must not be so general that it does not adequately probe the possibility of prejudice." United States v. Polizzi, 500 F.2d 856, 879 (9th Cir. 1974). See also, Murphy v. Florida, 421 U.S. 794, 800, 44 L.Ed.2d 589, 95 S.Ct. 2031 (1975) ("the juror's assurances that he is equal to this task cannot be dispositive of the accused's rights"); United States v. Dellinger, 472 F.2d 340, 367, 375 (7th Cir. 1972), cert. denied, 410 U.S. 970 (1973) (noting that a prospective juror is not necessarily "alert to his own prejudices"); Silverthorne v. United States, 400 F.2d 627, 638 (9th Cir. 1968), cert. denied, 400 U.S. 1022 (1971) (reversing conviction because trial court relied on assessment by prospective jurors of their own biases or preconceptions).

17. Rather, "the searching rigor of the court's examination must be tailored to fit the circumstances of the case upon which the jurors will sit to ensure that the jurors are competent and impartial." United States v. Williams, 638 F.2d at 200. "The more the case is likely to arouse the prejudices of prospective jurors, the more elaborate and searching must be the trial court's voir dire." Id. at 201, n.1 (emphasis added).

18. The function of voir dire, however, is not merely to provide counsel with the information necessary to make challenges for cause, and the Court with the information necessary to make its own judgment about whether a juror will in fact be able to set aside any pre-existing feelings or beliefs he or she may have. In addition, the voir dire must be sufficient to enable counsel to intelligently exercise their peremptory challenges. As the Tenth Circuit further noted in Williams:

Without an adequate foundation, counsel cannot exercise sensitive and intelligent peremptory challenges, that suitable and necessary means of ensuring the juries be in fact and in opinion of the parties fair and impartial.

638 F.2d at 200. Indeed, as another Court has observed, "[p]eremptory challenges are worthless if trial counsel is not afforded an opportunity to gain the necessary information upon which to base such strikes." United States v. Ledee, 549 F.2d 990, 992 (5th Cir.), cert. denied, 434 U.S. 902 (1977). See also, Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); United States v. Bear Runner, 502 F.2d 908, 911 (8th Cir. 1974); United States v. Blount, 479 F.2d 650, 651 (6th Cir. 1973) ("primary purpose" of voir dire question is to "permit the intelligent exercises of challenges by counsel").

19. Thus, even if the Court determines that a prospective juror can truly set aside any personal feelings he or she may have, counsel must be given sufficient information about that juror's background, experiences and beliefs to be able to utilize peremptory challenges in an informed manner.

20. The voir dire procedures necessary to provide the defendant with his or her Sixth Amendment right to a trial panel of "impartial, indifferent jurors," to discover any potential bias on the part of prospective jurors, and to provide counsel with the information necessary to intelligently exercise peremptory challenges, will vary depending upon the circumstances of the case. In most instances, the voir dire normally conducted by the Court in a federal criminal trial is sufficient. However, in cases where the prospective jurors are likely to have strong personal feelings that will affect their judgment, the Sixth Amendment requires more.

III.

A WRITTEN QUESTIONNAIRE AND INDIVIDUAL VOIR DIRE ON THE AREAS OF POTENTIAL BIAS IN THIS CASE WILL PROMOTE CANDOR AND AVOID TAINTING THE PANEL

21. Counsel has attached as Exhibit C an affidavit from a sociologist with extensive experience in jury research. This affidavit sets forth in detail the types of biases prospective jurors bring to an obscenity case, and why normal voir dire procedures are insufficient to enable the Court to empanel an impartial jury in this case.

22. As the Court is well aware, the majority of prospective jurors will have little experience with the criminal justice system, and find the courtroom to be an intimidating place. In this case, they must be asked to express any beliefs or biases they have about sensitive subjects such as their attitudes towards sexual matters and the dissemination of sexually explicit materials, interracial sex and homosexuality. Jurors will know that their responses will determine whether they are included or excluded as jurors.

