Twitter Taint: Content Questioning Voir Dire in the Modern Age of Social-Media-Addled Venires

Category: Print Issues

Twitter Taint: Content Questioning Voir Dire in the Modern Age of Social-Media-Addled Venires

Jacob A. Kistler

Volume 31

, Issue 2

31 GEO. MASON L. REV. 659 (2024)

Introduction

Boom! Chaos. In the middle of the Boston Marathon, a bomb has gone off. “Blood and body parts [are] everywhere . . . as if ‘people had just been dropped like puzzle pieces onto the sidewalk.’”¹ A five-year-old boy is crying “mommy, mommy, mommy.”² Every moment of this tragedy is spread nationwide, worldwide,³ and the Boston Bomber is born. Of course, Dzhokhar Tsarnaev did not work alone; in fact, his entire mitigation defense was that his brother, the violent mastermind of the operation, coaxed and coerced him into the terrorist attack.⁴ And yet Dzhokhar Tsarnaev is the Boston Bomber,⁵ a title bestowed upon him from the zeitgeist of modern media. But even the Boston Bomber, for as many deaths on his hands, deserves a fair trial and an impartial jury.

We live in a media-saturated landscape. In 2016, fifty-six percent of U.S. adults used their smartphones or tablets to retrieve their news, and they were more likely to use social media than any other individual traditional news source like newspapers or television.⁶ In 2012, the George Zimmerman case received more coverage than the presidential election, resulting in social media outrage that likely pressured the prosecution to charge Zimmerman.⁷ By 2018, ninety percent of American adults were online and likely to retrieve their news from the world wide web.⁸ Thirty-six percent of American young adults retrieved their news primarily from social media the same year.⁹ With numbers rising year-to-year, the number of Americans using online social media to retrieve news will likely only continue to grow.¹⁰

So, can spotlighted criminal defendants plead their cases before impartial juries in a media landscape like this? The problem here discussed—that of pretrial publicity—is hardly new.¹¹ The Court in Patterson v. Colorado¹² discussed this very issue over a century ago.¹³ But most recently, the Supreme Court had to confront this issue with the Boston Bomber.¹⁴ Could the Boston Bomber expect a fair and impartial jury in Boston? What about in Washington, D.C., New York, or even Alaska?¹⁵

In 1991, the Supreme Court toyed with the idea that criminal defendants could question specific venirepersons during voir dire on the content of the pretrial publicity they had consumed.¹⁶ At least on the facts of the case, the Constitution did not mandate “content questioning” for a fair trial.¹⁷ The Court left the door open that in some cases, however, the Constitution may mandate content questioning during voir dire.¹⁸

Although the Supreme Court did not explain when the Constitution might mandate content questioning, the Court’s jurisprudence elsewhere reveals when that might be. This Comment argues defendants have the right to individually question venirepersons on the pretrial publicity they have personally consumed. This right is triggered when (1) the pretrial publicity has become nationwide such that the potential of a change of venue motion is devalued, (2) that publicity contains emotional facts that prejudice venires against the defendant to such a level that (3) the published content would be “blatantly prejudicial” were it adduced at trial. Part I of this Comment discusses the history of the constitutional right to an impartial jury. It further discusses the Court’s history with pretrial publicity and its various remedies. Part II continues with scholars’ analyses of Skilling v. United States,¹⁹ Mu’Min v. Virginia,²⁰ and the Court’s current jurisprudence on pretrial remedies, focusing on the various criticisms thereof. This Comment further discusses scholars’ proposed solutions that, while worthwhile, ultimately treat pretrial publicity remedies as subservient to one another. Part III concludes with a solution that instead considers these pretrial publicity remedies individually, each designed to cure a defendant’s specific publicity. Here, content questioning is triggered as a last resort. This Comment proposes a solution that will protect the rights of criminal defendants from an ever-expanding, pernicious, and unrestrained social media.

I. Trial by an Impartial Jury

The jury trial system grew slowly in high Medieval England, starting first as a system of frithborh, or “peace-pledge.”²¹ “[T]welve lawful men of the neighborhood” would bear witness and accuse the defendant before the local bishop “to declare the truth thereof according to their conscience.”²² These lawful men bound themselves to an oath and cloaked themselves in the titles of jurata patriae or juratores.²³ In theory, the idea was that only those men closest to the accused could truly know his character, but in practice, juratores often determined guilt off “vague and indefinite” “public rumors.”²⁴ The practice eventually morphed into a system whereby an accused could seek a new jury—twelve individuals chosen by the justices—separate from his accusers.²⁵

Roughly half a millennium later, the United States ratified its Bill of Rights, in part thanks to George Mason.²⁶ The Sixth Amendment of the Bill of Rights guarantees, among other things, a defendant’s right to (1) “a speedy and public trial”; (2) a trial “by an impartial jury”; and (3) a trial in “the State and district wherein the crime shall have been committed.”²⁷ To Mason, the impartial jury was “essential to freedom” whereas the “partial . . . jur[y] [is] essential[ ] to despotism.”²⁸

A. The Impartial Jury and Who Is Entitled to It

Thanks to Mason, the Sixth Amendment entitles criminal defendants to impartial juries.²⁹ The federal government protects these impartial jury determinations, mandating that parties may not impeach jury decisions absent outside influence.³⁰ But once the jury makes its determination, the Federal Rules of Evidence restrict even criminal defendants from seeking to set aside jurors’ findings.³¹

Moreover, the Sixth Amendment’s protections sometimes war with other constitutional rights. The First Amendment declares that “Congress shall make no law . . . abridging the freedom of speech, or of the press,” and through the Fourteenth Amendment, states may not abridge these rights either.³² In Nebraska Press Ass’n v. Stuart,³³ the Supreme Court held that barriers to the free press are strictly scrutinized even when courts attempt to protect criminal defendants from the press publishing prejudicial information.³⁴ Other common-law countries take a different view; English judges, for example, maintain strong control over the press to protect a criminal defendant’s right to a fair and impartial jury.³⁵ While, in theory, not impossible to overcome in the United States, the press’s right to cover a trial weighs heavily, allowing the press to publish prejudicial information.³⁶

Freedom of the press, however, does not mean the defendant is left to weather all prejudicial publications. In Irvin v. Dowd,³⁷ the criminal defendant was subjected to heavy pretrial publicity.³⁸ In and around a small community in Indiana, six gruesome murders occurred; extensive pretrial publicity abounded in the community and the surrounding communities.³⁹ Convicting—and executing, presumably—the defendant had become the town’s “cause célèbre” once the police fingered him as the culprit.⁴⁰ Adverse publicity waterfalled from the news as media sources called the defendant a “remorseless” killer “without conscience”; covered Irvin’s former run-ins with the law such as arson, burglary, dealings in juvenile court, and court martial; and published his lie detector test, plea bargain, and confession.⁴¹ The press event went so far as to attack his court-appointed attorney for daring to defend him.⁴² The Court vacated Irvin’s conviction, seeing that with all the publicity—including sixty-two percent of the original venire having already formed an opinion on the case—Irvin had not been afforded a fair trial.⁴³

