Petitioner Mu'Min, a Virginia inmate serving time for
first-degree murder, committed another murder while out of prison
on work detail. The case engendered substantial publicity in the
local news media. The trial judge denied his motion for individual
voir dire and refused to ask any of his proposed questions
relating to the content of news items that potential jurors might
have seen or read. Initially, the judge questioned the prospective
jurors as a group, asking four separate questions about the effect
on them of pretrial publicity or information about the case
obtained by other means. One juror who admitted to having formed a
belief as to Mu'Min's guilt was excused for cause. The judge then
conducted further
voir dire in panels of four, and each
time a juror indicated that he had acquired knowledge about the
case from outside sources, he was asked whether he had formed an
opinion. One juror who equivocated as to her impartiality was
excused by the judge
sua sponte, and several others were
excused for various reasons. Although 8 of the 12 eventually sworn
admitted that they had read or heard something about the case, none
indicated that they had formed an opinion based on the outside
information, or would be biased in any way. The jury found Mu'Min
guilty of capital murder, and the judge sentenced him to death. The
Supreme Court of Virginia affirmed, finding that, while a criminal
defendant may properly ask on
voir dire whether a juror
has previously acquired any information about the case, the
defendant does not have a constitutional right to explore the
content of the acquired information, but is only entitled
to know whether the juror can remain impartial in light of the
previously obtained information.
Held: The trial judge's refusal to question prospective
jurors about the specific contents of the news reports to which
they had been exposed did not violate Mu'Min's Sixth Amendment
right to an impartial jury or his right to due process under the
Fourteenth Amendment. Pp.
500 U. S.
422-432.
(a) This Court's cases have stressed the wide discretion granted
to trial courts in conducting
voir dire in the area of
pretrial publicity and in other areas that might tend to show juror
bias. For example, in holding that a trial court's
voir
dire questioning must "cover the subject" of possible juror
racial bias,
Aldridge v. United States, 283 U.
S. 308,
283 U. S. 311,
the Court was careful not to specify the particulars by which this
could be done. Pp.
500 U. S.
422-424.
Page 500 U. S. 416
(b) Mu'Min's assertion that
voir dire must do more than
merely "cover the subject" of pretrial publicity is not persuasive.
Although precise inquiries about the contents of any news reports
that a potential juror has read might reveal a sense of the juror's
general outlook on life that would be of some use in exercising
peremptory challenges, this benefit cannot be a basis for making
"content" questions about pretrial publicity a constitutional
requirement, since peremptory challenges are not required by the
Constitution.
Ross v. Oklahoma, 487 U. S.
81,
487 U. S. 88.
Moreover, although content questions might be helpful in assessing
whether a juror is impartial, such questions are constitutionally
compelled only if the trial court's failure to ask them renders the
defendant's trial fundamentally unfair.
See Murphy v.
Florida, 421 U. S. 794,
421 U. S. 799.
Furthermore, contrary to the situation in
Aldridge, supra,
283 U.S. at
283 U. S.
311-313, there is no judicial consensus, or even weight
of authority, favoring Mu'Min's position. Even the Federal Courts
of Appeals that have required content inquiries have not expressly
done so on constitutional grounds. Pp.
500 U. S.
424-427.
(c) Mu'Min misplaces his reliance on
Irvin v. Dowd,
366 U. S. 717, in
which the Court held that pretrial publicity in connection with a
capital trial had so tainted the particular jury pool that the
defendant was entitled as a matter of federal constitutional law to
a change of venue. That case did not deal with any constitutional
requirement of
voir dire inquiry, and it is not clear from
the Court's opinion how extensive an inquiry the trial court made.
Moreover, the pretrial publicity here, although substantial, was
not nearly as damaging or extensive as that found to exist in
Irvin. While adverse pretrial publicity can create such a
presumption of prejudice that the jurors' claims that they can be
impartial should not be believed,
Patton v. Yount,
467 U. S. 1025,
467 U. S.
1031, this is not such a case. Pp.
500 U. S.
427-430.
(d) Mu'Min also misplaces his reliance on the American Bar
Association's Standards For Criminal Justice, which require
interrogation of each juror individually with respect to "what [he]
has read and heard about the case," "[i]f there is a substantial
possibility that [he] will be ineligible to serve because of
exposure to potentially prejudicial material." These standards
leave to the trial court the initial determination of whether there
is such a substantial possibility; are based on a substantive
for-cause eligibility standard that is stricter than the
impartiality standard required by the Constitution,
see Patton,
supra, 467 U.S. at
467 U. S.
1035; and have not commended themselves to a majority of
the courts that have considered the question. Pp.
500 U. S.
430-431.
(e) The two-part
voir dire examination conducted by the
trial court in this case was by no means perfunctory, and
adequately covered the subject of possible bias by pretrial
publicity. P.
500 U. S.
431-432.
239 Va. 433,
389 S.E.2d
886, affirmed.
Page 500 U. S. 417
REHNQUIST, C.J., delivered the opinion of the Court, in which
WHITE, O'CONNOR, SCALIA, and SOUTER, JJ., joined. O'CONNOR, J.,
filed a concurring opinion,
post, 500 U. S. 432.
MARSHALL, J., filed a dissenting opinion, in all but Part IV of
which BLACKMUN and STEVENS, JJ., joined,
post, p.
500 U. S. 433.
KENNEDY, J., filed a dissenting opinion,
post, p.
500 U. S.
448.
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioner Dawud Majid Mu'Min was convicted of murdering a woman
in Prince William County, Virginia, while out of prison on work
detail, and was sentenced to death. The case engendered substantial
publicity, and 8 of the 12 venirepersons eventually sworn as jurors
answered on
voir dire that they had read or heard
something about the case. None of those who had read or heard
something indicated that they had formed an opinion based on the
outside information, or that it would affect their ability to
determine petitioner's guilt or innocence based solely on the
evidence presented at trial. Petitioner contends, however, that his
Sixth Amendment right to an impartial jury and his right to due
process under the Fourteenth Amendment were violated because the
trial judge refused to question further prospective jurors about
the specific contents of the news reports to which they had been
exposed. We reject petitioner's submission.
Page 500 U. S. 418
Mu'Min was an inmate at the Virginia Department of Corrections'
Haymarket Correctional Unit serving a 48-year sentence for a 1973
first-degree murder conviction. On September 22, 1988, he was
transferred to the Virginia Department of Transportation (VDOT)
Headquarters in Prince William County and assigned to a work detail
supervised by a VDOT employee. During his lunch break, he escaped
over a perimeter fence at the VDOT facility and made his way to a
nearby shopping center. Using a sharp instrument that he had
fashioned at the VDOT shop, Mu'Min murdered and robbed Gladys
Nopwasky, the owner of a retail carpet and flooring store. Mu'Min
then returned to his prison work crew at the VDOT, discarding his
bloodied shirt and the murder weapon near the highway.
About three months before trial, petitioner submitted to the
trial court, in support of a motion for a change of venue, 47
newspaper articles relating to the murder. [
Footnote 1] One or more of the articles discussed
details of the murder and investigation, and included information
about petitioner's prior criminal record (App. 963-969), the fact
that he had been rejected for parole six times (
id., at
923, 942), accounts of alleged prison infractions (
id. at
921, 931, 942), details about the prior murder for which Mu'Min was
serving his sentence at the time of this murder (
id. at
948, 951), a comment that the death penalty had not been available
when Mu'Min was convicted for this earlier murder (
id. at
948), and indications that Mu'Min had confessed to killing Gladys
Nopwasky (
id. at 975). Several articles focused on the
alleged laxity in the supervision of work gangs (
id. at
922-924, 930-931), and argued for reform of the prison work-crew
system (
id. at 974). The trial judge deferred ruling on
the venue motion until after
Page 500 U. S. 419
making an attempt to seat a jury (Joint Appendix 8-15
(J.A.)).
Shortly before the date set for trial, petitioner submitted to
the trial judge 64 proposed
voir dire questions [
Footnote 2] (
id. at 2-7) and
filed a motion for individual
voir dire. The trial court
denied the motion for individual
voir dire; it ruled that
voir dire would begin with collective questioning of the
venire, but the venire would be broken down into panels of four, if
necessary, to deal with issues of publicity (
id. at
16-17). The trial court also refused to ask any of petitioner's
proposed questions relating to the content of news items that
potential jurors might have read or seen.
Twenty-six prospective jurors were summoned into the courtroom
and questioned as a group (
id. at 42-66). When asked by
the judge whether anyone had acquired any information about the
alleged offense or the accused from the news media or from any
other source, 16 of the potential jurors replied that they had
(
id. at 46-47). The prospective jurors were not asked
about the source or content of prior knowledge, but the court then
asked the following questions:
Page 500 U. S. 420
"Would the information that you heard, received, or read from
whatever source, would that information affect your impartiality in
this case?"
