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 forextraordinary writ relief challenges the district court’s denial ofpetitioners’ motion to intervene in a criminal trial for the limitedpurpose of accessing juror questionnaires.  In reviewing this petition,we must address two issues of first impression.  First, we must resolvewhether petitioners’ motion to intervene in a criminal case to seekaccess to juror questionnaires is procedurally proper.  Second, we areasked to determine whether juror questionnaires used in jury selectionare subject to public disclosure.  This second inquiry requires ananalytical balance between two equally important constitutional rights:the First Amendment right of the public and the press to accesscriminal proceedings, and the Sixth Amendment right of criminaldefendants to receive a fair trial.

 Afterweighing all relevant interests, we conclude that limited interventionby the public or the press is an appropriate procedural mechanism bywhich the public or press may assert its First Amendment interests in acriminal case.  We determine that the district court committed error indenying petitioners’ motion to intervene.

Wefurther conclude that juror questionnaires used in jury selection are,like the jury-selection process itself, presumptively subject to publicdisclosure. The presumption of openness may be overcome, however, onlyif the district court identifies a countervailing interest to publicaccess and demonstrates, by specific findings, that closure isnecessary and narrowly tailored to serve a higher interest.  Because weconclude that the district court neither articulated specific findingsto show that concerns about juror candor superseded the FirstAmendment’s presumption of open proceedings in jury selection norconsidered reasonable alternatives to a complete closure of thequestionnaires, we grant petitioners’ petition and direct the districtcourt to release all blank and completed juror questionnaires topetitioners.

 Werecognize that because the underlying criminal trial concluded and thejury rendered a verdict, this remedy might be considered moot. Nonetheless, we consider this petition because the primaryissue—whether juror questionnaires used in jury selection are subjectto public disclosure—is of a type that is capable of repetition butevading review.

(Mike Frisch)