The key phrasing there is “having already formed an opinion on the case”; a venireperson is not biased just because he or she has already heard about the case beforehand.⁴⁴ In Patton v. Yount,⁴⁵ for example, more than ninety-eight percent of the venire heard about the case before voir dire, yet the Supreme Court still upheld the defendant’s conviction.⁴⁶ Just because jurors “remembered the case” after the four years since the original trial is irrelevant; “[t]he relevant question,” instead, is “whether the jurors . . . had such fixed opinions that they could not judge impartially the guilt of the defendant.”⁴⁷ Pretrial publicity’s danger is not that it informs jurors about a case before trial but rather biases jurors against the defendant and solidifies juror opinions before trial evidence is adduced.⁴⁸ But, within that, trial judges will allow venirepersons to self-assess their own biases as to whether the venirepersons’ opinions are fixed, and judges often believe these self-assessments with little to go on but the venireperson’s word.⁴⁹

B. Pretrial Publicity and Its Remedies

The Supreme Court recognizes the pretrial publicity prejudice problem but still hesitates to weigh the rights of criminal defendants against freedom of the press.⁵⁰ Perhaps the Court weighs rights this way because it has other remedies for curing pretrial publicity. The three primary remedies to cure extensive pretrial publicity are voir dire and the challenges that come with it, changes of venue, and continuances.⁵¹

1. Voir Dire, Let the Venire Do the Talking

“Voir dire” comes from the French, meaning “to speak the truth,” and is a practice by which “‘a judge or lawyer’ examines [venirepersons] to see if the ‘prospect is qualified and suitable to serve on a jury.’”⁵² Each jurisdiction handles voir dire differently.⁵³ Some require judges to conduct the examination,⁵⁴ some allow both the judge and counsel to conduct voir dire,⁵⁵ and others leave it to the judge’s discretion.⁵⁶ To expedite this process, some jurisdictions require venirepersons to fill out questionnaires before a more searching voir dire.⁵⁷ Regardless of who conducts the voir dire, the Supreme Court affords vast discretion to trial judges over how voir dire is conducted.⁵⁸

“[W]hile impaneling a jury the trial court has a serious duty to determine the question of actual bias.”⁵⁹ Voir dire serves a vital purpose of excusing jurors who would otherwise be too biased for the government to provide litigants their right to a fair trial.⁶⁰ Thus, if a trial court’s methods of voir dire are insufficient to uncover any bias hiding in the venire, the trial court has abused its discretion.⁶¹ Yet the Supreme Court also affords wide deference to trial judges’ decisions in believing self-assessments because trial judges are present to observe the venirepersons’ demeanors.⁶²

Thanks to voir dire, counsel has two powers to potentially strike venirepersons from the jury. The first power is striking venirepersons for cause when a venireperson displays some legally cognized deficiency such as refusal or inability to be impartial, relation to the defendant, or even harboring “conscientious opinions” on the death penalty.⁶³ Colorado, for example, sustains challenges for cause against venirepersons with “a state of mind . . . manifesting a bias for or against the defendant, or for or against the prosecution, or the acknowledgement of a previously formed or expressed opinion regarding the guilt or innocence of the defendant.”⁶⁴

Second, courts grant defendants the power to strike venirepersons from the jury based not on a venireperson’s legal deficiency but on the gut feelings of the defendant.⁶⁵ Although not required by the Constitution, the peremptory challenge “is ‘one of the most important of the rights secured to the accused’” and that “‘[t]he denial or impairment of the right is reversible error without a showing of prejudice.’”⁶⁶ Moreover, a trial court’s failure to pursue a searching voir dire denies litigants the chance to exercise this right to peremptory challenges fruitfully.⁶⁷

But do the requirements of voir dire heighten in cases with heavy pretrial publicity? The Supreme Court had the opportunity to consider this in Mu’Min v. Virginia. Mu’Min, an inmate, stood accused of robbing and murdering a shopkeeper after escaping from a prison work detail.⁶⁸ Before trial, Mu’Min introduced forty-seven articles that covered his case; these articles mentioned facts such as Mu’Min’s criminal record, that the state rejected his petition for parole, and that Mu’Min confessed to the crime.⁶⁹ The trial judge did not allow counsel to question the venirepersons on the content of the pretrial publicity they had consumed and refused to strike venirepersons just for hearing about the case. ⁷⁰ Thus, eight of the twelve jurors (sixty-seven percent) had previously heard of the case but had allegedly not formed an opinion.⁷¹ When the case reached the Supreme Court, the Court worried that questions about the content of pretrial publicity the venirepersons had consumed—specific content questioning—would result in venirepersons feeling as though “they themselves were on trial.”⁷² Weighing interests, the Court said the Constitution would require the trial judge to ask content questions only if “the trial court’s failure to” do so would “render the defendant’s trial fundamentally unfair.”⁷³ On these facts, Mu’Min’s trial was not fundamentally unfair, in part because the content of the publicity was not sufficiently severe.⁷⁴

The content of the pretrial publicity, however, can make a trial fundamentally unfair. For example, the Supreme Court held that publicity containing a defendant’s forced confession rendered a trial fundamentally unfair in Rideau v. Louisiana.⁷⁵ There, a small-town police force filmed then broadcasted themselves “interview[ing]” the defendant, Rideau, and getting him to confess to kidnapping three bank tellers and to murdering one of them.⁷⁶ Three venirepersons heard the televised confession, but the trial court refused to strike them for cause and sat them on the jury.⁷⁷ In “[t]he kangaroo court proceedings” resulting from the televised confession, jurors were exposed to the confession “not once but three times” before the trial had begun.⁷⁸ Under this analysis, Louisiana had denied Rideau a fair trial and impartial jury, and Rideau was allowed to change venues.⁷⁹

2. Changes of Venue and Continuances

Some defendants cannot fully cure their pretrial publicity with basic voir dire. The district charged with trying a defendant is often the district exposed to the most publicity.⁸⁰ Sometimes, then, to seek an impartial jury, defendants may waive one of their Sixth Amendment rights—that of being tried in the district in which the crime is committed—and remove the case to another venue.⁸¹ Similarly, defendants may waive a different Sixth Amendment right, the speedy trial, and request a continuance.⁸²

Often, crimes are inherently personal to the district where the crime occurred. In United States v. McVeigh,⁸³ for example, the defendant bombed Oklahoma’s Alfred P. Murrah federal building, killing and injuring the people inside.⁸⁴ Publicity was high in Oklahoma; the media humanized the victims “in sharp contrast with the prevalent portrayals of the defendant[ ]” and “[t]elevision stations” even “conducted their own investigations.”⁸⁵ Outside the Oklahoma courthouse (the one where the trial was being held, not the one McVeigh bombed), someone was selling T-shirts saying:

Those Lost Will Never

Leave Our Hearts

Or be Forgotten

April 19, 1995

United States Court

Western District of Oklahoma.⁸⁶

With the severe negative publicity in Oklahoma, the trial court granted a change of venue to the neighboring district of Colorado.⁸⁷