"Is there anyone that would say what you've read, seen, heard,
or whatever information you may have acquired from whatever the
source would affect your impartiality so that you could not be
impartial?"
* * * *
"Considering what the ladies and gentlemen who have answered in
the affirmative have heard or read about this case, do you believe
that you can enter the Jury box with an open mind and wait until
the entire case is presented before reaching a fixed opinion or
conclusion as to the guilt or innocence of the accused?"
* * * *
". . . In view of everything that you've seen, heard, or read,
or any information from whatever source that you've acquired about
this case, is there anyone who believes that you could not become a
Juror, enter the Jury box with an open mind and wait until the
entire case is presented before reaching a fixed opinion or a
conclusion as to the guilt or innocence of the accused?"
(
Id. at 47-48.) One of the 16 panel members who
admitted to having prior knowledge of the case answered in response
to these questions that he could not be impartial, and was
dismissed for cause (
id. at 48-49). Petitioner moved that
all potential jurors who indicated that they had been exposed to
pretrial publicity be excused for cause (
id. at 68). This
motion was denied (
id. at 69), as was petitioner's renewed
motion for a change of venue based on the pretrial publicity
(
id. at 71).
The trial court then conducted further
voir dire of the
prospective jurors in panels of four (
id. at 72-94).
Whenever a potential juror indicated that he had read or heard
something about the case, the juror was then asked whether he had
formed an opinion, and whether he could nonetheless be
impartial.
Page 500 U. S. 421
None of those eventually seated stated that he had formed an
opinion, or gave any indication that he was biased or prejudiced
against the defendant. All swore that they could enter the jury box
with an open mind and wait until the entire case was presented
before reaching a conclusion as to guilt or innocence.
If any juror indicated that he had discussed the case with
anyone, the court asked follow-up questions to determine with whom
the discussion took place, and whether the juror could have an open
mind despite the discussion. One juror who equivocated as to
whether she could enter the jury box with an open mind was removed
sua sponte by the trial judge (
id. at 90). One
juror was dismissed for cause because she was not "as frank as she
could [be]" concerning the effect of her feelings toward members of
the Islamic Faith and toward defense counsel (
id. at 81).
One juror was dismissed because of her inability to impose the
death penalty (
id. at 86-87), while another was removed
based upon his statement that, upon a finding of capital murder, he
could not consider a penalty less than death (App. 339-341). The
prosecution and the defense each peremptorily challenged 6
potential jurors, and the remaining 14 were seated and sworn as
jurors (two as alternates). Petitioner did not renew his motion for
change of venue or make any other objection to the composition of
the jury. Of the 12 jurors who decided petitioner's case, 8 had at
one time or another read or heard something about the case. None
had indicated that he had formed an opinion about the case or would
be biased in any way.
The jury found petitioner guilty of capital murder and
recommended that he be sentenced to death. After taking the matter
under advisement and reviewing a presentence report, the trial
judge accepted the jury's recommendation and sentenced Mu'Min to
death. Mu'Min appealed, contending that he was entitled to a new
trial as a result of the judge's failure to permit the proposed
voir dire questions. By a divided vote, the Supreme Court
of Virginia affirmed his conviction
Page 500 U. S. 422
and sentence, finding that, while a criminal defendant may
properly ask on
voir dire whether a juror has previously
acquired any information about the case, the defendant does not
have a constitutional right to explore the
content of the
acquired information. Rather, an accused is only entitled to know
whether the juror can remain impartial in light of the previously
obtained information. 239 Va. 433, 443,
389 S.E.2d
886, 893 (1990). We granted certiorari, 498 U.S. 894 (1990),
and now affirm.
Our cases dealing with the requirements of
voir dire
are of two kinds: those that were tried in federal courts, and are
therefore subject to this Court's supervisory power,
see
Rosales-Lopez v. United States, 451 U.
S. 182 (1981);
Aldridge v. United States,
283 U. S. 308
(1931); and
Connors v. United States, 158 U.
S. 408 (1895); and those that were tried in state
courts, with respect to which our authority is limited to enforcing
the commands of the United States Constitution.
See Turner v.
Murray, 476 U. S. 28
(1986);
Ristaino v. Ross, 424 U.
S. 589 (1976); and
Ham v. South Carolina,
409 U. S. 524
(1973).
A brief review of these cases is instructive. In
Connors, we said:
"[A] suitable inquiry is permissible in order to ascertain
whether the juror has any bias, opinion, or prejudice that would
affect or control the fair determination by him of the issues to be
tried. That inquiry is conducted under the supervision of the
court, and a great deal must, of necessity, be left to its sound
discretion. This is the rule in civil cases, and the same rule must
be applied in criminal cases."
158 U.S. at
158 U. S.
413.
In
Aldridge v. United States, 283 U.
S. 308 (1931), counsel for a black defendant sought to
have the Court put a question to the jury as to whether any of them
might be prejudiced against the defendant because of his race. We
held that it was reversible error for the Court not to have put
such a question, saying "[t]he Court failed to ask any question
which could be
Page 500 U. S. 423
deemed to cover the subject."
Id. at
283 U. S. 311.
More recently, in
Rosales-Lopez v. United States, supra,
we held that such an inquiry as to racial or ethnic prejudice need
not be made in every case, but only where the defendant was accused
of a violent crime and the defendant and the victim were members of
different racial or ethnic groups. We said:
"Because the obligation to empanel an impartial jury lies in the
first instance with the trial judge, and because he must rely
largely on his immediate perceptions, federal judges have been
accorded ample discretion in determining how best to conduct the
voir dire."
Id. 451 U.S. at
451 U. S.
189.
Three of our cases dealing with the extent of
voir dire
examination have dealt with trials in state courts. The first of
these was
Ham v. South Carolina, supra. In that case, the
defendant was black, and had been active in the civil rights
movement in South Carolina; his defense at trial was that
enforcement officers were "out to get him" because of his civil
rights activities, and that he had been framed on the charge of
marijuana possession of which he was accused. He requested that two
questions be asked regarding racial prejudice and one question be
asked regarding prejudice against persons, such as himself, who
wore beards. We held that the Due Process Clause of the Fourteenth
Amendment required the court to ask "either of the brief, general
questions urged by the petitioner" with respect to race,
id. 409 U.S. at
409 U. S. 527,
but rejected his claim that an inquiry as to prejudice against
persons with beards be made, "[g]iven the traditionally broad
discretion accorded to the trial judge in conducting
voir
dire. . . ."
Id. at
409 U. S.
528.
In
Ristaino v. Ross, supra, we held that the
Constitution does not require a state court trial judge to question
prospective jurors as to racial prejudice in every case where the
races of the defendant and the victim differ, but in
Turner v.
Murray, supra, we held that, in a capital case involving a
Page 500 U. S. 424
charge of murder of a white person by a black defendant, such
questions must be asked.
We enjoy more latitude in setting standards for
voir
dire in federal courts under our supervisory power than we
have in interpreting the provisions of the Fourteenth Amendment
with respect to
voir dire in state courts. But two
parallel themes emerge from both sets of cases: first, the
possibility of racial prejudice against a black defendant charged
with a violent crime against a white person is sufficiently real
that the Fourteenth Amendment requires that inquiry be made into
racial prejudice; second, the trial court retains great latitude in
deciding what questions should be asked on
voir dire. As
we said in
Rosales-Lopez, supra:
"Despite its importance, the adequacy of
voir dire is
not easily subject to appellate review. The trial judge's function
at this point in the trial is not unlike that of the jurors later
on in the trial. Both must reach conclusions as to impartiality and
credibility by relying on their own evaluations of demeanor
evidence and of responses to questions."
Id., 451 U.S. at
451 U. S.
188.
Petitioner asserts that the Fourteenth Amendment requires more
in the way of
voir dire with respect to pretrial publicity
than our cases have held that it does with respect to racial or
ethnic prejudice. Not only must the Court "cover the subject,"
Aldridge, supra, 283 U.S. at
283 U. S. 311,
but it must make precise inquiries about the contents of any news
reports that potential jurors have read. Petitioner argues that
these "content" questions would materially assist in obtaining a
jury less likely to be tainted by pretrial publicity than one
selected without such questions. There is a certain common sense
appeal to this argument.
Undoubtedly, if counsel were allowed to see individual jurors
answer questions about exactly what they had read, a better sense
of the juror's general outlook on life might be revealed, and such
a revelation would be of some use in exercising peremptory
challenges. But since peremptory
Page 500 U. S. 425
challenges are not required by the Constitution,
Ross v.
Oklahoma, 487 U. S. 81,
487 U. S. 88
(1988), this benefit cannot be a basis for making "content"
questions about pretrial publicity a constitutional requirement.
Such questions might also have some effect in causing jurors to
reevaluate their own answers as to whether they had formed any
opinion about the case, but this is necessarily speculative.
