UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NEW BERN DIVISION
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UNITED STATES OF AMERICA )
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) NO.
v. )
) MEMORANDUM OF LAW IN
) SUPPORT OF MOTIONS FOR
xxxxxxxxxxxxxxxxxx. ) SPECIALIZED JURY
d/b/a xxxxxxxxxxxxxxxxxx, ) SELECTION PROCEDURES
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xxxxxxxxxxxxxxxxxxxxxxxxxxx., )
)
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I
Introduction
Under the Fifth Amendment to the United States Constitution, the accused in a criminal case is entitled to 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 unsworne.'"
Irvin v. Dowd, 366 U.S. 717, 722, 6 L.Ed. 2d 751, 755, 81 S. Ct. 1639 (1961) (emphasis added). Moreover, in conducting the voir dire in a criminal case, "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).
The voir dire procedures necessary to provide the defendant with his Fifth Amendment right to a trial panel of "impartial, indifferent jurors," and to discover bias on the part of prospective jurors, 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 more than ample. However, in cases where the prospective jurors are likely to have strong personal feelings that will affect their judgment, the Fifth Amendment requires more.
In its Handbook on the Prosecution of Obscenity Cases (1985), the National Obscenity Law Center explains the problems inherent in selecting a jury in an obscenity case, and the need for a more searching inquiry of prospective jurors in such cases.
"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.'"
Id. at 49, quoting Professor Frederick Schauer, who served on the 1985 Attorney General's Commission on Pornography (commonly referred to as the "Meese Commission").
The trial of the instant case will necessarily expose the jury to particularly sensitive and controversial matters, such as their feelings about the dissemination of sexually explicit material containing graphic depictions of ultimate sex acts, and about the prosecution of such material by the government. Moreover, while many people have a personal definition of what they consider "obscene," and have strong feelings and opinions on this topic, they are unfamiliar with the legal definition of that term, which involves applying standards that are inherently subjective, such as "patent offensiveness." The danger, of course, is that in applying these subjective standards to the videotapes at issue in this case, jurors with strong biases for or against the prosecution of such material will find those biases much more difficult to control than in cases involving more objective factual determinations.
Counsel for the defendants have therefore moved the Court to adopt certain specialized jury selection procedures to facilitate and expedite jury selection in this case, to develop sufficient information for the proper exercise of challenges for cause and peremptory challenges by the parties, and to insure that the trial jury is composed of individuals who can be fair to both the prosecution and the defense. Those motions include requests that the Court adopt the following procedures:
(1) provide a written questionnaire to be filled out by potential jurors prior to voir dire;
(2) conduct portions of the voir dire of jurors individually, out of the presence of other jurors; and
(3) allow counsel to participate in voir dire with regard to certain specific topics. In addition, counsel respectfully suggests other procedural modifications of the voir dire process as setout infra. (1)
These procedures are essential to guarantee a fair trial to both the prosecution and the defense in this case. As the Court is aware, this case involves criminal charges stemming from the distribution of sexually explicit videos to adults for viewing in the privacy of their homes. The indicted company is in the business of sending sexually explicit videos, through the United States mail and other common carrier, to adults who specifically order these videos. Such material is presumptively protected by the First Amendment, unless and until a jury finds it to be obscene under the standards set forth in Miller v. California, 413 U.S. 15 (1973).
As the Supreme Court has recognized, the line between what is constitutionally protected under the First Amendment and what is legally obscene is, at best, "dim and uncertain." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 65 (1963). Under the Miller test, jurors must apply vague and ambiguous concepts such as "community standards," the "average person," "patent offensiveness," and "appeal" to a "prurient interest in sex." For this reason, it is especially critical that the jury selected to determine these issues be as free as possible from any preconceptions or prejudices.
Unfortunately, however, issues relating to the First Amendment and the dissemination of sexually explicit material - as do issues relating to the death penalty, abortion, and other personal, emotionally-charged topics - involve deeply-held preconceptions and biases in many citizens. And, as with these other topics, the preconceptions and biases do not run only in one direction. For example, there are a great many citizens who believe that the government should have no right to regulate what adults wish to see or read, particularly in the privacy of their homes. If such a potential juror felt so strongly about this that he or she could not be fair to the government in applying the Miller test, the government must be able to determine this during the voir dire process, so that the juror could be excused. On the other extreme, some citizens feel that the dissemination of sexually explicit material is responsible for the moral decay of our society and should not be permitted under any circumstances. Under the Fifth Amendment, the defense must be able to identify potential jurors with this bias, so that they too can be excused.
In addition, most people are naturally reluctant to discuss their feelings about sexual matters in public, particularly in the imposing surroundings of a federal court surrounded by strangers and authority figures such as judges. As a result, they may consciously or unconsciously hide their true feelings, or minimize their depth, in answering questions during the voir dire.
Finally, it is important to recognize that particularly where many potential jurors are likely to harbor deep-seated feelings and biases about controversial and ambiguous issues, such as the availability of sexually explicit videos and their obscenity under the Miller test, these feelings and biases cannot be alleviated by curative instructions by the trial court. Research by social psychologists has determined that regardless of what promises are elicited from prospective jurors and of instructions to them to set aside their personal feelings and follow the law as it is given to them, it is all but impossible for them to do so in typical cases. See e.g., D. Strawn and R. Buchanan, Jury Confusion: A Threat to Justice, 59 Judicature 478 (1976). This problem is greatly exacerbated in an obscenity case, in which any juror will have difficulty setting aside his or her personal standards in evaluating such concepts as "community standards," "patent offensiveness," "prurient" appeal, and "serious" value.
Under these circumstances, the court and counsel for all parties are faced with a serious problem in eliciting candid responses from potential jurors, and ferreting out deep-seated feelings and biases which are difficult to articulate in the courtroom setting. The selection of a fair and unbiased jury is of paramount concern under the Fifth Amendment. As explained below, in this case that goal cannot be accomplished with the voir dire procedures normally utilized. Moreover, as set out in Part III infra, the procedures proposed by the defense will help assure an unbiased jury and expedite to the extent possible the selection of fair jurors in these difficult circumstances.
II
Normal Procedures Are Inadequate to Enable
Potential Jurors to Express Themselves Candidly
Regarding Areas of Potential Prejudice or Bias
Counsel has attached as Exhibit A 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.
