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65 UDTLR 169

65 U. Det. L. Rev. 169

University of Detroit Law Review

Winter, 1988

*169 PRETRIAL PUBLICITY, CHANGE OF VENUE, PUBLIC OPINION POLLS A THEORY OF

PROCEDURAL JUSTICE

Judge Peter D. O'Connell [FNa]

Copyright 1988 by the University of Detroit School of Law; Peter D. O'Connell

TABLE OF CONTENTS

I. Introduction 170

II. Diagnosing 172Prejudicial PretrialPublicity

A. Voir Dire 173Examination

B. Public Opinion 174Polls

C. Procedural v. 175Distributive Justice


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III. Alternatives to 177Mitigate the Effects ofPretrial Publicity

A. Continuance 177a/k/a/ Adjournment

B. Expanded Voir 178Dire

C. Foreign Venires 179

D. Change of Venue 179

E. Summary of 180Alternatives to Mitigatethe Effects ofPretrial Publicity

IV. The Determination of 181Bias or Prejudice in theJury Selection Process

A. Definition of 182

Bias and Prejudice

B. Methodology for 182the Determination of Bias

C. Voir Dire 183Examination

D. Public Opinion 183Poll

E. The Goal of Jury 184Selection

F. The Effect of 185Bias or Prejudice in theJury Selection Process

G. The Probability 185

Standard


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V. History of the 186Probability of PrejudiceStandard

A. Prior Convictions 187

B. Confessions and 188Admissions to Other Crimes

C. Radio & 188Television Proceedings

D. Editorial 189Journalism

E. Totality of 190Circumstances

F. Presumed 191Prejudice Standard

G. The Procedural 192Justice Theory

H. Public Opinion 194Polls

VI. Construction of 194Public Opinion Polls

A. Admissibility and 194Methodology of the Poll

B. Mirror Jury Panel 195

VII. Summary 195

*170 I. INTRODUCTION

The traditional standard used in determining motions to change venuerequired a showing of 'actual prejudice' or a 'reasonable likelihood ofprejudice.' [FN1] In Coleman v. Kemp, [FN2] the court rejected these traditional

standards and implemented the presumed prejudice standard. [FN3]

Prejudice is presumed when pretrial publicity saturated the community wher


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ethe trial was held. [FN4] The presumed prejudice standard is rarely applicableand is reserved for 'extreme situation s ,' [FN5] when massive pretrial publicity[FN6] saturates the community and renders a fair trial virtually impossible.

The presumed prejudice methodology does not require the trial judge to

determine whether a juror is actually prejudiced, but rather whether the pretrialpublicity was inherently prejudicial. [FN7] *171 The judge must focus on thetotality of the pretrial publicity and the prejudicial impact that publicity mayhave on potential jurors. The court must independently evaluate the quality andquantity of the pretrial publicity and determine if that publicity is inherentlyprejudicial. [FN8] Failure of the trial judge to implement the presumed prejudicemethodology may result in reversal of the trial judge's most important case. [FN9]

Only a few courts have granted relief based on the presumed prejudice

standard: Rideau v. Louisiana, [FN10] Pamplin v. Mason, [FN11] and Coleman v.Kemp. [FN12] Most cases that have discussed this standard have refused to applyit. [FN13] Other cases have addressed the standard, but granted relief on othergrounds. [FN14]

When the presumed prejudice standard is applied, it may be impossible torebut. [FN15] The traditional method of determining prejudice *172 through thevoir dire examination is inadequate. [FN16] Furthermore, it has been argued thatwhen appellate courts apply the 'presumption of prejudice standard,' the thresholdshowing required to presume prejudice is so high that any rebuttal [FN17] isvirtually inconceivable. [FN18]

This article examines the effect of pretrial publicity on the jury selectionprocess. Part I is an introduction. Part II discusses methods by which the trialjudge can diagnose the prejudicial effect of pretrial publicity. Part III examinesalternatives that may mitigate the effects of pretrial publicity. Part IV examinesthe methodology for the determination of bias or prejudice during jury selection.Part V reviews the history of the probability of prejudice standard. Part VIsummarizes the article and suggests the use of public opinion polls in massivepretrial publicity cases.

II. DIAGNOSING PREJUDICIAL PRETRIAL PUBLICITY

A lawsuit is like a lottery-it promises only some probability of return.[FN19] Plaintiff and defense attorneys can only estimate a client's chances ofwinning or losing. [FN20] Judges and litigants can only speculate whether aselected jury can or will render a fair and impartial verdict. Plaintiff anddefense attorneys can only estimate the probability of selecting a jury favorableto their position. No one can accurately predict which prospective juror will b

efavorable to their side or who will win the case. Both litigants seek justice.Justice to the defendant in a criminal case is an acquittal; to the victim it is


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aguilty verdict. In this regard, justice is a perception. The perception isinfluenced by the parties' interests in the outcome of the lawsuit.

Attorneys are requesting a change of venue in high publicity cases withincreasing frequency. [FN21] On the basis of affidavits, newspaper articles, and

public opinion polls, [FN22] judges are requested to make educated guesses aboutwhether prospective jurors who have *173 been inundated with pretrial publicitycan render a fair and impartial verdict. [FN23]

When deciding a motion for change of venue in a highly publicized case, thetrial judge has two methods to determine whether jurors are biased orprejudiced: The voir dire examination [FN24] and public opinion polls. [FN25]In addition to these tools, the court must consider the totality of thecircumstances, [FN26] procedural justice, [FN27] substantive justice, and theappearance of justice. Procedural justice and the appearance of justice may be t

hemost important concepts available to the court.

A. Voir Dire Examination

The voir dire examination is the preferred way to judge the effect thatprejudicial publicity has had on the community. [FN28] One empirical studyindicates, however, that the voir dire exam is inadequate to remove those jurorswho may have significant biases or prejudices. [FN29] Another study concludesthat voir dire examination does not provide attorneys with sufficient informationto identify *174 prejudiced jurors. [FN30] A third study concludes that 'curren

tvoir dire practices are not conducive to promoting juror self-disclosure.' [FN31]The voir dire examination is further complicated by the advent of scientific juryselection. [FN32]

If all of these empirical studies correctly conclude that the voir direexamination is inadequate to remove jurors who are prejudiced, then the actualgoal of the jury selection process is to achieve justice, not to eliminate biasedor prejudiced jurors. Procedural justice is achieved when each litigant issatisfied that the empaneled jury will be just. Obtaining a jury that is actuallyfree from bias or prejudice may be an impossible goal. [FN33]

The voir dire examination can be a very expensive and time consumingprocess. In a sensational case, it can take four to six weeks of the court'stime. [FN34] If appellate courts apply the presumed prejudice standard, the voirdire examination will not be sufficient to overcome the presumption. [FN35]

B. Public Opinion Polls

Most judges do not like public opinion polls and refuse to acknowledge thatpolls can assist in the jury selection process. [FN36] Judges are suspicious of


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what statistics can prove [FN37] and question the relevancy of such data asapplied to the jury selection process. [FN38]

The value of the public opinion poll does not lie in the statisticalsignificance or accuracy of its results. Rather, the value resides in theinferences that the trial judge derives from the data *175 presented. [FN39]Thus, if ninety-five percent of the people polled indicate they have heard about

the defendant's prior convictions, the court should take special precautions indealing with these prior convictions. If the poll indicates that ninety-five percent of the people believe the defendant should be tarred and feathered, thisshould alert the trial judge that the community atmosphere may be hostile. [FN40]

The good trial judge does not accept or reject a poll's conclusion. Thegood trial judge merely draws inferences from the poll's findings. [FN41] Theinferences allow the trial judge to evaluate the community atmosphere.

