A Trial Court's Refusal to Question Prospective Jurors about the Specific Contents of Pretrial Publicity Which They Had Read or Heard Did Not Violate a Defendant's Sixth Amendment Right to an Impartial Jury, or Fourteenth Amendment Right to Due Process.

Authors

Karen A. Cusenbary

Abstract

In Mu'Min v. Virginia, the United States Supreme Court held a defendant has no right to ask jurors about the potential influence of prejudicial pretrial publicity. A defendant may ask only if the jurors can remain impartial. The Court mandates that overturning a trial court’s jury selection is allowable only if manifest error renders the trial fundamentally unfair. The Court did not find that the case involved sufficient public passion to necessitate a more extensive jury examination by the trial court to include inquiries involving the effect of pretrial publicity. The ruling in Mu'Min leaves too much discretion to the trial judge because the lack of minimum standards will result in the application of varying standards among the jurisdictions. Additionally, this standard leaves the defendant to meet a subjective burden of proof to show juror prejudice gained from pretrial publicity. By setting an unreviewable “unfair trial” standard for voir dire examination where pretrial publicity may prejudice trial, the Court has assured many accused will receive unequal justice in United States courts. The American Bar Association’s standard requiring individual voir dire to include content questions where a “substantial possibility” that pretrial publicity may prejudice trial would provide minimum guidelines to federal and state courts alike. By rejecting the “substantial possibility” standard of the American Bar Association, the Court failed to recognize an accepted method of conducting voir dire involving pretrial publicity. Had the Supreme Court adopted this standard, the gap of disparity between jurisdictions would be narrower because the courts would look to the totality of the circumstances, instead of using the broad standard of fundamental unfairness, to make an impartial determination.

Publisher

St. Mary's University School of Law

Recommended Citation

Karen A. Cusenbary, A Trial Court's Refusal to Question Prospective Jurors about the Specific Contents of Pretrial Publicity Which They Had Read or Heard Did Not Violate a Defendant's Sixth Amendment Right to an Impartial Jury, or Fourteenth Amendment Right to Due Process., 23 St. Mary's L.J. (1991).
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol23/iss2/9