Fifteen years later, the Supreme Court clarified its jurisprudence over changes of venue in Skilling v. United States.⁸⁸ Skilling—a former Enron executive—was charged with securities and wire fraud after Enron folded.⁸⁹ The district in which Skilling was tried was the Southern District of Texas, where Enron’s fall caused the most economic damage and job loss.⁹⁰ One-third of the original trial’s venirepersons revealed in voir dire questionnaires that they had lost money or jobs due to Enron’s collapse, and two-thirds expressed “a potential predisposition to convict.”⁹¹ The Court distilled three factors for district courts to consider on pretrial change of venue motions: (1) size of the venire; (2) prejudicial nature of the publicity; and (3) duration of the publicity.⁹²

Under this test and compared to Rideau, Skilling’s trial was not particularly unfair nor was his jury partial, so the trial court did not err in denying Skilling’s motion for a change of venue.⁹³ First, Houston’s potential venire is much larger—thirty times—than the small town in Rideau, so the Court considered the publicity less concentrated and thus less damaging.⁹⁴ Second, although the media was “not kind” to Skilling, his publicity mostly contained neutral or unemotional facts, and the media did not disseminate “blatantly prejudicial information” such as a “staged” confession or a “smoking-gun” as was the case in Rideau.⁹⁵ The Court did not, however, define what “blatantly prejudicial information” meant nor what “blatantly prejudicial information” includes and excludes. Finally, Skilling’s arrest and conviction spanned four years, letting the “decibel level” of the publicity—and thus the fervor—wear down.⁹⁶

The third Skilling factor considers another remedy for pretrial publicity: the continuance.⁹⁷ The trial court had already granted Skilling one continuance, curing the negative publicity somewhat of its bite.⁹⁸ In matters of pretrial publicity, over time, the decibels of an individual case’s coverage are likely to decrease and sap the prejudice from the publicity.⁹⁹

3. Pretrial Publicity Outside of the Venue

Most pretrial publicity likely comes from the surrounding venue. But with social media, even local crimes can balloon into questions of national intrigue.¹⁰⁰ Under Skilling’s lens, it would seem as though no case could truly have national publicity so prejudicial as to create an issue of unfairness.¹⁰¹ After all, if the size of the potential venire dilutes publicity considerably enough to bar a defendant from a change of venue, nationwide publicity will never be sufficiently concentrated to be unfair.

The Court of Appeals for the First Circuit considered this issue among others in United States v. Tsarnaev¹⁰² (“Tsarnaev I”).¹⁰³ Tsarnaev sought a change of venue from Boston’s District Court of Massachusetts, but the trial court noted that the nearby venues in New York and Washington, D.C., had been just as exposed to publicity as Boston had.¹⁰⁴ Sixty-eight percent of Massachusetts’s original venire had already formed an opinion as to Tsarnaev’s guilt.¹⁰⁵ But, with the post-bombing hashtag that Boston rallied under, #BostonStrong, the shelter-in-place order the Massachusetts government sent out while it pursued Tsarnaev, and the continuing fervor of media attention, the Court of Appeals for the First Circuit remanded Tsarnaev’s case, mandating content questioning of the venirepersons.¹⁰⁶ The government contended otherwise, relying on Mu’Min and believing that questioning the jury would only bring out prejudice and spread it from one venireperson to the other.¹⁰⁷ The court instead first held that the trial court’s reliance on Mu’Min came from a misunderstanding of the Supreme Court’s constitutional ability to impose standards on state trial courts and, thus, their voir dire procedures. The court then held that

[f]ar from “reinforc[ing] potentially prejudicial information,” content-specific questioning would have brought such material front and center. The parties and the judge could then assess the publicity’s effect on the [venirepersons’] ability to reach a fair verdict, thus putting the judge in a position to take any necessary measures to protect Dzhokhar’s fair-trial rights.¹⁰⁸

The Supreme Court, however, reversed, stating the Court of Appeals for the First Circuit had no right to “supplant” the discretion of a lower court absent some “manifestly erroneous” abuse of that discretion.¹⁰⁹ Indeed, the Supreme Court focused less on the merits of the case and instead on a federal court of appeal’s ability to force procedural standards onto a district court.¹¹⁰ Still, to the Supreme Court, “Dzhokhar Tsarnaev committed heinous crimes. The Sixth Amendment nonetheless guaranteed him a fair trial before an impartial jury. He received one.”¹¹¹

II. Criticisms of the Supreme Court’s Standards

Scholars heavily criticize the Supreme Court’s jurisprudence on pretrial publicity.¹¹² The psychological sciences assert that the purely damaging effect of any media people consume severely hampers their ability to be impartial during trial.¹¹³ Legal scholars treat this jurisprudence no better, often criticizing the Court’s standards and how it applies facts to these standards.¹¹⁴

A. Psychologists Disagree with the Supreme Court’s Jurisprudence

Human beings, generally, are not built to be impartial and not built to change their minds; jurors are thus likely to harbor biases gained from pretrial publicity.¹¹⁵ The more negative and emotional the pretrial publicity, the more prejudiced jurors will be and the longer their opinions will remain unchanged or unchangeable.¹¹⁶

People cannot force themselves to be unbiased.¹¹⁷ The human brain does not work the way the Supreme Court assumes it does.¹¹⁸ Time, rather than healing opinions created by pretrial publicity, only cements opinions in people’s minds.¹¹⁹ Jurors will often ignore newer testimony or evidence that contradicts older testimony or evidence, and this extends to pretrial publicity as news sources are the first “evidence” that jurors will consume.¹²⁰ Jurors will even mistake information they learned from pretrial publicity as evidence brought up at trial in an effect known as “source memory error[].”¹²¹ And through the internet, jurors may easily access publicity again and again well after initial publication in stark contrast to traditional news sources.¹²² Even more neutral publicity tends to increase convictions regardless of how extensively defendants use voir dire.¹²³

But the more emotional the facts, the more dangerous the facts are to maintaining impartial juries.¹²⁴ Emotional facts stay lodged in a juror’s brain longer than neutral facts.¹²⁵ Jurors exposed to negative pretrial publicity are “significantly more likely” to view neutral evidence at trial in favor of the prosecution.¹²⁶

Even news about other trials can prejudice a juror against a defendant. Major social movements like #MeToo may well have attributed to higher conviction rates and negative feelings towards defendants accused of sexual assault.¹²⁷ On the other side, jurors who are exposed to “rape myths” on social media—such as the idea that a promiscuous woman is “asking for it”—are more likely to find a defendant not guilty in a sexual assault case.¹²⁸ A victim’s sexual history is often inadmissible as evidence at trial, yet jurors may well unwittingly leak this inadmissible evidence into their decisions and deliberations.¹²⁹

