Possible jurors in high-profile cases should be individually questioned to determine what they have read and heard about a case and how it affected their attitudes, the ABA brief argued in the pending U.S. Supreme Court case of Boston Marathon bomber Dzhokhar Tsarnaev. Previous coverage available here.
In its opening brief filed last Monday, the Department of Justice asked the justices to reverse the United States Court of Appeals for the First Circuit that vacated the death sentence for Dzhokhar Tsarnaev. The appeals court ruled that the trial court had failed to adequately gauge potential jury bias and the extent to which Tsarnaev may have been influenced by his brother. Former President Donald Trump’s administration appealed the ruling. The Supreme Court agreed in March to hear the case.
The association’s brief cites the ABA Standards for Criminal Justice, which provide: “If it is likely that any prospective jurors have been exposed to prejudicial publicity, they should be individually questioned to determine what they have read and heard about the case and how any exposure has affected their attitudes toward the trial. Questioning should take place outside the presence of other chosen and prospective jurors and in the presence of counsel. A record of prospective jurors’ examinations should be maintained and any written questionnaires used should be preserved as part of the court record.”
The ABA brief says the association takes no position on whether the federal appeals court decision should be affirmed or reversed. “The ABA instead submits this brief to underscore the importance of content questioning to ensuring a fair trial in high-publicity cases,” the brief says. “In particular, individualized content questioning during voir dire enables judges, as well as prosecutors and defense counsel, to ensure that jurors are, in fact, impartial and have not become biased by pretrial publicity, and in turn to fairly exercise their discretion in deciding whether to strike or challenge jurors. The ABA’s long-considered view is that, in high-publicity cases, there is no adequate substitute for individualized voir dire content questioning.”