Acceptance of petitioner's claim would require that each
potential juror be interrogated individually; even were the
interrogation conducted in panels of four jurors, as the trial
court did here, descriptions of one juror about pretrial publicity
would obviously be communicated to the three other members of the
panel being interrogated, with the prospect that more harm than
good would be done by the interrogation. Petitioner says that the
questioning can be accomplished by juror questionnaires submitted
in advance at trial, but such written answers would not give
counsel or the court any exposure to the demeanor of the juror in
the course of answering the content questions. The trial court in
this case expressed reservations about interrogating jurors
individually, because it might make the jurors feel that they
themselves were on trial. While concern for the feelings and
sensibilities of potential jurors cannot be allowed to defeat
inquiry necessary to protect a constitutional right, we do not
believe that "content" questions are constitutionally required.
Whether a trial court decides to put questions about the content
of publicity to a potential juror or not, it must make the same
decision at the end of the questioning: is this juror to be
believed when he says he has not formed an opinion about the case?
Questions about the content of the publicity to which jurors have
been exposed might be helpful in assessing whether a juror is
impartial. To be constitutionally compelled, however, it is not
enough that such questions might be helpful. Rather, the trial
court's failure to ask these
Page 500 U. S. 426
questions must render the defendant's trial fundamentally
unfair.
See Murphy v. Florida, 421 U.
S. 794,
421 U. S. 799
(1975).
Aldridge was this Court's seminal case requiring inquiry as to
racial prejudice, and the opinion makes clear that, in reaching
that result, we relied heavily on a unanimous body of state court
precedents holding that such an inquiry should be made. 283 U.S. at
283 U. S.
311-313. On the subject of pretrial publicity, however,
there is no similar consensus, or even weight of authority,
favoring petitioner's position. Among the state court decisions
cited to us by the parties, not only Virginia, but South Carolina,
State v. Lucas, 285 S.C. 37, 39-40,
cert. denied,
472 U.S. 1012 (1985),
Massachusetts, Commonwealth v.
Burden, 15 Mass.App. 666, 674,
448 N.E.2d 387, 393 (1983), and
Pennsylvania, Commonwealth
v. Dolhancryk, 273 Pa.Super. 217, 222,
417
A.2d 246, 248 (1979), have refused to adopt such a rule. The
Courts of Appeals for the Fifth Circuit,
United States v.
Davis, 583 F.2d 190, 196 (1978), the Seventh Circuit,
United States v. Dellinger, 472 F.2d 340, 375-376 (1972),
cert. denied, 410 U.S. 970 (1973), and the Ninth Circuit,
Silverthorne v. United States, 400 F.2d 627, 639 (1968),
[
Footnote 3] have held that in
some circumstances such an inquiry is required. The Court of
Appeals for the Eleventh Circuit has held that it is
Page 500 U. S. 427
not.
United States v. Montgomery, 772 F.2d 733, 735736
(1985). The Courts of Appeals for the Eight and District of
Columbia Circuits appear to take an intermediate position.
United States v. Poludniak, 657 F.2d 948, 956 (CA8 1981),
cert. denied sub nom. Weigand v. United States, 455 U.S.
940 (1982);
United States v. Haldeman, 181 U.S.App.D.C.
254, 288-289, 559 F.2d 31, 65-66 (1976),
cert. denied sub nom.
Ehrlichman v. United States, 431 U.S. 933 (1977). Even those
Federal Courts of Appeals that have required such an inquiry to be
made have not expressly placed their decision on constitutional
grounds.
As noted above, our own cases have stressed the wide discretion
granted to the trial court in conducting
voir dire in the
area of pretrial publicity and in other areas of inquiry that might
tend to show juror bias. Particularly with respect to pretrial
publicity, we think this primary reliance on the judgment of the
trial court makes good sense. The judge of that court sits in the
locale where the publicity is said to have had its effect, and
brings to his evaluation of any such claim his own perception of
the depth and extent of news stories that might influence a juror.
The trial court, of course, does not impute his own perceptions to
the jurors who are being examined, but these perceptions should be
of assistance to it in deciding how detailed an inquiry to make of
the members of the jury venire.
Petitioner relies heavily on our opinion in
Irvin v.
Dowd, 366 U. S. 717
(1961), to support his position. In that case, we held that
pretrial publicity in connection with a capital trial had so
tainted the jury pool in Gibson County, Indiana, that the defendant
was entitled as a matter of federal constitutional law to a change
of venue to another county. Our opinion in that case details at
great length the extraordinary publicity that attended the
defendant's prosecution and conviction for murder.
"[A] barrage of newspaper headlines, articles, cartoons and
pictures was unleashed against [the defendant] during
Page 500 U. S. 428
the six or seven months preceding his trial. . . . [T]he
newspapers in which the stories appeared were delivered regularly
to approximately 95% of the dwellings in Gibson County, and . . .
the Evansville radio and TV stations, which likewise blanketed that
county, also carried extensive newscasts covering the same
incidents."
Id. 366 U.S. at
366 U. S. 725.
Two-thirds of the jurors actually seated had formed an opinion that
the defendant was guilty, and acknowledged familiarity with
material facts and circumstances of the case.
Id. at
366 U. S. 728.
Although each of these jurors said that he could be impartial, we
concluded:
"With his life at stake, it is not requiring too much that
petitioner be tried in an atmosphere undisturbed by so huge a wave
of public passion and by a jury other than one in which two-thirds
of the members admit, before hearing any testimony, to possessing a
belief in his guilt."
Ibid.
We believe that this case is instructive, but not in the way
petitioner employs it. It did not deal with any constitutional
requirement of
voir dire inquiry, and it is not clear from
our opinion how extensive an inquiry the trial court made. But the
contrast between that case and the present one is marked. In
Irvin, the trial court excused over half of a panel of 430
persons because their opinions of the defendant's guilt were so
fixed that they could not be impartial, and 8 of the 12 jurors who
sat had formed an opinion as to guilt. In the present case, 8 of
the 12 jurors who sat answered that they had read or heard
something about the case, but none of those 8 indicated that he had
formed an opinion as to guilt, or that the information would affect
his ability to judge petitioner solely on the basis of the evidence
presented at trial.
A trial court's findings of juror impartiality may "be
overturned only for
manifest error.'" Patton v. Yount,
467 U. S. 1025,
467 U. S.
1031 (1984) (quoting Irvin v. Dowd, supra, 366
U.S. at
Page 500 U. S. 429
366 U. S.
723). In
Patton, we acknowledged that "adverse
pretrial publicity can create such a presumption of prejudice in a
community that the jurors' claims that they can be impartial should
not be believed," 467 U.S. at
467 U. S.
1031, but this is not such a case. Had the trial court
in this case been confronted with the "wave of public passion"
engendered by pretrial publicity that occurred in connection with
Irvin's trial, the Due Process Clause of the Fourteenth Amendment
might well have required more extensive examination of potential
jurors than it undertook here. But the showings are not comparable;
the cases differ both in the kind of community in which the
coverage took place and in extent of media coverage. Unlike the
community involved in
Irvin, the county in which
petitioner was tried, Prince William, had a population in 1988 of
182,537, and this was one of nine murders committed in the county
that year. It is a part of the metropolitan Washington statistical
area, which has a population of over 3 million, and in which,
unfortunately, hundreds of murders are committed each year. In
Irvin, news accounts included details of the defendant's
confessions to 24 burglaries and six murders, including the one for
which he was tried, as well as his unaccepted offer to plead guilty
in order to avoid the death sentence. They contained numerous
opinions as to his guilt, as well as opinions about the appropriate
punishment. While news reports about Mu'Min were not favorable,
they did not contain the same sort of damaging information. Much of
the pretrial publicity was aimed at the Department of Corrections
and the criminal justice system in general, criticizing the
furlough and work release programs that made this and other crimes
possible. Any killing that ultimately results in a charge of
capital murder will engender considerable media coverage, and this
one may have engendered more than most because of its occurrence
during the 1988 Presidential campaign, when a similar crime
committed by a Massachusetts inmate became a subject of national
debate. But while the pretrial publicity in this case appears to
have
Page 500 U. S. 430
been substantial, it was not of the same kind or extent as that
found to exist in
Irvin.
Petitioner also relies on the Standards for Criminal Justice
8-3.5 (2d ed.1980), promulgated by the American Bar Association.
These standards require interrogation of each juror individually
with respect to "what the prospective juror has read and heard
about the case," "[i]f there is a substantial possibility that
individual jurors will be ineligible to serve because of exposure
to potentially prejudicial material." These standards, of course,
leave to the trial court the initial determination of whether there
is such a substantial possibility. But, more importantly, the
standards relating to
voir dire are based on a substantive
rule that renders a potential juror subject to challenge for cause,
without regard to his state of mind, if he has been exposed to and
remembers "highly significant information" or "other incriminating
matters that may be inadmissible in evidence." That is a stricter
standard of juror eligibility than that which we have held the
Constitution to require. Under the ABA standard, answers to
questions about content, without more, could disqualify the juror
from sitting. Under the constitutional standard, on the other
hand,
"[t]he relevant question is not whether the community remembered
the case, but whether the jurors . . . had such fixed opinions that
they could not judge impartially the guilt of the defendant."