Moreover, jurors cloak their decisions—whether they realize it or not—in legal language, justifying their convictions and acquittals with standards like “beyond a reasonable doubt” when the true decision was the pretrial publicity-born bias.¹³⁰ Similarly, implicit biases against other classes, like race, may worm their way into jurors’ minds, unbidden and unknown, despite the jurors having honestly self-assessed during voir dire that they are completely unbiased.¹³¹

A major point of some scholars’ ire centralizes on the Supreme Court’s idea that a venireperson can accurately self-assess for impartiality and that trial judges can tell if a venireperson is able to remain impartial through this self-assessment.¹³² The Court is unlikely to change direction on its self-assessment jurisprudence,¹³³ so scholars theorize that lowering a trial’s oppressive, formal atmosphere would allow venirepersons to feel safer and more comfortable to more accurately self-assess.¹³⁴

B. Legal Scholars Propose Media Control and Criticize Voir Dire

Other scholars have proposed, contrary to Supreme Court jurisprudence, alternative solutions to this pretrial publicity problem. Some say the United States should address the near-free rein it has given news media in covering trials.¹³⁵ The United States should look to the United Kingdom, where judges have tighter control over the news media during trials.¹³⁶ After all, the Court admits that “reversals are but palliatives; the cure [to pretrial publicity] lies in those remedial measures that will prevent the prejudice at its inception.”¹³⁷ Others call upon the Court to craft a standard from cases like Sheppard v. Maxwell,¹³⁸ Irvin, and Rideau for when trial judges should know to control media attention.¹³⁹

This solution misses some of the bigger picture. Not only is the Supreme Court already reluctant to charge the news media with contempt,¹⁴⁰ but social media complicates the problem further. Is a court expected to place a gag order on all news stations and all social media pundits? Should courts send out charges of contempt for every tweet, YouTube video, Facebook post, or TikTok? This seems an unlikely solution. Although, with ever-improving algorithms, perhaps a solution exists to have social media companies like Twitter carry out court orders.¹⁴¹

But even this solution is imperfect. Take the Dzhokhar Tsarnaev case for example. Much of the media attention arose during the initial bombings.¹⁴² Should the trial judge—who had not yet been chosen—have stopped the #BostonStrong movement, which was designed to bring together a community ravaged by a massive terror attack?¹⁴³ Moreover, when Tsarnaev was on the run, Boston was under protective lockdown.¹⁴⁴ A defendant’s right to a fair trial should not trump the government’s need to protect everyone else from dangerous, on-the-run terrorists.¹⁴⁵

Impartial jurors can be found through extant methods, like voir dire, even if they are methods not yet perfected or sufficiently protective. And courts prefer curing pretrial publicity through voir dire anyway.¹⁴⁶ Scholars, however, lampoon how courts and counsel conduct voir dire.¹⁴⁷ As more and more of the venire is dismissed for admitting to a lack of impartiality, the remaining venirepersons tend to clam up, refusing to admit the same.¹⁴⁸ Jurors may also be downright dishonest. They may take on hero complexes as “stealth-juror[s]” who “audition[ ]” to be the one who convicts a defendant by lying to the court, trying everything to seat themselves on the jury.¹⁴⁹

Some scholars even blame counsel for these partial juries, focusing on the lazy and lethargic way counsel conducts voir dire.¹⁵⁰ “The jury selection process is such a crucial step in ensuring a fair jury trial, yet it is often one of the poorest utilized segments. This is attributed to the adequacy of attorney performance, the reluctant disappointment of federal judges, and the distaste of the process by [venirepersons].”¹⁵¹ Additionally, some charge that counsels’ peremptory challenges create partial juries.¹⁵² With peremptory challenges and the ease of escaping Batson v. Kentucky,¹⁵³ counsels whittle venires and eventually juries down to nubs of bias that, in theory, favor their side.¹⁵⁴ Still, if the solution in high-publicity cases is just telling lawyers, “do better at your jobs,” that is not much of a solution. Frankly, a defendant’s rights should not rest on the immense skill of his or her counsel to conduct painfully long and searching voir dires to remove all questions of bias, especially when trial judges may limit the voir dire.

Some scholars propose improving the efficacy of voir dire through “Voir Google” or “Facebooking the Jury” to weed out venirepersons who are inaccurate (knowingly or otherwise) in their answers and vows of impartiality during voir dire.¹⁵⁵ Voir Google is essentially using social media to see what sort of biases venirepersons have, thus letting counsel strike them from the jury.¹⁵⁶ But the issue with this solution is twofold. First, not all courts allow counsel to Voir Google the venire.¹⁵⁷ The Supreme Court is loath to force standards on trial courts for jury selection as it is—especially to state courts—so it is unlikely to hold that the Constitution requires Voir Google any time soon.¹⁵⁸ Second, venirepersons may find serving on a jury even more onerous and distasteful knowing their online presence (e.g., Facebook posts, tweets, or comments on news stories) is just a transcript for counsel to judge them and kick them from a jury.¹⁵⁹

C. Scholars’ Thoughts on Content Questioning

The final potential remedy for curing pretrial publicity is content questioning. Out of the gate, the Supreme Court faced heavy criticism for its ruling in Mu’Min v. Virginia.¹⁶⁰ “The Court in Mu’Min chose judicial economy over fairness.”¹⁶¹ Scholars said that without content questioning, the defendant has no basis for using his or her peremptory challenges.¹⁶² To these scholars, however, hope was stored in Mu’Min’s language: content questioning may well be constitutionally required if the defendant’s trial would otherwise be “fundamentally unfair.”¹⁶³

But when is a trial “fundamentally unfair”? Professor John Walton believes this standard is triggered when a defendant’s opportunity for a change of venue is destroyed by nationwide publicity.¹⁶⁴ If a case were to reach national infamy, the trial court should individually question venirepersons on the content of the pretrial publicity they consumed.¹⁶⁵ Defendants could use this content questioning to determine, in a “totality of [the] circumstances” test, if a venue change or continuance is needed and, if not, seat the jurors from those remaining unbiased venirepersons.¹⁶⁶ Judges, not a venireperson, would decide if a venireperson were too partial.¹⁶⁷ The alternative would be courts dismissing any case with such nationwide pretrial publicity, and if the defendant was guilty, he or she could evade justice altogether.¹⁶⁸

The two major problems with articles contemporary to Mu’Min boil down to one central issue: today’s landscape has changed from that of the nineties. First, these articles could not have anticipated that the Supreme Court would clarify its venue change and thus pretrial publicity jurisprudence in Skilling, granting an insight into how the Court views pretrial publicity remedies. Second, these articles could hardly have guessed how online media— specifically social media—would explode the potential for pretrial publicity.¹⁶⁹

When the Court in Skilling created a test for change of venue, it finally gave trial courts standards.¹⁷⁰ Not that the Skilling decision was without its detractors.¹⁷¹ “The Supreme Court bases its test on facts from cases with extremely outdated media technology . . . focus[ing] on cases from the 1960s, when only a few television channels and newspapers were available in most communities.”¹⁷² After all, social media—and the population of American adults who use it to retrieve their news—has grown since the early to late nineties.¹⁷³ The power of adverse pretrial publicity is not just in the hands of news media who, in theory, have strict standards of journalistic integrity to avoid poisoning venires.¹⁷⁴ The nationwide pretrial publicity issues that Professor Walton discussed have increased: the extent of the publicity for McVeigh’s bombing pales in comparison to Tsarnaev’s bombing just twenty years later.¹⁷⁵ And yet, McVeigh killed significantly more people.¹⁷⁶

III. Content Questioning: The Ultimate Remedy for Pretrial Publicity

Whereas before, the Supreme Court was hesitant to lay too heavy a hand on the press, now the proliferation of social media would render such a solution potentially moot. Thus, while the remedies crafted in the 1960s no longer maintain the same strength in curing pretrial publicity,¹⁷⁷ the ultimate concern from then remains: courts cannot easily control the media so they must control the effects thereof.

