Media and the Right to a Fair Trial: Juror Impartiality in the Information Age
A 2021 study by Pew Research Center found that nearly 90% of Americans use the internet, social media, or smartphones regularly to access the news. [1] The proliferation of online information is particularly influential in high publicity cases—cases that involve terrorism or violent crime, garnering high levels of national media attention—in which juries may be skewed by the media they consume. In United States v. Tsarnaev (2021), the case of the Boston Marathon bomber currently on appeal in the U.S. Supreme Court, the risks of media bias are especially clear. In Tsarnaev’s case and similarly high publicity cases, trial judges ought to exercise more rigorous voir dire questioning on media consumption in order to protect defendants’ Sixth Amendment right to a “trial by an impartial jury.”
In United States v. Tsarnaev, the Supreme Court will determine whether the juror questioning process in the trial of Dzhokhar Tsarnaev was sufficiently rigorous. Tsarnaev is one of two brothers who planted bombs at the 2013 Boston Marathon, killing three people and injuring over two hundred. [2] While jurors in Tsarnaev’s case were asked surface-level questions about whether they had consumed media reports of the bombing, they were not questioned about the content or extent of their media consumption. United States v. Tsarnaev deals largely with the thoroughness of voir dire, a process in which lawyers and judges question a body of potential jurors on their ability to be fair and unprejudiced given the facts of the case. Tsarnaev’s lawyers argued that voir dire in his case did not sufficiently examine potential juror biases. [3] The First Circuit Court of Appeals agreed with Tsarnaev’s lawyers and vacated his death sentence on the grounds that jurors were not asked about the “kind and degree” of their media exposure. [4]
The necessary standard for juror impartiality was originally defined by Justice William Rehnquist in Smith v. Phillips (1982), a case in which the Supreme Court addressed the potential bias of a juror who had a pending application to work in the District Attorney’s office. Justice Rehnquist wrote that “due process means a jury capable and willing to decide the case solely based on the evidence before it.” [5] In cases like Tsarnaev’s, finding a panel of jurors who can base their decision solely on evidence at trial may be difficult. Dangerously, juror biases in high publicity cases may be predicated on false information or information ineligible to be included as evidence in trial. In Tsarnaev’s case, for example, the First Circuit Court of Appeals’ decision cited as a source of potential juror bias the widely circulated false claim that Tsarnaev had scrawled a vulgar, anti-American phrase on a boat in which he hid after planting the bombs. The Court of Appeals decision also mentioned jurors’ prior knowledge of a confession Tsarnaev made to agents from the Federal Bureau of Investigation while hospitalized, which was unlawfully elicited and thus could not be included as evidence at trial. These issues led the First Circuit Court to affirm the lower court’s determination that the media surrounding the Boston Marathon Bombing was “blatantly prejudicial information that prospective jurors could not reasonably be expected to cabin or ignore” and thus “the risk of implicit biases in this case was impermissibly high.” [6]
The rise of social media has further complicated the issue of juror impartiality. As explained by Professor Nancy Marder of Chicago-Kent College of Law, social media fosters juror prejudice by providing an easily accessible means to search or post information about ongoing trials. [7] In one particularly astonishing case, Dimas-Martinez v. State (2011), the Arkansas Supreme Court overturned a capital murder conviction in part because of a juror’s Twitter posts throughout the trial. The juror failed to stop his Twitter activity even after being told that he was threatening the integrity of the trial. The court ruled this behavior to be “juror misconduct that calls into question the fairness of [the] trial,” arguing that “it is in no way appropriate for a juror to state musings, thoughts, or other information about a case in such a public fashion.” [8]
The risk of bias from social media postings was of issue in Tsarnaev’s case. Juror #286, for example, repeatedly shared posts about the Boston Marathon bombing—including a post referring to Tsarnaev as a “piece of garbage”— on her social media account. Juror #286 then knowingly concealed these posts during voir dire by lying on a questionnaire regarding her social media activity on the topic of the bombing. [9] However, while the posts made by Juror #286 clearly established her prior knowledge of the case, she was not dismissed because her posts were shared over a year before juror selection took place. [10] The inclusion of Juror #286 on Tsarnaev’s jury highlights the obstacle social media poses to the ability to rule solely based on the facts presented at trial, as the Smith standard requires. [11]
In response to these risks, lawyers and judges should adopt more rigorous voir dire questioning practices that examine the content of media consumption as outlined in the American Bar Association’s (ABA) model standards. Content questioning could facilitate the identification and removal of biased jurors in cases such as United States v. Tsarnaev. The surface level questioning about media consumption that Tsarnaev’s jury selection involved did not adequately determine whether jurors had taken in misinformation or strongly biased media opinions. [12] Using the ABA’s more rigorous standards, judges and lawyers could “determin[e] whether a juror who has been exposed to out-of-court publicity is actually biased.” [13] More than solely asking whether media was consumed, detailed content questions about what sorts of media were consumed, at what time, and to what extent, can ensure that a juror’s viewpoint on the case is not substantially skewed.