Public opinion polls, the voir dire examination, newspaper articles, and

affidavits are only tools that a trial judge will employ to help make a change ofvenue decision. An unsophisticated trial judge will place little weight on thepublic opinion poll, admit it for 'what it's worth,' or ignore it because he doesnot understand its significance. [FN42] Judges tend to de-emphasize matters theydo not fully comprehend. The sophisticated trial judge will use the poll as atool to help determine the totality of circumstances. The proper use of a publicopinion poll is a subtle indication to the appellate courts that all precautionswere taken to insure that the defendant received a fair and impartial trial.[FN43]

C. Procedural v. Distributive Justice

There are two methods of achieving justice under our system of jurytrials. The first is procedural justice. The second is substantivejustice. Procedural justice consists of the rules and procedures that shape theinstitutional order of our legal system. [FN44] If the procedural rules are justand appear to be fair, the resulting patterns of outcomes*176 should be just.Substantive justice, sometimes known as distributive justice, stands for theconcept that a legal system is just if the results are fair. [FN45] There existsno empirical method to analyze substantive justice. Substantive justice may onlybe a perception. This perception is as varied as the person evaluating the system.Substantive justice to a victim is the guilty verdict. [FN46] Substantive justiceto the defendant is an acquittal. The only constant in this analysis is theprocedure used to obtain justice. Procedural justice is the key to consistency andintegrity in the system. If the appearance of procedural justice is maintained,the victim and the defendant may disagree on the result, but must concede theyreceived a fair and impartial trial. If the appearance of a fair and impartial

trial is not maintained, justice has failed procedurally and substantively. Itisthe job of the trial judge to maintain procedural justice-to apply the rules in


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amanner that will give both litigants the appearance of a fair and impartial trial.

Procedural justice begins with the jury selection process. The procedureused to select the jury is critical to the appearance of justice. If the juryselection process is tainted or compromised, justice itself is tainted.

If the jury selection has the appearance of partiality, the litigants willnever be convinced they received substantive justice. The presumed prejudicestandard requires the trial judge to determine if the pretrial publicity wasinherently prejudicial, irrespective of whether jurors are affected by thepublicity. The purpose of this standard is to protect the appearance of justice.

Motions for change of venue should not be granted in all high publicitycases. Each case must be determined on its own facts. [FN47] The decision tochange venue must be based upon the 'totality of the circumstances.' [FN48]However, once a change of venue has been granted, the voir dire examination tend

sto be shorter. The appearance of a fair and impartial trial is conceptuallyachieved [FN49] and the *177 goal of 'procedural justice' [FN50] has been met.[FN51]

III. ALTERNATIVES TO MITIGATE THE EFFECTS OF PRETRIAL PUBLICITY

If the court determines that pretrial publicity may have a prejudicialeffect on a potential jury, [FN52] the court may mitigate these effects throughone of four vehicles: [FN53] (1) continuance; (2) expansion of voir dire; (3)foreign venires; (4) change of venue.

A. Continuance a/k/a Adjournment

Prospective jurors' attitudes can be molded and shaped by the media andconversation with others in the community. [FN54] The trial can be delayed by theassumption that the passage of time will dampen the effects of the prejudicialattitudes prevalent in the community. Psychologists, however, are skeptical aboutthe contention that time will erode the harmful effects of pretrial publicity.[FN55]

A continuance may conflict with the constitutional right to a speedy trial.[FN56] In addition, the witnesses' memories may fade as time passes, therebyjeopardizing the state's and the defendant's right to a fair trial. [FN57] Onecan never be certain that the jurors will not have a fixed opinion about the case,[FN58] that the publicity will subside, [FN59] or that the publicity will beerased from jurors' memories or *178 not reappear after a temporary respite.[FN60] For these reasons, continuances may be effective on medium publicity cases,but have little effect on the high publicity trials.

B. Expanded Voir Dire

The preferred method of avoiding prejudice from pretrial publicity is to


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the burden of proving the publicity*180 is prejudicial. [FN82] However, somestates require an attempt to select a jury in the local district prior to themotion being granted. [FN83] A 1971 survey established that fifteen states placegeographical limitations on the locations to which the trial can be moved. [FN84]

The determination that publicity is prejudicial can be made only from thefacts of each case. [FN85] The trial judge is vested with broad discretion whenmaking a decision to change venue and his decision will not be disturbed absentaclear showing of abuse. [FN86]

The basis for a motion to change venue can be the court's evaluation of thepretrial publicity, a public opinion poll, opinion testimony offered byindividuals, or an evaluation by the court that the pretrial publicity wasinherently prejudicial. [FN87] The moving party is not required to establishactual prejudice on behalf of a particular juror. [FN88] A probability that the

jurors are prejudiced is sufficient. [FN89] A court can delay ruling on a motionfor change of venue until the voir dire has been completed. [FN90] It is notsufficient grounds for denial of a change of venue motion that one such motion hasalready been granted. [FN91]

E. Summary of Alternatives to Mitigate the Effects of Pretrial Publicity

Even when the effects of pretrial publicity are extensive, courts may refuseto change venue due to expense; inconvenience; its potential use as a dilatory

tactic; and the tradition that justice should be administered in the communitywhere the crime occurred. [FN92]

The appearance of a fair and impartial trial begins with the selection*181of unbiased jurors. Attempting to select a jury from a panel in which every thirdor fourth juror is suspect denigrates the concept of impartiality. When extensivepretrial publicity may have tainted the community, or when an appearance ofimpartiality is present, the trial judge should rise to the occasion and grant amotion to change venue. [FN93]

IV. THE DETERMINATION OF BIAS OR PREJUDICE IN THE JURY SELECTION PROCESS

The excitement that a sensational case causes in a small community is aphenomena that one must observe in order to fully understand its impact on thecommunity. [FN94] During morning coffee breaks, over backyard fences, whileobtaining gas, while getting a haircut or purchasing a newspaper, each citizenbecomes an expert on the facts of the case. [FN95]

The existence of the news media has left only the hermit uninformed as tothe details of the case. As a result of this publicity, most citizens consciouslyor subconsciously develop an attitude concerning defendant's guilt or

innocence. This attitude is embedded into each juror's subconscious. [FN96]

The court must determine if prospective jurors are capable of rendering a


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fair and impartial verdict when they are called for jury duty. This is an awesomeresponsibility. It is critical to the fair administration of justice. It is alsoan area where trial judges receive little formal education. [FN97] In theinterest of efficiency, some judges tend to qualify jurors who have expresseddoubts about their biases and prejudices.

Bias and prejudice are attitudes. They are not something you can see, feel,or touch. They are discovered through the use of wisdom,*182 knowledge, and anunderstanding of human nature. In this regard, they are similar to the conceptsof truth, beauty, goodness, and justice. [FN98] The senses cannot experiencethese notions. Only the mind can capture these concepts because they areincapable of absolute definition. They exist in degrees. The best we can do isto define the characteristics of bias and prejudice and search for a methodologythat will facilitate discovery of these characteristics.

A. Definition of Bias and Prejudice

There are two perspectives on prejudice. The first is expressed by TyronEdwards, [FN99] who said: 'He that is possessed with a prejudice is possessedwith a devil, and one of the worst kinds of devils, for it shuts out the truth andoften leads to ruinous error.' [FN100]

The second view is by Charles Curtis, [FN101] who stated: 'There are twoways to be quite unprejudiced and impartial. One is to be completely ignorant.The other is to be completely indifferent. Bias and prejudice are attitudes to bekept in hand, not attitudes to be avoided.' [FN102]

Judges tend to believe that bias and prejudice can be kept in hand andcontrolled. Most will not accept the concept that prejudice 'shuts out the truthand leads to ruinous error.' In fact, some judges are convinced that by theircharismatic instructions they can dissipate juror prejudice. Whether thisconviction is self indulgence or reality is unknown. However, when the evidenceis ambiguous and the issues are sensitive to the community, judges have a duty totake all precautions to insure that jurors are free from any apparent bias orprejudice.

B. Methodology for the Determination of Bias

It is impossible to operationalize a uniform methodology for thedetermination of prejudice. 'Impartiality is not a technical conception. It isstate of mind . . .. [The] procedure is not chained to any ancient and artificialformula.' [FN103] Its determination is left to the discretion of the trial judge.[FN104] Unless there is a clear abuse of this discretion, appellate courts willnot reverse trial judges is discretionary*183 decisions. [FN105]

Since no objective standard to measure bias or prejudice exists, each tria

ljudge must develop his own method for the discovering of bias or prejudice.


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C. Voir Dire Examination

The favorite tool of the trial judge is to ask the jurors a series ofquestions. The answers to the questions lead to the discovery of a juror'sattitude on any given subject. This attitude can be discovered if the properquestions are asked. However, the answers can be suppressed if the wrong questio

nsare asked or if the voir dire examination places too much pressure on the juror.