The focus on curing pretrial publicity must adapt to the new reach of modern media not present in the 1960s. Pretrial publicity remedies should consider this reach and its content rather than focus on the source.¹⁷⁸ Essentially, courts should focus on “blatantly prejudicial” content as considered in Skilling.¹⁷⁹ Content questioning may well serve how trial courts determine when a change of venue is, in fact, needed.¹⁸⁰ But if the Supreme Court was unwilling to force content questioning by itself in Mu’Min, it is unlikely to force content questioning to serve changes of venue, which also requires “blatantly prejudicial” publicity.¹⁸¹ Regardless, the Court reveals that it takes a more holistic approach to pretrial publicity cures. The third Skilling change of venue factor contemplates that a sufficient time between the publishing of prejudicial information and trial will cure the publicity of its bite.¹⁸² What is the third Skilling factor then but an express consideration of a continuance and how—when a continuance may be untenable—a motion to change venue is required?¹⁸³ These remedies do not serve one another; they work for whichever is most necessary for the defendant’s rights and publicity.

Thus, the Supreme Court considers the cure for any defendant’s pretrial publicity by focusing on three questions. First, how prolific and concentrated is the publicity?¹⁸⁴ Second, how prejudicial is the publicity by revealing inadmissible, blatantly prejudicial information?¹⁸⁵ Third, considering the first two elements, what is the appropriate remedy for the specific pretrial publicity’s negative effect?¹⁸⁶

Thus, determining when content questioning should be triggered requires courts to look at the general publicity first: both its reach and its content. The Constitution requires content questioning when:

(1) the publicity is nationwide so much so that it devalues a change of venue;¹⁸⁷

(2) the content of the publicity is prejudicial towards the defendant;¹⁸⁸ and

(3) the publicity itself reveals information that would be otherwise inadmissible as evidence at trial and is so severe as to be “blatantly prejudicial.”¹⁸⁹

Once the need for content questioning is triggered, the trial court and counsel would then individually question venirepersons on the content of the publicity each venireperson has consumed.

After all, pretrial publicity is essentially an injury without remedy against the injurer. Defendants often cannot seek injunctive relief against news sources,¹⁹⁰ so the remedy lies not in the source of the pretrial publicity but in the audience. The cure to pretrial publicity “lies in those remedial measures that will prevent the prejudice” from infecting the jury.¹⁹¹

A. Content Questioning—When and How

The purpose and effect of a remedy cannot be known without a full understanding of the injury. So, to know when the remedy of content questioning is necessary, the trial court must understand the injury. And as not all pretrial publicity renders a trial fundamentally unfair,¹⁹² publicity alone is meaningless without an audience to consume it. While courts may not yet know the specific content of what individual venirepersons have consumed before content questioning, trial judges should still be aware of the general tone and concentration of the publicity.¹⁹³ Judges should be aware of the publicity just by their existence in the venue and awareness of local gossip and news stories.¹⁹⁴ Other than that, counsel and voir dire would supplement the judges’ knowledge. The first question courts must ask, however, is who, in general, has consumed the publicity in question.

1. When Everybody Knows Your Name

Changes of venue and continuances will not always be sufficient to cure the original venire of prejudice in the modern age of social media. As Tsarnaev I reveals, sometimes changes of venue just do not work as publicity becomes nationwide; Boston, New York, and Washington, D.C., were all prejudiced against Tsarnaev.¹⁹⁵ Similarly, continuances can only do so much to remedy emotional facts that stay lodged in jurors’ minds, and even the longest of continuances may not reasonably cure prejudice as publicity is now more than ever re-accessible.¹⁹⁶ So content questioning becomes the final remedy, albeit only alongside other triggers, in these situations as courts seek to seat a jury untainted by prejudicial pretrial publicity.

But trial courts may have some difficulty determining when publicity has become “nationwide.” In Tsarnaev I, publicity extended to nearby venues, but that does not automatically mean all venues were prejudiced.¹⁹⁷ Like Tsarnaev’s defense team, counsel could survey surrounding venues to see how widespread the publicity has become.¹⁹⁸ Similarly, counsel may also present the nearby and far away venues’ local articles detailing what publicity has reached said venues.¹⁹⁹

Nonlocal publicity will be more difficult to prove on social and online media. Although potentially localized, online sources are not always local the way a city newspaper might be. Even if an online post or article is local, the viewers may well span the country or the globe. To prove the reach of the publicity, counsel may present both nonlocal sources and nonlocal social media interactions of any source. For example, a post that says, “We at the University of Montana stand with the victims of the Las Vegas shooting” indicates a Nevada crime has reached to at least Montana. Or nationwide publicity could well be assumed given the traction individual online posts or articles receive. For example, when an article or post receives fifty thousand interactions, a trial court may safely assume that not all fifty thousand of those interactions are from the local venue. And if that fifty thousand likely includes nonlocal interactions, so would five hundred thousand, five million, and so on to whatever number of interactions could be considered per se nationwide. While some of these sources or interactions may be bots or otherwise artificial, courts can still presume nationwide publicity after enough instances of nonlocal sources. The more evidence counsel finds of nonlocal sources engaging with the story in some way, the more likely publicity has become nationwide.

The first requirement for content questioning must be triggered in these circumstances. After all, with publicity this extensive, a change of venue only displaces the defendant into another publicity-addled venire, albeit potentially one with less personal connection to the case.²⁰⁰ An alternative would be to require trial courts to find a venue without such substantial pretrial publicity. For example, would Tsarnaev have had a fair trial in the District for the Northern Mariana Islands or District of Guam? Potentially, but as one of the Supreme Court’s fears for content questioning is wasting a court’s time,²⁰¹ querying every other potential venue seems less expeditious than just allowing content questioning of individual venirepersons. Thus, when a change of venue becomes pointless, a fair trial requires courts to seek an alternative remedy. Such publicity would be fundamentally unfair because the defendant has no remaining remedies to cure the nationwide pretrial publicity other than content questioning.

This is just the first step. Neutral publicity is not nearly as dangerous as emotional publicity and requires fewer procedural protections;²⁰² dry stories of corporate corruption are not emotional enough to warrant a change of venue.²⁰³ So, how do courts know when the publicity is emotional enough? Voir dire and the publicity itself reveal the driving emotion—and the extent of the emotion—behind the press’s narrative.