The majority of prospective jurors have little or no experience with the criminal justice system, and find the courtroom to be an intimidating place. Prospective jurors are typically somewhat uncomfortable speaking in front of large groups, as is normally required during voir dire. In this case, however, they will be required to express opinions about sensitive subjects such as their attitudes towards sexual matters and the dissemination of sexually explicit videos, and the prosecution of material that is presumptively protected by the First Amendment. Jurors will know that their responses will determine whether they are included or excluded as jurors. A tremendous amount of social psychological research has established that attitudes and behaviors are influenced by situational conditions. (2) 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. (3)
Thus, in the normal voir dire situation, where the court asks all of the questions, a prospective juror is often influenced by what he or she thinks the judge wants to hear. The voir dire process is essentially an interview, and research has shown that respondents will avoid contradicting or displeasing an interviewer, especially when the interviewer is perceived as having a higher social status than the subject. (4) In the courtroom, the judge is obviously the most respected authority figure and is seen as having a far higher status than prospective jurors. As a result, the information on sensitive or controversial topics obtained during a voir dire conducted by a judge will not necessarily reflect the jurors' true feelings.
In addition, the normal procedure of conducting the entire voir dire of the prospective jurors as a group poses 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)
Thus, during group voir dire jurors will 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. For example, some prospective jurors knowingly cover up their feelings when questioned before a group. Others will unconsciously try to conform their expressed beliefs as closely as possible to the other members of the group, especially with those who appear to be the most "respectable." Still others may attempt to be seated or excused by adjusting their answers to results observed during questioning of other prospective 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.
These psychological influences will operate in standard voir dire proceedings to distort or inhibit juror responses on sensitive or controversial issues in a case. There is no question that many prospective jurors will be concerned about how they will be evaluated by others in the courtroom, and/or will answer in a socially desirable way in order to obtain the approval of the judge and other prospective jurors. These jurors are unlikely to admit or express prejudice in a group voir dire.
Standard voir dire questioning often involves leading or fixed-response questions. In the voir dire context these questions tend to suggest the proper answer. For example, a question such as "do you have feelings about sexually explicit material which would prevent you from giving [the defendant][ a fair trial?" will obviously suggest that the "correct" answer is "no." As a result, this type of questioning provides the court and the parties with little useful information regarding the subtle impact of a juror's biases.
All of the above problems, of course, are inherent in any group voir dire. In this case, however, unlike the typical case, as the Handbook on the Prosecution of Obscenity Cases and the affidavit attached as Exhibit A make clear, many potential jurors will have preconceived and deep-seated biases both for and against each side 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.
III
Proposed Voir Dire Procedures
A. Written Questionnaires To Save Time
Over the past ten years, federal courts have increasingly 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. In the Eastern District of North Carolina, for example, such a questionnaire was used successfully by Chief Judge Britt in United States v. Wilbur Hobby, substantially shortening the amount of time necessary for jury selection in that case. Other criminal cases in which such questionnaires have been used include 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).
By requiring prospective jurors to fill out a brief 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 actual 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 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.
In addition to providing background 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 a voir dire question, the questionnaire provides an opportunity for prospective jurors to think about the questions and their responses in an unpressured situation.
Counsel is in the process of preparing a proposed written questionnaire to be filled out by potential jurors. This questionnaire will focus upon areas of prejudice unique to this case. The questionnaire will be short and concise.
B. Individual Sequestered Voir Dire On Sensitive Or Controversial Issues
Many of the psychological influences that can adversely affect voir dire on sensitive or controversial issues, as detailed in the expert affidavit attached as Exhibit A, 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.") The privacy of voir dire conducted outside the presence of the panel eliminates the apprehension that comes from having to express deeply-held beliefs on sensitive subjects before a large audience and enables prospective jurors to be more candid and more likely to express opinions or biases.
Individualized voir dire questioning on the most sensitive and controversial issues will also 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). This is a particular problem in this case because many jurors will have an opinion on the dissemination and the prosecution of sexually explicit material. 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.
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 effect 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).
C. Participation by Counsel in the Voir Dire Process
Rule 24(a) of the Federal Rules of Criminal Procedure provides, inter alia, that "The court may permit the defendant or the defendant's attorney and the attorney for the government to conduct the examination of prospective jurors . . ."
The rule further provides that if the court itself conducts the voir dire, it:"shall permit the defendant or the defendant's attorney and the attorney for the government to supplement the examination by such further inquiry as it deems proper or shall itself submit . . . such additional questions by the parties or their attorneys as it deems proper."
A number of federal courts have recognized that permitting attorneys to conduct at least a portion of the voir dire is appropriate under Rule 24. For example, in United States v. Ible, 630 F.2d 389, 395 (5th Cir. 1980), the court observed:
"[E]xclusive voir dire examination by the court does not take into account that it is the parties, rather than the court, who have a full grasp of the nuances and the strengths and weaknesses of the case."
See also, United States v. Ledee, 549 F.2d 990 (5th Cir.), cert. denied, 434 U.S. 902 (1977) (recognizing that the court does not know the strengths or weaknesses of a case and stating that voir dire may have "little meaning if not conducted by counsel"); Silverthorne v. United States, 400 F.2d 627, 640 (9th Cir. 1968), cert. denied, 400 U.S. 1022 (1971) (under some circumstances the defense must have the right to conduct voir dire).
Obscenity cases raise unfamiliar legal and factual issues; they also present broad, emotional and moral questions that jurors must consider in the course of deciding factual issues. Many people have strong feelings about anything involving sex, but are hesitant to express those feelings in public, particularly in a courtroom setting. Such feelings, therefore, cannot be uncovered by simple inquiries about impartiality. (9)
Under these circumstances, there are several compelling reasons for permitting attorneys to conduct the portion of the voir dire relating to the particularly sensitive and controversial issues in this case. First, as set out in the affidavit attached as Exhibit A, research has established that when jurors are questioned by someone perceived as an authority figure, such as a judge, they will tend to distort their expressed opinions so as to achieve the respect or approval of the questioner. This results in responses which are not necessarily candid. See Jones, Judge Versus Attorney-Conducted Voir Dire: An Empirical Investigation of Juror Candor, 11 Law and Human Behavior 131 (June 1987). This distortion poses a particular problem when voir dire questions focus on sensitive or controversial issues. It is greatly diminished when the questions are asked by the attorneys.
Second, counsel in this case will have spent considerable time and energy analyzing the videotapes to be judged by the jury, and the factors which may cause biases amongst potential jurors. There are numerous issues and themes which may develop into prejudice when expressed by any individual juror. Responses will suggest other areas of inquiry. It is important that those inquires be followed-up at the time they are suggested. Since counsel for both sides will be far more familiar with the videotapes to be shown to the jury, and with the sensitive issues raised by this material, than the Court can be, they will be better able to ask such follow-up questions. For this reason, questioning by counsel on these specific topics may be more effective than questioning by the court.