23. A tremendous amount of research in social psychology has established that attitudes and behaviors are influenced by situational conditions. ⁽³⁾ Characteristics of the setting may have more effect on the responses of a juror than the juror's own personality characteristics. Under circumstances of uncertainty and unfamiliarity, such as exist in a courtroom, jurors become very sensitive to "social comparison information"; that is, signs from other people around them indicating the appropriateness of the prospective juror's behavior, attitudes and feelings. ⁽⁴⁾

24. Under these circumstances, the danger of tainting otherwise suitable jurors with the prejudicial views expressed by others in a group voir dire is substantial. In order to determine if a challenge for cause exists, as noted earlier, it is not sufficient merely to ask jurors with strong feelings about sexually explicit materials whether they believe they could be fair and impartial. Rather, the Court will need to know something about what those feelings are, their source, and how strongly they are held. Counsel will also need this information to intelligently exercise peremptory challenges. Eliciting such information in a group voir dire would mean that other suitable jurors would be exposed to such prejudicial matters, and might well be influenced thereby. While this situation arises most frequently in cases involving prejudicial pre-trial publicity, the basic problem is the same -- insuring that the jurors ultimately selected base their verdict solely on the evidence admitted at trial, not on what other jurors may have said during voir dire.

25. The normal procedure of conducting the entire voir dire of the prospective jurors as a group poses other substantial problems where the issues being raised are sensitive or controversial. This is because the attitudes and beliefs expressed by prospective jurors are greatly affected by what they learn about the beliefs of other prospective jurors. ⁽⁵⁾ Research has shown that jurors will commonly adopt a "social desirability response set." ⁽⁶⁾ In other words, people are concerned with winning approval and avoiding disapproval from others and devote considerable time learning what factors will have a positive influence on how they will be evaluated. They then try to behave in a manner that will create a favorable impression. ⁽⁷⁾

26. Thus, during group voir dire jurors may attempt to answer in a socially appropriate manner instead of simply being truthful. As a result, opinions expressed in public often differ from opinions expressed in private. ⁽⁸⁾ During group voir dire even the most conscientious jurors' ability to candidly express their feelings, particularly on sensitive or controversial issues, is inhibited by their need to appear as acceptable as other jurors. As the "right" or socially acceptable answers become clear during the voir dire process, answers from jurors will become less and less honest during standard group voir dire.

27. All of the above problems, of course, are inherent in any group voir dire. In this case, however, unlike the typical case, it is clear that a number of potential jurors will have preconceived and deep-seated biases which will affect their ability to be truly impartial. It is, therefore, respectfully requested that the Court adopt the specific procedures outlined below. These procedures will enable the Court and counsel to elicit candid information regarding the prospective jurors' ability to watch and impartially evaluate the evidence in this case as efficiently as possible, without tainting those prospective jurors who can be fair to both sides.

IV.

PROPOSED VOIR DIRE PROCEDURES

A. Written Questionnaires On Relevant Background and Attitudes

28. A substantial number of federal courts have used written questionnaires in cases involving sensitive or controversial issues, in order to obtain relevant background and attitude information efficiently, and without tainting potential jurors by exposing them to the opinions of those who already have biases relating to the case. See e.g., United States v. Toushin, No. 3-88-00094 (M.D. Tn. 1989) (obscenity case); United States v. Biaggi, SSS 87 Cr. 265 (CBM) (S.D.N.Y. 1988); United States v. Williams, 86-95-CR-ORL (M.D. Fla. 1987); United States v. Nixon, H-85-0012 (L) (S.D. Miss. 1986); United States v. Porter, 86-00042-01-CR-W (W.D. Mo. 1986); United States v. Hollingsworth, CR 85-0781 (N.D. Cal. 1986); United States Levasseur, 85 CR 143 (E.D.N.Y. 1985); United States v. Ramirez, CR3-84-47 (D. Minn. 1984); United States v. Fischback, CR 83-169C (W.D. Wash. 1983); United States v. DiFranco, 81-230-CR-JWK (S.D. Fla. 1982); and United States v. Warren, 76-371 (N.D. Ga. 1978).

