*1 445 Mich v TYBURSKI PEOPLE 6). (Calendar 2, De- No. Argued December No. 95719. Docket July 1994. cided by jury Record- in the Detroit Tyburski was convicted Leonard J., second-degree Court, Hathaway, murder. of P. Richard er’s Murphy Borrello, JJ. Appeals, L. P. and The Court P.J., dissenting), the case for a and remanded reversed (Sawyer, trial, concluding its discretion trial court abused that the new the limiting scope dire and that of voir the and conduct dire, sequestered voir its refusal to conduct cumulative effect of meaningful participation the defense its failure to allow selection, probing jury and the absence in the counsel during prevented from receiv- the defendant voir dire 122380). (Docket appeal. people ing The a fair trial No. joined by opinion by Justice Mallett, Chief In Justice an Cavanagh opinion by Justice Boyle, Levin, and an and Justice judgment Supreme of the Court Court affirmed the the Appeals. Cavanagh joined by Justice Mallett, Chief Justice involving high Levin, additionally that in cases stated Justice ac- publicity, juror’s should not be self-assessment of bias concerning eliciting con- cepted the information without first exposure publicity juror’s so that the tent and extent of the impartial- juror’s can make its own determination court ity. to select it the trial court’s discretion While is within information, eliciting of discre- it is an abuse for such method responsibility. court Because the trial tion to abdicate sufficiently probing failing to conduct a abused its discretion bias, defendant was voir dire to uncover a fair trial. denied for purpose information dire is to elicit sufficient of voir excluding potential jurors development basis for of a rational impartial. discretion in both The trial court has who are not however, dire; the trial scope where and the conduct of voir dire, court, attorneys, voir the court conducts rather than the adequately question if it not its discretion does abuses cause, challenges even regarding potential for or so that bias intelligently challenges, A trial peremptory exercised. can be thorough voir dire and conscientious must conduct a court designed enough elicit information the court make its own assessment of bias. superficial leading questioning by In this put was an trial court abuse of discretion. The court on *2 high bias, yet of notice likelihood media-induced its questioning appears qualifying manner to on of have focused jurors, discerning limiting rather than on bias. of Its manner conducting probing ques- and voir dire its failure to and ask prejudicial tions was to the defendant. Levin, writing litigant separately, Justice stated while a that always right to does not dire, have the have conduct the voir counsel case, in this the trial court abused its discretion when it permit lawyer ques- refused to the time to defendant’s at jurors individually. tion the questioning The trial court’s method masse failed of en to provide the a defendant with sufficient factual basis to chal- lenge prospective juror’s ability impartially, a to serve and prevented challenges peremptory informed exercise of and challenges case, high-profile for cause. In a where the risk of a substantial, extrajudicial lawyer verdict on based influences is participation point at some in the voir conduct of dire is ordinarily right essential to an informed the exercise of of challenge. pretrial publicity The extent and nature of deter- specificity depth questioning mines the and that should be permitted necessarily varies, depending on voir dire. This on pretrial the facts each case and the nature and extent of publicity community passion. and result, concurring although Boyle, Justice in the that stated dire, jurors sequestered during need not voir be cases, highly publicized special appropriate. caution is case, supports In this the record the that conclusion counsel question they asked the court to venire members about what pretrial publicity heard or remembered from that the and court did not do so. Affirmed. Riley by joined Brickley, Griffin, Justice Justices and dissenting, stated that the trial court did not its abuse discre- denying sequestered, tion in for defendant’s motions a individu- questionnaire pro- alized dire and voir for submission of a to spective jurors. judge The chosen the trial to jurors’ exposure sufficiently probative media were assess when express- in the considered context of defense motion counsel’s ing questions requiring prospective her belief that a to expound underlying any opinions the on reasons held served only panel. to taint the primary prospective function of dire is to elicit from voir Mich challenge jurors that a basis for a information establishes the intelli- cause. An additional function is to facilitate related gent peremptory challenges. dire used Voir also can be use of jurors regarding attorneys prospective the merits to educate develop rapport of the case and to between theories
jurors attorneys may produce of an biased instead thereby negate objective jury, serving purpose of voir reason, given must be considerable dire. For this trial questions will determine what be submitted latitude to prospective jurors. right to ask There is no under the federal constitution questions during prospective jurors voir dire content-based pretrial designed are to reveal nature and extent of their involving high exposure publicity. media in cases In this question- failure to defense counsel’s trial court’s submit prospective naire did not violate the defendant’s to the right trial or Fourteenth Sixth Amendment to a fair his questioned right process. of due The trial court Amendment concerning prospective jurors individually whether information exposed opinions them to form which were had led impartial. incapable being Every prospec- would render them *3 juror confessing opinion guilty tive an that the defendant was expressed inability or an fair was for cause. who to be excused Despite pretrial pervasive publicity that the the surrounded trial, professed jury no of the a belief in the defen- member hearing testimony. guilt dant’s before Generally, it a trial court does not abuse its discretion when questions prospective jurors that are declines to submit to designed prejudices, develop or ra- to reveal substantial to a challenges, long tional for the as as the trial basis exercise of employs adequately court similar cover the area potential In this the trial court’s refusal to submit bias. proposed questionnaire prospective jurors the did defendant’s questions propounded not an abuse of The constitute discretion. sufficiently probative infor- trial court were and elicited the questionnaire in kind to the would mation similar information provided. have Further, allowing juror self- the trial court did not err go unchallenged. in fact was assessment of bias court cognizant problems underlying juror of and attentive to the Finally, bias. trial court not its self-assessment of did abuse denying request sequestered discretion in defendant’s for a pretrial publicity, prejudicial voir dire. When confronted with potential trial must be to the taint of the venire court sensitive engendered by responses during dire. In voir such situation Opinion Mallett, sequestered voir dire should be considered. No information prejudicial to the defendant surfaced on voir dire. 576; (1992) App
196 Mich
F. Randall Karfonta for the defendant.
Amici Curiae: Mogill, Bush, Neal Kenneth M. and Dean Robb
(Susan counsel), Stacey, L. for Criminal Defense Michigan Jury Proj- Association of and National ect. presented highly J. The issue in this Mallett,
publicized murder case is whether defendant entitled to a new trial because of the manner in which the trial conducted voir dire. Because by failing the trial court abused its discretion sufficiently probing conduct a voir dire in order to uncover defendant bias, that, therefore, and trial,
was denied a fair affirm we Appeals decision of the Court of case for a new trial. and remand
i Appeals opinion sufficiently The Court of sum- *4 underlying surrounding marizes the facts the mur- der. trial, Following jury a defendant was convicted charged murder,
as second-degree 750.317; MCL 445 Mich Opinion Mallett, twenty to to serve 28.549. He was sentenced MSA forty years . . . prison. in killing of his from defendant’s This case arises in fact is not September 1985. This wife on great deal of dispute. The case has received in the unusual manner which publicity because of it in a body: he stored disposed of defendant years. three for over chest freezer his basement daughter elder on discovered his body The January 2, 1989. wife, Dorothy Ty- killing his Defendant admits burski, it was not murder but but claims that manslaughter, passion, killing in the thus heat Defendant admit- or that he killed self-defense. testimony. He stated killing in his own ted the that his wife told leave for a him to him that she wanted longer couple and that she no of weeks replied that he still loved him. Defendant loved the victim to leave. He then asked her and refused eigh- having an affair with the she was whether teen-year-old The victim refused to answer. daughter. boyfriend of their elder grabbed
She a knife get something out downstairs to and fork and went of the freezer. Defendant her to continue followed the conversation. basement, plastic took some In the the victim again the freezer. Defendant containers out of having their her if she was an affair with asked daughter’s responded The victim with boyfriend. of, "Yes, Craig. I am. I love to the effect
words wimp, a not a man. You’re a He’s a man. You’re leaving. out of here.” punk, a You’re Get bastard. containers, along food The victim threw the frozen fork, at defendant as she said with the knife and the words. her hands. came at defendant with victim pushed away. her The victim retrieved Defendant lunged at him with it. Defendant
the knife and point over he was in shock at stated that afraid because of the learning of the affair and physical attack. stopped from After he the victim him, into a beam stabbing he slammed her head He flung her into the freezer. many times. He then *5 Opinion by Mallett, J. up, upstairs, went cleaned to and returned the half-hour basement a later. He that noticed the breathing. victim was motionless and was not At point, opened this it he closed the freezer and never again. death,
As for the cause of
the medical examiner
testified
the
that
victim died of
trauma
blunt-force
to the head. He
injuries
testified
were
hitting
inflicted
the victim’s head into a blunt
object, rather
than vice versa. The medical exam-
iner
a
described minimum of eleven
to
blows
Finally,
head.
the medical examiner
ruled out
Thus,
suffocation as a cause of death.
the victim
was dead before defendant closed the freezer. [196
576, 577-580;
App
(1992).]
Mich
Before voir dire defense counsel sequestered moved for an individual dire voir probing questionnaire given a submission of to be prospective jurors. to requests, trial court The denied these
informing counsel court con- ducts its voir own dire for all its trials. Defense attorneys counsel asked also if the would be al- follow-up questions. lowed to ask court The said specific follow-up questions no, but if came to hearing potential juror’s response mind after question, attorneys could them write down and the court would submit them. began questioning concerning poten-
When the
exposure
jurors’
pretrial publicity,
tial
gave
many
the court
description
a brief
of the case
asked
how
heard of
had
it from the media. All the
potential jurors initially
their
seated raised
hands.1
thirty-seven
jurors eventually
All
but two of
called
questioning acknowledged
coverage.
exposure
for
twelve
exposure.
to the media
Of the
acknowledged
who decided the
all but one
such
The Court: What are those it, reading on I Juror In the article Whiteside: guilty. think he would be would tend to that right. everything you The Court: All Do believe newspaper? you that read in the Juror Whiteside: No. Okay. you Do think that that is a Court: disputes guilt or innocence
way to settle as to reading newspaper? Juror No. Whiteside: you, I Okay. The Court: If were to tell Ms. [sic], you have to decide this case Whitehead that courtroom, you you
based on what be able hear will beliefs, your your to set aside set aside fair opinions and listen to this case and render a decision?
Juror Whiteside: No. you you’ve Do think what read The Court: No. degree you you thus far has tainted to such a you do not think that dant? could be fair to this defen- Juror Whiteside: Yes. this subtle admonishment of Juror White-
With side, remaining poten- the court had instructed regarding "correct” answer. Ms. jurors tial for Whiteside was excused cause.
Likewise, eighth potential jurors and the fourth having opinions admitted formed questioned would have against they the defendant and Opinion Mallett, Although opinions. setting difficulty these aside cause, in the court’s were also excused eighth juror, Zimmer, the questioning Ms. those pool similar admonitions heard entire juror.2 given to the first initially to remain as seated of those
The first questioned. thirteenth the tenth were questioned Gray, as follows: ten, Mr. Number Gray, do Mr. you, How about Okay. The Court: you Okay. have heard As a result of what The Court: opinions? read, you formulated have Well, say I did. I have to I’m afraid would Zimmer: Juror opinions Okay. not favorable those are And The Court: Tyburski? Mr. toward right. Zimmer: That’s Juror Zimmer, understand, you, as I’ve don’t Ms. The Court: You going decided in the to be this case discussed earlier courtroom; correct? isn’t that Yes. Juror Zimmer: *7 that? You understand The Court: Zimmer: Yes. Juror de- you cases should be don’t believe that The Court: And media, you? by do cided No, Zimmer: I don’t. Juror should be decided believe that case[s] The Court: You don’t newspaper, you? you do in the what read No. Juror Zimmer: be decided on that cases should You don’t believe The Court: say correct? you tv; isn’t that or on what hear [sic] right. Zimmer: That’s Juror you’ve telling Okay. you devel- me that But are The Court: being you’d strong opinion hard time a oped have a such a juror; that correct? fair time, Well, rough I think. I have a Zimmer: would Juror rough time? You’d have The Court: Yes, I I believe would. Juror Zimmer: though you cases shouldn’t be believe that Even The Court: newspaper? you and read in the what heard decided on . . . Zimmer: I realize Juror accurate, you’ve if what read is don’t know The Court: You that; way you know isn’t that correct? you? no There’s do Zimmer: That’s true. Juror 445 Mich Opinion Mallett, you hearing reading recall or anything about this case? Gray:
Juror On the news. The Court: Okay. you’ve As result of what read, you heard or opinions? develop did any beliefs or
Juror Gray: No. The Court: Okay. you Can think of reason why you should not sit and juror? be a fair
Juror Gray: No. The questioning of juror thirteen, number Mr. Traylor, was similar to that of Mr. Gray. The Court: Okay. you, How about Mr. Traylor?
youDo hearing recall about this case?
Juror Traylor: I it saw on the news.
The Court: You saw it on the television? Traylor: Juror And I reading started an article paper, in the but I can’t remember hap- what pened. But I never finished it. The Court: You never finished the article? Traylor: Juror No. The Court: you Have developed any opinions or
beliefs?