The pressure of the voir dire examination sometimes causes jurors totemporarily forget their own names. In fact, when novices attempt to probe ajuror's psyche, some jurors are offended. The result is juror repression of theattitude rather than juror exposure of the attitude.

Generally, the last question the trial judge asks is whether the juror canrender a fair and impartial verdict. If the juror answers 'yes,' he or she isusually qualified to sit as a juror. [FN106]

This methodology is a little like asking a practicing alcoholic if he hashis drinking under control; we are asking the person who has the prejudice todetermine if the prejudice will affect his decision. This method of determiningprejudice has been approved by the Supreme Court. [FN107] No one can be certainthat jurors will render a fair and impartial verdict and no better system has beendeveloped. [FN108]

D. Public Opinion Poll

The public opinion poll is conducted in an atmosphere free from the pressure

and regimentation of the jury selection process. The answers to the poll'squestions are an indication of what the juror's attitudes may be on a givensubject. Their answers may or may not be an accurate assessment of a juror's truefeeling, but these answers combined with the responses of other individuals in thecommunity create the atmosphere of the community. These responses assist thecourt in determining if the pretrial publicity is inherently prejudicial.

*184 E. The Goal of Jury Selection

The goal of jury selection is to impanel an impartial jury. An impartialjury is one whose members do not have biases that would make them unable to fullyweigh the evidence. [FN109]

Both advocates have an opportunity to exclude prospective jurors throughchallenges. The practice of challenging jurors has been part of our system forcenturies. And throughout those centuries lawyers have sought to impanel the mostfavorable possible jurors for their clients. [FN110]

This jury selection system does not insure that justice will be achieved.[FN111] Rather, this system gives both sides an opportunity to achieve justice.

[FN112] 'Justice' may escape definition, [FN113] but the system administering itshould be free from bias or prejudice and have the appearance of impartiality.


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[FN114] This distinction is critical to the administration of justice. It is thejudge's responsibility to administer the system and the lawyer's responsibilitytoinsure that the judge is fair and impartial in the administration of the system.

In practice, the goal of each lawyer is not to select a fair and impartial

jury, but to select a jury that will be sympathetic to their position. If bothlawyers exclude jurors who are sympathetic to the other side's position, a neutraljury will be selected. If one side possesses superior skill in the jury selectionprocess, inequality may result. [FN115] But inequality is not the importantconcept in the jury selection process. The important concept is that theadvocates have had the opportunity to select a fair and impartial jury.

If the appearance of impartiality has been achieved, then the parties mustbe satisfied that procedural justice has been achieved. There exists no scientific

method to determine if substantive justice has been achieved.

The subtle issues are: How does a judge or lawyer determine if a juror isbiased or prejudiced and when does the bias or prejudice affect the juror'sability to render a fair and impartial verdict? [FN116]

*185 F. The Effect of Bias or Prejudice in the Jury Selection Process

Evidence determines the outcome of trials, not the characteristics of thejurors. If the evidence against a defendant is very strong or very weak, it doesnot matter who is on the jury. However, if the evidence is close, jury selection

could make a difference.

One unscientific poll of trial lawyers found that eighty-five percent of allcriminal trials are decided on the basis of the evidence, while only fifteenpercent are influenced by juror biases or prejudices. However, in political andother sensitive trials, this ratio may be closer to fifty-fifty. [FN117]Research indicates that although attitudes are not the only determinant of aperson's decision, they do affect a juror's perceptions and decision-makingability. The influence of juror perception and decision-making ability increasesin power as the emotions and attitudes of the decision maker become more extremeand the evidence becomes more ambiguous. [FN118]

Whether the evidence is strong or weak, the appearance of impartiality mustbe maintained. It is the appearance of impartiality that gives the partiesconfidence in our system. [FN119] However, when an attorney determines theevidence is close or ambiguous, scientific jury selection may help the case[FN120] and the trial judge should do whatever is necessary to insure theappearance of impartiality.

G. The Probability Standard

There are three evidentiary standards used to establish guilt: (1)preponderance of the evidence; (2) clear and convicing evidence; and (3) evidence


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esare not fixed and that the attitudes can be set aside, the court has ruled thatthis juror is capable of being fair and impartial.

Another, but equally nomadic, distinction is the volume of publicity. Ifthe court determines that the volume and nature of the publicity has saturated the

community, rendering a fair trial virtually impossible, then the fixed opinionanalysis is not applicable.

The appropriate standard in massive pretrial publicity cases is the totalityof circumstances standard. This standard requires the court to evaluate thequantity and quality of the pretrial publicity. If the court determines that thetotality of the pretrial publicity is not inherently suspect and that jurorsexposed to this publicity can render a fair and impartial vedict, then thosejurors who do not have a fixed opinion will be allowed to sit on the case.

The final standard is the presumed prejudice standard, which is applied by

appellate courts when the courts determine that a reasonable person who is exposedto this type of publicity is incapable of rendering a fair and impartial verdict.

This section analyzes federal cases in terms of the fixed opinion rule, thetotality of circumstances doctrine, and the presumed prejudice standard. Inaddition, the Supreme Court has ruled that certain types of publicity are suspect.These suspect areas are examined in terms of the aforementioned concepts.

A. Prior Convictions

Before 1959, the accused had the burden of showing the actual existence ofaprejudicial opinion in the mind of the jurors. This difficulty was generallyinsurmountable if the jurors swore they did not have a fixed opinion and that theywould not be influenced by the publicity. [FN128]

In 1959, the Court decided the case of Marshall v. United States. [FN129]In Marshall, the jurors saw two newspaper articles that contained inadmissibleprior convictions of the defendant. [FN130] The jurors informed the trial judgethey would not be influenced by the *188 newspaper articles and that they felt noprejudice against the defendant as a result of the articles. The trial judgeallowed the trial to continue. The Supreme Court reversed the conviction and heldthat persons who have learned from news sources information with a high potentialfor prejudice are presumed to be prejudiced despite their assurances that theycould remain impartial. These jurors did not have a fixed opinion. However,because of their exposure to the defendant's inadmissible prior convictions, theCourt considered them to be incapable of being fair and impartial. [FN131]

B. Confessions and Admissions to Other Crimes


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In 1961, the Court decided Irvin v. Dowd, [FN132] in which it struck downastate conviction due to the prejudicial publicity before defendant's trial.

In Irvin, the jurors were exposed to pretrial publicity, in the form ofpress releases by the prosecutor and the local police, which included defendant's

confession to the crime and his statement that he had previously committedtwenty-four burglaries and six murders. The Court held that exposure to thispublicity was sufficient to require a new trial. Even if the jurors claim theycan render a fair and impartial verdict, this type of pretrial publicity is onethat a juror cannot forget or set aside. [FN133]

The Supreme Court has made it clear that trial courts have theresponsibility to weigh the probability of prejudice in any given case on thebasis of the nature of the publicity and the circumstances surrounding it. [FN134]

C. Radio & Television Proceedings

In the 1963 case of Rideau v. Louisiana, [FN135] a local television stationbroadcasted, at three different times, a twenty minute film of the defendantsurrounded by the Sheriff and state troopers, giving a detailed confession of thecharged offenses. Rideau was convicted of murder and sentenced to death by thejury. Three members of the jury had seen the televised confession. [FN136] TheSupreme Court held that due process of law 'required a trial before a jury drawn*189 from a community of people who had not seen and heard Rideau's televised'interview." [FN137]

In 1965, the Court decided Estes v. Texas. [FN138] The defendant wasconvicted of the offense of swindling. The State contended that the defendantmust show some isolated prejudice in order to invalidate a conviction. The Courtheld that a showing of actual prejudice is not a prerequisite to reversal. ' Oursystem of law has always endeavored to prevent even the 'probability' ofunfairness. . . . To perform its high function in the best way 'justice mustsatisfy the appearance of justice.'' [FN139]

In Estes, the Court found that four of the jurors selected had seen all orpart of the pretrial proceeding on television. The Court stated: 'A defendantontrial for a specific crime is entitled to his day in court, not in a stadium, oracity, or a nation wide arena.' [FN140]

D. Editional Journalism

In 1966, the Court decided the landmark case of Shepard v. Maxwell. [FN141]

In this case, the defendant's wife was bludgeoned to death in the upstairsbedroom of their home. Defendant claimed that he was dozing when he heard his wife

scream; he rushed upstairs, grappled with a 'form,' and was rendered unconscious.The defendant was convicted of second degree murder.


