Jury Selection and Media Access

The starting presumption is that “absent an overriding interest, the trial of a criminal case must be open to the public.” This pronouncement by four justices in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581 (1980), has been elaborated upon in a series of subsequent decisions. See Press-Enterprise Company v. Superior Court of California (Press-Enterprise I), 464 U.S. 501, 510 (1984); Waller v. Georgia, 467 U.S. 39, 47 (1984); and Press-Enterprise Company v. Superior Court of California (Press-Enterprise II), 478 U.S. 1, 14 (1986). But the “right of access to courtroom proceedings is not absolute. It is limited both by the constitutional right of defendants to a fair trial, and by the needs of government to obtain just convictions and to preserve the confidentiality of sensitive information and the identity of informants.” Gannett Co. Inc. v. DePasquale, 443 U.S. 368, 398 (1979) (Powell, J., concurring).

Although one court has observed that “a voir dire interrogation of prospective jurors has about the same attention-grabbing excitement as a report on the annual rainfall in northern Tibet,” (United States v. Peters, 754 F.2d 753, 762 (7th Cir. 1985)), this insight has yet to penetrate to most journalists. Indeed, press representatives have frequently challenged attempts to close voir dire proceedings or examine prospective jurors individually in chambers. The pressure for secrecy in this context can arise from the prosecution or defense, because either party may have concerns that jurors will be less candid if their responses may be featured on tonight's “News at Eleven!”