Juror Traylor: No. Okay. Court: you Can think of any reason why you should not sit and juror? be a fair
Juror Traylor: No. The last potential juror questioned in the morn- ing session admitted to having formed opinions and that she did not believe she could be fair. The court replied:
The Court: You heard me tell some of the other jurors that we going are not to decide this case *8 based on what is in papers?
Juror Williams: Yes. The Court: you And don’t think that’s the way society run, should be you? do by Opinion Mallett, No.
Juror Williams: upon you what read in the The Court: Based truthful? newspapers, you everything do think No. Juror Williams: Okay. you telling But are me that The Court: read, you think you’ve you on what don’t
based separate can it and be fair? I
Juror Williams: Yes. couldn’t. Dur- The court then recessed for a lunch break. ing recess, this defense counsel submitted writ- questioning objection to the method of used ten the court. This objection was overruled. questioned potential juror in the after-
The first eventually session, Rae, noon Mr. who was seated juror, as a resulting was asked to relate his bias pretrial publicity. from you The Court: And how is it that heard about this case? I I
Juror Rae: think recall a television newscast. right. you my All Did hear statement The Court: decided in the courtroom this case will be media? rather than Yes, your Honor. Juror Rae: developed opinions you The Court: Have you juror? that would make an unfair Juror Rae: No. questioned person Palmer, third
Juror similarly asked to self-assess afternoon session was potential bias. her it heard you
The Court: How is about case? news, paper. read the
Juror Palmer: On the developed any opin- Okay. you an unfair Have The Court: you juror? ions that would make Juror Palmer: No. to this you If are to sit and listen
The Court: *9 445 Mich Opinion Mallett, J. you this case what hear in you judge will on the courtroom?
Juror Yes. Palmer: you any why you
The Court: think of reason Can should not sit? Palmer:
Juror No. Juror Palmer was seated as a eventually juror.
Likewise, next person questioned the was seated as a juror passing after following the scrutiny about potential from blitz: bias the media Wilson,
The you Court: Mr. have heard about this case? Yes,
Juror Wilson: I have. you The And Court: how is it that heard about this case? Television,
Juror Wilson: and I news also was down in Columbus ago last —two weeks and I heard it on the tv down there. you’ve The Court: As a result of what seen and heard, you developed opinions have any that
would you juror? make an unfair No, Juror Wilson: I have not.
After questioning additional two poten- more tial jurors, defense counsel to approach asked the bench. Following record, discussion off the court hands, asked group, by show who had read particular Free Press magazine article.3 The record does not indicate if any jurors responded affirmatively.
The court then asked attorneys if they had written to submit at time. Defense "No, Honor, counsel answered your just the ones I have submitted.” The court an- 3The appeared article "I found entitled Mom!” in the Detroit Free Press, Sunday April 23, Magazine, excerpts 1989. n 10 See for from particularly this prejudicial. article. Defense counsel viewed it as Opinion Maluett, not not asked were that were those swered relevant.4 deemed exercising began attorneys point,
At remaining potential challenges. peremptory theAs questioned, three were excused were exposure opinions relating formed after reasons remaining jurors publicity. pretrial Nine questioning jury. questioned on sat *10 publicity-induced bias on the issue nine these example perfunctory. follows: An is as was this case? heard about you Have The Court: Yes. Moynihan: Juror it? you heard about How have
The Court: media, paper and Through the Moynihan: Juror TV. reading the right. You recall All The Court: up? I held article have, I don’t remem- may I but Moynihan:
Juror reading it. ber you heard a result of what The Court: As opinions?
read, you formulated have No. Moynihan: Juror jury selected, defense counsel
After was voir of the court’s mistrial because moved for a 4 proposed questionnaire following questions from defendant’s The questions posed by the difference between the illustrative of the are requested by the defense: trial court and those 7..... reading you those from —What do remember articles? case?-; coverage you of this 8. Did see television you your on tv? mind about what saw out in —What stands family, co- friends or you this case with Did talk about 9.
workers?
your
discussed?
mind about what was
out in
—What stands
your
hearing
reaction?
this
what was
about
10. After
anything
opinion
you
connected
an
about
11. Did
form
so,
your opinion?
case? If what was
this
618
II
A defendant who chooses a jury trial has an
right
absolute
fair
Duncan
to a
and impartial
jury.
Louisiana,
v
145;
1444;
US
88 S Ct
Ed
20 L
2d
Miller,
People
v
(1968);
321, 326;
411 Mich
(1981).
NW2d
purpose
voir
dire
elicit enough information
development
of a
rational
basis
for excluding those who are not
Brown,
from
jury. impartial
46 Mich
*11
(1973); People
App
594; 208
v
NW2d 590
Harvey,
(1988).
167
App 734;
Mich
A scope in both the court has discretion The trial Defendant does not conduct of voir dire.5 and the have a nor right dire, conduct the voir have counsel to right sequestered individual, to he a does have right every he a Neither does have voir dire. by submitted the court ask case to have counsel. also determined Supreme Court has The United States constitu- is no federal there publicity questions right tional to content-based Virginia, every high publicity v case. Mu’Min (1991). L 2d 493 415; 1899; 111 S 114 Ed US Ct However, that where Court has determined attorneys, court, the conducts rather than the trial voir it dire, its if does the court abuses discretion jurors regarding question adequately not peremp- challenges cause, or for even so bias challenges, intelligently tory exercised. Fe- can be Stewart, 436, 438-439; 286 Mich dorinchik (1939). NW recognized importance long the Court has This parties and the the court of a to discover hidden bias dire that allows voir poten a that would render juror tial incompetent. 6.412(C) provides: MCR (1) scope Scope Purpose. dire examination of voir jurors
prospective
the
of the court.
It
is within
discretion
discovering grounds
purposes of
for
conducted for the
should be
knowledge
gaining
challenges
intelligent
to
an
and of
facilitate
cause
challenges.
peremptory
The court should
exercise of
purposes
prevent
abuse of
the examination
these
confine
process.
the examination
(2)
may
The court
conduct the
Conduct of the Examination.
permit
lawyers
prospective jurors or
to do
examination of
so. If the court conducts the
lawyers
examination,
may permit
it
questioning
supplement
examination
direct
submitting questions
ask.
its own
for the court
On
or
party,
may provide for
on
motion
the court
initiative or
questioned
pres-
prospective
or
to be
out of
jurors.
of the other
ence
*12
It is the
intent of
law to secure
evident
the
a
jury that shall come to the
of
consideration
opinion
case
any previous judgment,
unaffected
respect
parties
or
with
subject-
bias
either to the
or
controversy,
important
matter
rights
in
it
is
to the
parties
permitted inqui-
of
may be
ries
be
may
discovering
which
the means of
facts
justify
which will
juror.
the exclusion of a
The suc-
challenge
cess
information
depends upon eliciting
such
himself,
juror
from the
as
as
well
from
sources,
mind,
other
as to his state or
condition
judgment
as will enable a
be formed
the court
as
competency.
[Monaghan
to his
Agricultural
Co,
(1884).
246;
Fire Ins
53 Mich
independent determina- juror’s ability impartial. tion of a be We will not address defendant’s federal and state constitutional claims because there is no Michigan need to do so. Both and federal law support superficial the conclusion that leading questioning place took here was an abuse of discretion. supra, Supreme Mu’Min,
In the United States Court, decision, in a five four found that al- though inquiries reports into the content of news might that a had read have been exercising peremptory challenges, per- beneficial in challenges emptory constitutionally are not man- dated and therefore no constitutional violation had reviewing occurred. The Court noted that authority state court voir dire its was limited to enforcing the commands the United States Con- stitution. enjoy
We setting more latitude standards *13 621 Opinion Mallett, J. voir dire in federal courts our supervisory under power interpreting than in provisions we have the respect the Fourteenth Amendment with to voir dire in state courts. US [500 424.] authority limit Court did not the of federal appeals requiring courts of to continue a voir dire questions includes content in federal cases. (Marshall, Mu’Min, 447, J., See senting). 500 US n 6 dis- appeals Mu’Min, After some federal courts of required high publicity have content explaining inquire cases, the court needs to exposure into the source and content of the and juror’s they the attitudes towards what have heard or read in order to discover the truth regarding potential bias. Davis, The court in United States v 583 190 F2d
(CA 1978), explained question- 5, the need for such ing. Circuit has determined that it is for the "[T]his
court, themselves, jurors not the to determine whether impartiality their has destroyed by been any prejudicial publicity they exposed have been Therefore, to. when there has publicity been would possibly prejudice the defendant’s case if it reached jurors, the the court should first ask the jurors what information have received. Then it should make prejudicial should ask about the effect and it independent an determination juror’s whether impartiality destroyed.” the 197, quoting at Hyde, United States v [Davis (CA 815, 848, 5, 1971).] F2d n 38 Employing reasoning, similar court Sil- (CA States, 9, verthorne v United 400 F2d 1968), found that the trial court’s "voir dire exami- adequately dispel probability nation did not prejudice accruing pre-trial publicity from the 445 Mich Opinion Mallett, jury panel knowledge members’ of the case.” predicated That court its conclusion on two grounds:
(1)
questions propounded by
the court to the
prospective jurors
respon-
were calculated to evoke
ses
subjective
which were
in nature —the
upon
were called
to assess their
impartiality
own
(2)
benefit,
for the court’s
the entire voir dire
general
examination was too
adequately probe
prejudice
issue. [Id.]
*14
supreme
citing
supervi
courts,
Other state
their
powers
sory
courts,
over lower
have also stated
despite
sufficiency
of voir dire for consti
purposes
tutional
Mu’Min,
under the standards of
trial courts should conduct voir dire in a manner
attempts,
possible,
as much as
to eliminate
prejudice.
bias and
James,
State
781,
v
819 P2d
1991).
(Utah,
787-789
Everett,
See also State v
472
(Minn,
864, 866, n
NW2d
1991).6
pre-Mu’Min
supreme
Pokini,
state
court decision in State v
640;
(1974),
Hawaii
tive evidence of The federal and state consti- Opinion Mallett, ns7 keeping past Court, This with our decisio respecting parties’ rights impartial jury, to an likewise instructs the lower courts this state to guard against potential resulting bias from media exposure. supervisory powers Pursuant to our un 6, § 4,8 der Const art we instruct lower courts thorough to conduct a and conscientious voir dire designed enough to elicit information for the court to make its own assessment of bias.
B
This area of the law does not lend itself to hard
regarding
acceptable
and fast rules
what
is
and
unacceptable
practice.
what
Courts
indeed
should be allowed wide discretion in the manner
they employ
goal
impartial
to achieve the
of an
jury. However, a court does not have discretion to
simply
enough
during
fail
to elicit
information
intelligent
voir dire to make an
assessment of bias.
Monaghan
supra.
See
Fedorinchik,
pretrial publicity
danger
Where
creates the
prejudice,
options.
a court has several
It can allow
questionnaire
jurors,
submission of a
prepared by
parties
approved by
the court.
*15
advantage
allowing
Questionnaires have the
an
in-depth exploration
source, extent,
and
exposure
potential juror
content of media
for each
require
attempt
tutions
pre-trial publicity
the trial
to
to adduce both where
preceding
is as extensive as that
the trial of
appellants.
judge’s express
these
trial
[Citation omitted.]
refusal
his consideration
to do so was reversible error because it foreclosed from
possible
bias,
thereby
crucial evidence of
rendering fatally uninformed the exercise of his discretion not
jurors
to excuse
for cause.
at
[Id.
644.]
7
Fedorinchik,
Monaghan
supra,
City
See
and
and Poet v Traverse
(1989).
Osteopathic Hosp,
228;
433 Mich
at disadvantage allowing of not tionnaires have observation of demeanor
in credi- order to assess proper they bility. context, however, in the Used starting point by allowing serve as a useful identi- potential may jurors fication of those who be most exposure particularly prejudi- tainted because of exposure. cial news items or extensive option attorneys partici- Another is to allow pate attorneys in the voir dire. Because the are complexities more familiar with the of the trial court to ask uncover hidden and nuances position in are a better than the in-depth questions designed attorney- However, bias. dire, conducted voir attorney there is a risk that the skillful inject partiality by establishing rap- can port introducing theory and his of the case to the jury. securing
Yet another method effective an impartial jury question is to or individuals small groups away remaining from the veniremen. This probing questions allows and detailed answers tainting jurors.9 without the risk of the other
c Despite being alerted defense counsel of ex- coverage, being nega- tensive media tive toward the much of this becoming
defendant,10
aware
potential
It also allows the court to
assess
demeanor of
provides
as well as their attitudes toward the case. This
a basis for
judgment
regarding
the court
to make an individual
juror’s ability
impartial.
to be
publicity
The dissent’s characterization
of the nature of the
surrounding
"mainly
this case as
factual” is incorrect. After review
record,
ing
negative
many
it is clear that
of the news items were in fact
prejudicial
following excerpts
toward the defendant. The
are instructive:
Press,
Sunday Magazine, April
From “I found Mom!” Detroit Free
1989:
*16
Tyburski
Opinion by Mallett,
Leonard
According
did more than kill his wife.
arrest,
day
his confession the
of his
he slammed her head
against
pole
a concrete
in the basement after she came after
knife,
taunting
him with a steak
while
him with news that she
Kelly’s 18-year-old boyfriend.
had had sex with
Once she was
dead,
5-foot-4, 135-pound
he twisted her
body
bloodied
and
and
freezer,
family
atop
stuffed it
hamburger
into the
frozen
kielbasa.