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Massive pretrial publicity surrounded the case. Newspaper clippings filledfive volumes. Television, radio, and newspaper reporters filled the entirecourtroom. As a result of the publicity, anonymous letters and telephone callswere received by all prospective jurors.

The Court held: '[W]here there is a reasonable likelihood that prejudicia

lnews prior to trial will prevent a fair trial, the judge should continue the caseuntil the threat abates, or transfer it to another county not so permeated withpublicity.' [FN142] The Court also enunciated specific suggestions as to whatshould be done to avoid the effects of pretrial publicity. [FN143]

*190 E. Totality of Circumstances

In the 1975 case of Murphy v. Florida, [FN144] a well publicized burglarknown in the media as 'Murph the Surf' was convicted of robbery. The defendant

appealed, claiming that certain jurors were aware of his prior convictions andthat pretrial publicity adversely prejudiced the jury.

In upholding the defendant's conviction, the Court reaffirmed the languageof Irwin v. Dowd [FN145] and stated: 'The constitutional standard of fairnessrequires that a defendant have 'a panel of impartial, indifferent jurors.'Qualified jurors need not, however, be totally ignorant of the facts and issuesinvolved.' [FN146]

The court established the fixed opinion rule: if a juror states he or shehas a fixed opinion, then the juror may be successfully challenged for cause; ifthe juror denies having a fixed opinion and states that he can render a fair and

impartial verdict, then the juror may be qualified to sit on the case. The Courtexplained:

To hold that the mere existence of any preconceived notion as to theguilt or innocence of an accused, without more, is sufficient to rebut thepresumption of a prospective juror's impartiality would be to establish animpossible standard. It is sufficient if the juror can lay aside hisimpression or opinion and render a verdict based on the evidence presented i

ncourt. [FN147]

In Murphy, the Court found that the trial judge reviewed the totality of thecircumstances and concluded that the jury could render a fair and impartialverdict. [FN148] The Court held that the defendant had failed to establish thatthe pretrial publicity was inherently prejudicial or that the jury selectionprocess permitted an inference of actual prejudice. [FN149]

In 1984, the Court decided Patton v. Yount. [FN150] In this case, 163 *191venire persons questioned about the case had heard of it, and 126, or 77%,admitted they would carry an opinion into the jury room. The court of appealsfound that 8 of 14 jurors and alternates actually seated admitted that at some

time they had formed an opinion as to the defendant's guilt. [FN151]

The Supreme Court applied the fixed opinion rule and allowed the defendant


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'sconvictions to stand. The Court found that four years had elapsed between thedefendant's first and second trial. The relevant question is not whether thecommunity remembered the case, but whether the jurors at the defendant's trial hadsuch fixed opinions that they could not judge impartially the guilt of thedefendant. Those jurors who maintained fixed opinions were disqualified. Those

jurors who had 'forgotten or would need to be persuaded again' were allowed toremain on the jury. [FN152]

The Supreme Court relied on the totality of the circumstances doctrine anddecided that in these circumstances the voir dire examination and the record ofpublicity did not reveal the kind of 'wave of public passion' that would have madea fair trial unlikely by the jury that was impaneled. [FN153]

F. Presumed Prejudice Standard

Research reveals that only a handful of cases have applied the presumedprejudice standard. [FN154] This standard is confined to those instances in whichthe petitioner can demonstrate an extreme situation of inflammatory pretrialpublicity that literally saturated the community where the trial was held. [FN155]

In 1980, the Fifth Circuit Court of Appeals stated: 'Indeed, though manycourts recited the [presumed prejudice] principle in dictum and by way ofdistinction from the cases before them, we have been pointed to only one instancesince Rideau in which even a Circuit Court has actually implemented Rideau togrant habeas corpus to a state prisoner.' [FN156]

Since Rideau v. Louisiana, [FN157] the standard has been implemented in onlya few cases, including Pamplin v. Mason [FN158] and Coleman v. Kemp. [FN159]

*192 In 1985, the court of appeals decided Coleman v. Kemp. [FN160] In thatcase, the defendant was charged with multiple execution murders of the Aldayfamily. The case was tried in Seminole County, which had 2,117 households and apopulation of 7,059. The court, after reviewing the totality of the circumstancesapplied the presumed prejudice standard and concluded 'that petitioner has adducedevidence of inflammatory and prejudicial pretrial publicity that so pervaded thecommunity as to render virtually impossible a fair trial before an impartialjury.' [FN161]

The state argued in Coleman that 'there was overwhelming evidence of thepetitioner's guilt.' The appeals court agreed and stated: 'A fair trial in afair tribunal is a basic requirement of due process. . . . [T]his is true,regardless of the heinousness of the crime charged, and the apparent guilt of theoffender or the station of life in which he occupies.' [FN162]

The state also argued that the voir dire examination rebutted the

presumption of prejudice. The court, in finely worded language,stated: 'Assuming that there can be such a rebuttal, we conclude that the voirdire record in this case does not rebut the presumption of prejudice.' [FN163]


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In all cases in which an appellate court has applied the presumed prejudicestandard, the voir dire examination has been insufficient to rebut the presumptionof prejudice. [FN164]

G. The Procedural Justice Theory

The distinction between the reversal in Coleman v. Kemp [FN165] and thesustaining of the verdicts in Murphy v. Florida [FN166] and Patton v. Yount[FN167] may be in the procedures used by the trial court in selecting the jury.

The facts in Patton establish that 163 veniremen questioned about the casehad heard of the case and that 126, or 77% admitted they would carry an opinioninto the jury box. [FN168] In Murphy, 78 jurors were questioned, 30 were excusedfor personal reasons, 20 *193 were preemptorily excused, and 20 were excused by

the court for prejudice. Six jurors and two alternates were seated. Some, if notall, of the seated jurors were aware that the defendant was a convicted murdererand that he was the famous 'star of India' sapphire thief. The majority upheldthe convictions. [FN169]

The dissents in Murphy and Patton persuasively argued in favor of a reversalof the conviction. Both cases could have been decided for reversal or forconviction, Why did the court sustain the trial court in Murphy and Patton andreverse in Coleman? An example from the medical profession may help with whatappears to be a purely subjective decision-making process.

If a doctor's patient dies during surgery, the medical profession reviewsthe procedure used in the surgery. If all precautions were taken, the surgeon isexonerated from malpractice. If the doctor missed a procedure or failed to takeall precautions, he may be subjected to a malpractice lawsuit, or be disciplinedby the medical community.

In massive pretrial cases all precautions should be taken. Each toolavailable is discussed in this article. Awareness of these tools is the firststep in avoiding reversal. Implementation of each of these procedures assures theappellate courts that the trial court did everything possible to assure thedefendant a fair trial.

Justice Stevens, dissenting in Patton, stated:

There is a special reason to require independent review in a case that

arouses the passions of the local community in which an elected judge isrequired to preside. Unlike an appointed federal judge with life tenure, an

delected judge has reason to be concerned about the community's reaction tohis disposition of highly publicized cases. [FN170]

The procedural theory in massive pretrial publicity cases is to relax; toignore the pressure placed on the judge by the community, the media, friends, and


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neighbors; and to concentrate on all possible pretrial and jury selectionprocedures that will convince the appellate courts that all precautions wereaccomplished to 'save the patient.'

Implementing additional precautions has persuaded many appellate courts touphold the trial court's decisions. [FN171] These additional*194 precautionssignal the appellate courts that the trial court is aware of the pretrial

publicity and has done everything possible to mitigate its effects on the jurors.

H. Public Opinion Polls

In massive pretrial publicity cases, the only method available to rebut thepresumed prejudice standard may be the public opinion poll. Once a poll has beenconducted, it should be obvious to the trial court that a change of venue isnecessary. In cases of medium pretrial publicity, the poll will reveal that the

defendant can recive a fair and impartial trial in the community in which thecrime occurred. The public opinion poll is the best, if not the only, tool thetrial judge has available to defend against the sua sponte application of thepresumed prejudice standard.