Courts have recognized that the time and effort necessary for an adequate inquiry into juror attitudes and opinions varies with each case and that in certain cases more time and effort must be expended to search out potential juror bias. See e.g. United States v. Giese, 597 F.2d 1170 (9th Cir.), cert. denied, 444 U.S. 979 (1979); United States v. Colabella, 448 F.2d 1299, 1304 (2d Cir. 1971), cert. denied, 405 U.S. 929 (1972) (right to trial by impartial jury justifies expenditure of time). However, it is also important to note that limited attorney-conducted voir dire on specific sensitive topics does not necessarily take more time than court-conducted voir dire. See, Report of the Federal Judicial Center, Conduct of the Voir Dire Examination: Practices and Opinions of Federal District Judges (1977), page 14. Obviously, any abuse of voir dire can be eliminated by careful supervision by the court. For example, the Court may, if necessary, impose time limits. In addition, counsel for defendants are willing to stipulate that this aspect of the voir dire be conducted by only two designated defense attorneys, one for the corporation and one for the individual defendants. Finally, counsel has suggested other procedures which will save time in voir dire, such as the use of a written questionnaire and the use of a struck system of exercising peremptory challenges.
D. Attorney-Conducted Voir Dire on Sensitive or Controversial Issues Will Facilitate The Use of Open-Ended Questions and Follow-Up Probes
General voir dire questions such as "can you be fair and impartial?" can be characterized as leading questions since they suggest the "correct" answer to the prospective juror. Appellate courts have found leading questions to be of minimal value in conducting voir dire proceedings. (10)
Leading questions, by their nature, elicit only the prospective jurors' own perception of their biases. It has been held reversible error for trial courts to reply on the assessment by a venireperson of his or her own biases or preconceptions. Silverthorne v. United States, 400 F.2d 627, 638 (9th Cir. 1968), cert. denied, 400 U.S. 1022 (1971); United States v. Polizzi, 500 F.2d 856, 879 (9th Cir. 1974). (11)
Open-ended questions are those which cannot be answered with a simple "yes" or "no." They require prospective jurors to use their own words to describe their experiences, opinions, and impressions. Open-ended questions force the prospective juror to do most of the talking and give the court and counsel the opportunity to learn about the juror's opinions and experiences. The difference is easily described. A closed-ended questions might ask: "Do you have any biases about the dissemination of sexually explicit videos to adults?" In contract, an open-ended questions would ask "How do you feel about the dissemination of sexually explicit videos to adults?"
A prospective juror might equivocate in response to an open-ended question. For example, he or she may respond that "I have no strong feelings about that issue." Answers of this sort must always be followed by appropriate probing, such as: "What are your feelings?" These "probes" are essential to elicit information about the prospective juror's true beliefs and opinions. (12) Since counsel for both sides are far more familiar with the sensitive issues than the Court can be, they will be better able to frame such questions on the sensitive topics.
E. Preliminary Instructions By The Court
Improving the structure of the voir dire process alone will not result in a truly effective voir dire of the potential jury in this case. The entire tone of the proceedings will be set by the initial comments of the court. The judge is the highest status authority figure in the courtroom and most jurors will find it difficult to tell him anything that they feel will displease him. As a result, it is essential that the court inform the jurors clearly and repeatedly that he understands that all potential jurors have certain biases, that he will not be displeased with any answer regardless of its content, and that he is interested only in candid and complete answers. The court must emphasize to the jury that he is far more interested in candid and truthful answers than he is in jurors presenting themselves as impartial and unbiased.
This is often communicated to jurors with an instruction prior to the actual commencement of the voir dire proceedings, and is repeated at the beginning of each juror's questioning. Two examples of such instructions given by United States District Judges in other cases are attached to the Motion for Jury Questionnaire, Pre-Voir Dire Instruction to Prospective Jurors, Individual Voir Dire on Specific Topics, and Pre-trial Conference on Jury Selection Procedures, as Exhibits B and C.
In addition, most prospective jurors will come to court with a personal definition of what they consider "obscene." Some may think that mere nudity is "obscene", others will think it is explicit depictions of ultimate sex acts by themselves, others may reserve the term for material they consider disgusting or revolting. What all potential jurors will share is absolute ignorance of the three-part legal test of obscenity under Miller:
1) that the material depicts sexual conduct in a patently offensive manner when judged by contemporary community standards;and
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.
Therefore, when questioning prospective jurors about their ability to impartially apply the law in an obscenity case, the court and counsel have a much more difficult task than in the typical criminal case. For while the typical criminal case may involve difficult questions of fact, the elements of the crime charged are generally straightforward and commonsensical. In an obscenity case, however, before the jurors can even honestly evaluate for themselves whether they will be able to apply the law with an open mind to the materials in issue, they need to have at least a basic understanding about what that law is and, most importantly, how it differs from their common sense notion of what is "obscene." Such an instruction was given by the trial judges prior to the jury selection in two recent obscenity cases in which counsel was involved, North Carolina v. Adam and Eve, in Alamance County (1987) (Judge Donald Stephens) and United States v. Steven Toushin, No. 3-88-00094 (M.D. Tn. 1989) (Judge John Nixon). In both cases the instruction was not opposed by the prosecution (although there were differences over the wording requested, which were resolved by the trial court) and greatly facilitated the jury selection process. A proposed preliminary instruction setting forth the basic elements of the Miller test, based upon the pattern instructions used by the various Circuits, is attached as Exhibit A to the Motion for Jury Questionnaire, Pre-Voir Dire Instruction to Prospective Jurors, Individual Voir Dire on Specific Topics, and Pre-trial Conference on Jury Selection Procedures.
F. Additional Peremptory Challenges for the Defense
Rule 24 of the Federal Rules of Criminal Procedure was specifically modified by Congress in order to give the court discretion to grant additional peremptory challenges to multiple defendants. See, Notes of Advisory Committee on Rules, Federal Rule of Criminal Procedure 24. Experience has established that this modification is desirable in cases involving more than one defendant.
In this case, the government has chosen to indict four defendants who will, of necessity, approach the defense of the case from very different perspectives. This prosecutorial decision on the part of the government is likely to lead to substantial differences among counsel for the defendants in attempting to exercise peremptory challenges. For example, counsel for the corporation or for the defendant Karl Brussel, its owner and president, may want jurors who own or manage their own businesses and have to deal with complex government regulations. Counsel for the defendant Jill Brussel, who is Karl Brussel's wife and had nothing to do with the daily operations of the business, may prefer women who do not work outside the home. Counsel for defendant Matthew Brussel, who was employed primarily in the computer operations of the mail order business, may prefer jurors who are merely employees of large corporations.