Dorothy Tyburski
But
indignity.
suffered the ultimate
man who had made her miserable while she lived also suc-
trivializing
desperate
ceeded in
her
end. Her death became a
grisly comparison
tales,
standard of
for other macabre
and the
jokes.
butt of morbid
Press,
5,
January
From the Detroit Free
1989:
instance,
Tyburski pass
For
how could
a lie detector test
administered
the State Police in 1987 and how could he
knowing
continue to live in his house
his freezer contained a
body?
dead
Joseph Buckley, president
Associates,
of John Reid &
Chicago-based
firm,
polygraph
assuming
said that
the State
polygraph
Police
using
technicians were well-trained and
proven testing techniques,
reading
an erroneous
could have
using
subject
come
psychological problems
from
"with severe
operates
. .
who
.
on different norm than most of us.”
you’re testing somebody
"If
Napoleon,
that believes he is
he
pass
true,”
will
Buckley
test because he believes it is
said.
person might
A
something
learn to live with
as morbid as his
corpse
severely sociopathic
wife’s
relatively
spokesman
person
if he was
with
—"a
conscience,”
Veenhuis,
Philip
little or no
said Dr.
Michigan Psychiatric Society.
for the
Press,
January
From the Detroit Free
1989:
Kelly
The friend said he and
had searched for her mother in
the Monroe and Toledo areas based on information from her
father.
lies,”
up
very good
"He made
some
the friend said. "He
up
charging
would make
charge
stuff like she’s been
on
ac-
counts and he was mad at her.”
Dorothy Tyburski
lady,”
He described
"a
as
real nice
but said
get along.
she and her husband didn’t
"The more she was out
house,
the better she felt.”
*17
duty in the to exercise caution it voir dire.12 See Davis and conducted supra. Silverthorne, sequestered dire was not neces-
Individual voir question- required, long sarily of as as method ing adequate expose and to avoid taint. was bias problem occurring in that once The the motions for sion cilable dilemma arose. If the court had asked this case was
sequestered
voir dire and submis-
questionnaire
denied,
of the
were
an irrecon-
Tyburski
"just
per-
The friend described Leonard
as
a loud
son,
mad,
get
and when he’d
he was an Adolf Hitler.”
Kelly
police
suspicions
Her friend said
didn’t tell
about her
cops
because “she was afraid if she’d called the
and her dad
home,
something
had come
he would have done
to her.”
11Although,
out,
points
as the dissent
the trial court told counsel
submitted,
follow-up questions
appears
could
and indeed it
be
were, follow-up questions
probing
that some
that were more
into the
exposure
juror
essentially
source and nature of the
of each
were
precluded. This was made evident when the trial court indicated to
follow-up questions
defense counsel that those
that had been submit
ted and were not asked were deemed irrelevant.
matter,
practical
engender
As a
few murder cases
the extent of
coverage
media
time in voir dire with the few cases that
prejudice
involved here. It would be far better to take the extra
pose
risk of
serious
appeals
rather than face future
of voir dire issues.
arguments
prosecutor
publicity
The
that a certain amount of
required
"presumption
impartiality”
is
misses the
before the
of
can be overcome
However,
point.
prosecutor analogizes
to venue law.
as
noted,
Dowd,
717;
Justice Marshall
cases such as Irvin v
366 US
81 S
(1961),
1639;
proposition
Early recognized on, defense counsel this di- attempted by asking lemma. Counsel avoid taint pretrial publicity, the court to delve into but to frame so that could indicate they opinion expressing whether held an without opinion refused, what court was. The deter- mining opin- jurors’ it that wanted to know what they if ion would be indicated had one. morning dire, After the voir defense counsel *18 moved for a mistrial on the basis of the taint of the venire. With a
sharpened of awareness the began ques- taint, the court to word jurors tions so that could answer in neutral they opinion. manner whether Unfortunately, had framed an morning in both the and afternoon trying sessions, the court was unsuccessful exposure delve into extent of media and the jurors’ reaction to it. questioning ap-
Instead, the court’s of manner pears jurors, qualifying to have been on focused discerning on rather than bias. jurors
Questions were framed to lead the to the they impartial. conclusion that be could For exam- ple, jurors five twelve who decided case you developed opinions asked, were that "Have you juror?”13 ques- make would an unfair ambiguous suggests tion is the answer that recognize compound question by We that this was asked the court precisely because defense counsel wanted the court to frame jurors revealing opinions so that could answer without that their However, negative were toward defendant. could the court have (1) separated opinion note, however, questions asking: you developed any the two Have (2) so, you opinion this if could set this aside? We curing that would not solved defect have problem juror self-assessment. 445 Mich by Opinion Mallett, looking jurors who volun- for. Those
the court was they fair because of could not be teered exposure negative public- opinions formed after by ity "lectures,” These were lectured to the court. message strong venire, the entire sent a heard approve of those who volun- the court did not surprising, they It is not teered that then, were biased. questioning on fewer and that as the went jurors Yet, information.14 fewer volunteered this nothing more to assess bias than to the court did themselves whether could be ask fair. long recognized self-
Courts have inherently untrustworthy. assessment bias is sitting judge in as trial United States v While (D 1807), Burr, Va, 25 Fed Cas Chief Justice juror’s that a assertions of neu- Marshall observed trality cannot be trusted: personal just
Why prejudices do constitute challenge? Solely the individual cause of because presumed their influence is to have a who is under prevent impartial on mind will an bias his which case, according testimony. decision of the to the notwithstanding preju- may He declare that these evidence, he is determined to listen to the dices and be him. governed it; trust but the law will not . . . He listen more favor to that will with *19 confirms, testimony which than to which change opinion would his .... concurring O’Connor, in Smith Phil- Justice v lips, 209, 221-222; 940; 71 L Ed 2d 455 US 102 S Ct (1982), expressed stating: "De- similar concerns termining juror ... is diffi- whether a biased questioning, the initial fourteen veniremen seated for four Of opinion exposure they an from their volunteered that had formed pretrial publicity jurors. fair that would render them unable to be recess, only twenty-three After the lunch two of the veniremen opinions. questioned admitted such Opinion by Mallett, may cult, because the have an interest partly juror concealing partly in his own bias and because the juror may be unaware of it.”15 noted, As a court should allow elicita- previously enough potential jurors tion of information from 15Examples curiae, shared with this Court the amici Criminal Michigan Jury Project, Defense Association of illuminating: and National are highly publicized 1975 Massachusetts murder and bank robbery adequate trial of Susan Saxe demonstrates that voir information, specific opinions dire can reveal the that attitudes and may general impartiality. be hidden behind assurances of having More than one-fourth of the 146 excused for already opinion formed an in that case had denied at least once any opinion. striking, prospective juror had Most one repeatedly any opinion. denied that she had She had read newspaper accounts about case and "knew all about this naturally,” repeatedly fair, but she asserted that she could he specifically denying any personal interest in the case or aware- prejudice inability impartial ness of bias or or to be repeatedly denying any opinion guilt toas the defendant’s or finally thought innocence. When had asked what she the defendant done, however, admitted, juror "Well, we all know girl what she has done ... we all know the went in and held up policeman the bank and the was shot there.” Common- Saxe, Cty Super (1976), wealth v Suffolk Ct #51775-77 voir dire #54, transcript reprinted Jurywork: Systematic (2d 1983) Techniques Mu’Min, Quoted ed at 10-46.1-10.49.
supra (Marshall, J., dissenting). at n 4 example Another from the amici curiae is contained in a letter Judge Marshall, Judge from Prentice H. United States District for the Judge Carrigan, Northern District of Illinois to Jim R. United States Judge Judge District relating for the District of Colorado. Marshall was experiences began allowing partici- his he when counsel to pate in voir dire. "Immediately Judge Norman’s assertion was confirmed. A juror here and there who had assured me he or she could be prejudices lawyer fair and held no biases or admitted to a profound bias, e.g., against police officers, persons, black etc. example presiding "Then this fall the classic occurred. I was at My a criminal case in which a labor union was a defendant. inquiry bias; virtually every prospective addressed anti-union juror responded they none had and could be fair. lawyer supplemental "The for the union ... on examination prejudice prospective jurors elicited admissions of from eleven who were excluded for cause.” *20 445 Mich Opinion by Mallett, J. judgments by enable to be formed the court re- garding ability impartial Monaghan, their to be supra.16
D Appeals, Like the Court of we cannot conclude limiting the trial court’s manner of and con ducting questions probing the voir dire and its failure to ask prejudicial
was not to defendant. See People supra Miller, v at 326. "Without the benefit any probing questions, of we do not know what given answers the veniremen would have what such answers would have meant to defendant exercising challenge peremp for cause or a tory challenge.” Tyburski, supra at 590. true, out, points potential jurors While it is as the dissent identify general information, were asked to source of their they particularly were asked to raise their hands if had a added read prejudicial to what the independent article, questions nothing Detroit Free Press these basically juror questioning self-assessment. The lacked necessary depth insight required for the court to make "general determination of bias. The dissent’s rule” that "a trial court does not abuse its discretion when it declines to submit questions prospective jurors designed that are to reveal substantial prejudices, lenges, adequately 673-674. develop or to a rational basis for the exercise chal long employs as as the trial court similar bias,” potential dispositive. cover the area of is not Post at Questions go beyond juror that do not self-assessment not do adequately cover the area of bias. Although recognizes potential problem juror the dissent self- assessment, it carefully guard is content that the did in fact against respect juror it because he exercised caution with to one who having opinion, had admitted aside. The formed an but stated she could set that questioning dissent notes that after further the trial
judge, juror, employed by high who had been a Christian school years, for several was excused because she revealed that she was morally opposed killing positive give and was not she could defen- hearing. dant a fair apparent negate The court’s caution with this one does not its respect jurors. abandonment of caution in to other Those who did not voluntarily they While the opinions, they ability opinions merely admit that had formed were asked if impartial despite exposure could be publicity. their admitted having who decided the case did not admit formed nothing were asked more than self-assessment of their impartial. to he Separate Opinion Levin, Appeals Therefore, we affirm the Court of deci- juror’s A sion. self-assessment of bias should not be *21 accepted eliciting without first information con- cerning juror’s expo- the content and extent of the publicity sure to so that the court can make its juror’s impartiality. own determination While it is within the trial court’s discretion to eliciting information, select the method for such it responsi- is an abuse of discretion to abdicate this bility.
Cavanagh, C.J., Levin, J., and concurred with J. Mallett, (separate opinion). agree I with the
Levin, signers opinion of the lead the trial court by failing abused its discretion to ask probing. sufficiently separately that were I write litigant always that, state while a does not have right dire, to have counsel conduct voir the instant case the trial court abused its discre- permit Tyburski’s lawyer tion when it refused to at question jurors individually. time to questioning The trial court’s method of en masse provide Tyburski’s lawyer failed to with a suffi- challenge prospective ju- cient factual basis to ability impartially, prevented ror’s to serve and challenges peremptory informed exercise of and challenges for cause. high-profile case,
In where the risk of a verdict extrajudicial substantial, based on influences is lawyer participation point at some in the conduct ordinarily voir dire is essential to an informed rights challenge. exercise of the pretrial publicity The extent and nature of de- depth specificity questioning termines the and permitted that should be on voir dire. This neces- sarily depending varies, on the facts of each case 445 Mich Separate Opinion by Levin, J. pretrial publicity
and the nature extent of community passion.
i thirty-six questions by Ty- Of the submitted lawyer, dissenting opinions burski’s the lead and questions concerning advert to the fifteen pretrial publicity jurors’ expo- amount of and the sure thereto.
Recognizing questions merely quantifying exposure publicity underlying not would reveal attitudes and biases and would render the voir incomplete,1 Tyburski’s lawyer proposed ques- dire seeking expose tions latent attitudes or biases might, light pretrial that publicity, of the nature of the *22 juror’s
interfere with a assessment of guilt on based the evidence. The submit- posed, prospective jurors ted, but not were the following: This case will involve a very number of serious (marital discord,
and sensitive death) issues adultery, may tend strong feelings to arouse people. following questions some to are intended explore you whether particularly power- have a ful emotional reaction to of these issues that concentrate, your would affect ability to or your ability to fairly decide this case to both sides. There will be testimony in this case that deceased, forty-two woman, year old died from a 1Tyburski states the issue as follows: coverage Where the media in the freezer case was interna- scope, media, tional saturated the local and was inflamma- tory against defendant, process did the voir dire which was geared qualify jurors regard exposure, without to media bias, opinion or violate defendant’s state and federal constitu- rights Michigan rights tional impartial as well as the common law to an jury and effective assistance of counsel? Separate Opinion Levin, beating. severe When discovered body her was completely frozen. While none of us wants to be exposed to such disturbing things, people some have a far more extreme reaction and simply cannot type tolerate this of evidence.