29. By requiring that prospective jurors fill out a written questionnaire when they arrive at court for jury selection, the Court and counsel can obtain a substantial amount of information without the time expenditure and problems inherent in group questioning before a large audience. This information can then be provided to and examined by counsel prior to individual voir dire questioning. In this way the repetitive questions typically necessary in voir dire can be omitted. The time normally spent eliciting the information on the questionnaire can be used in individual voir dire questioning that focuses upon specific areas of potential prejudice, based upon the responses in the specially drafted questionnaires. As a result, questioning at voir dire will be better focused and more selective.

30. In addition to providing background and attitude information quickly and easily, use of a written questionnaire is also likely to elicit more accurate information from potential jurors. Providing written answers to a questionnaire is more confidential than providing oral responses to questions in an open and crowded courtroom. Whereas the pressure of a courtroom situation might lead a potential juror to provide an inaccurate or incomplete response to an oral voir dire question, the written questionnaire provides an opportunity for prospective jurors to think about the questions and their responses in an unpressured situation. It also minimizes any embarrassment prospective jurors may feel in admitting their views on controversial topics.

31. Finally, the use of a written questionnaire will allow the Court to identify those prospective jurors who already have strong feelings about the matters in issue without tainting those who do not. It will also allow the Court to focus attention during the individual follow-up voir dire on these prospective jurors.

32. Counsel is in the process of preparing a proposed written questionnaire to be filled out by potential jurors. The questionnaire will be submitted to the Court forthwith.

B. Individual Sequestered Voir Dire On Sensitive Or Controversial Issues Involving Potential Bias

33. As noted earlier, in any case involving controversial and emotional issues, and particularly where those issues touch upon religious or moral precepts, prospective jurors must be asked to express any relevant beliefs they may already hold and the extent to which those beliefs might affect their ability to fairly and impartially apply the law, so that counsel for both sides can intelligently exercise cause and peremptory challenges.

34. For example, a juror in an obscenity case is required under Miller to determine if the material would be offensive to the "average person" in the community, not whether the juror finds the material personally offensive. However, if a juror has strong personal feelings about the offensiveness of certain sexually explicit material, those feelings will almost certainly affect his or her ability to fairly apply the "average person" standard. This is particularly true where, as here, the material contains some particularly controversial depictions, such as group sex, interracial sex and sex between two women, which some jurors might feel strongly are offensive even if the average person in their community would not share this view. Even if a juror believed in his or her own mind that this feeling could be set aside, defendants are entitled to know what the juror's feeling is, and the source and strength of that feeling, in order to intelligently exercise their peremptory challenges.

35. Similarly, since the jurors in an obscenity case 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 even to view the material in its entirety. 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 the Court can realistically assess their ability to perform their required function under Miller.

36. As discussed in paragraphs 23-26 above, asking questions of a juror about controversial or sensitive issues in the presence of other members of the panel is problematical for a number of reasons. Individual sequestered voir dire on such topics addresses each of these problems.

37. Individualized voir dire questioning on the most sensitive and controversial issues will prevent the possibility that one juror's statements might expose the entire panel to prejudicial material. See, e.g., United States v. Giese, 597 F.2d 1170, 1183 (9th Cir.), cert. denied, 444 U.S. 979 (1979) (where possibility of such taint exists, Court "should conduct a careful, individualized examination of each prospective juror, preferably out of the presence of the other jurors"); Coppedge v. United States, 272 F.2d 504, 508 (D.C. Cir. 1959), cert. denied, 368 U.S. 855 (1961). Only if jurors are given an opportunity to express their opinions about these topics as freely and candidly as possible, without risk of tainting other jurors, will the Court and the parties be able to assess each juror's ability to be fair and impartial.

