Monday, December 28, 2009

First Amendment And Jury Questionnaires

In the criminal case involving O.J. Simpson, the Nevada Supreme Court has held that there is a limited First Amendment right to public (i.e. media) access to information about the jury pool. The court held:

This petition for extraordinary writ relief challenges the district court’s denial of petitioners’ motion to intervene in a criminal trial for the limited purpose of accessing juror questionnaires.  In reviewing this petition, we must address two issues of first impression.  First, we must resolve whether petitioners’ motion to intervene in a criminal case to seek access to juror questionnaires is procedurally proper.  Second, we are asked to determine whether juror questionnaires used in jury selection are subject to public disclosure.  This second inquiry requires an analytical balance between two equally important constitutional rights: the First Amendment right of the public and the press to access criminal proceedings, and the Sixth Amendment right of criminal defendants to receive a fair trial.

 After weighing all relevant interests, we conclude that limited intervention by the public or the press is an appropriate procedural mechanism by which the public or press may assert its First Amendment interests in a criminal case.  We determine that the district court committed error in denying petitioners’ motion to intervene.

We further conclude that juror questionnaires used in jury selection are, like the jury-selection process itself, presumptively subject to public disclosure. The presumption of openness may be overcome, however, only if the district court identifies a countervailing interest to public access and demonstrates, by specific findings, that closure is necessary and narrowly tailored to serve a higher interest.  Because we conclude that the district court neither articulated specific findings to show that concerns about juror candor superseded the First Amendment’s presumption of open proceedings in jury selection nor considered reasonable alternatives to a complete closure of the questionnaires, we grant petitioners’ petition and direct the district court to release all blank and completed juror questionnaires to petitioners.

 We recognize that because the underlying criminal trial concluded and the jury rendered a verdict, this remedy might be considered moot.  Nonetheless, we consider this petition because the primary issue—whether juror questionnaires used in jury selection are subject to public disclosure—is of a type that is capable of repetition but evading review.

(Mike Frisch)

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