Patton, supra, 467 U.S. at
467 U. S.
1035. Under this constitutional standard, answers to
questions about content alone, which reveal that a juror remembered
facts about the case, would not be sufficient to disqualify a
juror. "It is not required . . . that the jurors be totally
ignorant of the facts and issues involved."
Irvin, 366
U.S. at
366 U. S.
722.
The ABA standards, as indicated in our previous discussion of
state and federal court decisions, have not commended themselves to
a majority of the courts that have considered the question. The
fact that a particular rule may be thought to be the "better" view
does not mean that it is incorporated
Page 500 U. S. 431
into the Fourteenth Amendment.
Cupp v. Naughten,
414 U. S. 141
(1973).
The
voir dire examination conducted by the trial court
in this case was by no means perfunctory. The court asked the
entire venire of jurors four separate questions about the effect on
them of pretrial publicity or information about the case obtained
by other means. One juror admitted to having formed a belief as to
petitioner's guilt, and was excused for cause. The trial court then
conducted further
voir dire in panels of four, and each
time an individual juror indicated that he had acquired knowledge
about the case from outside sources, he was asked whether he had
formed an opinion; none of the jurors seated indicated that he had
formed an opinion. One juror who equivocated as to her impartiality
was excused by the trial court on its own motion. Several other
jurors were excused for other reasons. It is quite possible that,
if
voir dire interrogation had revealed one or more jurors
who had formed an opinion about the case, the trial court might
have decided to question succeeding jurors more extensively.
Voir dire examination serves the dual purposes of enabling the
court to select an impartial jury and assisting counsel in
exercising peremptory challenges. In
Aldridge and
Ham, we held that the subject of possible racial bias must
be "covered" by the questioning of the trial court in the course of
its examination of potential jurors, but we were careful not to
specify the particulars by which this could be done. We did not,
for instance, require questioning of individual jurors about facts
or experiences that might have led to racial bias. Petitioner in
this case insists, as a matter of constitutional right, not only
that the subject of possible bias from pretrial publicity be
covered -- which it was -- but that questions specifically dealing
with the content of what each juror has read be asked. For the
reasons previously stated, we hold that the Due Process Clause of
the Fourteenth Amendment does not reach this far, and that the
voir dire examination conducted
Page 500 U. S. 432
by the trial court in this case was consistent with that
provision. The judgment of the Supreme Court of Virginia is
accordingly
Affirmed.
[
Footnote 1]
The articles had been published between September 26, 1988, and
January 14, 1989. More than half of them appeared in the Potomac
News, a daily paper with circulation of only 25,000, and the
remainder were printed in the Washington Post and several other
local newspapers.
See App. in No. 890-899 (Sup.Ct.Va.)
921-975 (App.).
[
Footnote 2]
The court approved 24 of the proposed questions, but did not
allow the following questions regarding the content of what jurors
had read or heard about the case (J.A. 17-41):
"32. What have you seen, read or heard about this case?"
"33. From whom or what did you get this information?"
"34. When and where did you get this information?"
"38. What did you discuss?"
"41. Has anyone expressed any opinion about this case to
you?"
"42. Who? What? When? Where?"
The trial court did ask several of the requested questions
concerning prior knowledge of the case:
"31. Have you acquired any information about this case from the
newspapers, television, conversations, or any other source?"
"35. Have you discussed this case with anyone?"
"36. With whom?"
"37. When and where?"
[
Footnote 3]
In
Silverthorne, the Court of Appeals for the Ninth
Circuit held that jurors should be interrogated as to the contents
of the news reports which they had read. But in the later case of
United States v. Polizzi 5,00 F.2d 856 (1974),
cert.
denied sub nom. Emprise Corp. v. United States, 419 U.S. 1120
(1975), that court held that the pretrial publicity in that case
had not been substantial enough to require extended interrogation.
It pointed out that, in
Silverthorne, supra, there had
been over 300 articles about the defendant, there had been radio
and television coverage, and he had testified before the Senate
Committee on Government Operations; out of a panel of 65 potential
jurors, all had been exposed to some publicity, and 19 had been
excused because they had formed an opinion. And in
United
States v. Giese, 597 F.2d 1170 (CA9),
cert. denied,
444 U.S. 979 (1979), that court again distinguished
Silverthorne, commenting that a trial court's own
observation must be its guide to the effect of pretrial
publicity.
JUSTICE O'CONNOR, concurring.
No one doubts that Dawud Majid Mu'Min's brutal murder of Gladys
Nopwasky attracted extensive media coverage. For days on end, the
case made headlines because it involved a macabre act of senseless
violence and because it added fuel to an already heated political
controversy about the wisdom of inmate work-release programs. But
the question we decide today is not whether the jurors who
ultimately convicted Mu'Min had previously read or heard anything
about the case; everyone agrees that eight of them had. Nor is the
question whether jurors who read that Mu'Min had confessed to the
murder should have been disqualified as a matter of law.
See
post at
500 U. S.
441-442,
500 U. S. 444.
This claim is squarely foreclosed by
Patton v. Yount,
467 U. S. 1025
(1984), where we upheld a trial court's decision to seat jurors who
had read about the case notwithstanding that the defendant's
written confessions, which were not admissible at trial, were
widely reported in the press.
See id. 467 U.S. at
467 U. S.
1029;
id. at
467 U. S.
1047 (STEVENS, J., dissenting). The only question before
us is whether the trial court erred by crediting the assurances of
eight jurors that they could put aside what they had read or heard
and render a fair verdict based on the evidence.
The dissent insists that the trial judge could not have assessed
realistically the jurors' credibility without first identifying the
information to which each individual juror had been exposed. I
disagree. It is true that the trial judge did not know precisely
what each individual juror had read about the case. He was
undeniably aware, however, of the full range of information that
had been reported. This is because Mu'Min submitted to the court,
in support of a motion for a change of venue, 47 newspaper articles
relating to the murder.
Ante at
500 U. S. 418.
The trial judge was thus aware, long
Page 500 U. S. 433
before
voir dire, of all of the allegedly prejudicial
information to which prospective jurors might have been
exposed.
With this information in mind, the trial judge had to determine
whether or not to believe the jurors' assurances that they would be
able to enter the jury box with an open mind. To this end, he
questioned prospective jurors repeatedly about whether exposure to
pretrial publicity had impaired their ability to be impartial. One
juror who equivocated was excused by the trial court on its own
motion.
Ante at
500 U. S. 421.
As to the 12 jurors ultimately selected, the trial judge determined
that their assurances of impartiality were credible. As we observed
in
Patton v. Yount, credibility determinations of this
kind are entitled to "special deference," 467 U.S. at
467 U. S.
1038, and will be reversed only for "manifest error."
Id. at
467 U. S.
1031-1032.
The dissent is correct to point out that the trial judge could
have done more. He could have decided, in his discretion, to ask
each juror to recount what he or she remembered reading about the
case. The fact remains, however, that the trial judge himself was
familiar with the potentially prejudicial publicity to which the
jurors might have been exposed. Hearing individual jurors repeat
what the judge already knew might still have been helpful: a
particular juror's tone of voice or demeanor might have suggested
to the trial judge that the juror had formed an opinion about the
case, and should therefore be excused. I cannot conclude, however,
that "content" questions are so indispensable that it violates the
Sixth Amendment for a trial court to evaluate a juror's credibility
instead by reference to the full range of potentially prejudicial
information that has been reported. Accordingly, I join the Court's
opinion.
JUSTICE MARSHALL, with whom JUSTICE BLACKMUN and JUSTICE STEVENS
join as to all but Part IV, dissenting.
Today's decision turns a critical constitutional guarantee --
the Sixth Amendment's right to an impartial jury -- into a hollow
formality. Petitioner Dawud Majid Mu'Min's capital
Page 500 U. S. 434
murder trial was preceded by exceptionally prejudicial
publicity, and at jury selection 8 of the 12 jurors who ultimately
convicted Mu'Min of murder and sentenced him to death admitted
exposure to this publicity. Nonetheless, the majority concludes
that the trial court was under no obligation to ask what these
individuals knew about the case before seating them on the jury.
Instead, the majority holds that the trial court discharged its
obligation to ensure the jurors' impartiality by merely asking the
jurors whether they thought they could be fair.
The majority's reasoning is unacceptable. When a prospective
juror has been exposed to prejudicial pretrial publicity, a trial
court cannot realistically assess the juror's impartiality without
first establishing what the juror already has learned about the
case. The procedures employed in this case were wholly insufficient
to eliminate the risk that two-thirds of Mu'Min's jury entered the
jury box predisposed against him. I dissent.
