Schadenfreude Denied: Juror Questionnaires Remain (Mostly) Sealed in High Profile Cases

Elizabeth Holmes, former CEO of the now defunct Theranos, will face a jury on fraud charges . . . and everybody knows it. Holmes invented (loosely-defined) a lab testing company that needed only one drop of blood from patients to run all of its tests. She recruited investors and supporters with household names such as Rupert Murdoch, the Walton family, and Bill Clinton. The company was valued at over a billion dollars. The only problem is that the technology didn’t work. And America has watched her downfall with a kind of uncomfortable schadenfreude, devouring every report, documentary, and podcast about her magnificent demise. While her trial date isn’t set yet, we can imagine that the media machine will fill the courtroom from voir dire to verdict to feed public curiosity. But the media’s inquiry into all areas of Holmes’ story, especially at the trial phase, may be stunted by the jury selection process that occurs in these high profile cases.

While voir dire, as with most parts of a criminal trial, is typically open to the public, attorneys in high profile cases routinely use supplemental juror questionnaires to sift through the jurors with more precision and efficiency. These questionnaires can be long, detailed, and very personal as attorneys attempt to elicit any hidden biases that may affect deliberations. For example, in one of Paul Manafort’s trials, the 27 page questionnaire asked, “Have you, or has any member of your family or close friend or relative ever been audited by the Internal Revenue Service?” The jurors were asked to select yes or no, and if yes, to provide the date of the audit. The second part of the question asked, “If yes, do you feel that the person involved was treated fairly by the Internal Revenue Service?”  The magic of the questionnaire is that these questions are answered on paper, not in front of the gallery, so jurors are likely to be more honest, revealing biases and personal information they may not otherwise convey. Frequently in high profile cases, the revelatory information contained in jurors’ responses to these questionnaires is withheld from the public, leaving a gap in the public’s understanding of the jury selection process in such cases.

Courts Uphold Sealing Content of Juror Questionnaires

Years ago, the Supreme Court held that the jury selection process is a presumptively public one because the public has a right of access in criminal cases, but that presumption may be overcome. For example in the Manafort and  the Boston bomber case, the content of the juror’s responses to the questionnaires that formed the basis of voir dire were sealed to protect jurors’ “legitimate privacy interests.” As the judge in the Boston bomber case reasoned, “[a] prospective juror summoned for service who is aware that intimate and identifiable information about former jurors has been spread online and in the press might expectedly be reluctant to be candid when asked in voir dire to provide personal information.” When asked to release the content of all the prospective jurors’ responses, the court declined citing juror privacy and the inability to review every single response. However, the court did release the redacted responses of the 18 who were selected and subsequently identified after the trial.

            Other courts have held that where there is an open voir dire the potential jurors’ “interest in keeping their responses private outweighs whatever public interest there may be in knowing and reporting on that information.” The court assumed that “anything contained in a questionnaire that bears on an individual’s ability to serve as an impartial juror will be discussed during voir dire.” This seems to ignore the reality of peremptory strikes and the fact that attorneys have become incredibly skilled at avoiding Batson and other issues by giving a perfunctory rationale on the record that belies the true reason for a “for cause” strike.

Unfortunately for Media Connoisseurs, Sealing Ultimately Makes Sense

There is a real tension between the defendant’s and the public’s right to have a public trial and the juror’s right to privacy, but concealing juror questionnaires in high profile cases probably makes sense. Judges are concerned that revelation of jurors’ responses will chill future jurors’ candor or that revealing the identities of jurors in high profile cases will lead to outside influence on their deliberation. Jurors must be honest without fear of public retribution for their responses, so that the parties can eliminate legitimate biases. And, the media machine is likely capable of using anecdotal information given in a juror questionnaire to match that information to a specific person.

While concealing juror questionnaire responses cuts against the press’s ability to analyze attorney strikes and other biases that may be at play in the jury selection process, protecting juror privacy is likely to protect the defendant’s rights, the key concern in criminal cases. If jurors are honest, defendant’s counsel can more effectively cherry pick a jury unbiased against the defendant. If fairness is the ultimate goal of an open trial, selective sealing as is the case with questionnaire responses may be required to maintain that goal.

This does mean that the public waiting with bated breath for Elizabeth Holmes’ trial may not get all the sordid details of potential jurors’ opinion from the questionnaire that will inevitably be produced in the case. We may not get a whole podcast episode devoted to voir dire because, let’s face it, without the juror responses, the content just wouldn’t be that interesting. But, if we remove ourselves from the thrill of watching such a grand demise and focus on the reality—a woman facing criminal charges for her conduct—we may be less demanding on the details to ensure that the system’s goal of the presumption of innocence and fairness is maintained, even for Elizabeth Holmes.