When multiple defendants are indicted by the government in a single case, and particularly where, as here, they have different potential defenses and seek different types of jurors, it is appropriate for the court to grant the defendants additional peremptory challenges to be exercised separately. United States v. Harris, 542 F.2d 1283 (7th Cir. 1976) (approving the trial court's grant of additional separate peremptory challenges to multiple defendants). See also United States v. Blanton, 719 F.2d 815 (6th Cir. 1983); United States v. Mitchell, 559 F.2d 31 (D.C. Cir. 1976); United States v. Means, 409 F.Supp. 115 (D.N.D. 1976); United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972), cert. denied 410 U.S. 970 (1973); Tasby v. United States, 451 F.2d 394 (8th Cir. 1971); Jeffers v. United States, 451 F.Supp. 1338 (D. Ind. 1978); United States v. Mitchell, 384 F.Supp. 564 (D.Co. 1974).
Moreover, in this case it may be extremely difficult to elicit statements of prejudice that would justify an excuse for cause for every potentially biased juror, given the prospective jurors' natural reluctance to talk candidly about their attitudes towards sex with total strangers in a courtroom. Special care must also be taken in this case to select jurors who will be able to resist the temptation to apply their personal feelings or morality to the inherently vague concepts of the Miller test. An adequate number of peremptory challenges, coupled with the information necessary to intelligently exercise them, will help ensure this result.
G. Struck System of Exercising Peremptory Challenges
The struck system of exercising peremptory challenges provides an efficient and desirable method of empaneling a jury. Under this system, individual jurors are questioned until the number of qualified jurors equals the total of all peremptory challenges plus twelve. For example, if there are ten peremptory challenges for the defense and six peremptory challenges for the prosecution, jurors will be individually questioned until twenty-eight have been qualified. Peremptory challenges are exercised only after the twenty-eight have been qualified, and twelve seated in the jury box.
By using this system, jurors can be called to court in small groups and questioned individually. This avoids unnecessary inconvenience to prospective jurors and expedites the jury selection process.
Jurors who have been qualified can be directed to return to court later. At that time all previously qualified jurors arrive in the courtroom. The first twelve are seated in the jury box and the parties begin to exercise their peremptory challenges. Empty seats are refilled as the challenges are exercised. This procedure continues until both sides pass and the twelve jurors in the box are sworn.
This process allows the parties to consider the total makeup of the jury when deciding who to excuse, and enables the parties to quickly and intelligently exercise their peremptory challenges. The struck system is recommended by the American Bar Association Standards Relating to Juror Use and Management, Standard H and accompanying Commentary, at 86-87 (1983) and in G. Bermant, Jury Selection Procedures in the United States District Courts, Appendix F (Federal Judicial Center 1982) (noting that the struck system results in "net time savings and improvements in the quality of the proceedings"). It is used by many federal courts, and has been expressly approved in a number of cases. See e.g. United States v. Blouin, 666 F.2d 796, 798 (2nd Cir. 1981) (noting that the system "lets the parties make the most effective use of their challenges"); United States v. Morris, 623 F.2d 145, 151-52 (10th Cir. 1980); United States v. Peterson, 475 F.2d 806, 812 (9th Cir.), cert. denied, 414 U.S. 846 (1973); United States v. Erickson, 472 F.2d 505 (9th Cir. 1973); Haslam v. United States, 431 F.2d 362 (9th Cir. 1970), cert. denied, 402 U.S. 912 (1971); Amsler v. United States, 381 F.2d 37, 44 (9th Cir. 1967).
Conclusion
This case presents a broad array of unique factors which threaten potential prejudice against both the defense and the prosecution. 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 specifically drafted jury questionnaire prior to voir dire;
2. Individual questioning of potential jurors on sensitive or controversial topics outside the presence of the panel;
3. Participation of counsel in voir dire questioning on sensitive or controversial topics;
4. Preliminary instructions by the court emphasizing the need for candor and honesty and explaining the basic elements of the Miller test of obscenity;
5. Additional peremptory challenges for the defense; and
6. A struck system for
exercising peremptory challenges.
This the ____ day of October, 1989.
RUDOLF & MAHER, P.A.
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David S. Rudolf, Bar # 8587
Thomas K. Maher, Bar # 12771
312 West Franklin Street
Chapel Hill, NC 27516
(919) 967-4900
Attorneys for Defendant
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.
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NEW BERN DIVISION
______________________________________
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UNITED STATES OF AMERICA )
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v. )
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______________________________________)
AFFIDAVIT
OF MARJORIE S. FARGO
MARJORIE FARGO, being duly sworn, deposes and says:
1. Since 1975 I have been employed full time in the field of jury research and trial consultation. I am President and Director of Jury Services, Inc. of the National Capital Area and have been so employed since 1982. Located at 1717 Massachusetts Ave. NW, Suite 601, Washington, DC 20036, Jury Services, Inc. is an organization of social scientists and lawyers specializing in the study of jury procedures, jury behavior and the pre-trial assessment of community opinion and prejudice towards civil and criminal trial litigants.
2. Prior to the incorporation of Jury Services, Inc. I was employed by the National Jury Project, and I served as its vice president. The National Jury Project is a nationwide trial consulting firm that provides social science research support and expert advice to attorneys in civil and criminal trials.
3. I graduated cum laude with a B.A. degree in sociology from the University of Florida. I was trained in survey sampling, design and data analysis during my employment on National Institute of Mental Health (NIMH) grant "Evaluating Southern Mental Health Needs". 4. I am a member of the American Sociological Association, the D.C. Sociological Society, and the American Society of Trial Consultants (ASTC). I currently serve as a member of the ASTC Board of Directors.
5. Some of my publications include "Conducting Voir Dire," Jurywork: Systematic Techniques, Clark Boardman Company, Ltd. (1987); "Make the Post-Trial Interview Work for You," Criminal Justice, vol. 3, #2, Summer 1988, (pp. 2-4, 38-41); "The Obscenity Trial in Rural America: Preparing to Win," Champion, vol. 12, #9, November, 1988 (pp. 5-16).
6. I have been qualified as an expert to testify in pre-trial hearings on jury selection procedures in state and Federal courts in several states including Alabama, California, Florida, Georgia, Maryland, Mississippi, and Texas. I have had my affidavits on jury selection procedures accepted as that of an expert in many other states although I was not called to testify in those cases.
7. I have lectured and conducted seminars on voir dire and jury selection procedures and jury behavior for bar associations and public defenders in the U.S. and Canada and for other legal education programs such as the National Institute for Trial Advocacy (NITA), the Practising Law Institute (PLI), and the Inns of Court Program.
8. I have been retained as a consultant on jury selection procedures and jury behavior in over 200 criminal and civil cases. My firm has been retained both by plaintiff and defense counsel in civil litigation, and by counsel representing the defendant and the government in criminal cases.