The court system has previously addressed the potential value of content questioning in trials that garner high levels of local and national media coverage. In Mu’Min v. Virginia (1991), the Supreme Court ruled that in a case involving widespread local coverage of a murder trial, content questions were not necessary. Content questions, the court reasoned, “are constitutionally compelled only if the trial court’s failure to ask them renders the defendant’s trial fundamentally unfair.” [14] Nonetheless, in Patriarca v. United States (1968), the First Circuit Court of Appeals determined that juror bias in the trial of mafia leader Raymond Patriarca could have been limited by questions regarding the scope and content of each potential juror’s media consumption. The Patriarca decision established that voir dire ought to involve the “identifying, weighing, or removing any prejudice from prior publicity.” [15] Since the Mu’Min ruling dealt with a case of only local news coverage, while Patriarca involved substantial national coverage, the divergence in the court system’s standards for voir dire questioning could be attributed to the level of media attention that a trial involves.
In United States v. Tsarnaev, due both to the case’s national media coverage and the role of the internet and social media, the Patriarca standard is applicable. The First Circuit Court’s decision in United States v. Tsarnaev even recognized that “the pretrial publicity in Patriarca pales in comparison to the pretrial publicity surrounding [Tsarnaev’s] case.” [16] The First Circuit Court thus advocated for content questioning, recognizing that such questioning may not be necessary in cases like Mu’Min involving only local coverage, but becomes an important safeguard from bias in cases “where pretrial publicity creates a significant possibility of prejudice.” [17]
The ultimate burden for selecting a fair jury in cases of high publicity must fall on the trial judge. In Rosalez v. Lopez (1981), by examining how successful jury selection could prevent prejudiced rulings against undocumented immigrants, the Supreme Court determined that “without an adequate voir dire, the trial judge's responsibility to remove prospective jurors who will not be able impartially to follow the court's instructions and evaluate the evidence cannot be fulfilled.” [18] Trial judges can ensure juror impartiality in high publicity cases by overseeing lawyers’ questioning and providing jurors with questionnaires about their media consumption habits. To limit issues involving social media posts, lawyers and judges can inform potential jurors that they would be obligated to avoid social media for the duration of the trial. Peremptory strikes can then be used for any potential juror who suggests an inability to refrain from social media usage. [19]
Certainly some cases, like Tsarnaev’s, receive so much media attention that finding twelve uninformed jurors is a near impossibility. Finding twelve relatively unbiased jurors, however, is still a constitutional obligation. Fulfilling this obligation in high publicity cases requires thoughtful and thorough questioning during voir dire, as laid out in the American Bar Association’s model standards for content questioning. By implementing systems of content questioning and questioning on social media usage, lawyers and judges can insulate defendants’ right to an unbiased jury, upholding a fundamental constitutional protection.
edited by Samantha Velasquez
Sources:
[1] Elisa Shearer, More than eight-in-ten Americans get news from digital devices, Pew Research Center (January 12, 2021), online at https://www.pewresearch.org/fact-tank/2021/01/12/more-than-eight-in-ten-americans-get-news-from-digital-devices/ (visited October 29, 2021).
[2] CNN Editorial Team, Boston Marathon Terror Attack Fast Facts, CNN (March 23, 2021), online at https://www.cnn.com/2013/06/03/us/boston-marathon-terror-attack-fast-facts/index.html (visited November 14, 2021).
[3] Neal Bush, The Case for Expansive Voir Dire, Law and Psychology Review (1976), online at https://www.ojp.gov/ncjrs/virtual-library/abstracts/case-expansive-voir-dire (visited October 29 2021).
[4] United States v. Tsarnaev, No. 16-6001 (1st Cir. 2020), 61.
[5] Smith v. Phillips, 455 U.S. 209 (1982).
[6] United States v. Tsarnaev, No. 16-6001 (1st Cir. 2020), 214, 221.
[7] Nancy S. Marder, Jurors and Social Media: Is a Fair Trial Still Possible, SMU Law Review (2014), online at https://scholar.smu.edu/cgi/viewcontent.cgi?article=1045&context=smulr (visited October 29 2021).
[8] Erickson Dimas-Martinez v. State of Arkansas, No. CR 11-5 (Supreme Court of Arkansas 2011), 16.
[9] United States v. Tsarnaev, No. 16-6001 (1st Cir. 2020), 35, 220.
[10] Mackenzie K. McCoy, Boston Bomber’s Death Sentence Should Not Have Been Vacated Based on Insufficient Voir Dire, Washburn Law Journal Online (May 25, 2021), online at https://www.washburnlaw.edu/publications/wlj/ online/volume/60/mccoy-boston-bomber.html (visited October 29, 2021).
[11] Smith v. Phillips, 455 U.S. 209 (1982).
[12] United States v. Tsarnaev, No. 16-6001 (1st Cir. 2020).
[13] Zachary D. Tripp, Colin F. McGrath, and Barbara J. Howard, Brief of American Bar Association as Amicus Curiae in Support of Neither Party, Supreme Court of the United States No. 20-443 (2021), online at https://www.americanbar.org/content/dam/aba/administrative/news/2021/06/amicus-us-v-tsarnaev.pdf (visited October 29 2021), 13.
[14] Mu’Min v. Virginia, 500 U.S. 415 (1991).
[15] Patriarca v. United States, 402 F.2d 314 (1st Cir. 1968).
[16] United States v. Tsarnaev, No. 16-6001 (1st Cir. 2020), 71-72.
[17] Id.
[18] Rosalez-Lopez v. United States, 451 U.S. 182 (1981).
[19] Paul Mark Sandler, Keeping Jurors Offline, National Law Journal (May 23 2011), https://www.law.com/nationallawjournal/almID/1202494641739/Keeping-jurors-offline/ (visited October 29 2021).