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UNITED STATES v. MCDADE

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


June 10, 1996

UNITED STATES OF AMERICA
v.
JOSEPH M. MCDADE

The opinion of the court was delivered by: GAWTHROP

MEMORANDUM

 Gawthrop, J.

 10 June 1996

 Before the court is a list of 106 proposed voir dire questions which both sides have asked that I submit to the prospective jurors in this case, a case involving a United States Congressman charged with various counts of bribery, illegal gratuities, and racketeering, among others. Since several of the questions give me some concern, and since issues regarding those questions are capable of repetition, yet often evade review, and even formal, written adjudication, of alleged propriety, I deem it appropriate to take a few minutes to memorialize some thoughts. For reasons of time, and recognition of the doctrine of diminishing marginal returns, I shall not opine on all 106, but shall focus on a handful of the more vexing.

 After asking for the prospective juror's number and name in this non-anonymous *fn1" inquiry, the document reads: "Your Sex: Male Female ". Without delving into a discussion of whether that information may be gleaned from circumstantial evidence, one observes that the focus of the inquiry has been proclaimed an impermissible, unconstitutional basis for removing a juror. *fn2" That being so, I see no proper purpose in the question and hence shall not permit it.

 Question 4 reads: "Do you have any difficulty reading or understanding the English language?" This case involves a number of documents written in English, which the jury will be called upon to review. So also, the testimony, summations, and charge will be in English. Further, it is important that each juror be able to communicate verbally with the other jurors during deliberations. That stage of the trial should be a collective search for the truth not by some, but by all twelve. To have one or more of them linguistically cordoned off from the debate would tend to cause some unacceptable attrition in the right to trial by jury, proclaimed in Article III, Section 2, as well as the Sixth Amendment, of the United States Constitution. I thus deem the question relevant and proper. *fn3" It might be a more meaningful inquiry if it were translated at least into Spanish, which it shall be. The Spanish translation reads: "?Tiene Ud. alguna dificultad en leer y en entender el Ingles?"

 Questions 6 through 9 ask: "What is the general condition of your health? - If you have a health problem, please state briefly the nature of the problem"; "What is the general condition of your eyesight? - Do you wear contact lenses or glasses?"; "What is the general condition of your hearing? - Do you wear a hearing aid?"; "Do you require regular or frequent medication or medical care and attention? - If you require regular or frequent medication, please describe the nature of the medication, its effect upon you, and the frequency of taking such medication".

 These questions are far too broad. I recognize that in this information era, matters of personal privacy have been largely eclipsed, or at the very least, placed within something of a penumbra. And I recognize as well that when it comes to prying into matters personal to a juror, the interests of counsel on either side of the aisle are not necessarily antagonistic. All the lawyers want to learn just about all they can about all the prospective jurors. Thus, the court is confronted with no objections that require a ruling; and a trial judge is well aware that, absent any Sixth Amendment ineffectiveness, no ruling means no opportunity for reversible error. The easy, irreversible course is to say and do nothing, and let the lawyers do their thing. Just as the lawyers have a right to learn something about the prospective jurors, the jurors, who find themselves suddenly beckoned by quirk of the computer and other concatenations of coincidence, to sit on an important trial, a trial which our Constitution commands be held in public, soup to nuts, voir dire *fn4" to verdict, have a right not to be unduly stripped of their personal privacy before, theoretically, the world.

 The general condition of one's health is a singularly invasive topic. Many maladies are very personal, the public proclamation of which could well cause the sick juror considerable, understandable consternation. Similarly, the medications one is regularly taking are matters private to a juror, pharmacist, and physician. Just because one gets called into jury service does not give eager and assiduous counsel the right to, in effect, rummage through one's medicine cabinet, with press and public, their curiosity piqued, figuratively peering over counsel's shoulders, perusing the array of Rx labels. It indeed might be interesting and useful for lawyers to get to know each juror's personal pharmacopeia, giving them telling insights into his or her body chemistry. But there must be some balance. It must never be forgotten: jurors have rights too.

 Their privacy rights - "to be let alone" *fn5" - are not, of course, absolute. Their jury service does expose them to some searching inquiry as to such matters as their ability to be fair, their absence of preconceived, fixed opinions. But there must be some balance, some drawing the line, and when hard-charging counsel are in hot pursuit of every little empirical nugget they get their eyes on, it is the trial judge who must, sua sponte, reign them in and give the jurors some protection. *fn6" Thus, I shall permit inquiry as to whether the jurors have any difficulty hearing or seeing, so that they could not aurally and visually *fn7" assimilate the evidence as it comes forth, *fn8" and whether they take medication or have medical problems which might prohibit their sitting full days, full weeks, through a trial which might possibly go for two months. The remainder of the medical/pharmaceutical inquiry I shall preclude. Question 24 reads: "Your annual income? If your spouse is employed, please include his/her income". Yours Your Spouse Less than $ 10,000 $ 10,000 to $ 49,999 $ 50,000 to $ 99,999 $ 100,000 to $ 149,999 $ 150,000 or more

 This question I find offensively intrusive. The amount of one's income is personal. Although the salaries of those who work in the public sector or for publicly held companies are often an open book, in plain public view, private income is another matter. Except for the taxing authorities, who are statutorily required to keep such information under wraps, what one makes is no one else's business. That a prospective juror should be required to divulge, under penalty of perjury, and at the enthusiastic behest of all the lawyers in this case, the monetary cubbyhole into which his or her income happens to fall, I find to be beyond the pale. *fn9" A fortiori is that the case for the juror's spouse, who is not even called for jury service, not present to object.