VI. CONSTRUCTION OF PUBLIC OPINION POLLS

The goal of the public opinion poll is to isolate suspected publicity anddetermine if the potential jurors have a fixed opinion concerning the pretrialpublicity. The public opinion poll should concentrate on juror attitudesconcerning such items as prior convictions; confessions; specific radio,newspaper, or television coverage; race; morals; politics; sex; or the manner in

which the publicity was disseminated in the community. [FN172]

A secondary goal of the public opinion poll is to determine the extent ofpotential juror exposure to pretrial publicity and the attitude of the communityconcerning the defendant, the offense, and the relationship of the offense to thecommunity attitude-is it an attitude to be 'kept in hand' or one that will 'leadto ruinous error[?]' [FN173]

A. Admissibility and Methodology of the Poll

The best way to conduct a public opinion poll is for the judge and bothattorneys to agree upon the methodology of the poll and the questions to be asked.[FN174] In this manner, all admissibility and methodology problems areeliminated. If the parties cannot reach an agreement, the party offering the pollmust establish that the survey*195 was conducted in a scientific manner. [FN175]The survey should be designed by experts and administered independently of thelawyers involved in the proceeding. [FN176] The court on its own motion can orderthat a public opinion poll be instituted. Public opinion polls are admissible in

all court proceedings [FN177] under one of several theories. [FN178]


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b. Mirror Jury Panel

If the court or the attorneys are aware of potential problems in the juryselection process, the court can impanel a mirror jury panel from the preceedingvenire and conduct their own public opinion poll. [FN179] The questions asked ona public opinion poll are similar to those asked at the voir dire examination.

The attorneys and the judge are allowed to ask the mirror panel questionsconcerning bias and prejudice.

The mirror panel's questions should be on the record and will allow thecourt and the attorneys to simulate the jury selection process and determine ifafair and impartial jury can be selected. It also avoids the dissemination of anypotentially prejudicial material to the actual jury panel. The attitude of themirror panel should be homogenous to the actual panel that will be used. Thepublic opinion poll is a substitute for this mirror panel.

VII. SUMMARY

In low and medium publicity trials, the voir dire examination *196 shouldreveal the extent of prejudice among the prospective jurors. However, in high andmassive pretrial publicity cases, the court may not be able to accurately judgethe extent to which pretrial publicity has infected the community. If the courtis inclined to deny the defendant's motion for change of venue in a high publicitycase, a public opinion poll should be conducted. The cost of the poll can be paidby the state, the defendant, the court, or a combination thereof. It is muchcheaper to pay for the poll than to retry the case after reversal.

The admissibility and methodology for a public opinion poll is of crucialimportance; a social scientist should be retained to conduct the poll. [FN180]Any doubts concerning the motion for change of venue should be resolved in favorof the defendant. The very essence of ordered liberty is the appearance of a fairand impartial trial. [FN181] The appearance of a fair and impartial trial beginswith the jury selection process. Trial judges or prosecutors who want to becomeheroes before the hometown crowd should be cognizant of Coleman v. Kemp. [FN182]

Even when the evidence is overwhelming and reasonable minds could not acquitthe defendant, the harmless error doctrine does not apply to the jury selectionprocess. [FN183] The double standard of affirming convictions when the evidenceis overwhelming and reversing convictions when the evidence is weak is not anacceptable practice under the American system of government. Each defendant isentitled to a fair trial before an impartial jury. [FN184]

Trial judges and prosecutors have a duty to insure that justice isaccomplished on the first trial, not on retrial of the case. Trial judges andprosecutors should realize that the carnival atmosphere created by high andmassive publicity cases is neither real nor conducive to a fair and impartialtrial.

When a trial judge is assigned to a massive [FN185] pretrial publicity case,he or she should take 'all precautions' [FN186] to insure that no adverse effect


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sof pretrial publicity enter the jury room. [FN187] The trial judge should becognizant of the circuit court edict in Pamplin v. *197 Mason, [FN188] in whichthe court held that 'there was sufficient possibility of prejudice lurking in thebackground to warrant reversal for new trial.' [FN189]

[FNa] The Honorable Peter D. O'Connell serves the 76th District Court in MountPleasant, Michigan; B.B.A., Western Michigan University, 1971; J.D., DetroitCollege of Law, 1975. Master of Judicial Studies, University of Nevada-Reno,1987. This paper is published in partial fulfillment of the requirements of theMaster of Judicial Studies Program at the University of Nevada-Reno and theNational Judicial College.

[FN1]. The 'reasonable likelihood of prejudice standard' was first recognized inSheppard v. Maxwell, 384 U.S. 333, 363 (1966).

[FN2]. 778 F.2d 1487 (11th Cir. 1985), cert. denied, 106 S. Ct. 2289 (1986).

[FN3]. The origins of the presumed prejudice standard are found in Rideau v.Louisiana, 373 U.S. 723 (1963). Although the Rideau case does not specificallymention presumed prejudice, 'it is the [first] Supreme Court decision in whichprejudice was presumed from pretrial publicity and no other outside influence.'Coleman, 778 F.2d at 1490. See also Mayola v. Alabama, 623 F.2d 992, 997 (5thCir. 1980), cert. denied, 451 U.S. 913 (1981). In only one case since Rideau hasa court implemented the presumed prejudice standard to grant habeas corpus to astate prisoner. See Pamplin v. Mason, 364 F.2d 1 (5th Cir. 1966).

[FN4]. See, e.g., Coleman, 778 F.2d at 1490.

[FN5]. See, e.g., Mayola, 623 F.2d at 997, in which the court noted: '[T]heRideau principle of presumptive prejudice is only 'rarely' applicable . . . andisconfined to those instances where the petitioner can demonstrate an 'extremesituation' of inflammatory pre trial [sic] publicity that literally saturate[s]the community in which [the] trial was held.' Id. (citations omitted).

[FN6]. High publicity cases must be distinguished from massive publicity cases.Massive publicity cases are cases involving a degree of saturation that hasinflamed the community atmosphere. The presumed prejudice standard has only beenapplied in cases of massive pretrial publicity.

[FN7]. A.B.A., The Rights of Fair Trial and Free Press 22 (1981) ('The judge mustgrant the motion [to change venue] if he or she finds a 'substantial likelihood'that the jury decision was influenced by media coverage of material that was notpart of the evidence submitted to the jury in court.').

[FN8]. For one court's evaluation of inherently prejudicial pretrial publicity,see Coleman v. Kemp, 778 F.2d 1487, 1491-1537 (11th Cir. 1985), cert. denied, 106S. Ct. 2289 (1986), infra Section II-The Pretrial Publicity.

[FN9]. For examples of such reversals, see Coleman, 778 F.2d at 1488-1543 (11thCir. 1985) (defendant convicted in 1974, conviction reversed in 1985); Shepherd


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v.Maxwell, 384 U.S. 333, 335 n.1, 363 (1966) (defendant convicted in 1954,conviction reversed in 1966); Rideau v. Louisiana, 373 U.S. 723, 724-27 (1963)(defendant convicted in 1961, conviction reversed in 1963); Irvin v. Dowd, 366U.S. 717, 719-29 (1961) (defendant arrested in 1955, conviction reversed in 1961);Marshall v. United States, 360 U.S. 310, 312 (1959) (defendant convicted in 1956

,conviction reversed in 1959).

[FN10]. 373 U.S. 723 (1963).

[FN11]. 364 F.2d 1 (5th Cir. 1966).


[FN13]. See, e.g., Mayola v. Alabama, 623 F.2d 992 (5th Cir. 1980), cert. denied,

451 U.S. 913 (1981); United States v. Haldeman, 559 F.2d 31 (D.C. Cir. 1976),cert. denied, 431 U.S. 933 (1977); Murphy v. Florida, 421 U.S. 794 (1975); Halev.United States, 435 F.2d 737 (5th Cir. 1970), cert. denied, 402 U.S. 976 (1971).

