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Defendant's Right to an Impartial Jury and the Right of Prospective Jurors

NCJ Number
Cincinnati Law Review Volume: 48 Issue: 4 Dated: (1979) Pages: 985-998
S Kafker
Date Published
14 pages
This paper examines whether developments in pretrial investigation and voir dire violate prospective jurors' privacy rights and affect the defendant's sixth amendment guarantee of trial by an impartial jury.
To promote the meaningful exercise of both peremptory and for cause challenges, courts have generally not interfered with investigations of prospective jurors by either the defense or the prosecution. Their rationale has been that the pretrial investigation, like the voir dire examination that follows, theoretically aims at detecting and eliminating biased jurors. This Note examines both the prosecution and defense positions on access to information, such as jury dossiers, jurors' experience or voting recorded on prior juries, and jurors' private lives obtained from police records or reports. Voir dire presents three key issues: (1) what type of questioning may be used to determine the prejudices of prospective jurors, (2) who does the questioning, and (3) what, if any, role should social science play. Prospective jurors concerned about invasions of their privacy by pretrial investigation and voir dire examination have little to fear from social science techniques (such as neighborhood surveys to gather sociological information) and can take some comfort from the most recent Federal court decisions. In the Barnes case, in which a narcotics dealer's potential threat to jurors and their families was established, the court indicated that it was wiling to set limits on pretrial publication of jurors lists. The sixth amendment guarantee of an impartial jury is best served in some circumstances by not revealing the identities of prospective jurors because a threatened juror cannot be expected to make an impartial decision. The Barnes court gave even more substantial recognition to jurors' privacy interests in its discussion of appropriate voir dire questions. It did not, however, respond to the following: If the court cuts off any possibility to pretrial investigation by withholding juror lists, and then limits voir dire questions, the defendant may by unable to effectively exercise his right to peremptory challenges. Perhaps in balancing interests, courts have a greater responsibility to defendants whose liberty may be at stake than to prospective jurors subjected to pretrial investigation and voir dire examination. Footnotes are included.