I
The majority concedes that the charges against Mu'Min
"engendered substantial publicity,"
ante at
500 U. S. 417,
and that "news reports about Mu'Min were not favorable,"
ante at
500 U. S. 429,
but seeks to minimize the impact of the pretrial publicity by
arguing that it was not as extensive as in other cases that have
come before this Court,
ibid. The majority's observation
is completely beside the point. Regardless of how widely
disseminated news of the charges against Mu'Min might have been,
the simple fact of the matter is that
two-thirds of the
persons on Mu'Min's jury admitted having read or heard about the
case. While the majority carefully avoids any discussion of the
specific nature of the pretrial publicity, it is impossible to
assess fairly Mu'Min's claim without first examining precisely what
was written about the case prior to trial.
On September 22, 1988, Gladys Nopwasky was stabbed to death in
the retail carpet and flooring store she owned in Dale
Page 500 U. S. 435
City, Virginia. Several weeks later, Mu'Min, an inmate serving a
48-year sentence for first-degree murder, was indicted for
murdering Nopwasky. Facts developed at trial established that
Mu'Min had committed the murder after escaping from the site of a
Virginia Department of Transportation work detail.
See 239
Va. 433, 437-438,
389 S.E.2d
886, 889-890 (1990).
The circumstances of the murder generated intense local interest
and political controversy. The press focused on the gross
negligence of the corrections officials responsible for overseeing
the work detail from which Mu'Min had escaped. It was reported, for
instance, that the facility to which Mu'Min was assigned had been
enclosed by only a four-foot high fence, with a single strand of
barbed wire across the top.
See App. in No. 890899
(Va.Sup.Ct.), p. 963 (hereinafter App.). It was also reported that
the lax supervision at the facility allowed the inmates to have
ready access to alcohol, drugs, and weapons and to slip away from
the work detail for extended periods without detection.
Id. at 922, 939, 963-964. Shortly after the charges
against Mu'Min became public, the state official in charge of
administering both corrections and highway programs issued a public
apology.
Id. at 927. Not satisfied, a number of area
residents wrote editorials demanding that all state officials
responsible for the inmate work-release program be fired,
id. at 930, 931, 937, 974, and area leaders pushed for
increased controls on inmate-release programs,
see id. at
933, 935, 936, 958. Officials responded with the introduction of
stiffer restrictions on prison work crews,
id. at 922,
938, and with the suspension of furloughs for inmates convicted of
violent crimes,
id. at 970. In explaining the new
policies, the director of Virginia's Department of Corrections
acknowledged that the explosive public reaction to the charges
against Mu'Min had been intensified by the case of Willie Horton,
whose rape and assault of a Maryland woman while on furlough became
a major
Page 500 U. S. 436
issue in the 1988 presidential campaign. "
The world's in an
uproar right now,'" the official was quoted as stating.
Ibid.
Naturally, a great deal of the media coverage of this
controversy was devoted to Mu'Min and the details of his crime.
Most of the stories were carried on the front pages of local
papers, and almost all of them were extremely prejudicial to
Mu'Min. Readers of local papers learned that Nopwasky had been
discovered in a pool of blood, with her clothes pulled off and
semen on her body.
Id. at 925. In what was described as a
particularly "macabre" side of the story, a local paper reported
that, after raping and murdering Nopwasky, Mu'Min returned to the
work site to share lunch with other members of the prison detail.
Id. at 963.
Readers also learned that Mu'Min had confessed to the crime.
Under the banner headlines, "Murderer confesses to killing woman,"
id. at 975-976, and "Inmate Said to Admit to Killing,"
id. at 925, the press accompanied the news of Mu'Min's
indictment with the proud announcement of Virginia's Secretary of
Transportation and Public Safety that the State had already secured
Mu'Min's acknowledgment of responsibility for the murder.
See
id. at 975, 981. Subsequent stories reported that, upon being
confronted with the charges, Mu'Min initially offered the
incredible claim that he had entered the store only to help
Nopwasky after witnessing another man attempting to rape her.
Id. at 932, 945. However, according to these reports,
Mu'Min eventually abandoned this story and confessed to having
stabbed Nopwasky twice with a steel spike, once in the neck and
once in the chest, after having gotten into a dispute with her over
the price of Oriental rugs.
Id. at 945, 955. One of these
stories was carried under the front-page headline: "Accused killer
says he stabbed Dale City woman after argument."
Id. at
945.
Another story reported that Mu'Min had admitted at least having
contemplated raping Nopwasky. According to this article, Mu'Min had
told authorities, "
The thought did cross
Page 500 U. S.
437
my mind, but I did not have sex with her.'" Id. at
959. This item was reported as a front-page story, captioned by the
headline: "Mu'Min Says He Decided against Raping Nopwasky."
Ibid. See also id. at 922 (headline reading
"Laxity was factor in sex killing").
Those who read the detailed reporting of Mu'Min's background
would have come away with little doubt that Mu'Min was fully
capable of committing the brutal murder of which he was accused.
One front page story set forth the details of Mu'Min's 1973 murder
of a cab driver.
See id. at 951. Another, entitled
"Accused killer had history of prison trouble," stated that,
between 1973 and 1988, Mu'Min had been cited for 23 violations of
prison rules and had been denied parole six times.
Id. at
942. It was also reported that Mu'Min was a suspect in a recent
prison beating.
Id. at 921. Several stories reported that
Mu'Min had strayed from the Dale City work detail to go on numerous
criminal forays before murdering Nopwasky, sometimes stealing beer
and wine,
id. at 932, 956, 959, and on another occasion
breaking into a private home,
id. at 964. As quoted in a
local paper, a Department of Corrections report acknowledged that
Mu'Min "
could not be described as a model prisoner.'"
Id. at 939, 969. Contacted by a reporter, one of Mu'Min's
fellow inmates described Mu'Min as a "`lustful'" individual who did
"`strange stuff.'" "`Maybe not this,'" the inmate was quoted as
saying, "`but I knew something was going to happen.'" Id.
at 964.
Indeed, readers learned that the murder of Nopwasky could have
been avoided if the State had been permitted to seek the death
penalty in Mu'Min's 1973 murder case. In a story headlined "Mu'Min
avoided death for 1973 murder in Va.," one paper reported that, but
for this Court's decision a year earlier in
Furman v.
Georgia, 408 U. S. 238
(1972), which temporarily invalidated the death penalty, the
prosecutor at the earlier trial "would have had a case of capital
murder." App. at 951. As reported in the press, the prosecutor
Page 500 U. S. 438
who indicted Mu'Min for murdering Nopwasky concurred that the
case underscored the need for "
more and swifter capital
punishment.'" Id. at 980.
Finally, area residents following the controversy were told in
no uncertain terms that their local officials were already
convinced of Mu'Min's guilt. The local Congressman announced that
he was
"deeply distressed by news that my constituent Gladys Nopwasky
was murdered by a convicted murderer serving in a highway
department work program,"
and demanded an explanation of the "decisions that allowed a
person like Dawud Mu'Min to commit murder."
Id. at 981.
His opponent in the 1988 congressional election, a member of the
Virginia House of Delegates, likewise wrote an editorial in which
he stated, "I am outraged that a Department of Corrections inmate
apparently murdered a resident of Dale City."
Id. at 984.
Assuring the public that the right person had been charged with the
crime, the local police chief explained, "
We haven't lost very
many [murder cases] lately. . . . All of the evidence will come out
at some point.'" Id. at 979. Indeed, by virtue of the
intense media coverage, that "point" was reached long before
trial.
II
The question before us is whether, in light of the charged
atmosphere that surrounded this case, the trial court was
constitutionally obliged to ask the eight jurors who admitted
exposure to pretrial publicity to identify precisely
what
they had read, seen, or heard. The majority answers this question
in the negative. According to the majority, the trial court need
ask no more of a prospective juror who has admitted exposure to
pretrial publicity than whether that prospective juror views
himself as impartial. Our cases on juror bias, the majority
asserts, have never gone so far as to require trial courts to
engage in so-called "content questioning," and to impose such a
requirement would prove unduly
Page 500 U. S. 439
burdensome to the administration of justice. I cannot accept
this analysis.
This Court has long and repeatedly recognized that exposure to
pretrial publicity may undermine a defendant's Sixth Amendment
guarantee to trial by an impartial jury.
E.g., Irvin v.
Dowd, 366 U. S. 717
(1961);
Rideau v. Louisiana, 373 U.
S. 723 (1963);
Sheppard v. Maxwell,
384 U. S. 333
(1966);
Murphy v. Florida, 421 U.
S. 794 (1975);
Patton v. Yount, 467 U.
S. 1025 (1984). [
Footnote
2/1] In order for the jury to fulfill its constitutional role,
each juror must set aside any preconceptions about the case and
base his verdict solely on the evidence at trial.
Irvin v.
Dowd, supra, 366 U.S. at
366 U. S.
722.
"The theory of our system is that the conclusions to be reached
in a case will be induced only by evidence and argument in open
court, and not by any outside influence, whether of private talk or
public print."