2. Everybody Knows Your Name and Hates You

Voir dire is the best guide for when trial courts should know that the general content the venire has consumed was blatantly prejudicial. Courts already use voir dire extensively to determine when venirepersons will be constitutionally incapable of fulfilling their duties as jurors, and counsel use it to determine when venirepersons will be unlikely to rule favorably towards their clients for peremptory challenges. Since the venire is, in theory, drawn from a cross-section of the community, venirepersons are a wealth of information about the biases of that community.

In Irvin, the trial court dismissed sixty-two percent of the venirepersons who had already formed opinions of guilt based on written questionnaires alone.²⁰⁴ The court in Sheppard did the same, revealing all but one venireperson having consumed some form of pretrial publicity.²⁰⁵ The venire reveals its own exposure absent clear misconduct like stealth jurors.²⁰⁶ A trial court can find which remedy is appropriate and which one is inappropriate from these venirepersons’ answers.

Moreover, how the venire reacts to pretrial publicity is something they reveal during voir dire. Take the community in Irvin, who were frank about their view of the defendant: a “remorseless” killer that “should be hanged.”²⁰⁷ When the trial court dismissed sixty-two percent of the venire for having formed similar opinions,²⁰⁸ the trial judge was on notice that something was inherently wrong with the venire itself thanks to the pretrial publicity. Compare this to Mu’Min, where much of the negative publicity was not directed at the defendant but at the lax prison security and where the venirepersons claimed their opinions were not fixed.²⁰⁹ When most of the original venire has formed an opinion as to the case and that opinion is negative towards the defendant, trial judges are on notice that the pretrial publicity is prejudicing the community and, thus, the jury against the defendant. After all, even those venirepersons who did not admit to wanting to see the victim strung up may well have been exposed to such publicity and harbor similar feelings whether they realize it or not.

Comparing Irvin to Skilling is informative. The original Skilling voir dire resulted in the court dismissing only fifty percent of the venirepersons, and the trial court did not remove many of those venirepersons for pre-existing opinions about Enron or Skilling but rather for hardship to the jurors.²¹⁰ Now, this Comment does not suggest a raw number calculation for when the venire is clearly prejudiced. The caselaw clearly supports, however, that as the number of venirepersons with unalterably closed minds increases towards two-thirds or more, the Supreme Court is more likely to hold that the pretrial publicity was unfairly prejudicial.²¹¹ Clearly, when prejudice is this widespread, the prejudicing effect of the publicity reaches far and has staying power. The Court in Skilling noted that such a concentration—using a rough ratio of the size of the venire to the amount of publicity—was an element for constitutionally requiring a change of venue.²¹² Concentration is a valid consideration when courts determine if content questioning is required as well. Trial courts can use the concentration of already-biased-to-allegedly-unbiased venirepersons, using voir dire to poll such metrics. When two-thirds of the venirepersons have formed a negative opinion, as was the case in Irvin²¹³ or an even larger proportion, as was in the case Sheppard,²¹⁴ trial courts should take that as a good sign that the publicity is severe, and the content of that publicity is damaging to the defendant’s fair trial rights.

The Supreme Court only partially challenged this analysis in United States v. Tsarnaev (“Tsarnaev II”).²¹⁵ Although the Court decided this case on a federal appellate procedural standard, it was also frank about how Dzhokhar Tsarnaev received a fair trial.²¹⁶ Yet Tsarnaev I is a case wherein sixty-eight percent of the original voir dire questionnaires revealed already formed opinions of guilt,²¹⁷ and only five percent of the original venire remained after individual voir dire.²¹⁸ Tsarnaev I does not defeat this analysis for two reasons. First, sixty percent of the sixty-eight percent who claimed to have formed an opinion also claimed they could set those opinions aside.²¹⁹ Second, the Court of Appeals for the First Circuit noted that “the nature of the publicity . . . was, as discussed, largely factual and the untrue stuff was no more inflammatory than the evidence presented at trial.”²²⁰ Thus, it is a necessary but not sufficient condition that the publicity be widespread and well known, prejudicing the venire against the defendant. Publicity is prejudicial when the venire is unwavering in its opinions and the content in the publicity is more inflammatory than the evidence admissible at trial.²²¹

3. Twitter Taint: The Poison of “Blatantly Prejudicial” Publicity

Articles are also evidence for determining how prejudicial the publicity is. Before any specific content questioning, defense can bring forward articles—and prosecution can rebut—showing what kind of content these articles contain. Do these articles contain blatantly prejudicial information such as a forced confession or otherwise inadmissible evidence?²²² Do these articles craft a grand narrative of bringing justice to an evil defendant?²²³ Or is the content merely “not kind”?²²⁴ Trial courts should consider both the venire’s answers and the actual publicity before having to query what exact publicity the individual venirepersons have consumed.

But what content is “blatantly prejudicial” rather than just “not kind”? Televised, forced confessions are a good way to start. The Court in Skilling looked at the forced confession in Rideau as an example of blatant prejudice.²²⁵ Thus, evidence is blatantly prejudicial if it would be eventually inadmissible at trial due to its how unfairly prejudicial its admission would be.²²⁶ After all,

the exposure of jurors to information of a character which the trial judge [would rule] so prejudicial it could not be directly offered as evidence . . . is almost certain to be as great when that evidence reached the jury through news accounts as when it is part of the prosecution’s evidence.²²⁷

This bears out in how psychologists view evidence as well. The “source memory error” defect in the human brain indicates that jurors exposed to evidence through publicity, though inadmissible trial, may bring such evidence with them into the jury deliberation room.²²⁸ What would be the point of creating entire standards of what evidence is and is not admissible at trial only to allow jurors to smuggle in that same evidence regardless? Considering how strictly protective courts are of jury deliberation post-verdict,²²⁹ content questioning voir dire before seating a jury may well be the only opportunity defendants have to root out whether this “evidence” has reached the jury.

This leaves one of the most important rules of evidence that courts consider on every witness, document, and deposition: Rule 403 (and its state equivalents). Trial courts understand that some evidence, although relevant, may “unfair[ly] prejudice . . . [or] mislead[ ] the jury.”²³⁰ This rule creates a workable standard for trial courts to adhere to. “[B]latantly prejudicial,” from Skilling, however, indicates something worse than merely “unfair[ly] prejudic[ial]” from the federal rules and state equivalents.²³¹ This standard of prejudice would guide trial courts into understanding the prejudicial nature of the publicity; if the publicity were evidence, would it survive the Rule 403 balancing test?²³² Would it even be close? If the trial judge would consider the evidence substantially unfair at trial, that same evidence is substantially unfair in the jurors’ minds during deliberations. And if the publicity is worse than just that, it is “blatantly prejudicial.”