16. Is way you that the feel? you
17. Do anyone know who died as a result of a violent incident? 18. you Have ever had the experi- unfortunate seeing person
ence of who seriously injured or killed? 19. you Have any experience had with the death of a loved one or friend that would make it hard you sit as a in a case like this?
20. Are your parents living or dead? 21. If one or both your parents are now deceased, you how old were when your the first of parents died?
22. What was the cause of death? Obviously, culture, in our just and in about culture, every there are ceremonies and rituals perform that we when someone dies. 23. Why you do think these ceremonies rituals important are people? to some 24. you Do person believe that a who does not regular receive a or immediate burial suffers some consequence? adverse 25. you Do any particular have religious or
philosophical
govern
beliefs
your
feelings
which
way
about
death?
bodies should be treated
after
(or lovers)
26.
you
Have
known
people
married
who
frequent
have had
arguments?
verbal
27.
you
Have
people
known
physi-
who have had
*23
fights
cal
spouse?
with their
28.
you
Do
think
people
its true that
say
often
and do
things
the meanest
to
they
the ones
love
the most?
you
29. Have
ever witnessed a situation where a
argument,
verbal
particularly
spouses,
between
has escalated quickly and unexpectedly into physi-
cal violence?
30. very Some have a reaction people spouses; who are not faithful to their other people very have little reaction and don’t believe infidelity morally wrong, depending on the you circumstances. How do feel? you anyone spouse
31. Have known whose unfaithful to them? discovering
32. What was their reaction to spouse their had not been faithful? person 33. Was the "other” involved in the af- so, young person?
fair a a If very you minor or do think it Why? that made worse? 34. you Have ever heard of a where situation someone has or violently overreacted reacted being discovering adultery by told of or their spouse? Why you person might
35. think a do react that way hearing adultery? news of you people 36. Do think that most do have a breaking point point they pro- where could be —a voked into violent behavior? questionnaire prepared by Tyburski’s law- sought yer relevant information a measured emotionally neutral manner. The leading. they suggest particu- were not Nor did They proselytize pro- lar answer. did not seek to spective jurors or to extract commitments from Nevertheless, them. the trial court declined to permit questions questionnaire, pose use or to equivalent.
or their court, rather, some, all, The trial asked not prospective jurors "religious whether had or you moral beliefs that would make an unfair juror.” probing questions, questions, individualized, In lieu of following compound the court asked the seeking response: collective, nonverbal earlier, you gentlemen, As I told ladies and if
you you are selected to sit on this are here *24 Separate Opinion Levin, J. going for one that you reason and is that are decide case. this If you testimony really hear I don’t know —and testimony going
what the is inbe this case—I have not seen the I witnesses. have not heard the hearing seeing witnesses. I will be them for the you. time you first as will when come before if you testimony speculating But hear I’m —and testimony as to what the may may or not be as to any testimony concerning adultery or any testi- mony concerning arguments involved beating violent or matrimonial and, course, this is a case that — if any death —but of those areas are brought up, if any testimony there’s on those areas, going is anyone’s that to shock conscience to degree? background such a a you Or there that might have in any of those areas as to in violence marriage adultery arguments or you or that might believe create an you? unfair mindset for anyone problem Does areas that are like to have a any with of those so, brought up in this case? If I’d your you might
see hand raised if think you problem. have a
And, again, really I don’t know what the facts going are in show this case. But many how people seeing to a along enced—witnessed the experience have had the unfortunate die, parent pass a away, maybe gone have hospital that, something bed and witnessed you experi-
those lines where actually have parent’s death? showing
Let me see of hands. Okay. you, you’ll IAs told decide this case. And case, you given in this will be instructions at the trial, conclusion you of this are to decide this case based on the facts. bias,
Sympathy, prejudice, must not influence your particular decision. Is there one on this panel, specifically you those of who have raised your that in seeing parent pass hand as a result of away particular prob- trial —since there will Mich Separate Opinion Levin, J.
ably family, children will tes- be some some in- tify as to their deceased mother —would that you think type sympathy you voke some you might you prejudiced be some manner —if any way maybe you enlighten think in can can the Court. Mr. against — *25 might in favor of Maybe you be biased Tyburski maybe you may prejudice or be [sic] Tyburski Mr. as a result of the death of a family that having go through member and children experience. Anyone problem think you have a with that? Do might If you juror? that that cause to be an unfair so, your Okay. I’d like to see hand raised. And, again, dealing particu- specifically with one discussed, I already lar item that mony that if there is testi- dealing terminology adultery, in is with going any feelings in create someone that they might believe that in make them an unfair juror any way respect type if that hear type in terminology of trial? you might testimony I think also hear some that the deceased was in a freezer in a basement for three
years. And, therefore, upon immediately death did not passed receive an immediate burial when she away. going any problems maybe
Is that to create a as your background religious result of or beliefs might you that have since there was not an imme- upon proper right diate burial after the death any problem death or services
occurred; going is that to create you jurors? as so, your right. If I’d like to see All hand raised. Specifically, you might testimony hear some that younger the deceased had an affair with a man. As age just a result of the difference or as a result of being there mony does show an affair —I don’t know if the testi- that, going if testimony show but lines, something along those is that mind going problem anyone’s to create a in where beliefs, may religious that abe result of or other- wise, might you unfairly make think towards the unfairly deceased or towards the defendant? Separate Opinion Levin, so, if Any problems testimony that arises? If I’d your like to see hand raised. know, imagine
You I some in countries and even religions that some when a husband finds his adultery religions— wife has committed some —in religion maybe the beliefs in that that or death fact, may, in may appropriate. murder even be anyone anyone Does harbor those beliefs? Or is country might from a that have If those beliefs? so, your I’d like to see raised. hand anyone particular panel right Is there on this already now covered or as a result that I of areas have far, possibly you you did not cover thus enlighten would like to the Court on that of, apprised maybe think the Court something thing you think that be should your background may or it some- be I did touched on or not touch on that think you the Court be should aware of that
might you make an unfair either towards the Prosecution or towards the defense. *26 so,
If your I’d like to see hand raised.
II foregoing The questioning method of was wholly inadequate to develop exercising a factual basis for challenges or peremptory challenges for cause. The trial court asked the a panel series of seeking before a response. Questions suggesting a answer, providing range "correct” or a of limited answers, possible provide fail to the information rights challenge. for exercise the necessary of of Tyburski’s lawyer could not have been reason- genuineness the of ably expected to evaluate the responses questions calling for of raising hands —questions calling expression for no verbal what- soever. was Tyburski’s lawyer only left with the their jurors’ impartiality, self-assessment of an 606 445 Mich Separate Opinion Levin, J. precon- ability to set aside of measure unreliable ceptions.2 anyone questions, those harbor "Does General testimony "Any problem arises?” if that beliefs?” problem "Anyone did not with that?” have a lawyer provide Tyburski’s information suffi- with develop basis to select reliable factual cient to reasonably preconception. jury free of recognize inherent the federal courts State and impartial- unreliability juror of of self-assessment prospective juror’s ity. self- on a Undue reliance preconcep- capacity aside his to set assessment of exploration, constitutes tions, further without grounds for reversal. signif publicity raises a nature of the
Where the questioning cursory possibility prejudice, of icant take The court must the court will not suffice. pro steps assure that the voir dire affirmative preconceptions reasonable assurance vides will be exposed. Hawkins, 658 F2d United States v 1981).3 (CA 5, court had In that the trial 279 asked the
panel hands if as a whole to raise their unreliability Supreme the inherent United States Court noted juror impartiality. each self-assessment of "No doubt impartial peti fair and when he said that he would be sincere tioner, requiring psychological impact such a declaration but the father. . . . a statement one’s fellows is often its [S]uch before Dowd, given weight.” impartiality 366 US can be little Irvin (1961). 1639; 728; 81 S Ct 6 L Ed 2d 24(a) provides: Federal Rule of Criminal Procedure may permit or the defendant’s The court the defendant attorney government attorney to conduct for the prospective jurors may or itself conduct examination examination. defendant or the defendant’s permit In the latter event the court shall attorney attorney and the *27 by
government supplement examination such further to prospec- proper inquiry to the it deems or shall itself submit as parties jurors questions or their tive such additional proper. attorneys as it deems 6.412(C)(2)provides: MCR Separate Opinion by Levin, J.
they impartial. felt could be The failure to any significant inquiry concerning undertake other specific require biases was held to reversal.
Conclusory questioning group of the venire as a concerning pretrial publicity well-publicized in a smuggling/jailbreak prosecution ammunition similarly inadequate require found to be and to reversal. (CA 1978). Davis, United States v 190, 583 F2d
5, The trial court had asked mem- panel ber of the to raise his if hand he felt the publicity impaired ability impar- his to render an prospective juror tial decision. No indicated an inability impartial juror. to serve as an The trial court was found to have abused its discretion failing inquire particular to what each had heard or read and it how affected his attitude failing trial, independently toward the and in juror’s impartiality determine whether each had compromised. been inquire during
The failure to voir dire concern- ing pretrial publicity the effects of was found to require Chicago a new trial in the case of the (David Dellinger, Hayden, Seven Tom Abbie Hoff- Jerry Seale), man, Bobby Davis, Rennie Rubin and charged making speeches who were purposes with for the inciting, organizing, promoting encouraging conspiracy, a riot and under the 1968 leading Federal Anti-Riot Act.4 The events to their arrest arose out of anti-Vietnam war demonstra- during tions the 1968 Democratic National Con- may The court prospective jurors conduct the examination of permit lawyers or examination, to do so. If the court conducts the may permit lawyers supplement it questioning by submitting examination direct or for the court to ask. On its own initiative or on the motion of a party, may provide prospective juror the court for a or questioned presence jurors. be out of the of the other (CA 1972). Dellinger, United States v 472 F2d 340 *28 445 Mich Levin, J. Separate Opinion public re- with media saturated vention. The rioting images ports and events before and of during trial. and reversing convictions, States the United
In their Appeals held the Seventh Circuit of for Court the voir mal mini- included at least
dire should have
including
inquiry
areas,
anti-
into three
"hip-
regarding
sentiment, attitudes
war
Vietnam
pie”
concerning
juror
culture,
con-
attitude
city police and demonstrators.
between
frontation
regarding
questions
attitudes,
associa-
General
family,
employment
were not
tions,
status
prejudice,
juror’s possible
in a
to test a
sufficient
specific
might
it
well exist.5
area where
Supreme
reversed a convic-
Court of Hawaii
The
robbery
publicized
highly
armed
in a
tion
entirely
on
self-
relied
because
significant
impartiality. There was
assessment
publicity
including photo-
during
trial,
before and
reports
graphs
in handcuffs and
of defendants
together
repeated
courtroom,
with
in the
outbursts
responsi-
gang
led a
articles that defendants
news
community.
robbery-murders in the
for recent
ble
State v
Pokini,
640, 642-644;
National models of criminal lawyer Lawyer-conducted conduct of voir dire.7 voir dire examination would have resulted in more complete development, leading factual to a more *29 fully rights challenge. informed exercise of the of closely Questions should be related to the factual Lawyers circumstances of the case. review the period facts and circumstances of the case over a days, judge, of weeks or even months. The of necessity, allots but limited time and attention to following recognize The attorney question standards the need for ing during voir dire: 15-2.4, quoted post, 668, —ABA p Standard n 17. Standards, Jury —National Prosecution 17.2 Selection: jurors statutory qualifications Initial examination of as to may court; by be conducted the thereafter examination should by be conducted counsel. Voir solely by dire examination should not be conducted the always points practically court since "there every are in case case, peculiar which, token, which are by to that and the same judge, are unknown to the trial but known to defense counsel parties.” Bias, preconception and the present, prejudice and are ever they can and will affect a verdict. There is no reason, therefore, placing
foundation in
the
things beyond
for
these
thorough
by
examination
counsel.
Prosecution
[National
Standards, commentary, p 235.]
5120b):
Procedure,
—Uniform
of
Rules Criminal
Rule
may put
prospective
Examination.
. . . The court
to the
jurors appropriate questions regarding
qualifications
their
to
jurors
permit questioning
serve as
parties
cause and
lenges.
in
the
and shall
purposes
discovering
challenge
for the
bases for
enabling
intelligent
peremptory
an
exercise of
chal-
Special Pamphlet, p
ULA
[10
125.]