Patterson v. Colorado ex rel. Attorney General,
205 U. S. 454,
205 U. S. 462
(1907).
Nonetheless, before today, this Court had
not been
called upon to address in any great detail the
procedures
necessary to assure the protection of the right to an impartial
jury under the Sixth Amendment. In particular, although our cases
indicate that the trial court's conclusion that a particular juror
has not been overwhelmed by pretrial publicity is reviewable only
for "
manifest error,'" Patton v. Yount, supra, 467
U.S. at 467 U. S.
1031, quoting Irvin v. Dowd, supra, 366 U.S. at
366 U. S. 723,
we have never indicated the type of voir dire that the
trial court must undertake in order for its findings to merit this
"`special deference,'" Patton v. Yount, supra, 467 U.S. at
467 U. S.
1038, quoting Bose Corp. v. Consumers Union
of U.S. Inc., 466 U. S. 485,
466 U. S. 500
(1984). Because the issue in today's case is essentially one of
first impression, the majority's observation that our racial bias
cases have never "gone so far" as to require content questioning,
see ante at 500 U. S. 431,
is irrelevant. Even assuming that
Page 500 U. S. 440
the scope of
voir dire in the pretrial publicity
setting need be no greater than the scope of
voir dire in
the racial bias setting, no inference can be drawn from the failure
of decisions like
Ham v. South Carolina, 409 U.
S. 524 (1973), and
Aldridge v. United States,
283 U. S. 308
(1931), to "require questioning of individual jurors about facts or
experiences that might have led to racial bias,"
ante at
500 U. S. 431,
because the sole issue in those cases was whether
any
inquiry into racial bias was required.
Indeed, the only firm conclusion that can be drawn from our
impartial jury jurisprudence is that a prospective juror's own
"assurances that he is equal to the task cannot be dispositive of
the accused's rights."
Murphy v. Florida, supra, 421 U.S.
at
421 U. S. 800.
As JUSTICE O'CONNOR has observed, an individual "juror may have an
interest in concealing his own bias . . . [or] may be unaware of
it."
Smith v. Phillips, 455 U. S. 209,
455 U. S.
221-222 (1982) (concurring opinion). "Natural human
pride would suggest a negative answer to whether there was a reason
the juror could not be fair and impartial."
United States v.
Dellinger, 472 F.2d 340, 375 (CA7 1972);
compare Irvin v.
Dowd, supra, 366 U.S. at
366 U. S. 728
("No doubt each juror was sincere when he said that he would be
fair and impartial to petitioner, but the psychological impact
requiring such a declaration before one's fellows is often its
father"). It is simply impossible to square today's decision with
the established principle that, where a prospective juror admits
exposure to pretrial publicity, the trial court must do more than
elicit a simple profession of open-mindedness before swearing that
person into the jury.
To the extent that this Court has considered the matter, it has
emphasized that, where a case has been attended by adverse pretrial
publicity, the trial court should undertake "
searching
questioning of potential jurors . . . to screen out those with
fixed opinions as to guilt or innocence."
Nebraska Press Assn.
v. Stuart, 427 U. S. 539,
427 U. S. 564
(1976) (emphasis added);
accord, id. at
427 U. S. 602
(Brennan, J., concurring
Page 500 U. S. 441
in judgment). Anything less than this renders the defendant's
right to an impartial jury meaningless.
See Ham v. South
Carolina, supra, 409 U.S. at
409 U. S. 532
(MARSHALL, J., concurring in part and dissenting in part). As this
Court has recognized, "[p]reservation of the opportunity to prove
actual bias is a guarantee of a defendant's right to an impartial
jury."
Dennis v. United States, 339 U.
S. 162,
339 U. S.
171-172 (1950). The fact that the defendant bears the
burden of establishing juror partiality,
see, e.g., Wainwright
v. Witt, 469 U. S. 412,
469 U. S. 423
(1985);
Irvin v. Dowd, supra, 366 U.S. at
366 U. S. 723,
makes it all the more imperative that the defendant be entitled to
meaningful examination at jury selection in order to elicit
potential biases possessed by prospective jurors.
In my view, once a prospective juror admits exposure to pretrial
publicity, content questioning must be part of the
voir
dire for at least three reasons. First, content questioning is
necessary to determine whether the type and extent of the publicity
to which a prospective juror has been exposed would disqualify the
juror as a matter of law. Our cases recognize that, under certain
circumstances, exposure to particularly inflammatory publicity
creates so strong a presumption of prejudice that "the jurors'
claims that they can be impartial should not be believed."
Patton v. Yount, supra, 467 U.S. at
467 U. S.
1031;
see Murphy v. Florida, 421 U.S. at
421 U. S.
798-799. For instance, in
Irvin v. Dowd, supra,
we concluded that a capital defendant was constitutionally entitled
to a change of venue because
no one who had been exposed
to the inflammatory media descriptions of his crime and confession
could possibly have fairly judged his case, and because this
publicity had saturated the community in which the defendant was on
trial.
See id., 366 U.S. at
366 U. S.
725-729. Similarly, in
Rideau v. Louisiana,
373 U. S. 723
(1963), we presumed community prejudice mandating a change in venue
when petitioner's filmed confession obtained during a police
interrogation was broadcast on local television over three
consecutive days.
See id. at
373 U. S. 724,
373 U. S.
726-727. An individual exposed to publicity
qualitatively
Page 500 U. S. 442
akin to the publicity at issue in
Irvin and
Rideau is necessarily disqualified from jury service no
matter how earnestly he professes his impartiality. [
Footnote 2/2] But unless the trial court
asks a prospective juror exactly
what he has read or heard
about a case, the court will not be able to determine whether the
juror comes within this class.
Cf. Murphy v. Florida,
supra, 421 U.S. at
421 U. S.
800-802 (performing careful analysis of content of
pretrial publicity to which jurors had been exposed before
rejecting impartiality challenge);
Sheppard v. Maxwell,
384 U.S. at
384 U. S. 357
(observing that jurors had been exposed to prejudicial publicity
during trial and criticizing trial court's failure to ask the
jurors "whether they had read or heard specific prejudicial comment
about the case"). [
Footnote
2/3]
Second, even when pretrial publicity is not so extreme as to
make a juror's exposure to it
per se disqualifying,
content questioning still is essential to give legal depth to the
trial court's finding of impartiality. One of the reasons that a
"juror may be unaware of" his own bias,
Smith v.
Phillips,
Page 500 U. S. 443
455 U.S. at
455 U. S. 222
(O'CONNOR, J., concurring), is that the issue of impartiality is a
mixed question of law and fact,
see Irvin v. Dowd, 366
U.S. at
366 U. S. 723,
the resolution of which necessarily draws upon the
trial
court's legal expertise. Where, as in this case, a trial court
asks a prospective juror merely whether he can be "impartial," the
court may well get an answer that is the product of the juror's own
confusion as to what impartiality is. [
Footnote 2/4] By asking the prospective juror in
addition to identify what he has read or heard about the case and
what corresponding impressions he has formed, the trial court is
able to confirm that the impartiality that the juror professes is
the same impartiality that the Sixth Amendment demands.
Third, content questioning facilitates accurate trial court
factfinding. As this Court has recognized, the impartiality
"determination is essentially one of credibility."
Patton v.
Yount, 467 U.S. at
467 U. S.
1038. Where a prospective juror acknowledges exposure to
pretrial publicity, the precise content of that publicity
constitutes contextual information essential to an accurate
assessment of whether the prospective
Page 500 U. S. 444
juror's profession of impartiality is believable. If the trial
court declines to develop this background, its finding of
impartiality simply does not merit appellate deference.
In my view, the circumstances of this case presented a clear
need for content questioning. Exactly
two-thirds of the
persons on Mu'Min's jury admitted having been exposed to
information about the case before trial. As I have shown,
see
supra at
500 U. S.
435-438, the stories printed prior to trial were
extraordinarily prejudicial, and were made no less so by the
inflammatory headlines typically used to introduce them. Much of
the pretrial publicity was of the type long thought to be uniquely
destructive of a juror's ability to maintain an open mind about a
case -- in particular, reports of Mu'Min's confession,
see
Nebraska Press Assn. v. Stuart, 427 U.S. at
427 U. S. 541;
id. at
427 U. S. 602
(Brennan, J., concurring in judgment);
Rideau v. Louisiana,
supra, Irvin v. Dowd, supra, 366 U.S. at
366 U. S.
725-726; statements by prominent public officials
attesting to Mu'Min's guilt,
see Nebraska Press Assn. v.