[FN14]. See Haldeman, 559 F.2d at 60-61 (citation omitted): 'The Supreme Courthas reversed a conviction because it presumed that pre-trial [sic] publicity hadmade a fair trial impossible only in the case of Rideau v. Louisiana.' For a listof cases that have discussed the presumed prejudice standard, but reversedconvictions either on other grounds, or in addition to the reason of presumedprejudice, see Haldeman, 559 F.2d at 61 n.32; Sheppard v. Maxwell, 384 U.S. 333(1966) (involved massive publicity during trial, as well as before and a 'carniv

alatmosphere' that permeated the proceedings); Estes v. Texas, 381 U.S. 532 (1965)(inherently prejudicial situation presumed from constant operation of cameras andtelevising of proceedings during trial, in addition to pretrial publicity); Turnerv. Louisiana, 379 U.S. 466 (1965) (prejudice presumed from continual personalcontact with jurors by crucial witnesses and deputy sheriffs during trial anddeliberations); Irvin v. Dowd, 366 U.S. 717 (1961) (court reviewed voir diretranscript and found actual jury prejudice).

[FN15]. The standard is applied only when the court determines that there is aninflamed community atmosphere. Once the court determines there is an inflamedcommunity atmosphere, a change of venue may be the only remedy.

[FN16]. Contra Coleman v. Kemp, 778 F.2d 1487, 1541 n.25 (1985) ('We do not readRideau to imply that the voir dire cannot rebut a presumption of prejudice.').

[FN17]. Coleman, 778 F.2d at 1541 n.25.

[FN18]. For a further discussion of the presumed prejudice standard, see infratext, Section V.

[FN19]. R. LEMPERT & J. SANDERS, AN INVITATION TO LAW AND SOCIAL SCIENCE 138

(1986).

[FN20]. Id. at 138.


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[FN21]. When the issues surrounding the case arouse racial, political, sexual,orother prejudices of a large segment of the community, a change of venue is onemethod of increasing the likelihood that the defendant will receive a fair trial.

[FN22]. The terms 'public opinion polls' and 'public opinion survey' are usedinterchangeably in this article to indicate personal interview techniques used todetermine public attitudes, opinions, or knowledge.

[FN23]. See infra text accompanying notes 96-108.

[FN24]. In the United States, the jury selection process is known as the voirdire. Its purpose is to help shed light on the impartiality of prospectivejurors. During the voir dire, prospective jurors are asked questions about theirqualifications, relationships to individuals involved in the case, and their

attitudes toward the defendant and the issues involved in the case.

[FN25]. Properly conducted public opinion polls can help reveal the extent ofprejudice against a defendant in the district from which jurors would be drawn.For additional articles on the use of public opinion polls in change of venuedecisions, see Arnold & Gold, The Use of Public Opinion Poll on a Change of VenueApplication, 21 CRIM. L.Q. 445 (1979); Nietzel & Dillehay, Psychologists asConsultants for Change of Venue, The Use of Public Opinion Surveys, 7 LAW & HUMANBEHAVIOR 309 (1983); Pollock, The Use of Public Opinion Polls to Obtain ChangesofVenue and Continuances in Criminal Trials, 1 CRIM. JUST. J. 269 (1977); Vidmar &

Judson, The Use of Social Science Data in a Change of Venue Application: A CaseStudy, 59 CAN. B. REV. 79 (1981).

[FN26]. Murphy v. Florida, 421 U.S. 794, 799 (1975) ('To resolve this case, we[the court] must turn, therefore, to any indications in the totality ofcircumstances that petitioner's trial was not fundamentally fair.').

[FN27]. Procedural justice refers to the procedures (the rules) for settlingdisputes or determining guilt or innocence. This form of justice should bedistinguished from distributive justice, which refers to the just allocation ofoutcomes and resources.

[FN28]. See Nietzel & Dillehay, supra note 25, at 310. See also Patton v. Yount,467 U.S. 1025, 1038 n.13 (1984) ('[V]oir dire has long been recognized as aneffective method of rooting out such bias, especially when conducted in a carefuland thorough going manner.') (quoting In re Application of Nat'l Broadcasting Co.,362 F.2d 609, 617 (D.C. Cir. 1981)).

[FN29]. See Ziesel & Diamond, The Effect of Preemptory Challenges on Jury &Verdict: An Experiment in a Federal District Court, 30 STAN. L. REV. 491, 528-29(1978) ('Our experiment suggests that, on the whole, the voir dire as conducted

inthese trials did not provide sufficient information for attorneys to identifyprejudiced jurors.').


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[FN30]. Broeder, Voir Dire Examinations: An Empirical Study, 38 S. CAL. L. REV.503 (1965). The author concluded that 'voir dire was grossly ineffective not onlyin weeding out 'unfavorable' jurors but even in eliciting the data which wouldhave shown particular jurors as very likely to prove 'unfavorable." Id. at 505.

[FN31]. Suggs & Sales, Juror Self-Disclosure in the Voir Dire: A Social ScienceAnalysis, 56 IND. L.J. 245, 271 (1981).

[FN32]. For an informative discussion on scientific jury selection, see Saks, TheLimits of Scientific Jury Selection: Ethical & Empirical, 1 JURIMETRICS J. 3(1976).

[FN33]. See generally Zeisel & Diamond, supra note 29; Broeder, supra note 30;Suggs & Sales, supra note 31.

[FN34]. If a public opinion poll can reduce the time spent on the jury selection,it may be worth the investment.

[FN35]. Contra Coleman v. Kemp, 778 F.2d 1487, 1541 n.25 (11th Cir. 1985), cert.denied, 106 S. Ct. 2289 (1986).

[FN36]. See Pollock, The Use of Public Opinion Polls to Obtain Change of Venue&Continuance in Criminal Trials, 1 CRIM. JUST. J. 269, 280 (1977).

[FN37]. Kaye, Is Proof of Statistical Significance Relevant?, 61 WASH. L. REV.1333, 1334 (1986).

[FN38]. The relevancy of the public opinion poll to a motion to change venuebecomes evident when the presumed prejudice methodology is analyzed. Whenappellate courts apply the presumed prejudice standard they are attempting toevaluate the 'community atmosphere.' Social scientists are attempting to achievethe same goal when conducting public opinion polls.

[FN39]. See Kaye, supra note 37, at 1364 (expert's proper role is not to decidewhat statistical evidence proves or disproves; this task is for the judge orjury). See also id. at 1365 (statistical tools-public opinion polls-will aiddecision makers in the process of inference).

[FN40]. The poll does not and is not intended to determine whether specificjurors are prejudiced. Its purpose is to measure the attitude of the community.

[FN41]. These inferences should be placed on the record as findings of fact bythe trial judge. By entering these finding of facts on the record the trial judgeenables the appellate courts to see that all precautions were taken. For anexplanation of the all precaution theory, see infra text accompanying notes165-71.

[FN42]. Cf. Pollock, supra note 36, at 280. The author concludes, 'the reporte

dcases in which public opinion sampling was introduced for change of venue purposes


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the scope of this article, but the interested reader may consult Nebraska PressAss'n v. Stuart, 427 U.S. 539 (1976); Gannett Co., Inc. v. DePasquale, 443 U.S.368 (1979).

[FN53]. Nietzel & Dillehay, supra note 25, at 310-11.

[FN54]. See Spring, Change of Venue: A Need for Traditional Reemphasis, 54

JUDICATURE 15 (1970).

[FN55]. See Nietzel & Dillehay, supra note 25, at 310.

[FN56]. A defendant's request for a continuance may act as a waiver to his rightto speedy trial. However, the better practice is to require the defendant towaive his right to a speedy trial prior to granting the continuance.

[FN57]. A witness may also move, otherwise be unavailable for trial, or forgetthe minor details of the offense.

[FN58]. See infra text, Section V.

[FN59]. See generally Patton v. Yount, 467 U.S. 1025, 1035 (1984) ('But it isclear that the passages of time between a first and second trial can be a highlyrevelant fact.')

[FN60]. Patton, 467 U.S. at 1035 ('[T]hat the great majority of veniremen'remember the case' showed that time had not served 'to erase highly unfavorablepublicity from the memory of [the] community.'').

[FN61]. Nietzel & Dillehay, supra note 25, at 310.

[FN62]. See generally Ziese & Diamond, supra note 29; Broeder, supra note 30;Suggs & Sales, supra note 31.