9. Included among my casework are nationally known First Amendment cases involving obscenity charges. These cases are Georgia v. Larry Flynt (Hustler), North Carolina v. Adam & Eve (PHE, Inc.), U.S. v. Dennis and Barbara Pryba, (United States District Court for the Eastern District of Virginia), U.S. v. Steven Toushin (United States District Court for the Middle District of Tennessee).
10. In three of these cases I observed the entire voir dire and jury selection.
11. As a result of my experience in the evaluation of juror fairness in numerous cases involving complex legal issues, and emotionally laden moral issues including the death penalty, abortion and the distribution of sexually explicit materials, counsel for these defendants have requested that I review the indictment and the indicted materials in this case and advise them on jury selection procedures which would best enable the Court and attorneys both for the government and the defense to select jurors capable of fairly judging this case.
12. Counsel provided me copies of the portions of the video tapes disseminated by the defendants containing materials from "Teenage Trouble", "The Chateau", "Scooter Trash", "Fetishes of Monique" and "Story of Eloise". I have reviewed each and have taken the content of each video into consideration in making my recommendations for specialized voir dire procedures in this case.
13. The remainder of this affidavit sets out recommendations for specialized jury selection procedures in this case in view of the nature of the charges and the materials. In Section I, I have identified several factors that are likely to affect the ability of a prospective juror to disclose experiences, beliefs, opinions and biases relevant to jury service in cases involving the distribution of sexually explicit materials. In Section II, I itemize and explain the voir dire and jury selection procedures I recommend as vital to accurate identification and elimination of juror bias in this case.
SECTION I
FACTORS AFFECTING JUROR FAIRNESS IN THE EVALUATION OF SEXUALLY EXPLICIT MATERIALS
14. In thinking about jury selection in cases involving emotionally charged issues such as the death penalty, abortion or the distribution of sexually explicit material the most important factor to consider is the fact that these cases are much different from the typical criminal case such as bank robbery or forgery. In cases involving the dissemination of adult sexually explicit materials the reality is that many jurors enter the courtroom carrying deeply held attitudes, beliefs and concerns about the issue that he or she may have held for their entire adult life.
15. These beliefs are so deep seated and strongly held that they are certain to influence jury behavior in a number of significant ways. In cases such as this the need for both the prosecution and the defense to explore juror bias affects the type of jury selection procedures required to select a fair jury. In a case involving sexually explicit materials it is clear that both the prosecution as well as the defense has a need for specialized voir dire conditions.
16. For example, on emotionally charged issues -- the death penalty, abortion, and the First Amendment -- you will find people who can be described as "abolitionists". Anti-death penalty, anti-abortion, or anti-censorship: these are people whose religious, moral or personal feelings against the law involved are so strong that they could not serve as jurors. For example, in the 1987 Adam & Eve case in Alamance County, North Carolina, the first juror challenged for cause was a young man who as a result of the sequestered, individual questioning of counsel disclosed his deeply held bias against the prosecution due to his beliefs against censorship of any kind.
17. There is no question that a juror's feelings about sexually explicit material are strongly influenced by religious and family training factors regarding what is proper and improper sexual behavior. That these factors affect how people respond to the regulation of the distribution of sexually explicit material is well documented. See D'Emilio & Freedman, Intimate Matters: A History of Sexuality in America, Harper & Row (1988); McConahay, "Pornography and Public Opinion: How Many and Who Would Ban What?," Working Paper, Institute of Policy Sciences and Public Affairs, Duke University (1988); Jelen, "Fundamentalism, Feminism and Attitudes Toward Pornography," Reviews of Religious Research, 28, 2 (1986).
18. For this reason questions about a juror's religious and moral beliefs regarding the dissemination of sexually explicit material are necessary in order to determine whether the juror could keep an open mind and fulfill the requirements for jury service in a case involving such material. Questioning a juror about his or her religious, moral or personal convictions on the issue of sexually explicit material is one of the sensitive issues that distinguishes this type of case from the average criminal case and which requires a specialized voir dire procedure such as a written questionnaire and sequestration during voir dire.
19. Community attitudes toward the distribution of sexually explicit material are also deeply complex. For some people the availability of sexually explicit material is associated with homosexuality, abortion and the destruction of the nuclear family. For others, the regulation of sexually explicit material by the government is tantamount to censorship and the deprivation of fundamental American freedoms. For example, in a 1987 telephone poll of 497 randomly selected North Carolinians conducted by the School of Journalism at the University of North Carolina, 67.5% of the sample agreed that "any adult who wants to have pornographic materials should be allowed to". See: Brown, West and Thompson, "Feminism, Fundamentalism and the First Amendment: Pornography and Public Opinion in North Carolina", Paper presented to the 42nd annual conference of the American Association for Public Opinion Research, Hershey, PA (1987). On the other hand, in a telephone survey I conducted with a random sample of 500+ adult residents in another obscenity case, about 66% of the sample agreed that "our country's laws on pornography are not strict enough".
20. Since juror attitudes are so complex, deeply held and personal they need to be examined by the court and the attorneys in a private setting through the use of a confidential written questionnaire followed by a partially sequestered voir dire on a few carefully selected topic areas directly related to the case at hand.
21. My analysis of social psychology resource materials, the results of my pretrial studies in other cases, my observations of jurors qualified and disqualified in the voir dire in obscenity, abortion and death penalty cases, and our post-verdict interviews with jurors have led me to the following conclusions:
22. First, the legal definition of obscenity leaves jurors with a number of complex and ambiguous questions to resolve. In order to begin to apply the law they must determine:
a. who is an "average" person;
b. what is the appropriate "community";
c. what are the standards of that community;
d. what is a "prurient" interest in sex as opposed to a candid interest;
e. what depictions of sexual acts would the average community member find "patently offensive";
f. what is serious literary, artistic, political or scientific value; and
g. how do the answers to these questions apply to the materials in the indictment?
23. While the judge's instructions may provide a framework for answering these questions, the jurors still tend to bring to their deliberation on these ambiguous legal standards their own moral values and attitudes. Many of these values and attitudes preclude the fair consideration of the indicted materials or the application of the law.
24. In fact, some attitudes and beliefs, such as a juror's beliefs about censorship and government regulation, or his religious, moral or personal beliefs about sexuality and the distribution of sexually explicit materials, can preclude a juror from viewing the indicted materials with an open mind. For example, in both the Adam & Eve and Toushin cases many of the prospective jurors had to be disqualified from jury service for cause. These disqualified jurors can be divided into six broad categories:
a. "anti-censorship" jurors whose beliefs about the importance of the First Amendment were so strong that they would vote to acquit the defendants in any case regardless of the contents of the materials or the community standards.
b. "anti-government" jurors whose beliefs about political motivation behind the indictment were so strong that they would automatically reject the government's case.
c. jurors whose religious, or person beliefs prohibited them from viewing any materials that showed any type of explicit sexual activity;
d. jurors who could view the sexually explicit materials but who would automatically prejudge the case because the material contained explicit sexual acts;
e. jurors who could not view the materials in the public setting of a courtroom;
f. jurors who could view the materials but who could not discuss the sexual depictions with other jurors, or with jurors of the opposite sex.