Supreme
The United
require
States
Court has declined to
submis-
questions
jurors
sion of content
proceedings
to
in state criminal
although
significant pretrial
Court,
publicity.
there has been
The
acknowledging
may represent
the aba standards
the "better”
view,
incorporated
ruled that that does not mean that
are
into
Virginia,
415, 430-431;
the Fourteenth Amendment. Mu’Min v
500 US
(1991).
1899;
111 S Ct
If the are be into inquiry sufficient litigant permitted should be to jurors and attitudes background rights.8 of those intelligent enable exercise of his of the benefit deprived Tyburski trial court knowledge facts preparation lawyer’s using prevented She was from and circumstances. in an selecting to assist the court knowledge impartial jury. ap-
Permitting voir dire attorney-conducted The trial cases need not result abuse. propriate appro- limit right court retains information, power protect and has the priate burdensome, harassing, or from embarrassing questions.
III exposure, subject In cases to intense media *30 part juror’s familiarity arises from prejudice with details of the crime before the trial. Each obliged "knowledge” gleaned is to set aside prejudice from the media. The risk of should be to degree pretrial publicity evaluated which prospective in the minds of lodges preconceptions deprived right A defendant is of his to a jurors. to sufficiently fair trial when the trial court fails protect pretrial the accused from the results of publicity.9
8
Dellinger,
supra, p
n 4
368.
United States v
9
pervasiveness of modern communications and the
Given the
difficulty
effacing prejudicial publicity
minds of the
from the
jurors,
strong
the trial courts must
take
measures to ensure
weighed against
[Shep
the accused.
balance
never
Maxwell,
333, 362;
1507;
pard
jury competent to render a extrajudicial verdict free of influence. cursory questioning
The trial court’s
in
inadequate
protect Tyburski
stant case was
publicity
just
from the wave of
aired
before the
appeared
trial. Most of the news articles
in Janu-
10Mu’Min,
425-426,
supra, pp
Florida,
citing Murphy
n 7
421 US
794;
2031;
(1975).
95 S Ct
bought her. death, Tyburski began Within minutes after his wife’s *31 complex psychological game, telling his wife’s relatives elabo- lies, convincing daughter, Kelly, inquisitive rate his oldest the one, Kelly. that her mother had left because she hated 606 445 Mich 644 Opinion Boyle, J. February,
ary television 1989, 1989. All three local March stories on preliminary stations ran news day Tyburski’s examination. of began 19, 1989, the lurid when on June trial reports in the were still fresh details from media public’s mind.12 join of the Court of the decision
I in affirmance Appeals. of result). (concurring the ex- To Boyle, require opinion read to lead could be
tent that the high publicity to allow attor- cases trial courts in neys (1) questionnaires to: submit (3) (2) jurors, participate dire, or conduct voir disagree. respectfully sequestered dire, Cf. I voir disagree Likewise, J., I at 623-624. ante Mallett, analy- Appeals cumulative-error the Court of with suggesting the collective decisions sis sequestered failing voir dire to conduct a court — and not pate meaningfully partici- allowing counsel deprived a fair the defendant of in voir dire — App 576, 590; 494 196 Mich NW2d trial. Cf. (1992). join Nevertheless, result I in Justice Mallett’s supports the record for the sole reason question asked the court conclusion that counsel or had heard members about what venire (CA 11, 1985), Lippman, F2d 1265 where v Court of See Jordan Appeals Eleventh Circuit reversed a for the United States searching to conduct a the trial court had failed conviction because and extensive racially charged public concerning light publicity voir dire in of massive just occurred three demonstration that had days before the trial. publicity long barrage pretrial Jury has been after a selection significant denying relief. Patton v factor in habeas held to be a (1984). 2885; Lapse Yount, 1025; L Ed 2d 847 104 S Ct 467 US pretrial publicity, softening prejudicial effect of time is crucial in softens, slip community from the details of the case sentiment as public’s mind, impressions preformed who once held and even guilt may convictions have weakened or eliminated or innocence Id., pp held. 1032-1034. once *32 Boyle, J. Opinion pretrial publicity, from and the court remembered did not do so. prospective juror
What a knows and remembers great significance in about an incident cising challenges. is of exer- request However, a for content questions, meaning questions about the content of publicity potential jurors to which have been exposed, creates an obvious dilemma for the trial jurors court and defense counsel. Where sequestered during agree dire, are not voir as all questions pose be, need not these risk might the revelation of some detail either process aborted, cause the entire or to be else appellate furnish the basis for claims based on jury taint or ineffective of counsel. A assistance dangers only trial court can avoid these com- conducting sequestered pletely by voir of each dire acknowledges exposure member of the venire who (in them), publicity all this but two of required law, or, which is not as a matter when by confirming denied, individualized voir dire is on the record that counsel does not desire content questions panel. directed the entire asking
Because trial counsel runs the risk that questions specific such negative impressions will reinforce details or panel
that other members gained pretrial exposure, may from counsel delib- forgo erately strategic asking content for sound example,
reasons. For defense counsel’s request dire mid-voir asking potential the court refrain from opinions to state their clearly strategic the case about decision designed panel to minimize the effect of members’ opinions reason, of the on rest venire. For that superficiality compound question prompted by request was basis for error. cannot form permit conclusion, The record does not the same 445 Mich Dissenting Opinion Beickley, respect questions regarding however, with what pretrial the venire members remembered about publicity. I concur with Justice Mallett’s result pretrial publicity because the extensive amount of special say caution, counseled and I cannot with forgo confidence that counsel elected to content questions, pre- for, which she asked but were not sented. *33 (dissenting). Because we would con-
Brickley, clude that the trial court did not abuse its discre- placing tion in on limitations the voir dire con- respectfully ducted in this we dissent.
i undisputed September It 28, 1985, on Tyburski injuries defendant Leonard inflicted fatal on his wife in the basement of their home. He body stored her in the locked basement freezer for approximately years, body three until the was daughters January discovered one of his on Tyburski 1989. day was arrested on that same charged open Following prelimi- with murder. the nary 2, 1989, examination on March he was bound charge second-degree over for trial on a of murder. pretrial publicity Extensive surrounded the un- folding stemming mostly events, of these from the disposed manner the in which the defendant had body attending and the circumstances discovery body. Ample coverage media given alleged also to an affair between the dece- daughter’s boyfriend. dent and her On the interna- level, tional On the in two British tabloids followed the case. appeared level,
national stories of the case Today, Times, New York USA and the Enquirer. National Arizona, Journalists from Flor- Pennsylvania, among ida, and states, other had Dissenting Opinion Brickley, J. requesting information about the case. On called the local Press, appeared
level, Free stories the Detroit Plymouth News, and the Ob- the Detroit including appeared server, April in the an article magazine Sunday 23, 1989, of the Detroit Press, entitled, "I found Mom!” On the basis Free pervasive pretrial publicity, this defense counsel sequestered dire and for moved for individual voir prospective questionnaire to all submission of a jurors designed to determine the extent of their publicity.1 exposure to such The trial court denied requests. these trial,
At
the sole issue was the level of defen-
attempt
mitigate
culpability.
In an
dant’s
manslaughter,
defendant raised
defense
crime
premised
provocation.
This was
on
fact that
provided,
pertinent part:
questionnaire
during
past
coverage
This case has received some news
months ....
you
reading
hearing
7. Do
remember
or
about
case at
all?
it?_;
you
—Did
read articles about
read?_;
many
you
you
—How
do
think
article(s)
(Please
appear?
specific,
did the
be
if
—Where
*34
possible)
reading
you
from
those articles?
—What do
remember
coverage
case?_;
you
8.
of this
Did
see television
your
you
—What stands out in
mind about what
saw on tv?
you
family,
9. Did
talk about this case with
friends or co-
workers?
your
—What
out in
mind about what was discussed?
stands
hearing
your
10. After
about this
what was
reaction?
anything
you
opinion about
connected to
11. Did
form an
so,
your opinion?
this case? If what was
you
you read or heard
12. Do
understand that none of what
coming
before
to trial is evidence
this case?
you
you may
heard or
13. Do
realize that much of what
have
may not even be true?
read
saying, "you
you
14. Have
ever heard the
can’t believe
papers?”
you agree
everything you
in the
Do
with this?
read
you promise
juror, will
to refrain from
15. If selected as a
during
being
coverage
exposed
this case?
further news
her head a beam in the base- resulting injuries. ment, in her fatal jury rejected provoca- The defendant’s defense of second-degree tion and convicted the defendant of murder. Defendant was sentenced to a term of twenty forty years. appeal, On direct the Court Appeals reversed the conviction, defendant’s concluding that the trial court had abused its limiting scope discretion in dire, and conduct of voir resulting in a deficient voir dire.2 It held that the cumulative effect of the trial court’s refusal to sequestered conduct dire, voir its failure to allow meaningful participation by defense counsel in the jury selection, probing ques- and the absence of prevented tions on voir dire defendant from receiv- ing disagree a fair trial. Because we with majority’s affirmance of the decision of the Court Appeals, we dissent.
II
analysis
opinion
solely
of the lead
focuses
jury
on the conduct of the
voir dire in the context
pretrial publicity.
Accordingly, we must
carefully
transcript
examine the
of the voir dire
pretrial
publicity
the content of the
within the
recognized purposes
context of the
of voir dire.
App 576;
(1992).
196 Mich
A 19, 1989. June began Monday, on voir dire Jury above, earlier denied the court had As stated seques for individual requests counsel’s defense questionnaire of a dire and submission tered voir informed judge The trial prospective jurors. to the voir to conduct practice that it was his counsel to defense negatively responded The court dire. follow-up to whether question pertaining counsel’s However, allowed. counsel would be questions by juror’s if a indicated to counsel the court follow-up ques demonstrated a need for response tions, writ counsel could submit such present would them to the to the and he ing defense counsel Additionally, prospective jurors. question potential the trial court requested had appeared many if it jurors individually The court ex exposed pretrial publicity. been request. with this comply its intention pressed of array composed eighty persons. The jury prospective jurors regarding po- questioning After stemming previous from encounters tential bias 3 Michigan, the trial conduct of voir dire is a matter within In 6.412(C), pertinent provides judge’s See MCR which discretion. part: (1) Purpose. scope Scope of voir dire examination jurors
prospective
of the court.
It
is within
discretion
discovering grounds
purposes of
for
should be conducted for the
gaining knowledge
challenges
to facilitate an
for cause and of
peremptory challenges.
intelligent
should
The court
exercise
purposes
prevent
to these
abuse
confine the examination
process.
the examination
(2)
may
the Examination. The court
conduct
Conduct of
jurors
permit
lawyers
prospective
to do
or
examination of
examination,
may permit
it
If the court conducts the
so.
questioning
lawyers
supplement
the examination
direct
by submitting questions
own
for the court
to ask. On its
or
may provide
party, the court
or on the motion of a
initiative
a
ence of other
pres-
questioned
prospective juror
or
to be
out
jurors.
*36
you going do, are to have to juror], [name basically separate you what have heard on tv or on the radio or in newspaper judge this case on you what hear in the courtroom. Have you developed any opinions thus far feelings or on this way case one or another you’ve as to what heard or read? juror responded that she had and that she guilty. tended to think the defendant was Follow- ing judge inquired: disclosure, the trial right. All you Do believe everything you read in the newspaper? responded negative, When the in the judge implored: trial Opinion Dissenting Brickley, way you Okay. to settle that is a Do think that reading guilt
disputes or innocence as newspaper? response, receiving negative Upon the trial continued: juror], you, Okay. [name of I to tell If were you
you hear on what this case based have to decide you courtroom, to set aside will be able in the your opinions your beliefs, and listen set aside and render a fair decision? this case *37 negative. responded trial in the The The up judge followed with: you’ve you thus far has think what read No. Do degree you you do not think a to such
tainted
that
you
to this defendant?
couldbe fair
response,
receiving
Upon
the trial
affirmative
an
(this juror
questioning
judge
this line of
ended
judge)
by
moved on to
the trial
later excused
prospective juror.
another
prospec-
During questioning
several
next
inquired
jurors,
judge
whether
tive
feelings
the trial
developed
opinions
had been
about
or
follow-up
response triggered An affirmative
case.
question by
pro-
regarding
whether
personal opinions
spective juror could set aside
presented
solely
try
on the evidence
and
in the courtroom.
the case
having
After
excused several
firmly
held
the basis of their
for cause on
exchange
opinions,
occurred:
you
Okay.
of what
have
As a result
The Court:
any opin-
you
read, have
formulated
heard and
ions?
Well,
I’m afraid I would have
Zimmer:
Juror
say I did.
ment, your Honor? right. The Court: All
(Off had.) the record discussion was understand, Zimmer, The Court: You Ms. don’t you, as I’ve discussed earlier that this case going courtroom; to be decided in the isn’t correct? Juror Zimmer: Yes.
The Court: You understand that?