38. The American Bar Association Project on Minimum Standards for Criminal Justice recommends questioning of individual jurors "outside of the presence of other chosen and prospective jurors" in criminal cases where "questions of possible prejudice are raised." American Bar Association Standards for Criminal Justice, Standard 8-3.5 (1980). As the Second Circuit noted in United States v. Colabella, 448 F.2d 1299, 1304 (2d Cir. 1971), cert. denied, 405 U.S. 929 (1972):

[W]hen there is any foundation for concern about juror partiality, partiality of the sort which, if expressed, might affect other prospective jurors, the demands of the "most priceless" safeguard of individual liberty - the right to trial by an impartial jury - justify the small expense of time required by [sequestered questioning of individual jurors.].

See also, Coleman v. Kemp, 778 F.2d 1487 (11th Cir. 1985); United States v. Davis, 583 F.2d 190, 196 (5th Cir. 1978); United States v. Addonizio, 451 F.2d 49, 67 (3rd Cir. 1971), cert. denied, 405 U.S. 936 (1972); Patriarca v. United States, 402 F.2d 314, 318 (1st Cir. 1968), cert. denied, 393 U.S. 1022 (1969); United States v. Milanovich, 303 F.2d 626, 629 (4th Cir. 1962).

39. In addition, many of the psychological influences that can adversely affect group voir dire on sensitive or controversial issues involving potential bias, as detailed in the expert affidavit attached as Exhibit C, can be alleviated by a limited sequestered voir dire of individual jurors outside the presence of the rest of the venire group. The use of such a procedure prevents prospective jurors from "learning" the "correct" answers to voir dire questions, and from masking, distorting, or conforming their expressed opinions and beliefs to appear socially acceptable among their peers. As the United States Supreme Court observed in Irvin v. Dowd, 366 U.S. 717, 728 (1961):

No doubt each juror was sincere when he said that he would be fair and impartial . . . but the psychological impact of requiring such a declaration before one's fellows is often its father.

See also, United States v. Dansker, 537 F.2d 40, 56 (3d Cir. 1976), cert. denied, 429 U.S. 1038 (1977) ("[A]n individualized examination is the most effective manner by which to discover latent prejudices on the part of a particular juror. Indeed, under certain circumstances it may be the only means of assuring a defendant his right to an impartial jury") (emphasis added). The privacy of voir dire conducted outside the presence of the panel eliminates the apprehension that comes from having to express deeply held beliefs or biases on sensitive subjects before a large audience.

40. Conducting individual voir dire on controversial or sensitive issues thus encourages candor and enhances the truth-finding aspects of the voir dire process. 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). ⁽⁹⁾

41. 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 an individual voir dire of each juror separately be conducted on those aspects relating to his or her views on sexually explicit materials.

42. A list of suggested topics to be covered in individual sequestered voir dire is attached as Exhibit E.

CONCLUSION

43. This case presents a broad array of unique factors which threaten potential prejudice among members of the jury pool. For all the reasons set forth above, the Court is respectfully urged to adopt the following procedures for conducting voir dire:

1. Use of a written jury questionnaire to elicit relevant background and attitude information efficiently and confidentially; and

2. Individual questioning of potential jurors, outside the presence of other jurors, regarding sensitive or controversial issues relating to possible biases or inability to serve in this case.

This the ____ day of January, 1991.

RUDOLF & MAHER, P.A.

By: ___________________________________

David S. Rudolf, NC Bar #8587

Thomas K. Maher, NC Bar #12771

312 West Franklin Street

Chapel Hill, NC 27516

(919) 967-4900

Attorneys for Defendant P.H.E., Inc.

MOONEY AND ASSOCIATES

By: ________________________________

Jerome H. Mooney, III, Bar #2303

236 South 300 East

Salt Lake City, UT 84111

(801) 364-5635

Local Counsel for P.H.E., Inc.

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 January, 1991.

_____________________________________ RUDOLF & MAHER, P.A.

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