25. It has been my experience in this type of case and many other cases involving sensitive or controversial issues or substantial publicity that conducting a partially sequestered individual voir dire on sensitive issues following a written questionnaire is a very effective method for the Court, the prosecution and the defense to determine whether a juror could truly be fair.
26. Based upon my experience, I have identified five areas of experiences and beliefs that may prevent a juror from fairly judging the evidence in cases involving sexually explicit materials. The following categories are areas for specialized voir dire in which jurors in previous cases of this type have admitted biases:
a. Disagreements or problems with the prosecution of sexually explicit materials by the government:
(1) Belief that obscenity laws are an unfair violation of a citizen's right to privacy.
(2) Belief that obscenity laws are tantamount to censorship.
(3) Inability to understand the terms involved in
the law, especially the term "prurient".
(4) Beliefs that obscenity laws are too vague to be
applied by a jury.
(5) Belief that law enforcement's efforts to apply
obscenity laws are a waste of taxpayer's money.
(6) Belief that "pornography" is a
victimless crime.
(7) Belief that obscenity laws are used for
political purposes rather than to prevent serious crime.
b. Beliefs
resulting in the conclusion that all sexually explicit materials should be banned.
For example, some jurors have admitted to holding the inalterable belief that all sexually explicit materials regardless of the content lead to a moral breakdown of society (increases rates of premarital and extramarital sex and divorce) and should be banned. Other jurors admit to holding the inalterable belief that almost all sexually explicit materials including Playboy and Penthouse are sinful and should be banned.
c. Beliefs about producers and distributors leading to the conclusion that such companies should be put out of business.
For example, some jurors are so opposed to certain
methods of distribution, such as peep shows, drive-ins or mail order or the out-of-state
location of the businesses that they believe the companies should be put out of business.
d. External
pressures to return a certain verdict regardless of the evidence.
Prospective jurors in obscenity cases have
volunteered that they would feel pressure either by family members, churches, co-workers,
community groups or the media to return a certain verdict regardless of the evidence and
law in the case. They asserted this external pressure would interfere with their ability
to fairly judge the case.
e. Negative Experiences with Sex or Sexually Explicit Materials.
Some jurors have had sexual experiences (such as rape, child molestation) that have made them unable to serve in cases that involve sexual issues of any kind, including cases involving the distribution of sexually explicit materials.
27. What other juror experiences or beliefs may keep an otherwise qualified juror from serving as a fair juror in a trial involving the distribution of sexually explicit materials? Jury service on a case involving the distribution of sexually explict material requires that a juror be capable of watching ultimate sex acts and discussing them with fellow jurors, the majority of whom will be complete strangers to one another.
28. For many people simply talking about sex acts with anyone, including one's own spouse, is uncomfortable at best. For some people speaking about such things is completely "taboo". The idea of watching the type of material involved in this case and frankly discussing the evidence among a mixed group of men and women may be a task that some jurors simply cannot fulfill. The use of a written questionnaire in combination with a sequestered voir dire on this sensitive topic is perhaps the most effective and courteous method for discovering whether the juror could properly serve in the case.
29. The use of a written questionnaire and partially sequestered voir dire on sensitive or controversial topics with some attorney participation would also help avoid the possibility of empaneling jurors who will simply not be able to watch the material during the trial. Thorough and private questioning of jurors about their ability to serve in a case involving sexually explicit materials is likely to minimize the possibility of this type of event occurring as the trial progresses, causing a mistrial of the case.
SECTION II
RECOMMENDATIONS
FOR SPECIALIZED VOIR DIRE AND JURY SELECTION PROCEDURES
30. As a result of the prejudicial factors enumerated in Section I above, I would respectfully recommend use of the following specialized jury selection procedures to expedite the voir dire process as much as possible while enabling the Court, the attorneys and the parties to fully identify and to explore potential prejudices of the panelists:
A. USE OF A WRITTEN JUROR QUESTIONNAIRE
31. In many recent controversial or high profile cases, courts have permitted the potential jurors to complete a written questionnaire requesting information about the juror's background, experiences, knowledge of trial parties, exposure to pre-trial publicity, and prejudgment of case issues. (See Exhibit One for a partial listing of cases (93) in which supplemental questionnaires have been used).
32. The juror fills out the questionnaire after the panel has been sworn in and has been read a description of the case by the trial judge. The questionnaires are collected, photocopied and distributed to the Court, parties and lawyers for each side. The questionnaire is confidential and becomes part of the trial record. The Court and the parties use the information contained in the questionnaire as a guide to conducting the voir dire examination.
33. Based upon my experience, I believe that a juror questionnaire would be effective and useful in this case for the following reasons:
(1) The written questionnaire provides an efficient, quick and inexpensive means of obtaining necessary information from potential jurors.
34. It has been my experience that jurors spend roughly thirty minutes completing the written questionnaires. The questionnaire saves valuable court time and is efficient because it eliminates the need to repeat the same question to each juror. The questionnaire also increases court efficiency by enabling follow-up questions to be specifically tailored to suit the prospective juror's background as indicated on the completed questionnaire.
35. The efficiency of written questionnaires has been acknowledged in at least one court study: "Much time is presently consumed during the voir dire process by the asking of routine questions, e.g., residence, marital status, occupation. Prospective jurors spend considerable periods of time in idleness while they await assignment. If some of this idle time were spent completing questionnaires which the panelists would bring with them to the courtroom and these questionnaires were then made available to counsel, the time spent on routine questioning might be expended more productively." Report of the Committee on Juries of the Judicial Council of the Second Circuit (August 1984) (p. 91).
(2) The written questionnaire increases the likelihood of candid responses from the jurors.
36. The written questionnaire affords jurors more privacy in answering questions and, thus, increases the likelihood that they will answer more completely and truthfully. As discussed below, voir dire in which a juror must disclose deeply held personal opinions or experiences in a public forum in front of a large audience consisting of his fellow jurors, courtroom personnel, spectators as well as the judge and the attorneys is not very likely to yield candid expressions of opinion or bias even when there is good reason to believe those biases exist. Many judges have turned to the use of a written, confidential questionnaire in order to obtain candid opinions about key sensitive issues without intimidating or embarrassing the juror, or failing to get an honest answer. The questionnaire allows the juror to freely and completely communicate personal experiences and knowledge that bear upon his or her qualifications to serve on the case without risk of embarrassment, or taint to the panel.