Stuart, supra, 427 U.S. at
427 U. S. 602
(Brennan, J., concurring in judgment);
Sheppard v. Maxwell,
supra, 384 U.S. at
384 U. S. 340,
384 U. S. 349;
and reports of Mu'Min's unsavory past,
see Irvin v. Dowd,
supra, 366 U.S. at
366 U. S.
725-726. Because of the profoundly prejudicial nature of
what was published in the newspapers prior to trial, any juror
exposed to the bulk of it certainly would have been disqualified as
a matter of law under the standards set out in
Irvin and
Rideau. Indeed, the single story headlined "Murderer
confesses to killing woman," App. 975-976, or alternatively the
story headlined "Accused killer says he stabbed Dale City woman
after argument,"
id. at 945, in my opinion would have had
just as destructive an effect upon the impartiality of anyone who
read it as did the filmed confession in
Rideau upon the
members of the community in which it was broadcast. At minimum,
without inquiry into what stories had been read by the eight
members of the jury who acknowledged exposure to
Page 500 U. S. 445
pretrial publicity, the trial court was in no position to credit
their individual professions of impartiality.
According to JUSTICE O'CONNOR, the trial court was not obliged
to pose content questions, because "the trial judge himself was
familiar with the potentially prejudicial publicity to which the
jurors might have been exposed."
Ante at
500 U. S. 433
(concurring opinion). I find this observation perplexing. The
judge's awareness of the contents of the extraordinarily
prejudicial stories written about Mu'Min is not a substitute for
knowledge of whether the
prospective jurors were aware of
the content of these stories. As I have explained, it is the
judge's ignorance of the
jurors' exposure to particular
stories that renders his findings of juror impartiality unworthy of
appellate deference. Indeed, because at least two of the stories
would have rendered any person who read them
per se
unqualified to sit on the jury, the trial judge's awareness of
these stories makes even more inexcusable his willingness to seat
the jurors without first ascertaining what they had read about the
case. [
Footnote 2/5] Nor is it any
answer to protest, as JUSTICE O'CONNOR does, that the trial court
"repeatedly" asked the prospective jurors whether they thought they
could be fair.
Ibid. When a prospective juror admits
exposure to pretrial publicity, the juror's assertion of
impartiality, on its own, is insufficient to establish his
impartiality for constitutional purposes. I do not see how the
juror's assertion of impartiality becomes any more sufficient
merely through repetition.
Page 500 U. S. 446
Finally, I reject the majority's claim that content questioning
should be rejected because it would unduly burden trial courts.
See ante at
500 U. S. 425.
Sixty years ago, Chief Justice Hughes rejected a similar
contention:
"The argument is advanced on behalf of the Government that it
would be detrimental to the administration of the law in the courts
of the United States to allow questions to jurors as to racial or
religious prejudices. We think that it would be far more injurious
to permit it to be thought that persons entertaining a
disqualifying prejudice were allowed to serve as jurors, and that
inquiries designed to elicit the fact of disqualification were
barred. No surer way could be devised to bring the processes of
justice into disrepute."
Aldridge v. United States, 283 U.S. at
283 U. S.
314-315. This reasoning is fully applicable here.
In any case, the majority's solicitude for administrative
convenience is wholly gratuitous. Numerous Federal Circuits and
States have adopted the sorts of procedures for screening juror
bias that the majority disparages as being excessively intrusive.
See United States v. Addonizio, 451 F.2d 49, 67 (CA3 1971)
(content questioning and sequestered
voir dire),
cert.
denied, 405 U. S. 936
(1972);
United States v. Davis, 583 F.2d 190, 196 (CA5
1978) (content questioning);
Silverthorne v. United
States, 400 F.2d 627, 639 (CA9 1968) (content questioning);
Minn.Rule Crim.Proc. 26.02, Subd. 4(2)(b) (sequestered
voir
dire);
State v. Pokini, 55 Haw. 640, 643-644,
526 P.2d 94,
100-101 (1974) (content questioning);
State v.
Goodson, 412 So. 2d
1077, 1081 (La.1982) (content questioning and sequestered
voir dire);
State v. Claybrook, 736
S.W.2d 95, 99-100 (Tenn.1987) (sequestered
voir dire);
State v. Herman, 93 Wash. 2d
590, 593-594,
611 P.2d
748, 750 (1980) (sequestered
voir dire);
State v.
Finley, 177 W.Va. 554, 557-558,
355 S.E.2d
47, 50-51 (1987) (sequestered
voir dire).
See also
United States v. Colabella, 448 F.2d 1299, 1303 (CA2 1971)
(recommending sequestered
voir dire
Page 500 U. S. 447
in cases involving prejudicial pretrial publicity);
United
States v. Harris, 542 F.2d 1283, 1295 (CA7 1976) (same),
cert. denied sub. nom. Clay v. United States, 430 U.S. 934
(1977), American Bar Association Standards for Criminal Justice
8-3.5(a) (2d ed.1980) (same), Judicial Conference of the United
States, Revised Report of the Judicial Conference Committee on the
Operation of the Jury System on the "Free Press -- Fair Trial"
Issue, 87 F.R.D. 519, 532-533 (1980) (same). Additionally, two
other States guarantee criminal defendants sequestered
voir
dire as a matter of right in all capital cases.
See
Ky.Rule Crim.Proc. 9.38; Tex.Code Crim.Proc.Ann., Art. 35.17
(Vernon 1989). In short, the majority's anxiety is difficult to
credit in light of the number of jurisdictions that have concluded
that meaningful steps can be taken to insulate the proceedings from
juror bias without compromising judicial efficiency. [
Footnote 2/6]
III
"Given the pervasiveness of modern communications and the
difficulty of effacing prejudicial publicity from the minds of the
jurors, the trial courts must take strong measures to ensure that
the balance is never weighed against the accused."
Sheppard v. Maxwell, 384 U.S. at
384 U. S. 362.
The reason for this is simple and compelling: in our system of
justice, "only the jury may strip a man of his liberty or his
life."
Irvin v. Dowd, 366 U.S. at
366 U. S.
722.
Eight of the twelve jurors who voted to strip Dawud Majid Mu'Min
of his life may well have been rendered incapable of reaching any
other verdict after reading of the grisly accusations
Page 500 U. S. 448
against Mu'Min and the succession of stories indicating that he
was guilty. The majority holds that the trial court was entitled to
seat those jurors -- entirely blind to what they in fact already
knew about the case -- based solely upon their assertions of
impartiality. Far from "tak[ing] strong measures to ensure that the
balance [was not] weighed against the accused," the procedures
undertaken in this case amounted to no more than the trial court
going through the motions. I cannot accept that a defendant's Sixth
Amendment right to an impartial jury means so little. I
dissent.
IV
Even if I were to believe that the procedures employed at
Mu'Min's jury selection satisfied the requirements of the Sixth
Amendment, I still would vacate his death sentence. I adhere to my
view that the death penalty is in all circumstances cruel and
unusual punishment prohibited by the Eighth and Fourteenth
Amendments.
Gregg v. Georgia, 428 U.
S. 153,
428 U. S. 231
(1976) (MARSHALL, J., dissenting).
[
Footnote 2/1]
The Due Process Clause likewise guarantees a criminal
defendant's right to an impartial jury.
See Ristaino v.
Ross, 424 U. S. 589,
424 U. S. 595,
n. 6 (1976).
[
Footnote 2/2]
This Court has recognized that other types of extrajudicial
influences also will automatically require a juror's
disqualification.
See Turner v. Louisiana, 379 U.
S. 466 (1965) (jurors placed in custody of deputy
sheriffs who were key prosecution witnesses presumed incapable of
rendering impartial verdict);
Leonard v. United States,
378 U. S. 544
(1964) (per curiam) (prospective jurors who heard trial court
announce defendant's guilty verdict in first trial presumed
incapable of rendering impartial verdict on second trial on similar
charges).
[
Footnote 2/3]
The majority suggests that content questions will be necessary
only when a community has been saturated by a "
wave of public
passion,'" as in Irvin. See ante at 500 U. S. 429.
The majority's argument misses the point of Irvin. That
case stands for the proposition that, when a community has been
subject to unrelenting prejudicial pretrial publicity, the
entire community will be presumed both exposed to the
publicity and prejudiced by it, entitling the defendant to a change
of venue. See Irvin v. Dowd, 366 U.
S. 717, 366 U. S.
727-728 (1961). In this case, however, Mu'Min does not
argue that the pretrial publicity was extensive enough to create a
presumption of community prejudice. Rather, he argues that
the publicity was prejudicial enough to create a presumption of
prejudice on the part of any individual juror who actually
read it.
[
Footnote 2/4]
The questioning of one prospective juror during the murder and
bank robbery trial of Susan Saxe provides a particularly dramatic
example of this phenomenon. When initially queried, the juror
admitted to having read about the case, but insisted that she was
impartial. The following colloquy then ensued:
"Q: When you said that you have only read about what [the
defendant] has done, what do you mean by that?"
"A: Well, we all know what she has done. You know, we all know
what she has done. So it is now up to the court to see if she is
guilty or innocent, but you have to go through the whole trial, you
can't just read something in the paper and say that girl is guilty,
you know. You understand?"