Juror Zimmer: Yes. The you Court: And don’t believe that case[s] media, be should decided you? do No,
Juror Zimmer: I don’t. The Court: You don’t believe that cases should you be decided what you? newspaper, read in the do Zimmer: Juror No.
The Court: You don’t believe that cases should you be decided on what isn’t hear or say on the tv; [sic] correct? Zimmer: right. Juror That’s Okay. you Court: telling But are me that you’ve developed strong such opinion that you’d have a hard time being juror; a fair is that cor- *38 rect? Well, time, Juror Zimmer: I a rough would have
I think. The Court: rough You’d have a time? Yes,
Juror I Zimmer: believe I would. The Court: Even though you believe that cases shouldn’t be decided you on what heard and read in the newspapers?
Juror Zimmer: I . . realize . The Court: You you’ve don’t know if what read accurate, you? is know way do you There’s no that; isn’t that correct? Juror Zimmer: true. That’s Opinion by Dissenting Brickley, exchange, juror this Zimmer At the conclusion of following Immediately this, excused for cause. juror the case Louis she had read about admitted concerning opinion an what she and formulated transpired: following exchange had read.4 The Okay. you juror you you Do that if understand The Court: in this case that are selected to sit as have to decide the case on what you in the hear courtroom?
Juror Louis: Yes. you
The Court: And will be able to do that? Juror Louis: Yes. you The Court: Will be able to set aside the
opinions and courtroom? developed newspapers you’ve in the you this case on what hear Juror Louis: Yes.
Receiving response, judge proceeded this trial question prospective juror.5 the next The morn- ing session of the voir dire continued in similar judge asking every fashion, with the trial opinions juror any whether he had formed about inquiring any into the substance opinions admittedly formed. morning session,
At the conclusion of the
de-
objecting
fense counsel
filed a motion
to the
procedure.
argued
Court’s voir dire
Counsel
procedure
inquiring
the Court’s
into whether
any juror
opinion regarding
an
defen-
had formed
guilt
inquiry into the
dant’s
this
and its
substance of
opinion
prospective
only
served
to taint
juror
yet
either had not
heard
the case
who
about
opinion
an
defendant’s
or had failed
form
about
transcript
It is unclear from the
whether
Louis had formed
opinion regarding
guilt.
an
defendant’s
challenge by
peremptory
Juror Louis was later excused on
defendant.
*39
guilt or innocence. Counsel further claimed that the voir process dire "has been more prejudicial to right to a fair trial an by impartial [defendant’s] jury than had the Court asked questions no what- soever about publicity.” Counsel then requested that any extended questioning of jurors regarding their opinions be conducted and individually out- side presence of other every prospective juror.6
After break, the lunch voir dire continued with prospective juror Rae. Following an affirmative response to an into inquiry whether he had heard case, about the trial judge queried whether he motion, Defense entirety, counsel’s in its is as follows: Tyburski, by Now comes through Leonard his attorney hereby . vehemently objects . . and to the voir dire procedure employed by during this Court morning thus far day jury session of the first procedure, of selection. The Court’s eliciting jury in opinion only from each they not whether [sic] have an case, additionally opinion is, as this but what that tainting any juror has the effect of yet who had not heard news yet accounts or opinion who had not formed an as to defen- guilt dant’s or innocense [sic]. percentage panelmembers Given the of who have been ex- posed reports cent), (approximately per news given persons the almost unanimous decision those who have read Tyburski such tinue this undecided the guilty murder, accounts that Mr. to con- procedure simply yet cements in the minds of the community "consensus” in "appro- as to the priate” Moreover, verdict. jurors now that have been community’s indoctrinated perception with the they pressure are now under much Tyburski. more to convict Mr. Mr. process contends that the Court’s voir dire thus prejudicial far right has been more his to a fair trial an impartial jury than had the Court asked no whatso- publicity. requests again ever about questionning He extended regarding opinions [sic] have reached about the individually, sequestered case be conducted panel. from the rest of the objection now, prior Defendant raises this to the commence- session, ment of the afternoon rather than at the end of the (as Court) day suggested by hopes shielding any remaining impartial panel members from the enormous taint process. of this Tybukski Opinion by Dissenting Brickley, *40 "developed any opinions that had would make added.) juror?” (Emphasis [him] an unfair proceeded question prospective judge The trial to jurors generally manner, in this but included such prospective inquiries into whether a additional give juror able to this defendant all his would "be guarantees?” constitutional any impartial pretrial publicity. and whether there was why sit an reason such could not as having exposed juror, despite been judge’s questions At re- the conclusion of the pretrial garding prospective publicity the effect of the on the appears jurors, re- it defense counsel inquired judge he had not into minded the prospective jurors whether had read the article published Sunday magazine, in the Free Press entitled, "I found Mom!” It defense counsel seems requested probe judge also the source of the prospective jurors’ knowledge of the case.7 The judge immediately requested showing trial by prospective jurors hands those had read who prospective many this article. He then asked how jurors only had heard about the case on television many only and how it had read about newspapers. Finally, many prospec- he asked how tive had heard about this case on the radio. covering potential bias, After other areas of any ques- if trial asked counsel had written jury. it tions wished have submitted to the This colloquy ensued: No, Honor, your just the ones [Defense Counsel]:
that I have submitted.
right.
gone through
All
I
The Court:
have
those.
questions
Because
of these
included in defendant’s
some
were
proposed questionnaire
following
engaged
inquiry
and because the court
in this
counsel,
requested
off the record
defense
it
discussion
question
appears
impetus
that defense counsel was the
behind such
ing.
n 1.
See
part give you I will opportunity, counsel. this, Following defense passed counsel on chal- lenges for cause.
As peremptory challenges were exercised new prospective jurors were selected to fill seats, vacant the trial judge inquired whether any juror had heard about the case. Upon receiving an response, affirmative the judge engaged in an ex amination designed to determine whether opinions had been formed that would create the unfairness a prospective juror. *41 This examination was tailored to accommodate concern, defense counsel’s expressed as in her motion at noon objecting to the voir proce dire dures, that questions posed by the trial judge in the morning session prompted answers that had the effect of tainting the remaining members of the venire. occasion, On one defense counsel re quested and was given permission to submit follow-up question to a juror. On several other occasions, defense counsel successfully interjected desired into the voir dire.8 interjected by following: Questions defense counsel include the juror: opinions A I my have some regarding moral own several morally judge of those items. I’m not —I can’t at this time moral . . . —his Honor, Your [.Defense can we counsel]: break down those topics you through that went so we can . . . Okay. The Court: Go ahead. Okay. Any challenges The Court: for cause? Honor, that, Your [.Defense before we Counsel]: do adolescent daughter. daughters, The teenage daughters? Court: Adolescent Moynihan: Juror 20-year No. I boys have a 17 and old [a] [sic]. Dissenting Opinion Brickley, having eight only After exercised of the allotted twenty challenges, peremptory defense counsel an- challenges. nounced it would have no In- further stead, defense counsel submitted a motion for a following day mistrial on the basis of the procedure conducting court’s counsel voir dire.9 Defense
argued requesting prospective jurors opinions pro- to verbalize their in front of other spective jurors panel. served to taint Counsel although informed the she did not feel impartial jury, declining this was an she was peremptory challenges exercise further because challenges faulty such procedure. would not have cured the
B Analyzing pretrial publicity in the case at bar, note, above, we as stated this case at- tracted both national and international media at- publicity. tention, as well as substantial local This publicity, mainly however, factual;10 it focused pertinent parts of the motion are as follows: respect I procedure do have a motion with to the Court’s conducting yesterday. voir dire I have motion for mistrial. procedure and, one, asking I believe that the Court’s number jurors opinion. the having other importantly whether had an But more opinion them to verbalize what their inwas front of panel. tainted the *42 expressed I have in various briefs how I think that that procedure jurors maybe opinions causes other hear the people panel, jurors other on the their fellow and that process. taints the virtually everybody panel We had on this had heard [sic] story. juror says about this fellow case and that based Mr. But I think when a in front of jurors they have received information about this upon information believe that guilty. very, very powerful is That’s a statement any juror ignore to hear. And I don’t know that can that and impartial hearing
be after that. opinion The lead takes issue with our characterization of the Mich Dissenting Opinion by Brickley, many case, facts of the of which on the bizarre Emphasis placed were revealed at trial. was on the body being years freezer, found in three after daughter’s discovery and on the date death implied body. that defendant One article "severely sociopathic.” story was Another was en- may titled, "Woman have been alive when locked Although in freezer.” confirmed that evidence adduced at trial may
the decedent have had some signs freezer, vital when she was locked testimony by the medical examiner revealed that longer the decedent could not have been alive for following than several minutes severe head injuries she sustained. While there was evidence of journalistic sensationalism, some stories did not focus we note that the
substantially on irrelevant Additionally, information. confessions that were later ruled inadmissible. In no there were stories of publicity pervasive, sum, while the was it not necessarily prejudicial inaccurate, nor itwas Tyburski’s defense.
c Turning recognized purposes now to the of voir essentially dire, we note there are three functions primary of voir dire. The function is to elicit prospective jurors information from that estab- challenge lishes a basis for a for cause. A second important and related function is to facilitate the intelligent peremptory challenges. use of A third illegitimate, dire, function of voir often as viewed prospective jurors to is educate on the merits and develop rapport theories and to attorneys. It between is here that skill- conclusion, publicity "mainly however, supported as factual.” This reading Only twenty a careful of the record. four of the articles in aptly "prejudicial” the record can Many be classified as to the defendant. defense, detailing of the other articles were favorable to the an alleged daughter’s boyfriend. affair between the decedent and her *43 659 Brickley, J. Dissenting Opinion attorneys ful defense from seek to extract commitments jurors; produce such commitments jury objective one, a biased serve to instead of an and thus
negate purpose of voir dire. given reason, For this the trial must be determining prospective jurors. ques- considerable latitude in what tions will be submitted to It has been stated: judge] [The trial must be free to exclude those questions such in solely accomplish are which "intended improper purpose” "phrased or which are not non-argumentative neutral, form.” He must also
be able to "restrict the examination of expedite within reasonable bounds so as to trial.” And he must on occasion be allowed to questioning give protec restrict in order to some privacy prospectivejurors.[11] tion to the background With this mind, in we review defen- challenge dant’s federal constitutional before turn- ing argu- our attention to the abuse of discretion ment.
III FEDERAL CONSTITUTIONAL CHALLENGE Supreme The United States Court cases delin- eating requirements of voir dire can be divided categories. into two The first includes cases that were tried in federal courts which the court’s authority supervisory pow- stems from its federal ers.12 The second includes cases that were tried authority state courts in which the court’s lim- enforcing ited to the mandates of the United 11 Israel, Procedure, 21.3, 2 p LaFave & Criminal 719. § 12 Rosales-Lopez States, 182; 1629; See v United 451 US 101 S Ct (1981); Aldridge States, 308; 470; L Ed 2d 22 v United 283 US 51 S Ct (1931); States, 75 L 951; 408; Ed 1054 Connors v United 158 US 15 S Ct (1895). L39 Ed 1033 Mich Dissenting Opinion Brickley, Supreme
States Constitution.13 While the Court’s power supervisory are decisions under its federal *44 binding instructive, are not in this state only criminal case. It is decisions that are that Court’s constitutional binding upon
necessarily this Court. flowing
A common theme from the cases under powers supervisory both the federal and the consti- tution is that much discretion is vested court to determine dire.14 The reasons succinctly the trial to on what ask voir underpinning rule this were Supreme the stated Court Rosales- Lopez States, 182, 188; v 451 United US 101 S Ct (1981): 1629; 68 L 22 Ed 2d Despite importanee, adequacy its the of voir dire easily appellate subject is not to review. The trial
judge’s
point
function at
in the trial
is not
unlike that of the
must
later
inon
the trial. Both
impartiality
reach conclusions as to
credibility by relying on their own
evaluations
responses
questions.
demeanor evidence and of
to
Cognizant
rule,
of the above
we turn
to the
now
13
28;
1683;
Murray,
See Turner v
476
106
US
S Ct
A grappled Supreme Court has The United States pretrial publicity and its effect on with the issue of requirements occasions, the dating of voir dire on several Cranch) (4 Burr, 8 US
from United States v
(1807),
pro-
470;
for because degree defendant had murder conviction which incarcerated at the time of the instant mur- been penalty It that death had not der. was noted the option petitioner the convicted been an when instead, murder; he had received a of earlier petitioner’s forty-eight-year The counsel sentence. requested change venue, but the trial court attempt until an had been made declined to rule jury. to seat a petitioner date, submitted
Before the trial
proposed
sixty-four
voir
to the trial
dire
presented
motion for individual voir
any of the
The trial court refused to ask
dire.