(3) The written questionnaire enhances the intelligent
exercise of peremptory challenges.
37. The questionnaire provides counsel for both
sides with uniform and relatively complete background information on all the potential
jurors. Having this information enhances their ability to intelligently use their
peremptory challenges.
B. INDIVIDUAL VOIR DIRE OF EACH JUROR OUTSIDE OF THE PRESENCE OF OTHER POTENTIAL JURORS ON PARTICULARLY SENSITIVE OR CONTROVERSIAL TOPICS
38. Group voir dire of jurors on sensitive and controversial issues is not an effective method for encouraging jurors to candidly and honestly disclose their true feelings and beliefs about emotionally laden subject matters such as the death penalty or the distribution of sexually explicit materials. There are four major reasons why group voir dire is so much less effective than a sequestered voir dire in permitting a juror to fully and honestly disclose these deeply held and often personal opinions.
(1) Fear of speaking in a group.
39. Disclosing juror bias is in large part affected by a juror's willingness to talk or to speak out candidly in a group situation. Most people in unfamiliar or uncomfortable environments such as the courtroom look for someone who has the answers as a guide for their own behavior. They also tend to follow the crowd when they are placed in this type of group setting. This is counterproductive to the goals of jury selection because often the talkative members of the jury panel will set the tone for the other people in the panel. As a result of a few outspoken people speaking up, the majority of the remaining jurors will withdraw and copy the answers of those who have preceded them.
40. In psychological terms, what this means is that in a group without a designated leader, such as a jury pool, people begin to look within the group for leadership. The outspoken juror in the group voir dire setting is almost always a person with prior jury service or someone who is more educated, holds a higher socioeconomic status in the community, is more well known or has held positions of authority in the job or the community. The other prospective jurors listen to the answers of these jurors and pattern their responses after these people. Particularly in the voir dire on sensitive topics, such as the sexual nature of the subject matter involved in this case, this type of human reaction is the worst thing that could happen, since true feelings are masked.
(2) Peer pressure and juror expectations.
41. Another factor that affects a prospective juror's likelihood of giving honest and complete answers on sensitive topics in a group voir dire is peer pressure. Jurors see each other as a peer group. This means that they want to be seen by one another as capable of being "good" jurors -- meaning jurors with no biases or prejudices. Jurors in post-trial interviews often say they were embarrassed to admit their feelings of prejudice in front of their peers, so they simply chose either to say nothing or to deny that they had any prejudices.
42. Jurors also come into the courtroom anxious to
please the Judge and want to be regarded by the judge and their fellow jurors as
"qualified" to serve as jurors. As a result they are reluctant to reveal
negative experiences in a group, or to report holding an opinion which may be different
from the norm.
(3) Learning how to "get off" the jury.
43. Group voir dire on sensitive and controversial issues has another important drawback for the fair selection of a jury. Group voir dire offers prospective jurors the opportunity to observe and listen to the answers of their fellow jurors, the response of the Court and the attorneys, and to modify their own behavior accordingly. Jurors learn what the "right" and "wrong" answers are to remain on or to remove themselves from the jury panel.
44. For example, some jurors will deliberately adopt the answers of another juror who was challenged for cause because they know it will enable them to be excused from serving on the case. This phenomena occurs most frequently in highly emotional cases, when many jurors do not want to participate in viewing the evidence or in taking responsibility for an important jury decision.
(4) Contamination of the panel.
45. In addition to these social psychological factors of group dynamics, eliciting from a juror in open court the necessary candid or detailed responses that are required to establish grounds for a challenge for cause or for the intelligent exercise of peremptory challenges may result in taint to the entire panel.
46. Research supports the effectiveness of a "sequestered" voir dire on sensitive or controversial case issues. Recent studies of voir dire conditions reveal that private questioning of individual jurors outside the presence of the other potential jurors is the most effective environment for the candid self-disclosure of juror bias and prejudgment. (See Dr. Richard Christie's analysis of voir dire conditions in several federal trials, cited in Ginger, Jury Selection, 1977, p. 323; Nietzel and Dillehay's evaluation of voir dire transcripts in thirteen capital cases in Kentucky, "The Effects of Variations in Voir Dire Procedures," 6 Law and Human Behavior, 1982, 1-13).
47. In these studies the objective standard for measuring effectiveness of the voir dire procedure was the total number of sustained cause challenged raised by the opposing parties. This is because the goal of voir dire, of course, is to eliminate those jurors who simply cannot be fair to one side or the other. Christie found that eight times as many jurors were excused for cause when the voir dire was conducted by attorneys in total sequestration than when the voir dire was conducted en masse in the courtroom by judge only. Three times as many cause challenges were granted in the sequestered condition as compared to combined attorney and judge voir dire conducted en masse.
48. Nietzel and Dillehay also found that a statistically significant greater number of jurors were excused for cause when the voir dire was conducted in total sequestration or in partial sequestration on selected issues (e.g., pre-trial publicity, capital punishment) as compared to all non-sequestered conditions.
49. The explanation for these findings is rooted in the social psychological theories of conformity and self-disclosure. In experimental studies conducted in the 1930's Sherif discovered that in highly ambiguous situations, people are very receptive to the behavior of others and will be influenced by the actions and decisions of others to the point that they will give up their independent assessments in response to what other people did. (See Sherif, Psychology of Social Norms, 1936).
50. Additional well-known research on conformity was conducted in the 1940's and 1950's by Asch who found that many subjects conformed out of fear of rejection while others lay aside their (accurate) evaluation of objects and decided that they hadn't seen things correctly since all the others agreed on another (inaccurate) answer. (See Asch, "Studies of Independence and Conformity: A Minority of One Against a Unanimous Majority", 70 Psychological Monographs, #416, 1956).
51. The implication of these studies on juror behavior is seen in a post-trial study by Broader of 225 actual jurors who had served in 13 civil and 10 criminal trials. (See Broader, "Voir dire Examination: An Empirical Study", 38 Southern California Law Review, 1965, pp. 503-528). These in-depth personal interviews revealed a substantial discrepancy between information about attitudes and actual experience revealed to the interviewer as compared to those the juror had revealed during an en masse voir dire. Broader concluded that many jurors consciously and subconsciously withheld information during the group voir dire in an effort to appear "qualified" to perform their civic duty as jurors.
52. Group voir dire makes it easier for other jurors to avoid giving truthful or complete answers to the questions and also gives jurors who want to stay on the jury in order to intentionally influence the jury verdict an opportunity to do so. The most effective means to get people to respond as individuals and to talk about their true feelings, beliefs and knowledge of a case involving controversial or sensitive issues is to conduct the voir dire individually in at least partial sequestration on those specific topics mentioned above in Section I.
