No. 90-5193


[May 30, 1991 ]

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, 1036-1040 (1984); Murphy v. Florida, 421 U.S. 794, 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, at 1031-1035; Murphy v. Florida, supra, at 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, 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, at 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, at 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, at 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 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, at 1036.

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 9. 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, at 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, at 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 to identify biased veniremen" and because "the determination is essentially one of credibility, and therefore largely one of demeanor." 467 U. S., at 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." 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.