relating
petitioner’s questions
to the content
prospective jurors
publicity
had been
to which
information impartiality aifect in this case? "Is anyone there say you’ve would what read, seen, heard, or whatever you information may acquired have from whatever the source your would impartiality aifect you so that could impartial? not be
"Considering gentlemen what the ladies and who have answered the affirmative have heard or read about this Jury you do believe you can enter open box with an mind and following questions petitioner, were submitted but judge: disallowed the trial seen, you "32. What have read or heard about this case? you get "33. From whom or what did this information? you get “34. When and where did this information? you "38. What did discuss? anyone expressed any opinion "41. Has about this case to
you? "42. Who? What? When? Where?” Note, though, *46 requested trial court did ask several of the "[t]he questions concerning prior knowledge of the case: you acquired any "31. Have information about this case from newspapers, television, conversations,
the or other source? you anyone? "35. Have discussed this case with "36. With whom? "37. When and where?” US n [500 2.] Dissenting Opinion by Brickley, presented await until the entire case is before reaching opinion a fixed or conclusion toas guilt or innocence of the accused? seen, heard, "In everything you’ve view of read, or or any information from whatever source case, you’ve acquired about is there anyone you who believes that could not become a Juror, Jury open enter the box with an mind and presented wait until the entire case is before reaching opinion a fixed or a conclusion as to the guilt or innocence of the accused?” US [500 420.] Following these questions, pro- one of the sixteen spective who had jurors having prior admitted to knowledge of the case professed inability an to be fair and was excused for cause. petitioner prospective moved for all who jurors had been exposed pretrial excused for publicity be cause. The motion was denied. proceeded
The trial court to divide the prospec- groups tive into of four and conducted fur- concerning ther voir dire If a pretrial publicity. juror acknowledged having read or heard case, something about the court would ask juror opinion whether had formed an whether the juror impartial. could be One sponte was removed the trial sua after having equivocated response in her about whether she could enter box with an mind. jury open chosen, jurors eventually eight Of twelve had read or heard about the defendant’s but none having admitted formed an opinion being or biased against the defendant. death,
Following his conviction and sentence of
petitioner
challenged
Mu’Min
his conviction
on
the basis of the Due Process Clause of the Four-
Amendment,
teenth
arguing that
cases involv-
ing pretrial
magnitude,
of this
the trial
publicity
*47
court must into the contents of news reports Supreme jurors. The read questions help- Court that admitted such would be exercising peremptory ful to a defendant in his challenges, but to "content” declined make such questions engendering requirement in a constitutional cases pretrial publicity. It
substantial rec- ognized that however, compelled, constitutionally be it is [t]o not enough questions might helpful. that such be
Rather, ques- the trial court’s failure to ask these tions must render the defendant’s trial fundamen- tally unfair. US [500 425-426.] Significantly, the Court noted that respect pretrial publicity, we think this [w]ith primary court sits in the judgment reliance on the of the trial good judge makes sense. The court publicity locale where the is said to brings have had its effect and to his evaluation of any and extent of news stories that perception depth such claim his own might influence a court,
juror. course, impute The trial does not perceptions his own examined, tance make of the being to the who are perceptions but these should be of assis- deciding to it inquiry how detailed an jury members of the venire. US [500 427.] Supreme Court concluded there is no right constitutional signed to content-based de- prospec- to reveal the nature and extent of jurors’ pretrial exposure tive media in cases in- volving high publicity.
B Applying bar, this to the at case we would hold the trial court’s failure to submit defense Dissenting Opinion Brickley, questionnaire prospective jurors counsel’s did not violate the defendant’s Sixth Amendment16 right to a fair trial or his Fourteenth Amendment right process. Kennedy, dissenting of due Justice Mu’Min, asserted that the trial must *48 colloquy conduct a sufficient with the individual juror’s ability to make an assessment of the impartial. Emphasis [500 added.] to be US 452. question prospective jurors The trial court did individually concerning whether information to exposed which had been had led them to form opinions incapable that would render them of being impartial. Every prospective juror confessing opinion guilty an that defendant was or an inabil- ity to be fair was excused for cause. We think this requires. recognize is all that Mu’Min We in Mu’Min the trial conducted further dire voir concerning pretrial publicity panels in of four. salutary practice, While we feel this is a lieve the same result was obtained in the case at we be- namely, jurors professing bar, all those an inabil- ity to be fair were excused for cause.
c
Dowd,
Defendant’s reliance on Irvin
US
(1961),
717;
1639;
81 S Ct
Irvin is similar to the case at bar in that there pretrial publicity, distinguish- was extensive but jurors able that two-thirds of the seated in Irvin having opinions regarding admitted defendant’s formed
guilt, bar, at while the case none of having opin- the seated admitted formed an regarding guilt. *49 Court, ion quoting defendant’s The Irvin Reynolds States,
from v United 98 US (1878), 155; 25 L Ed stated: theory juror "The of the law is that a who has opinion impartial.” formed an cannot be US [366 722.]
Although jurors professed each of the seated to be impartial, Supreme the Court concluded: No each doubt was sincere when he said impartial petitioner, that he would be fair and to psychological impact requiring the
but such a declaration before one’s is often father. fellows its times, many, many preju- Where so so admitted dice, given a impartiality such statement of can be it, weight. jurors put little As one of the "You forget you can’t what hear and see.” stake, requiring With his life at it is not too v Dissenting Opinion by Brickley, petitioner that atmosphere much be tried in an huge public undisturbed a passion so wave by jury and of the than other one in which two-thirds admit, hearing any members before testi- mony, possessing guilt. a belief in his at 728. [Id. Emphasis added.] bar, In despite pervasive the case at pretrial trial, that publicity surrounded defendant’s no member defendant’s in jury professed a belief his guilt hearing before the testimony. Irvin fails Consequently, to support defendant’s contention rights his federal constitutional have been violated.
D
Maxwell,
Defendant’s
reliance
on Sheppard
333;
1507;
(1966),
US
S Ct
alone,
rulings
the court’s later
must be considered
against
setting
in which
In
the trial was held.
light
background,
of this
ar-
we believe
*50
rangements
media caused
made
with the news
deprived
Sheppard
to
be
"judicial serenity and calm
which
to
[he]
354-355,
Texas,
entitled.”
at
quoting Estes v
[Id.
445 Mich Opinion by
Dissenting
Brickley,
1628;
536;
(1965). Emphasis added.] in which atmosphere In to the circus-like contrast conducted, the ambiance of trial was Sheppard one of "judicial serenity.” defendant’s trial was Sheppard reliance on Accordingly, defendant’s his support it cannot invoked to misplaced, and be claim of a constitutional violation.
E we note that a federal constitutional Finally, the failure of challenge premised upon voir dire ABA Standards the voir dire to conform to Justice, Standard 15-2.4 by Jury, Criminal Trial 1993)17 In (approved August cannot be sustained. Mu’Min, Supreme Court held the United States the aba standards a stricter standard embody required than that under juror eligibility constitution. It observed: standard, Under the aba answers to more, content, disqualify the
about without could provides pertinent part: Standard 15-2.4 (d) prospective jurors Where there is reason to believe the previously exposed to information about the or have been for other reason are it, likely preconceptions, concerning to have given question opportunity to counsel should be liberal jurors individually about the existence and extent of their preconceptions. knowledge and (e) presence Jurors should be examined outside the of other prior exposure potentially on sensitive matters or prejudicial material. (1) might po- Sensitive matters are those matters which be life, private tentially embarrassing juror’s or intrusive into the beliefs, which, feelings presence if in the the or or those matters discussed jury panel, might prejudice or influence panel by exposing potential jurors improper other informa- tion. *51 669 v Dissenting by Opinion Bkickley, J. sitting. juror from Under the constitutional stan- dard, hand, question on the other relevant "[t]he community not whether the remembered the . . jurors but whether the . opin- had such fixed judge ions that could impartially guilt not the defendant.” at 430 (quoting from Patton [Id. Yount, 1025, 1035; US 2885; 104 S Ct 81 L [1984]).] Ed 2d 847 a failure Consequently, to adhere to stan- aba dards, alone, standing support cannot constitu- challenge tional to voir dire. argu- Defendant’s ment to contrary must be rejected. because there is
Accordingly, no constitutional to right high content-based in publicity individual, or dire, cases to an sequestered voir and because of the lack of a professed belief from guilt one the defendant’s before the trial or a circus-like atmosphere during trial, we reject would defendant’s federal constitu- tional to challenge the conduct scope and of his voir dire.
IV ABUSE OF DISCRETION reject We would argument also defendant’s that the trial court abused its discretion in conducting voir dire. The majority concludes the trial abused judge limiting his discretion by the voir dire a manner precluded the defendant from an developing adequate factual basis for the challenges exercise of peremptory both and chal- lenges through for cause his refusal submit questionnaire defense prospective ju- counsel’s rors his failure to ask sufficiently probing questions. Additionally, majority concludes the trial abused his discretion allow- 445 Mich Opinion Dissenting Brickley, go
ing juror unchal- of bias self-assessment disagree. lenged.18 We
A Spalding v was defined An abuse of discretion (1959), Spalding, 382; 94 NW2d 355 Mich *52 People in v criminal context reaffirmed in the Williams, 572; 194 NW2d 386 Mich Charles O (1972). 337 the idea of itself involves "The term discretion will, choice, a determina- exercise of the of of an In competing considerations. made between
tion reaching such determi- to have an 'abuse’ order nation, palpably grossly and the result must be so the logic that it evidences not of fact and violative will, the perversity of not exercise of will but exercise of exercise of reason but thereof, defiance not the judgment but passion rather of or bias.” Spalding, supra at [Quoting Spalding v 384-385.] necessarily question us becomes before imposed on voir dire the limitations whether showing of facts to exclude a the trial that would lenge served provide for a chal- a sufficient basis the reasonable for cause or would inhibit challenges. peremptory words, In other of exercise grossly "palpably judge’s the actions so were violative perver- logic” as to evidence of fact and judg- sity will, of the exercise of of the defiance passion bias, in- ment, of and an exhibition stead of reason. Stewart, 436; 289 Mich
In Fedorinchik v (1939), court held that the trial this Court NW abused its discretion denying plaintiff’s the Rules, Michigan the conduct and that under Court both We note prospective jurors scope the trial court’s voir dire of are within of discretion. See n 3. People v Dissenting Opinion Brickley, request prospective jurors questioned be dur- ing voir dire about whether insured in they were a so, and, mutual company insurance if which com- Such pany. questions were relevant because attor- from neys largest one of the mutual insurance companies conducting in the area were the de- fense, paid and the company year dividends each to its In view members. prejudice to the plaintiff, recognized: we indispensable It is litigant fair that a trial given
be opportunity reasonable to ascertain on voir dire jurors whether summoned being subject challenged are for cause or even peremptorily. examination of discretion of limited as constitute large In a scope measure on voir dire within the judge; trial but it must not be so showing
to exclude a facts would ground challenging for cause or the challenges. reasonable exercise of peremptory So to limit the examination is an abuse of discretion. at [Id. 438-439.] Harrell,
In 384; 398 Mich 247 NW2d *53 (1976), 829 presented this Court was with a chal- lenge to the voir dire following the trial court’s questions refusal to submit 120 to prospective that defense counsel had formulated uncover prejudice. defendant, latent racial a African-American, in young was involved an alter- officers, cation with police most of whom were He argued white. the refusal to submit precluded proffered questions meaningful a exer- challenges intelligent cise cause and an use challenges, of peremptory constituting thus a de- right nial of his trial by impartial fair jury.
We challenge held that defendant’s must Carolina, v South Ham Although 524; fail. 409 US 606 445 Mich 672 Brickley, Opinion Dissenting (1973), mandated an L 46 848; 35 Ed 2d 93 S Ct inquiry circumstances, these racial bias under into require the trial it not did we determined designed question every judge racial to elicit to ask We noted defense counsel. bias submitted concurring part Marshall, in and dissent- Justice ing supra part 533, Ham, in at stated: in suggest must I that a defendant do not mean question or that propound any permitted to be preliminary voir be devoted to limitless time must jury in interest Although the defendant’s dire. countervailing strong, there are prejudice free of of crimi- expeditious conduct interests in the state jury intimidation. the avoidance of nal trials and possibility of larger as the interests bulk These more attenuated. uncovering prejudice becomes Marshall, in Court noted that Justice The Harrell expressed agreement with the footnote, had his a majority’s judge may properly that "the assertion any particular questions form decline to ask questions particular aon number of or ask subject.” 533, 2.19 Id. at n People Cole, v 8 obtained
A similar result was (1967), App on 250; 154 579 rev’d Mich NW2d (1969), grounds 354 695; Mich 172 NW2d other 382 to the trial court refused to submit in which the 19 applied Michigan Appeals decisions have Numerous Court of Furman, 302; People App 246 principle. (1987) (No 404 NW2d v 158 Mich See to conduct voir found in the trial court’s failure error was defendant); ninety questions by the submitted dire on the basis 469, (On 482; Rehearing), App 627 114 Mich NW2d v Prast (1982) specific ("[a] judge he fails to ask trial does not err when requested by in another a defendant but does cover the area Hoffmeister, 222; manner”); People App 217 NW2d 52 Mich (1975) 155; (1974), (the grounds 394 Mich NW2d rev’d on other forty-two judge twelve of defendant’s trial refused to allow questions, proposed record revealed that similar voir dire were asked. but the questions dire does not have to allow a voir trial "[T]he *54 precise language question it in which was to be asked the 222.). App counsel.” 52 Mich submitted People v Opinion by Dissenting Brickley, prospective jurors questions twelve of seventeen proposed by Appeals defense counsel. The Court of questions determined that signed the seventeen were de- only types to elicit four of information. It concluded that such information had been either gleaned pro- questioning from the trial of court’s spective jurors, or that the need such informa- sufficiently compelling support tion not was to claim error the trial court. People
An abuse of discretion
found in
v
(1992).