[FN63]. A.B.A. STANDARDS FOR CRIMINAL JUSTICE (2d ed. 1980) (Chapter Eight, FreeTrial & Free Press) [hereinafter A.B.A. STANDARDS].

[FN64]. Id. ss 8-1.1-8.4.1.

[FN65]. Id. s 8-3.5(a).

[FN66]. Id. s 8-3.5(b).

[FN67]. Id.

[FN68]. Id. 8-3.5(c).

[FN69]. Trial judges receive little, if any, training in the science ofdetermining or recognizing bias or prejudice. Cf. McConahay, Mullin & Frederich,The Uses of Social Science in Trials with Political and Racial Overtones: TheTrial of Joan Little, 41 LAW & CONTEMP. PROBS. 205, 226 (1977) ('More importantisthe long tradition of research into the effects of attitudes upon perceptions and

decisions.')

[FN70]. Suggs & Sales, supra note 31, at 246.


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[FN71]. Ziesel & Diamond, supra note 29, at 531.

[FN72]. A.B.A. STANDARDS, supra note 63, s 8-3.5(d).

[FN73]. Nietzel & Dillehay, supra note 25, at 311.

[FN74]. A.B.A. STANDARDS, supra note 63, at 21.

[FN75]. It may be necessary to sequester the jurors and cause them to beseparated from their families and home environment for a considerable period oftime.

[FN76]. Irvin v. Dowd, 366 U.S. 717, 720 (1961). Irwin's attorney obtained achange of venue to adjoining Gibson County, which was found to have been taintedby the same publicity that tainted the original venue. A second change of venueshould have been granted. See also A.B.A. STANDARDS, supra note 63, s 8-3.3(e)('It shall not be a ground for denial of a change of venue that one such changehas already been granted.').

[FN77]. A.B.A. STANDARDS, supra note 63, s 8-3.6(b).

[FN78]. Id.

[FN79]. See id. s 8-3.3(c).

[FN80]. Id. s 8-3.3(a).

[FN81]. The trial judge may find it necessary to address the issue of prejudicialpublicity sua sponte. Cf. Sheppard v. Maxwell, 384 U.S. 333, 363 (1966). See also

Younger, The Sheppard Mandate Today: A Trial Judge's Perspective, 56 NEB. L. REV.1, 6-7 (1977).

[FN82]. See, e.g., United States v. McNally, 485 F.2d 398, 402 (8th Cir. 1973)(The moving party bears the burden of proving any essential unfairness, unless thetotality of circumstances raised the probability of prejudice.).

[FN83]. See A.B.A. STANDARDS, supra note 63, s 8-3.3(d) (allows the trial judgeto defer the ruling on the motion for change of venue until the completion of thevoir dire).

[FN84]. The A.B.A. Standards recommend against limitations on change of venue.See id. s 8-3.3(e).

[FN85]. Jenkins v. Kropp, 424 F.2d 665, 667 (6th Cir. 1970).

[FN86]. See generally Patton v. Young, 467 U.S. 1025, 1031 (1984): '[T]he trialcourt's findings of impartiality might be overturned only for 'manifest error."See also United States v. Bailleaux, 685 F.2d 1105, 1108 (9th Cir. 1982) ('Amotion for a change of venue is committed to the sound discretion of the districtcourt, and a denial of such motion should be reversed only upon a showing of cle

arabuse of discretion.').


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[FN87]. See A.B.A. STANDARDS, supra note 63, s 8-3.3(b).


[FN89]. Estes v. United States, 381 U.S. 532, 543 (1965) ('[O]ur system of lawhas always endeavored to prevent even the probability of unfairness . . ..').

[FN90]. A.B.A. STANDARDS, supra note 63, s 8-3.3(d).

[FN91]. Id. s 8-3.3(e).

[FN92]. Neitzel & Dillehay, supra note 25, at 311.

[FN93]. Most trial judges are reluctant to change venue. Comments such as, 'Myjurors leave their prejudice at the door,' or 'My jurors will follow theinstructions,' or 'These jurors can ignore that publicity,' are common. Theresult is a denigration of the appearance of a fair and impartial trial.

[FN94]. See Spring, Change of Venue, A Need for Traditional ReEmphasis, 54

JUDICATURE 15 (1970).

[FN95]. Id. at 16. 'Pretrial prejudice occur[s] by virtue of what everyone knows(and perhaps none can prove) [and] is the most efficient media of masscommunication yet devised for a given locality-those lines of communicationrunning across the back yard fences and through the corner coffee shop.'

[FN96]. For a discussion of the effects of pretrial publicity on juries, seeSinger, Singer & Singer, Legal and Social Psychological Research in the EffectsofPre Trial Publicity on Juries, Numerical Makeup of Juries, Non Unanimous VerdictRequirements, 3 LAW & PSYCHOLOGICAL REV. 71, 72 (1977).

[FN97]. See id. at 71. 'Most members of the bar and the judiciary contend thateach jury and each trial have unique features not readily amenable togeneralization.' Id. Because these features are not amenable to generalcharacteristics, it is difficult to formally educate in this area. Very few, ifany, judicial training seminars educate judges on techniques used to determinewhich jurors harbor a bias or prejudice.

[FN98]. Definitions exist for each of these words, however, these words are notcapable of Absolute definition. See Adams, supra note 45, at 273 ('Justice is acurious mixture of equality within inequality.').

[FN99]. Tyron Edwards (1809-1894) was an American theologian. G. SELDES, THEGREAT QUOTATIONS 220 (1982).

[FN100]. Id.

[FN101]. Charles Curtis (b. 1891) was an American Lawyer, writer, and educator.Id. at 187.

[FN102]. Id.

[FN103]. Irvin v. Dowd, 366 U.S. 717, 724-25 (1961).

[FN104]. GILLESPIE, MICH. CRIM. LAW & PRACTICE s 81.

[FN105]. E.g., United States v. Bailleaux, 685 F.2d 1105, 1108 (9th Cir. 1982).


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[FN106]. E.g., Irvin, 336 U.S. at 723 (1961) ('It is sufficient if the juror canlay aside his impression or opinion and render a verdict based upon the evidencepresented in court.').

[FN107]. See infra text, Section V.


[FN109]. See Saks, supra note 32, at 12.

[FN110]. Id. at 11.

[FN111]. See supra text accompanying notes 44-51.

[FN112]. The opportunity to achieve a goal is the first step in the process ofobtaining the goal.

[FN113]. See supra note 98 and accompanying text.

[FN114]. Estes v. Texas, 381 U.S. 532, 543 (1965) (citation omitted) ('To performits high function in the best way 'justice must satisfy the appearance ofjustice.'').

[FN115]. This may occur when one side is more experienced, has more resources,isbetter educated, or uses scientific jury selection techniques. See Saks, supranote 32, at 12.

[FN116]. For a discussion of jury self-disclosure in the voir dire examination,

see Suggs & Sales, supra note 31, at 271 (Unfortunately, current voir direpractices are not conducive to promoting juror self-disclosure.').

[FN117]. McConahay, Mullin & Frederich, The Use of Social Science in Trials withPolitical and Racial Overtones: The Trial of Joan Little, 41 LAW & CONTEMP.PROBS. 205, 226 (1977).

[FN118]. Id. at 226.

[FN119]. Cf. C. JOHNSON & B. CANON, supra note 49, at 185-224 (impact of judicialdecisions upon the public). Our judicial system continues to operate because thepublic perceives the courts to be a legitimate form of dispute resolution. If theappearance of impartiality is not maintained, this legitimacy factor willdisappear.

[FN120]. See McConahay, Millin & Frederich, supra note 117, at 226. 'The mostimportant reason for suspecting that scientific jury selection is ineffective isthe string of acquittals and hung juries in which it has been used.'

[FN121]. For a discussion of statistical significance in the courtroom, see Kaye,

supra note 37, at 1333.

[FN122]. See Stone, 132 AM. J. PSYCHIATRY 829, 829 (1975).


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[FN123]. See, e.g., THE PSYCHOLOGY OF THE COURTROOM 49 (N. Kerr & R. Bray eds.1982) [hereinafter Kerr & Bray].

[FN124]. Stroble v. California, 343 U.S. 181, 201 (1952) (Frankfurter, J.,dissenting).

[FN125]. Kerr & Bray, supra note 123, at 49.

