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June 21, 2021

Through Boston Marathon case, ABA asks Supreme Court to affirm in-depth juror questioning

CHICAGO, June 21, 2021 — The American Bar Association filed an amicus brief today with the U.S. Supreme Court, asking the justices to underscore the importance of content questioning of prospective jurors during the voir dire or jury screening process to ensure due process and a fair trial in high publicity cases.

The issue of how carefully district courts in capital cases must screen prospective jurors was raised last summer when the U.S Court of Appeals for the First Circuit in Boston vacated the death sentence of Dzhokhar A. Tsarnaev, who was convicted for his role in the 2013 Boston Marathon bombing. A three-judge panel upheld the conviction but ruled the federal trial judge did not adequately screen jurors for preconceived biases toward the defendant, who admitted guilt but contested the charges. The U.S. Department of Justice is seeking reinstatement of the death sentence.

The ABA brief takes no position on the case-specific question of whether the court of appeals’ judgment should be affirmed or reversed, but said the association filed the brief to convey ABA voir dire policies as they pertain to a defendant’s right to a fair trial. In Tsarnaev’s case, the judge ruled the final group of potential jurors should be asked whether they learned about the bombing through the media and their amount of exposure, but he rejected defense requests for more extensive questioning related to what they heard or the nature or character of their exposure.

The ABA brief, citing the association’s longstanding policies, argued that “if it is likely that any prospective jurors have been exposed to prejudicial publicity, they should be individually questioned to determine what they have read and heard about the case and how any exposure has affected their attitudes toward the trial.”

In 1968, after extensive research and interviews with judges, prosecutors and defense attorneys, the ABA first adopted free press/fair trial standards, which included guidelines for questioning prospective jurors about exposure to “potentially prejudicial material.”

“Individualized content questioning during voir dire enables judges, as well as prosecutors and defense counsel, to ensure that jurors are, in fact, impartial and have not become biased by pretrial publicity, and in turn to fairly exercise their discretion in deciding whether to strike or challenge jurors,” the ABA brief said. “The ABA’s long-considered view is that, in high publicity cases, there is no adequate substitute for individualized voir dire content questioning.”

The brief in U.S. v. Dzhokhar A. Tsarnaev is available here. The law firm of Weil, Gotshal & Manges LLP filed the brief pro bono on behalf of the ABA.

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