Taylor,
App 57;
195 Mich
A
Sears,
similar result obtained in
App
(1979),
1;
Mich
defendant’s
cases is a trial court not does abuse its discretion when it declines to submit prospective jurors designed that are to reveal sub- *55 445 Mich by Dissenting Opinion Brickley, J. develop prejudices, a rational basis or to
stantial for the exercise challenges, long as the trial of as questions adequately employs similar court cover the area of bias.
B Applying bar, at we would this rule to the case the failure to submit hold that the trial court’s questionnaire prospective jurors did not consti- Although question- of discretion. the tute an abuse naire was designed to elicit information exercising in been beneficial to counsel would have both its challenges peremptory its for cause and challenges, refusal to we cannot conclude that the questionnaire "perver- submit the sity amounted to a will,” a "defiance of the exercise passion judgment,” bias, "of or the exercise Rather, the instead of reason.” questions propounded we believe that judge
by the trial were suffi- probative, ciently trial actions and that the court’s high approach this matter did not even marking of discretion. threshold an abuse by an Our conclusion is bolstered examination Contrary the record. to the conclusions of the lead Appeals, opinion and the Court of we believe that questions by judge asked the trial were suffi- ciently probative. trial did We note that the inquire prospective juror whether each had read request prospec- or heard about the case and did response jurors to raise their hands in to a tive question identify fashioned to the source of their lacking depth insight information. While questionnaire provided, may have these questions produced in kind to information similar eight ques- on the that which tionnaire were seven and
designed to elicit. Additionally, question pro- court did trial preconceived opinions spective jurors any about by Dissenting Opinion Brickley, them, held with the result that no on the jury having opin- actual had admitted formed an regarding guilt. Although ion defendant’s it jurors enjoyed clear that some a more abbreviated questioning form of than that endured their persons, necessarily fellow venire this does not require ques- the conclusion that the abbreviated tioning sufficiently lacking probativeness warrant a new trial.20 acknowledge
We that the trial court’s use of the compound question, you developed opin- *56 "have you juror,” ions that would make an unfair invited single negative response only a that served to guessing regard leave counsel with to whether an opinion by had been formed who still felt judge impartially, alternatively, or, able to opinion that no Despite this,
had been formed. we would requiring decline to find error reversal in the trial question court’s use of this in the case at bar. Our reasons for First, this conclusion are threefold. we only jurors presented note that nine were with the answering question,21 dilemma of only this these, and of jury.22 five remained on Thus, the final potential prejudice to the defendant in this situa- Second, tion is minimal. we believe that defense mitigated counsel could have harm by requesting judge clarify question to to 20 opinion’s States, The lead reliance on Silverthorne v United 400 (CA 9, 1968), misplaced. F2d 631 reading A careful of Silver compels inadequate thorne the conclusion that it was the nature of the light prejudicial publicity voir dire in of the nature of the that led the court to conclude that an abuse of discretion had occurred. Inadmissi allegations charged ble evidence and before the Senate with "certain the defendant had been unspecified crimes” had in surfaced Silverthorne, pretrial publicity media before the trial in while the allegations in contained neither inadmissible evidence nor uncharged crimes. 21 Palmer, Lazarski, Goodwin, Caldwell, Rae, These include Stewart, Wilson, Parker, Hayden. remaining jury jurors Goodwin, Wilson, Those on the included Rae, Caldwell, and Palmer. 445 Mich Dissenting Opinion Brickley, response applied.23 light negative In
which a follow-up ques- judge’s treatment of a trial earlier presume presented by counsel, defense we tion trial Third, request.24 honored this would have importantly, de- most we believe that surrounding dire motions the voir fense counsel’s compel that, the context of the conclusion within grant sequestered voir the trial court’s refusal exactly dire, she counsel received what defense requested: questions designed identify those had impartial jurors possessing inability an to be with- giving eliciting the information rise to the out Although juror’s admitted bias.25 defense counsel requested probing jurors’ initially voir dire of exposure, appears changed media counsel to have following sequestered tactics her realization that a forthcoming. dire not Under these cir- voir argu- appellate cumstances, we counsel’s believe fundamentally ment that it was compound unfair to utilize a question26 determining pro- whether question compound of this We note that the trial court’s use objecting began immediately after defense counsel’s lunchtime motion procedures employed, to the voir dire counsel prejudicial a motion which defense argued process more the "voir dire thus far has been right impartial jury to a fair trial an [defendant’s] publicity.” than had the Court asked no whatsoever about *57 compound question may We believe that the use of this have been an attempt by the trial court to accommodate defense counsel’s concerns engendered responses potential by venire about the taint to the given these defense now criticizes was was questions during morning to the utilized voir dire. Under circumstances, may compound question it be that the that the acceptable in to counsel at the time it fact propounded. 24 compound Despite our in this we caution that dissent juror’s preconceived opinions questions concerning ability where the is and cases, high publicity employed not in to be fair should be having opinion probability prospective juror formed an of a involving relatively publicity, greater in little and than those cases apprised opinion indepen- of such an exists where counsel’s need to be prospective juror can remain dent of his need to know whether impartial.
25Seen 23. 26 developed any opinions you Namely, you that would make "Have juror?” an unfair Dissenting Opinion Brickley, spective jurors possessed preconceived opinions concerning guilt defendant’s is without merit.27We attempt appellate countenance counsel’s would not premise trial actions that to error on the court’s precipitated by motion, were defense counsel’s and designed to defense counsel’s con- accommodate cerns.28
Finally, the trial did we note court allow follow-up questions by coun- written submission procedure to utilize this sel. That counsel failed support should not now be used to the conclusion insufficiently probative.29 that voir was dire questions Accordingly, because we believe the propounded by sufficiently the trial court were probative and elicited information similar kind questionnaire pro- to that which the vided, would have argument reject would defendant’s we questioning trial conclude that neither the regarding court’s exposure to media nor its refusal submit opinion suggests question "ambiguous The lead that this suggests It looking the answer that the court was for.” Ante at 627-628. however, neglects note, question employed only allowing jurors after defense counsel criticized the trial court for elaborate on their entire venire. opinions regarding guilt defendant’s before the recognize Although at we that defense counsel was dire, tempting motion could be sequestered counsel would sequestered to obtain voir we believe defense counsel’s interpreted containing requests. as alternative If forthcoming, alternatively, voir dire were not defense prefer asking potential that the trial court refrain from expound opinions their in this on case. opinion "follow-up questions that The lead asserts that were more probing exposure into the source and nature of the of each were 626, essentially precluded.” Ante at n 11. We believe that such court, rather, questions avoided along precluded by were not the trial but were counsel, pursue inquiry inquiry defense who declined to further these lines once it had been determined that such proposed questionnaire. her view is would not take the form of Our reflecting motions her belief that consistent with defense counsel’s such questions only panel. served to taint the See ns 9. occasion, requested follow-up On one defense counsel that a question juror. be submitted to a The trial court allowed counsel to occasions, question directly juror. to the several other submit defense counsel succeeded On interjecting into the desired voir dire. See n 8. *58 445 Mich Dissenting Opinion by Brickley, proposed questionnaire defendant’s constituted an abuse of discretion.
c We would also conclude that the trial court did allowing juror not in err self-assessment of bias to go unchallenged. areWe not unmindful of the problems underlying juror self-assessment. In a study highly publicized seventy- of a case, murder percent persons surveyed, five of the whose aware- supply ness of the case enabled them to details, likely were no less to feel could hear the open persons evidence with an mind than those supply profession who could not details.30 This impartiality, however, is undermined to some ex- persons tent the revelation that those remem- bering likely align details were more with the prosecution, although they likely it believed less that the defendant could receive a fair trial. acknowledge juror
While we self-assessment may problematic of bias be and caution the trial guard against self-serving courts to such or unwit- ting impartiality, declarations that, we note appeared cognizant the trial court to be problems juror inherent self-assessment exchange of bias. This is evidenced between the court and Shirlen. Juror Shirlen admit- having opinion, ted formed an but stated she could opinion give set aside such an the defendant guarantees. Upon all his constitutional further questioning by judge, the trial however, she admit- being morally opposed killing, ted that, and felt given position high her in a Christian school for twenty-five years, positive” the last she was “not 30Carroll, press research, Free and fair trial: The role of behavioral (1986). 10 Law & Human Behavior 187 *59 679 Opinion by Dissenting Brickley, J. give fair trial.”31 defendant "a could the that she While point that the defendant’s this illustrates guard against carefully judges inaccurate must juror self-assessment, that in the it also establishes precau- employed such bar, at the trial case tions.32 argu- reject
Accordingly, defendant’s we would allowing juror in the trial court erred ment that unchallenged go of bias self-assessment in fact the trial court was conclude that would problems cognizant the under- of and attentive to juror lying self-assessment of bias.
D not that the trial court did We would also hold denying defendant’s the abuse its discretion sequestered request see little voir dire. We argument the answers in defendant’s merit during prospective jurors given by voir dire served prejudi- venire. No information to taint entire during voir dire. surfaced cial to the defendant 31 responded affirmatively juror Hayden the trial Note also that give question all his judge’s be able to the defendant that she would upon questioning by guarantees, the trial further constitutional but being impartial, judge, time indicated that she would have a hard daughter daughter age had a the same as defendant’s because she who had found the by admission, body. Following was excused she judge. the trial problems that the inherent self-assess We would caution may can be of the facts in the case. This ment illustrated publicity While a be a function pretrial potential stemming by contrasting the bias from prejudice. stemming from racial or ethnic with the bias admitting person may that his views feel little hesitation in pretrial publicity, person may by such a have been colored become much more reticent about extensive admitting deeply must be or to a held racial context, judges judiciously prejudice. trial In this ethnic say skeptical impartiality. This is not to of such self-declarations pretrial publicity only potential stemming merits bias from that cursory that, attention; pretrial publicity only to note in the it is context, juror’s unwitting its concern on a the trial court must focus biases, presenting potential of cases other In the context bias. juror’s deliberately to uncover the hidden trial court must seek also bias. Mich Dissenting Opinion Brickley,
Only forty-three prospective jurors nine of the having opinion admitted an about the case. Mere one-quarter prospec- admissions less than opinion tive had formed an fair, more, could not be without cannot serve to jury pool. acknowledge taint We sequestered high publicity absence of a cases voir dire in poses tainting a risk of risk, the venire. This greatest pretrial publicity however, when the prejudicial has included more trial court confronted with information.33 A
prejudicial pretrial publicity must be sensitive to the taint of engendered by responses during the venire voir *60 sequestered It dire. is in this situation that voir dire should be considered.
E Finally, reject Appeals we would the Court of conclusion that court’s refusal to conduct the cumulative effect of the trial sequestered dire, voir its prohibition meaningful participation by of defense probing questions counsel, and its failure to ask regarding exposure deny media served to defen- right dant his to a fair trial. We believe that sequestered neither the refusal to conduct voir proposed dire nor the failure to submit defendant’s questionnaire prospective to constitutes er- requiring Additionally, ror reversal. we believe questions by that asked the trial court were sufficiently probative; appellate attempt counsel’s premise leading superficial to error on the questions propounded nature of the fails to con- questions offspring sider that such defense counsel’s motion were the
regarding the conduct of paradigm prejudicial The classic information is the inadmissi case, however, ble presented confession. In this we are not with pretrial publication of an inadmissible confession. v Brickley, by Dissenting Opinion not conclude that we would Finally, voir dire. the trial court by of these actions combination reversal. requiring error establishes
CONCLUSION the trial we would conclude Accordingly, defen- denying did not abuse its discretion court individualized sequestered, motions for a dant’s of a questionnaire dire and for submission voir questions We believe prospective jurors. media jurors’ the trial assess chosen consid- probative when exposure sufficiently were defense counsel’s motion ered in the context of requiring her belief expressing the reasons under- expound on prospective juror to taint only held served any opinions lying the trial would conclude that panel. Lastly, we allowing juror not err in self-assessment court did rather, in fact go unchallenged, but of bias to Accordingly, bias. we cognizant of such Appeals reverse the decision of the Court would previ- of the issues and remand for consideration briefed, that Court. but not addressed ously yet *61 Riley JJ., Griffin, with concurred Brickley,