[FN126]. Id. at 55. The reluctance to use surveys or polls may lie with the poorconceptualization and methodology associated with the surveys.

[FN127]. The appearance of a fair and impartial trial is crucial to the fairadministration of justice. See supra text accompanying notes 44-51.

[FN128]. Prior to 1959, the defendant had the duty to establish actual prejudiceon the part of the jury.

[FN129]. 360 U.S. 310 (1959).

[FN130]. Prior convictions generally are not admissible to prove the defendantcommitted the offense. Prior convictions may be admissible to impeach adefendant's credibility. See FED. R. EVID. 609(a)(1), (2) (impeachment byevidence of conviction of crime).

[FN131]. 360 U.S. at 313.

[FN132]. 366 U.S. 717 (1961).

[FN133]. Id. at 728 ('As one of the jurors put it, you can't forget what you he

arand see.').

[FN134]. See, e.g., Estes v. Texas, 381 U.S. 532, 543 (1965) ('But out system oflaw always endeavored to prevent the 'probability' of unfairness.') (quoting InreMurchinson, 349 U.S. 133, 136 (1955).

[FN135]. 373 U.S. 723 (1963).

[FN136]. Id. at 725.

[FN137]. Id. at 727. The Court applied the presumed prejudice standard anddecided it was unnecessary to consider the statement of the jurors on voir direwhen the jurors had been exposed to television interrogation.

[FN138]. 381 U.S. 532 (1965).

[FN139]. Id. at 543 (quoting In re Murchison, 349 U.S. 133 (1955)).

[FN140]. Id. at 549.

[FN141]. 384 U.S. 333 (1966).

[FN142]. Id. at 363.


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[FN143]. Id. at 358-63. The Supreme Court suggested that to avoid the effectsofpretrial publicity, the trial court should: (1) limit the number of press atjudicial proceedings when it is apparent that prejudice will result; (2) insulatethe jurors against hearing or reading the full verbatim testimony of thewitnesses; (3) make efforts to control the release of leads, information, and

gossip to the press by police officers, witnesses, and counsel for both sides; (4)warn the newspaper to check the accuracy of their accounts; (2) warn reporters asto the impropriety of publishing material not introduced into the proceedings; (6)continue or transfer the case to another county if there is a reasonablelikelihood that prejudicial news will prevent a fair trial; (7) grant a new trialif publicity during the trial threatens the fairness of the trial; (8) collaboratewith counsel and press as to information affecting the fairness of the trial; an

d(9) impose disciplinary measures for violations of court orders in regard todissemination of matters that will affect a fair trial. Id.

[FN144]. 421 U.S. 794 (1975).

[FN145]. 366 U.S. 717 (1961).

[FN146]. Murphy, 421 U.S. at 799-800 (citations omitted).

[FN147]. Id. at 800 (quoting Irwin v. Dowd, 366 U.S. 717, 723 (1961)).

[FN148]. The Court stated: 'To resolve this case, we must turn, therefore, to

any indications in the totality of circumstances that petitioner's trial was notfundamentally fair.' Murphy, 421 U.S. at 799.

[FN149]. Id. at 803.

[FN150]. 467 U.S. 1025 (1984).

[FN151]. Id. at 1029-30.

[FN152]. Id. at 1034-35.

[FN153]. Id. at 1040.

[FN154]. Coleman v. Kemp, 778 F.2d 1487, 1490 (11th Cir. 1985), cert. denied, 106S. Ct. 2289 (1986) ('Our research has uncovered only a very few additional casesin which relief was granted on the basis of presumed prejudice.')

[FN155]. Id. at 1490.

[FN156]. Mayola, 623 F.2d at 997.

[FN157]. 373 U.S. 723 (1963).

[FN158]. 364 F.2d 1 (5th Cir. 1986).



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[FN160]. Id.

[FN161]. Id. at 1540.

[FN162]. 'To hold otherwise would mean an obviously guilty defendant would haveno right to a fair trial before an impartial jury.' Id. at 1541.

[FN163]. Id.

[FN164]. Contra Coleman, 778 F.2d at 1541 n.25. 'We do not read Rideau to implythat the voir dire cannot rebut a presumption of prejudice . . .. It might beargued that the threshold showing required to presume prejudice is so high thatany rebuttal is inconceivable. However, without expressly deciding the issue, wedecline to read Rideau in this fashion.' Id.

[FN165]. 778 F.2d 1487, 1543 (11th Cir. 1985), cert. denied, 106 S. Ct. 2289(1986).

[FN166]. 421 U.S. 794, 803 (1975).

[FN167]. 467 U.S. 1025, 1040 (1984).

[FN168]. Id. at 1029.

[FN169]. Murphy, 421 U.S. at 796.

[FN170]. Patton, 467 U.S. 1025, 1040 (1984) (Stevens, J., dissenting).

[FN171]. See State v. Coty, 229 A.2d 205, 213 (Me. 1967) (trial court grantedunlimited additional preemptory challenges, trial court took every proper

precaution to make certain that no adverse effects of pretrial publicity enteredthe jury room); Patton v. Young, 467 U.S. 1025, 1035 n.10 (1984) (veniremenbrought into court alone for questioning); United States v. Bailleaux, 685 F.2d1105, 1109 (1982) (trial court found that much of the publicity occurred more thana year prior to the date the jury was selected); Mayola v. Alabama, 623 F.2d 992,996 (5th Cir. 1980) (members of the venire were individually interrogated by thecourt and attorneys), cert. denied, 451 U.S. 913 (1981). But see Pamplin, 364F.2d at 3 (trial court refused to allow jurors to be examined individually).

[FN172]. Each case is unique and the public opinion poll should be designed tofit the facts of the case.


[FN174]. If the parties can agree on the methodology of the poll, time and moneywill be saved. The goal of the public opinion poll is to insure that thedefendant receives a fair and impartial trial. The prosecutor and defenseattorney both must be concerned with this goal.

[FN175]. See MANUAL FOR COMPLEX LITIGATION s 2.712 (Supp. 1981):

The offerer has the burden of establishing that a proffered poll was

conducted in accordance with accepted principles of survey research, i.e.,that the proper universe was examined, that a representative sample was draw

n


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from that universe, and that the mode of questioning the interviewees wascorrect. He should be required to show that: the persons conducting thesurvey were recognized experts; the data gathered was accurately reported;the sample design, the questionnaire, and the interviewing were in accordanc

ewith generally accepted standards of objective procedure and statistics inthe field of such surveys.

[FN176]. Id. The person conducting the survey should be recognized as an expert.For a discussion on the admissibility of opinion surveys, see 18 AM. JUR. PROOFOFFACTS 2d 305 (1984). See also Zeisel, The Uniqueness of Survey Evidence, 45CORNELL L.Q. 322 (1960).

[FN177]. See Judge Feinberg's indepth analysis in Zippo Mfg. Co. v. RogersImports, Inc., 216 F. Supp. 670 (S.D.N.Y. 1963). See also Saliba v. Indiana, 475N.E.2d 1181 (Ind. App. 1985).

[FN178]. E.g., Note, Opinion Polls and the Law of Evidence, 62 VA. L. REV. 1101(1976). For a detailed discussion of the admissibility of public opinion polls,see Saliba v. Indiana, 475 N.E.2d 1181 (Ind. App. 1985).

[FN179]. Although this not a scientific public opinion poll, it proves to theappellate courts that precautions were taken to protect the defendant's right toafair and impartial jury.



[FN182]. 778 F.2d 1487 (11th Cir. 1985), cert. denied, 106 S. Ct. 2289 (1986)(case reversed 11 years after conviction even though the appellate court stated:'[T]here was . . . overwhelming evidence of the [defendant's] guilt . . ..').

[FN183]. Coleman, 778 F.2d at 1540 n.24.

[FN184]. Irvin v. Dowd, 366 U.S. 717, 722 (1961). ('[T]he right to jury trialguarantees to the criminally accused a fair trial by a panel of impartial,'indifferent' jurors').



[FN187]. State v. Coty, 229 A.2d 205, 213 (Me. 1967).

[FN188]. 364 F.2d 1 (5th Cir. 1966).

[FN189]. Id. at 7.

65 U. Det. L. Rev. 169

END OF DOCUMENT


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