This final question of blatantly prejudicial content considers whether the publicity contains “emotional” facts rather than legal or neutral facts. These emotional facts are inadmissible at trial for fear jurors may well let their emotional sides overbear their logical sides.²³³ Psychologists also say such emotional evidence is (1) more likely to stick in jurors’ heads than neutral evidence and (2) more likely to prejudice jurors against defendants unfairly.²³⁴ Thus, not only is this evidence more likely to devalue a continuance, it is also more likely to prejudice the venire against the defendant.

Emotional facts are the sort that tend to pit the venue’s community against the defendant. For example, the media in Irvin pitted the community and a selfless sheriff who “devote[d] his life to securing [the defendant]’s execution” against a “remorseless” killer “without a conscience”—the defendant.²³⁵ Clearly these facts create an emotional narrative likely to stick in jurors’ minds even though, at trial, the defendant’s conscience and remorse are not, strictly speaking, relevant to the mens rea, causation, or actus reus of the crimes. These were emotional facts. Compare this to Tsarnaev I, where the defendant’s publicity was “largely factual” rather than focusing on the death, pain, and destruction he caused, in other words the emotional facts of the case.²³⁶ Consider instead if the publicity had focused on the “[b]lood and body parts [being] everywhere . . . as if ‘people had just been dropped like puzzle pieces onto the sidewalk,’” and then consider if the trial judge would have allowed that same evidence adduced through publicity to be adduced at trial.²³⁷ If admitting the footage would have been reversible error at trial, that same evidence should also be blatantly prejudicial when published, requiring content questioning.

Framing pretrial publicity completely through a lens of evidence law will also assist trial courts in ruling on pretrial publicity cases.²³⁸ Trial courts handle evidentiary questions all the time, so their understanding of the rules of evidence allows them to make reasoned decisions on what sort of publicity is prejudicial. This Comment is neither suggesting courts import all of evidence law into pretrial publicity analyses nor suggesting trial courts determine if every anchor’s every statement falls into a hearsay exception. It would be absurd to suggest that publicity is “blatantly prejudicial” because it fails to follow the strict evidentiary standards of courts.

Irvin and Marshall v. United States²³⁹ provide the answer here. While the media introduced evidence of the defendant’s plea bargain, which would have been likely inadmissible and unfairly prejudicial evidence at trial, the plea agreement alone is likely not blatantly prejudicial.²⁴⁰ However, the Irvin case saw much worse publicity than just the plea agreement.²⁴¹ News media called the defendant a “remorseless” killer “without conscience” with a long rap sheet. ²⁴² The blatantly prejudicial publicity must be substantial in either volume (what the court in Skilling called “decibel level”²⁴³) or in severity. Similarly in Marshall, the Supreme Court held evidence of the defendant’s prior bad acts were inadmissible at trial, but this same information was also published before trial, creating reversible prejudice in the jury.²⁴⁴ Trial courts, thus, already have standards by which they may judge the content of publicity, which are the evidence standards they use already.

4. Considerations of this Comment’s Approach

Still, the fears that plagued the Court in Mu’Min can rear their heads. Of course, the additional procedural hurdle of individually asking jurors what pretrial publicity they have consumed will add time to trial proceedings. When a trial reaches this level of publicity, however, courts and counsel should already be anticipating additional procedural hurdles regardless. This solution may sound like just one more complication, but a defendant’s rights should trump judicial expediency when publicity becomes this severe and prejudicial. And luckily these large publicity cases likely exist as more of an exception than a rule.

Additionally, this Comment does not suggest that all venirepersons must remain completely ignorant of the facts of a case to sit on a jury and that courts should strike all venirepersons who have heard of the defendant. It merely suggests that venirepersons should not sit on juries if they have been exposed to certain material that—through no fault of the venireperson’s—are prejudicing them against the defendant. The worry that jurors who are excused face some sort of indignity²⁴⁵ lessens when the blame lies not on the venireperson but on the media. It is the media and its effects that are being excused, not the venireperson.

After all, trial judges are afforded discretion when determining if venirepersons are biased,²⁴⁶ and the content questioning will not automatically invalidate a venireperson. It will, however, raise red flags for judges to determine (and counsel to argue) if venirepersons truly can be as impartial as they claim.²⁴⁷ While the venirepersons may not remember every article, they are likely to retain the prejudicial facts they learned from those articles. Venirepersons will then still have to self-assess before the trial judge, but now the trial judge knows exactly what facts the venireperson has been exposed to. Will a judge be likely to believe a venireperson’s assurances of impartiality knowing that the venireperson saw multiple articles involving what a monster the defendant was?²⁴⁸ Most likely not. Will a judge be more likely to believe a venireperson’s assurances of impartiality knowing the venireperson saw a televised confession? Most likely not. Trial judges may implicitly trust self-assessments because, in part, the trial judge knows very little about the venireperson beyond his or her demeanor. But when the question is less about knowing the venireperson and more about knowing what that venireperson has consumed, trial judges can make informed decisions.

Moreover, the concern that jurors would “feel that they themselves [are] on trial”²⁴⁹ would lessen when the questioning (1) occurs out of the hearing of other venirepersons and (2) focuses on the content of the media rather than the venirepersons. Additionally, these individual questionings undercut the traditional worry that venirepersons will clam up as they see the judge dismiss other venirepersons.²⁵⁰ The questioning should instead focus on what content was produced and seen, which would save venirepersons from feeling as though their media consumption was somehow inherently wrongful.²⁵¹

Finally, this test raises a possibly unsettling consequence: a defendant’s fair trial rights rest on the media. If the media decides to focus on one fact over another, their decisions alter a defendant’s rights at trial. The remedies for pretrial publicity are meant to be cures for the media’s less-than-restrained hand in publishing prejudicial information. In so doing, the media is not controlling a defendant’s fair trial rights. Instead, courts are just reacting to the media’s publishing decisions. Yes, this proposed standard ultimately puts some power in the press’s hands. But the press will likely be more concerned with ad or subscription revenue and journalistic fervor and integrity rather than gaming a defendant’s fair trial rights. Meanwhile, nothing can control the vindictive caprices of social media users, most of whom will likely be unaware that they could even alter defendants’ rights at trial.

B. Testing the Test

So, in what sort of case does the content questioning requirement arise?

Take a hypothetical where the defendant, Mason Doe, is accused of bombing a town in Texas. The death toll is at nearly fifty people and the emotional facts the crime creates are severe. Unlike the McVeigh trial, however, the trial court did not control the publicity.²⁵² Instead, like the Zimmerman trial, Twitter was alight.²⁵³ Doe’s alleged attack—some say racially motivated—garnered negative publicity in the Western District of Texas before the negativity spread online. Soon, social media pundits were calling for Doe’s head as more traditional news sources began sharing images of the dead bodies resulting from what was allegedly his bombing. These images include a photo of a child’s last moments, his corpse clutched tightly in his mother’s bloody, sooty arms.