"Q: Well, I am not sure. I am not sure what you mean when you
say we all know what she has done."
"A: Well, we all know the girl went in and held up the bank and
the policeman was shot there."
The juror was subsequently excused.
See National Jury
Project, Jurywork § 10.03[3], pp. 10-47 to 10-49 (2d ed.1990).
[
Footnote 2/5]
JUSTICE O'CONNOR claims that
Patton v. Yount,
467 U. S. 1025
(1984), "squarely foreclose[s]" any argument that a juror may be
disqualified as a matter of law when exposed to prejudicial
pretrial publicity.
Ante at
500 U. S. 432
(concurring opinion). She misreads
Patton. Far from
rejecting this principle,
Patton expressly recognized the
teaching of
Irvin v. Dowd, 366 U.
S. 717 (1961), that juror exposure to prejudicial
pretrial publicity may create so great a presumption of juror
prejudice "that the jurors' claims that they can be impartial
should not be believed." 467 U.S. at
467 U. S.
1031. The Court in
Patton merely found that the
publicity in that case was not of a character to justify a finding
of presumed prejudice.
See id. at
467 U. S.
1031-1035.
[
Footnote 2/6]
Today's opinion addresses only the extent to which the
Constitution requires content questioning in cases involving
pretrial publicity. As the majority acknowledges, the Federal
Circuits that have mandated content questioning in pretrial
publicity cases have done so in the exercise of their supervisory
powers, and not as a matter of constitutional law.
See
ante. Consequently, nothing in today's opinion can be read as
overturning the use of content questioning in these Circuits, nor
does today's decision prevent other Federal Circuits from following
suit.
JUSTICE KENNEDY, dissenting.
Our precedents mark the distinction between allegations that the
individual jurors might have been biased from exposure to pretrial
publicity,
see Patton v. Yount, 467 U.
S. 1025,
467 U. S.
1036-1040 (1984);
Murphy v. Florida,
421 U. S. 794,
421 U. S.
799-803 (1975), and the quite separate problem of a case
tried in an atmosphere so corruptive of the trial process that we
will presume a fair trial could not be held, nor an impartial jury
assembled,
see Patton v. Yount, supra, 467 U.S. at
467 U. S.
1031-1035;
Murphy v. Florida, supra, 421 U.S.
at
421 U. S.
797-799. Some of the principal cases cited in our
opinions today, for instance,
Sheppard v. Maxwell,
384 U. S. 333
(1966),
Rideau v. Louisiana, 373 U.
S. 723 (1963), and probably
Irvin v. Dowd,
366 U. S. 717
(1961), come within the latter classification. In these cases, the
trial court or the prosecutor may have been remiss in failing to
protect the defendant from a carnival atmosphere created by press
coverage.
See, e.g., Sheppard v. Maxwell,
Page 500 U. S. 449
supra; Estes v. Texas, 381 U.
S. 532 (1965). Reviewing decisions in this category, we
indicated that
"[t]he proceedings in these cases were entirely lacking in the
solemnity and sobriety to which a defendant is entitled in a system
that subscribes to any notion of fairness and rejects the verdict
of a mob."
Murphy v. Florida, supra, 421 U.S. at
421 U. S. 799.
We have described
Irvin's holding as being that
"adverse pretrial publicity can create such a presumption of
prejudice in a community that the jurors' claims that they can be
impartial should not be believed."
Patton v. Yount, supra, 467 U.S. at
467 U. S.
1031.
I am confident this case does not fall in this latter category,
and the majority demonstrates the differences between the case
before us and cases like
Irvin. Our inquiry, in my view,
should be directed to the question of the actual impartiality of
the seated jurors, and the related question whether the trial judge
conducted an adequate examination of those eight jurors who
acknowledged some exposure to press accounts of the trial.
In deciding whether to seat an individual juror, the issue is
whether "the juror can lay aside" any opinion formed as a result of
pretrial publicity "and render a verdict based on the evidence
presented in court."
Irvin v. Dowd, supra, 366 U.S. at
366 U. S.
723.
"It is not required . . . that the jurors be totally ignorant of
the facts and issues involved. In these days of swift, widespread
and diverse methods of communication, an important case can be
expected to arouse the interest of the public in the vicinity, and
scarcely any of those best qualified to serve as jurors will not
have formed some impression or opinion as to the merits of the
case."
Id. at
366 U. S. 722.
The question is
"one of historical fact: did a juror swear that he could set
aside any opinion he might hold and decide the case on the
evidence, and should the juror's protestation of impartiality have
been believed."
Patton v. Yount, supra, 467 U.S. at
467 U. S.
1036.
Page 500 U. S. 450
With all respect, I submit that JUSTICE MARSHALL's dissent
misreads our precedents by failing to note the distinction between
the two quite different questions we have addressed. He appears to
conflate the two categories of cases when he suggests that
"[a]n individual exposed to publicity qualitatively akin to the
publicity at issue in
Irvin and
Rideau is
necessarily disqualified from jury service no matter how earnestly
he professes his impartiality."
Ante at
500 U. S.
441-442. As JUSTICE MARSHALL wrote on an earlier
occasion, cases like
Irvin and
Rideau
"cannot be made to stand for the proposition that juror exposure
to information about a state defendant's prior convictions or to
news accounts of the crime with which he is charged alone
presumptively deprives the defendant of due process."
Murphy v. Florida, supra, 421 U.S. at
421 U. S. 799.
In an age when a national press has the capacity to saturate the
news with information about any given trial, I am dubious of a
proposed rule that a juror must be disqualified
per se
because of exposure to a certain level of publicity, without the
added pressure of a "huge . . . wave of public passion,"
Irvin
v. Dowd, supra, 366 U.S. at
366 U. S. 728.
If that rule were adopted, suspects in many celebrated cases might
be able to claim virtual immunity from trial.
Unlike the majority, however, and in alignment with some of the
concerns expressed by JUSTICE MARSHALL and my colleagues in
dissent, I find the
voir dire in this case was inadequate
for an informed ruling that the jurors were qualified to sit. In my
view, a juror's acknowledgement of exposure to pretrial publicity
initiates a duty to assess that individual juror's ability to be
impartial. In
Patton v. Yount, supra, we determined that,
in federal habeas review, the statutory presumption of correctness
of 28 U.S.C. § 2254(d) should attach to a state court's
determination that a particular juror could be impartial. We found
"good reasons to apply the statutory presumption of correctness to
the trial court's resolution of these questions" because "the
determination has been made only after an extended
voir
dire proceeding designed specifically
Page 500 U. S. 451
to identify biased veniremen," and because "the determination is
essentially one of credibility, and therefore largely one of
demeanor." 467 U.S. at
467 U. S.
1038. Our willingness to accord substantial deference to
a trial court's finding of juror impartiality rests on our
expectation that the trial court will conduct a sufficient
voir
dire to determine the credibility of a juror professing to be
impartial.
There is no single way to
voir dire a juror, and I
would not limit the trial judge's wide discretion to determine the
appropriate form and content of
voir dire questioning.
Little interaction may be required to make an individual
determination that a juror has the willingness and the ability to
set aside any preconceived ideas about the evidence in the case or
the guilt or innocence of the defendant. A trial judge might choose
to ask about the content of the publicity the juror has
encountered, and this knowledge could help in deciding whether the
juror's claim of impartiality should be accepted. But the judge can
also evaluate impartiality by explaining the trial processes and
asking general questions about the juror's commitment to follow the
law and the trial court's instructions. For instance, the questions
which the trial judge asked in this case would suffice if he had
asked them of individual jurors and received meaningful responses.
The Court is correct that asking content questions in front of the
other jurors may do more harm than good. Further, I agree with
JUSTICE O'CONNOR that any need for content questioning disappears
if the trial judge evaluating juror impartiality assumes a
worst-case hypothesis that the jurors have read or seen all of the
pretrial publicity. My difficulty with the
voir dire in
this case was expressed by the dissenting Justices of the Virginia
Supreme Court:
"[T]he questions in this case were deficient in that the
prospective jurors could simply remain silent as an implied
indication of a lack of bias or prejudice. This gave the trial
court no effective opportunity to assess the demeanor of each
prospective juror in disclaiming bias. "
Page 500 U. S. 452
239 Va. 433, 457,
389 S.E.2d
886, 901 (1990) (Whiting, J., dissenting). I fail to see how
the trial court could evaluate the credibility of the individuals
seated on this jury. The questions were asked of groups, and
individual jurors attested to their own impartiality by saying
nothing. I would hold, as a consequence, that, when a juror admits
exposure to pretrial publicity about a case, the court must conduct
a sufficient colloquy with the individual juror to make an
assessment of the juror's ability to be impartial. The trial judge
should have substantial discretion in conducting the
voir
dire, but, in my judgment, findings of impartiality must be
based on something more than the mere silence of the individual in
response to questions asked
en masse.
I submit my respectful dissent.