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Court: Unseal jury questionnaires

Defendant challenges conviction over voir dire procedure

Courts across the country, including Minnesota, have frequently denied claims of rights violations due to uncommon judicial procedures during the pandemic. The 8th U.S. Circuit Court of Appeals, in the case of United States of America v. Jarvae Josiah Somerville, has found that one alternative practice adopted because of COVID-19 may have prejudiced a convicted man.

Jarvae Somerville, along with another appellant, was convicted of unlawfully possessing a firearm. As the trial moved forward, the district court discussed how voir dire would work in light of the pandemic and if it would require modification. The district court determined that it would use “jury questionnaires.” The court reasoned that the questionnaires would be helpful to everyone, as it could “lead to some very obvious cause strikes.”

Jury questionnaires are not just a function of the COVID-19 pandemic. While using them has historically not been the norm, the government testified in this case that they are being increasingly used in the district court of Minnesota.

The parties were provided with the proposed questionnaire. They were also given the opportunity to propose changes to the questions, and some of those requests were adopted. These questionnaires were then sent to a pool of prospective jurors.

A portion of the jury pool returned responses. However, the court decided that it would not release the completed questionnaires. Instead, it let parties know that the voir dire process was going to be oral and in court, after all.

Appellant moved the court to release the completed questionnaires for the parties to review, thinking that the jurors may be more forthcoming in the written answers rather than in the answers provided in court. The court denied the motion, claiming that the oral inquiry would yield responses that would be more “appropriate” for the court. “I’m afraid that inadvertently there may have been some, what I call inadvertent comments, they were gratuitous comments, made that are not appropriate for any courtroom and the result is that it is appropriate for the court just to keep them under seal,” the court wrote.

The problem — as the 8th Circuit wrote — was that it was unclear why the comments were inappropriate. Whether the questionnaires were covered in innocuous doodles — or racially charged content — would make a difference in determining whether there was bias. It is unclear from the record whether the comments were derogatory, laced with profanity, otherwise crude — or simply nonresponsive. Ryan Pacyga, who represented Somerville, was convinced that these answers were not innocuous. “These were not just regular answers. These were answers that were troubling Judge Magnuson.”

Nevertheless, the jury was empaneled, and it convicted appellant. Somerville contended that the district court conducted voir dire in a way that violated his Sixth Amendment right to a fair and impartial jury when it withheld the release of the completed juror questionnaires. Specifically, Somerville argued that the prospective jurors were more likely to be honest in the written answers as opposed to in open court.

“You cannot take that back. Once that information is let out, once the court made the decision to send out and receive answers from jurors, and not share those with the defense counsel … that guides our ability. … We could not even strike for cause because we don’t know what they said,”Pacyga maintained.

The court noted that the unique circumstances surrounding this case presented it with an issue of first impression. That task was made increasingly more difficult, the court noted, due to the lack of information on the record about the questionnaire answers. Additionally, the parties had not been able to make specific challenges based on the jurors’ answers, as they were never permitted to review them. “Accordingly, we are simply blind to the impact, if any, these questionnaires may have had on the jury pool,” the court wrote.

Although the court was unable to say whether the content of the written questionnaires would have revealed anything about juror bias, it found that the district court’s cryptic description of the content was problematic. “This bolsters Somerville’s argument that the jurors may have been more candid in their written responses than in open court,” the court asserted.

One of the questions, according to Pacyga, asked if the juror would treat African American defendants equally, in light of the social unrest at the time. “If you were a lawyer for the defendant, and you see a prospective juror saying, ‘I might not be fair to a Black person on trial,’ would you try to exercise a strike for cause? We were deprived of that opportunity,” Pacyga claimed.

The court declined to take any “drastic steps” such as reversing the conviction. “[T]he district court’s troubling description of the comments warrants disclosure of the completed questionnaires to the parties,” the court concluded. The district court was ordered to disclose the completed questionnaires no later than 14 days after the filing of the opinion.


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