C. ATTORNEY PARTICIPATION IN THE VOIR DIRE ON PARTICULARLY SENSITIVE OR CONTROVERSIAL TOPICS
53. Generally, a completely judge-conducted voir dire on sensitive, controversial issues fails to reveal bias as effectively as attorney-conducted voir dire. Voir dire is essentially an interview. The goal of voir dire, as in any type of interview, is "self-disclosure" by the interviewee, the juror. One of the most important variables influencing the amount and type of information disclosed by an interviewee is status differential.
54. A large status differential or social distance exists between the judge and the majority of prospective jurors. The judge obviously has the highest status of anyone in the courtroom. In addition, he or she is physically separated and generally elevated above everyone else, and jurors, attorneys and court personnel address him or her as "Your Honor." The black robes worn by judges foster an increased sense of authority and detachment.
55. When social distance is large the interviewee is likely to hedge, to falsify or modify opinions and feelings in order to express the "socially acceptable" answers that will be "approved" by the authority figure conducting the examination. (Williams, Interviewer Role Performance: A Further Note on Bias in the Information Interview, 32 Public Opinion Quarterly 287 [1968]). Therefore, the responses elicited by the judge, particularly on controversial issues, are likely to be less accurate, candid and truthful than responses elicited by the attorney, whose status is much closer to that of the average prospective juror.
56. People greatly respect judges, and see them as the highest representatives of truth, justice and fairness. For this reason jurors many times hide their true feelings on controversial issues in a judge-conducted voir dire in order to avoid embarrassment or to avoid rejection by appearing in an unfavorable light to the judge they so highly respect. Since there is such a large social distance between a judge and the average citizen, jurors react by agreeing with what they imagine the judge wants them to say, such as, "Yes, I am completely opposed to the distribution of sexually explicit video tapes, but I can still be fair and impartial".
57. To create an environment where jurors feel more ready and willing to express their true thoughts and feelings on controversial issues, lawyers should conduct the voir dire on those issues. Lawyers have less social distance from jurors, and most certainly do not have the power and image of a judge. Lawyers are viewed as being biased either towards the defense or the prosecution and, therefore, the reality and image that a person should be impartial is psychologically broken. This is a positive effect because it enables the voir dire to result in a more accurate reading of a potential juror's feelings and biases. These biases are, of course, much more strongly rooted when there is a trial involving issues such as the distribution of sexually explicit video tapes containing acts such as group sex, oral and anal sex, and lesbian sex that some people find so personally offensive.
58. Having jurors respond directly to the lawyers for the opposing parties has the additional benefit of allowing counsel to gauge the attitudes of prospective jurors based on their reaction to the attorneys themselves. Many times jurors direct their negative feelings about the parties towards the lawyers who represent them. By reading a juror's reaction to the attorney during voir dire, counsel is better able to determine whether to exercise a challenge and thus can better represent his or her client.
59. In summary, attorney-conducted voir dire on the sensitive and controversial issues in this case will improve both the prosecution's and the defense's chances of selecting an impartial jury in several ways:
a. Attorneys are more likely than judges to elicit candid answers from jurors, in part because they are of lesser status in the courtroom.
b. Counsel are familiar with the issues, facts and methods of proof to be presented at trial. They can develop an intimate understanding of the biases that may be detrimental to securing a fair trial and thus formulate questions designed to reveal these biases.
c. Nonverbal communication between attorneys and prospective jurors can be a telling indication of potential bias. Jurors who are biased are more likely to display signs of tension, evasion or overt hostility when questioned directly by counsel.
d. Finally, because attorneys are so involved in their cases they are much better able to pursue necessary follow-up questions to the jurors' responses.
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1. These modifications include: (1) a specially delivered introduction by the court setting forth the basic elements of the law of obscenity and emphasizing the court's desire for honesty and candor in juror responses; (2) extra peremptory challenges to the defense; (3) use of the "struck" system for exercising peremptories; and (4) the use of open-ended voir dire questions with follow-up probes. The purpose of each of these procedures in the special circumstances of this case, and the nature of those procedures, is explained infra, in Section III.
2. See e.g., Mischel, W., Personality and Assessment (1968); Sarbin, T., "Contextualism: A World View for Modern Psychology," in Nebraska Symposium on Motivation, J. Cole, ed., (1976).
3. E.g., Festinger, L., A Theory of Social Comparison Processes, 7 Human Relations 117 (1954); Schacter, S., The Psychology of Affiliation (1959).
4. For a discussion of the effects that perceived consequences have on attitudes and beliefs, see Collins, B. and Hoyt, M., Personal Responsibility for Consequences: An Integration of the Forced Compliance Literature, Journal of Experimental Social Psychology, 558-93 (1972).
5. On how knowledge about the beliefs of others affects our own attitudes and beliefs, see Haney, C., Consensus Information and Attitude Change: Modifying the Effects of Counter-Attitudinal Behavior with Information about the Behavior of Others, Journal of Personality and Social Psychology (1984).
6. Marlowe, D. and Crown, D., Social Desirability and Response to Perceived Situational Demands, 25 Journal of Consulting Psychology 109 (1968).
7. See Arkin, R.M., et. al., Social Anxiety, Self-Presentation and the Self-Serving Bias in Causal Attribution, 38 Journal of Personality and Social Psychology 23 (1980).
8. See Hare, A. Paul, Handbook of Small Group Research, The Free Press of Glencoe, 1962, and studies cited therein.
9. In United States v. Dellinger, 472 F.2d 340, 375 (7th Cir. 1972), cert. denied, 410 U.S. 970 (1973), the court noted that "natural human pride would suggest a negative answer to whether there was a reason the juror could not be fair and impartial." Indeed, it has been held reversible error for trial courts to rely on the assessment by a prospective juror of his or her own biases or preconceptions. Silverthorne v. United States, 400 F.2d 627, 638 (9th Cir. 1968), cert. denied, 400 U.S. 1022 (1971); United States v. Polizzi, 500 F.2d 856, 879 (9th Cir. 1974) (noting 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").
10. In United States v. Dellinger, 472 F.2d 340, 375 (7th Cir. 1972), cert. denied, 410 U.S. 970 (1973), the court commented that "natural human pride would suggest a negative answer to whether there was a reason the juror could not be fair and impartial."
11. The Polizzi court cited Silverthorne for the proposition that "in a case of substantial pretrial publicity, 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." Id. at 879.
12. Typical follow-up probes might include the following follow-up questions: Tell me about it; Could you explain why you feel that way; What was your reaction?; How do you think that affected you?; What impression did that leave on you?; Why do you think that is?; Can you give me an example of that?; Is there any particular reason you feel that way?; Did something happen that helped you come to that conclusion?; Explain what you mean for me; Why do you think so?