 Beyond the offensive invasiveness, I cannot say that one gets any greater or lesser quality of justice from a juror according to that juror's economic worth. Having worked regularly with thousands of jurors for over a quarter of a century, I have been repeatedly impressed with the thoughtful synergy that occurs when people from all walks of life coalesce inside the jury room. The quality of justice does not decline because some happen to be rich, some poor. Quite the opposite.

 Finally, as with the first question, inquiring of a juror's sex, one may draw certain logical inferences, of course, as to where jurors stand on the economic hierarchy simply by looking at their and their spouses' occupations, information already provided on the jury list. *fn10" This is quite enough information to sate this inquisitive quest.

 Questions 59, 62, 63, 65, 71, 72, and 73 seek all sorts of interesting information. Question 59 reads: "What civic, social, religious, charitable, volunteer, professional or business organizations do you or your spouse belong to? (a) Do you or your spouse currently hold an office in any of these organizations?; (b) if yes, please indicate the office(s) held and the responsibilities of that office". Questions 62 through 65 ask: "Are you currently reading a book? If yes, what is the title of the book?"; "If you do enjoy reading books, list the kind(s) of books you like to read"; "List any newspapers that you read. Please indicate how frequently you read them"; "List magazines that you read. Please indicate how frequently you read them". Question 71: "How often do you watch the news?"; number 72 asks: "What are your three favorite television shows?"; 73: "Do you watch any of the following programs (check all that apply)?" 60 Minutes, 20/20, Nightline, Dateline, Law & Order, Current Affair; Other news/business/entertainment shows (specify)."

 I happen to believe that the United States Department of Justice, and defense counsel, have no business knowing what book a juror is currently reading, presumably within the quiet confines of his or her own home -- or wherever, for that matter. Neither may they properly inventory the jurors' bookshelves and magazine racks, nor scrutinize their library cards. Whatever marginal insights trial lawyers and their jury consultants *fn11" may gain from this information is markedly outweighed by concerns Orwellian. When one comes into court to serve as a juror, one gives up plenty: time, freedom, and the usual right to read, hear, and see the news -- to name but a few of the sacrifices. But to be subjected to such inquiries as those here would be to give up more than is necessary for the proper and fair administration of justice. *fn12" The lawyers may certainly ask whether jurors have read or heard about the defendant or any lawyer or witness involved in the case, or anything about the case. Should the answer be "yes", they shall be permitted full follow-up questioning with individual voir dire. But whether they watch Sixty Minutes, or Dateline, or Nightline, or Baywatch,13 for that matter, as fascinating as some might find these snippets of information to be, sheds no real light on whether they have formed a fixed opinion as to what the verdict in this yet-untried case would be, or whether they would approach if with even a hint of bias.

 One other question bears mention, number 74: "Has your opinion of the criminal justice system changed due to the O.J. Simpson trial?" This question I shall allow, but I shall ask it orally. It has been my observation during and since that trial, having spoken with a number of jurors in cases before me after their trials were over, that California v. Simpson, No. BA097211 (Ca. Super. Ct.), has had a substantial impact on jurors' minds, on their perception of how trials are supposed to work. I have had them say, for example, that they "thought a lawyer didn't think much about his case, wasn't much of lawyer, because his opening statement was only thirty minutes long." This misapprehension is preposterous, of course, yet understandable, in the view of the way that case was presented.

 I comment not at all upon the verdict itself. But as for the way the trial was conducted, suffice it to say that it was something other than a jurisprudential paradigm for the way cases are and should be tried. Since prospective jurors may have been misled by that example, I deem it a proper subject of inquiry and colloquy.

 I could go on in voicing my views on counsels' proposed litany of questions, but I shall not. I did, however, want to convey to the parties the sense of the court. My desire to acquire a fair and impartial jury is unalloyed. But to achieve that essential threshold goal, in exercising this trial judge's discretion as to what questions the jurors must answer, *fn14" I deem it appropriate to engraft something of a Federal Rule of Evidence 403 analysis onto the exercise. *fn15" There must be some balance between the need, the probative value, in learning about matters prima facie private to the juror, and the unfair prejudice to the juror in sanctioning such prying, as well as the reality that delving into matters which really are, at best, tangential can result in a needless waste of time.

 One final matter: the juror's right to object. In Press-Enterprise Co., the Supreme Court issued an injunction to all trial judges which is sometimes forgotten and therefore is well worth reiterating today:

 

To preserve fairness and at the same time protect legitimate privacy, a trial judge must at all times maintain control of the process of jury selection and should inform the array of prospective jurors, once the general nature of sensitive questions is made known to them, that those individuals believing public questioning will prove damaging because of embarrassment, may properly request an opportunity to present the problem to the judge in camera but with counsel present and on the record.

 464 U.S. at 512. Jurors have a right to know that they have a right to object and to have their privacy concerns treated with appropriate sensitivity.

 An order follows.

 ORDER

 AND NOW, this 10th day of June, 1996, it is hereby ordered that:

 1. The proposed written voir dire questions shall be abridged in accordance with this memorandum;

 2. The prospective jurors shall be expressly apprised of their right to object to questions which they feel to be unduly sensitive, personal, or, perhaps, embarrassing. Whether those objections, if any, be sustained shall abide the event.

 BY THE COURT:

 Robert S. Gawthrop, III J.


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