Defense finds out that not only was Doe’s name on Twitter’s trending tab at least ten times, but each time his name was trending, that trending tab garnered upwards of fifty thousand interactions and ten times that in views each time. The tweets in question call Doe a “heartless” and disgusting “murderer” and a racist. Similar interactions happen with posts on Facebook and videos on YouTube, all detailing Doe’s “remorseless, psychotic nature.” TikTok influencers call for the death penalty. In the Eastern District of Louisiana and Northern District of Mississippi, local newspapers run stories after the bombing; Doe’s defense team manages to pull together nearly three hundred different articles from around the surrounding districts and beyond, all gruesomely detailing the pain and suffering Doe allegedly caused.

Here, any motion for change of venue or continuance would be fruitless. Although less personally affected, many potential jurors around the country saw the bloody bodies and destruction of Doe’s terrorist attack. These horrific images are burned into the minds of many who read the newspapers and Twitter feeds. No continuance will be helpful with these emotional facts either. During the first round of voir dire questionaries, the trial judge sends away sixty-five percent of the venire for having formed steadfast opinions as to Doe’s guilt. Here, Doe’s fair trial rights would require content questioning of the remaining venire to ensure that individual venirepersons were not exposed to “blatantly prejudicial” publicity such as photos of the mutilated bodies. The extent, fervor, decibels, and content of the publicity reached a “blatantly prejudicial” level because (1) its reach is national, (2) the publicity is negative towards Doe, and (3) the publicity contains much content that is more than just unfairly prejudicial and would be inadmissible at trial.²⁵⁴ The trial court would need to handle content questioning individually, with each venireperson’s voir dire out of hearing of the others.²⁵⁵

Compare Doe with Jan George. George stands accused of a school shooting, and George’s publicity is just as widespread as Doe’s, making a change of venue pointless. In contrast, both social media and traditional media pundits focused on more than just the death toll. In fact, most of the country’s ire was reserved for the federal agents who, aware of George’s plans, failed to stop George and state officers who sat around doing nothing while George rampaged in the school.²⁵⁶ While not exactly kind to George, most of the emotional publicity is not directed at George; the hatred is directed towards the federal and state officers. How dare they fail to stop this horror? George’s publicity was not “blatantly prejudicial” because a continuance may well remove the bite from the prejudice. Even now, George’s name is fading into the background as parents seek to sue the officers for their failure to save the children inside the school. Although the reach of the publicity is large, a continuance would help solve the prejudice because the publicity is not prejudicial towards the defendant; the zeitgeist is against the government instead. No doubt defense counsel can find some vitriol directed at George. Nevertheless, in an adversarial system, the trial court should be unimpressed by the weight of evidence. The prosecution proves that most of the wider-reaching publicity is not prejudicial toward George, so content questioning is not required. A continuance will properly remedy the publicity because George’s less prejudicial publicity will fade with time.

Similarly, compare George with Alan Smithee. Smithee, like Doe and George, is accused of a heinous, heart-rending crime. Smithee, an alleged arms trafficker, massacred most of a town in remote Alaska. What publicity emerges is vitriolic and emotional and is directed at Smithee just like Doe’s. Smithee is painted as a remorseless monster. But the rest of the nation is mostly unconcerned; the publicity stopped in the Alaska town and a few surrounding communities. Twitter, the national press organizations, and other social media sources worry about other outrages for the most part. The federal government chooses to prosecute the crime, saying Smithee acted just to cover up his arms tracking operation, thus acting in interstate commerce. Here, however, using the Skilling factors, Smithee has every ability to change venue because (1) the size of the town in Alaska is small and the publicity concentrated around that same area, (2) the publicity was more than just “not kind,” (3) and the publicity lasted quite some time.²⁵⁷ Like George, then, Smithee is not entitled to content questioning because his right to seek a change of venue was not destroyed by nationwide publicity. Although the content of his publicity was just as negative as Doe’s, thus devaluing a continuance, Smithee could safely change venue to another district court in the Ninth Circuit like California or Washington.

C. Potential Issues of Implementation

With the Supreme Court’s recent reluctance to implement additional protections in cases with extensive pretrial publicity,²⁵⁸ how likely is the Court to accept that the Constitution requires content questioning during voir dire at any point despite Mu’Min’s hints to the contrary? Perhaps not likely.

Instead, the right to content questioning may stem from the same nebulous pool of rights from which the peremptory challenge arises rather than directly from the Constitution.²⁵⁹ The right to question venirepersons’ “backgrounds and attitudes” on the case are the only way a defendant may intelligently use a peremptory challenges; otherwise the peremptory challenge is to be an “empty” right.²⁶⁰ In cases with heavy, blatantly prejudicial pretrial publicity, content questioning may be the only way to uncover these backgrounds and attitudes. Thus, content questioning would query these background attitudes born originally from the media. Even still, the federal Supreme Court may not buy such an argument.

Instead, state supreme courts may be the best grounds for creating standards in their own constitutions. Not only is the federal Supreme Court unlikely to waggle its finger at state courts for crafting additional constitutional standards,²⁶¹ state supreme courts are the masters of their own constitutions.²⁶² Although unsatisfying for those who want a uniform federal standard, state courts also provide a lower bar for required publicity. Although this Comment so far suggests that content questioning is required only in cases of nationwide publicity, this comes from the U.S. Constitution’s federal district requirements.²⁶³ State constitutions provide similar venue protections for criminal defendants, but they do so on a state, rather than national, level.²⁶⁴ Under this theory, the standard to prove a change of venue is fruitless would lower for criminal defendants if the power to create a content questioning right is left to state supreme courts. Instead, criminal defendants need not provide nationwide publicity but rather statewide publicity.

Conclusion

Courts already have the tools they need to truly cure this paradox of the Sixth Amendment.²⁶⁵ Trial judges need to understand the extent and vitriol publicity subjects a defendant to. Venirepersons reveal this prejudice in their answers during voir dire as does the publicity itself. This Comment’s measured solution protects the efficacy of voir dire without turning every trial into a media investigation because the right to content questioning is triggered only when the general publicity is extensive and prejudicial.

Consider also how political certain cases can become. As just a single example in the time since the first draft of this Comment, an altercation between two people on a New York City subway became national news.²⁶⁶ In the court of public opinion, guilt was decided, in part, on political lines. Left-leaning commentators demanded criminal charges in yet another case of White-on-Black violence.²⁶⁷ Right-leaning commentators declared the actions to be a heroic example of how necessary self-defense and defense-of-others rights are in cities with liberal soft-on-crime policies.²⁶⁸ Politicians exacerbate this problem, commenting on pending matters before all facts come to light and, more importantly, before a jury has seen the facts with the procedural protections of trial.²⁶⁹ Will the venirepersons go into the jury box with their political affiliations in mind?

“A trial is either fair or not. There is no gray area.”²⁷⁰ This Comment’s test provides courts a tool to uncover evidence during voir dire to prevent prejudice from infecting the jury. Modern jurors must be impartial; we should not return to a system of frithborh. The Bill of Rights is not a list of empty promises, and the judicial system’s duty is to ensure this is so.

Category: Print Issues

Twitter Taint: Content Questioning Voir Dire in the Modern Age of Social-Media-Addled Venires

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