Federal, state courts struggle with juror privacy.

The thorny issue of a prospective juror's right to privacy continues to bedevil courts that try to expedite proceedings with voir dire questionnaires or seal jurors' sensitive revelations.

A prospective juror's right to privacy appeared to be protected in June when a U.S. magistrate in Sherman, Texas, set aside a state court's contempt ruling for a woman who refused to answer questions during voir dire. Almost simultaneously, however, a New York state appellate court made it more difficult to seal records related to matters jurors discuss privately.

During preparations for a murder case in the 211th Judicial District Court of Texas, Dianna Brandborg was given a questionnaire that had been approved by attorneys for both sides. It contained nearly 110 questions, and Brandborg thought that 14 of them were too personal. The contested questions dealt with her religion, income, political orientation, automobile, and favorite television programs.

"I just couldn't see how my answers were relevant to whether I'd be a good juror," she said recently at a press conference. (Jeannette Keton, Federal Judge: juror Has a Right to Privacy, Nat'l Law J., July 3, 1995, at A1O.)

The attorneys and Judge Ira Sam Houston thought Brandborg should answer the questions. When she refused, Houston sentenced her to three days in jail for contempt.

Brandborg appealed to the Texas Court of Criminal Appeals. When that court declined to hear the case, she filed a federal suit requesting that the contempt order be set aside.

Her petition noted that prospective jurors retain a constitutional right to privacy: "Nothing about becoming a prospective juror amounts to a willing waiver of an expectation of privacy. Prospective jurors do not seek out the public forum; they are summoned, often unwillingly ... [so] the court is responsible for balancing competing interests."

U.S. Magistrate Robert Faulkner set aside the contempt ruling as a violation of Brandborg's First and Fourteenth Amendment rights to privacy. He noted that "a defendant's right to question jurors generally focuses on the right to an impartial jury. The rights of the potential juror are often overlooked...." (Brandborg v. Lucas, No. 4:94cv228 (E.D. Tex. June 16, 1995).)

Faulkner ruled that the trial court should perform a two-step process to ensure proper weighing of various interests. Before submitting a questionnaire to jurors, the court should screen questions to exclude those not relevant to the case. Then the court should notify jurors that they have a right to refuse to disclose private matters.

When that right is invoked, the court should allow sensitive questions to be answered privately, with the attorneys present, and the court may seal that part of the trial record. "This allows the public the maximum exposure to the proceedings without the disclosure of private matters," said Faulkner.

New York state courts, however, will have a difficult time complying with that guidance following an appellate decision in People v. Bici. (621 N.Y.S.2d 666 (App. Div. 1995), leave to appeal denied (May 24, 1995).)

Bici arose when a gay man was brutally murdered by a gang on a playground. Justice Ralph Sherman barred defense voir dire questions about the jurors' sexual orientation, but he announced that "sensitive" matters would be probed in closed voir dire examinations. Over defense objections, the court then questioned jurors in chambers about their attitudes toward homosexuals. (David McCraw, End to Closed Voir Dire Proceedings? N.Y.L.J., July 3, 1995, at 2.)

Even though records of the "closed" sessions were released, the appellate court concluded that these procedures violated Sixth Amendment protections. The trial court did not balance the reasons for closure against the defendant's right to a public trial, said the appellate court. Nor did the trial court "fully articulate on the record the reasons for its decision."

From now on in New York, any limitations on public access will require careful on-the-record deliberation to pass appellate scrutiny.