Appendix I Example of a Motion for Suggested Voir Dire Procedures and the Use of a Supplemental Juror Questionnaire in a Possession of Child Pornography Case

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APPENDIX I Example of a Motion for Suggested Voir Dire Procedures and the Use of a Supplemental Juror Questionnaire in a Possession of Child Pornography Case IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division

UNITED STATES OF AMERICA,

V.

[Redacted], Defendant.

MEMORANDUM IN SUPPORT OF MOTION FOR SPECIFIED JURY SELECTION PROCEDURES AND FOR ATTORNEY CONDUCTED VOIR DIRE

INTRODUCTION

affidavit of Jeffery Thomas Frederick, Ph.D. are submitted in support of defendant's proposed jury questionnaire and proposed methods of questioning potential jurors in this case. These methods, including the use of a jury questionnaire and attorney-conducted voir dire, are needed in this case in order to elicit the information necessary to discern whether potential jurors harbor any disqualifying prejudice and to allow counsel to intelligently request removal of venire-members for cause and to exercise peremptory challenges.

ARGUMENT

Rule 24(a) of the Federal Rules of Criminal Procedure gives trial courts discretion in deciding the scope and method of jury voir dire.¹ In recent years, federal courts have recognized, even in non-capital cases, the importance of jury questionnaires and attorney participation in order to ensure both parties a more effective jury selection process in emotionally charged cases. See, e.g., United States v. Ible, 630 F.2d 389 (5th Cir. 1980); United States v. Ledee, 549 F.2d 990 (5th Cir. 1977). In Ible, 630 F.2d at 389 n.8., the Court stated:

[WJhile Federal Rule of Criminal Procedure 24(a) gives wide discretion to the trial court, voir dire may have little meaning if it is not conducted at least in part by counsel. The "federal" practice of almost exclusive voir dire examination by the court does not take into account the fact that it is the parties, rather than the
court, who have a full grasp of the nuances and the strengths and weaknesses of the case ... Experience indicates that in the majority of situations questioning by counsel would be more likely to fulfill the need than an exclusive examination in general terms by the trial court.
* * * * * * More recently, records reviewed in this court reflect a new pattern by trial courts. The trial judge will explain the nature of the case in general terms, point out the parties and counsel, cover the most basic points of law (burden of proof, presumption of innocence, right to remain silent, etc.), explain the procedures and schedule to be followed and then turn the questioning over to trial counsel. We encourage this approach.

630 F.2d at 395; emphasis added.

The scope of the problems for jury selection in a child pornography case are described in detail in the accompanying affidavit of Jeffrey Thomas Frederick, Ph.D. (A copy of Dr. Frederick's Affidavit and his curriculum vitae are attached as Exhibits 1 and 2). As Dr. Frederick states:

"The nature of the present case poses special problems for jury selection for both the defense and prosecution that are rarely encountered in the "average" jury trial in Federal Court. Some of these issues or problems are listed below.
"First, the nature of the crime charged (possession of child pornography) is particularly repulsive and of great concern to adult Americans, the population from which jurors are drawn. For example, a 2001 opinion poll of 2,096 adults concerning criminal activity on the Internet' found that 92% of all Americans were concerned with child pornography on the Internet, with 80% saying that they were "very concerned." When respondents were asked to pick the one type of Internet crime that they were most concerned about (including crimes such as hackers attacking businesses or the government, credit card theft, organized terrorism and child pornography, among others, including the option of "another crime not listed"), child pornography was the top concern (50%) of adults chose this crime) with no other Internet crime being viewed as the top concern by more than 10%) of adults. The fact that this case involves child pornography (and potential reference to adult pornographic materials) and that this material was downloaded from the Internet is likely to strike an emotional chord with jurors.
"Second, opinions on adult pornography and child pornography tap into strongly held moral, ethical, and religious beliefs of jurors concerning appropriate, inappropriate, and immoral sexual behavior and conduct. In addition to being strongly held, opinions on adult pornography and child pornography, in particular, can produce visceral and emotional reactions in jurors. This fact will be on display in the jurors' answers in the jury selection example discussed below. Of additional concern are the emerging findings that emotional reactions of disgust lead to more severe moral judgments.' These reactions are exactly the kind of emotions triggered by viewing (and the anticipation of viewing) child pornography. As such, jurors' opinions and beliefs in the area of adult pornography and child pornography, in particular, will need to be addressed through procedures that maximize juror honesty and candor.' The defense is not alone in needing information on jurors' opinions, since jurors' views on government censorship, perceived fairness of obscenity laws, and views that pornography is primarily a victimless crime could play a role in how jurors' view possession of child pornography. It is only through in-depth questioning and exploration of the jurors' views on these issues that both the defense and the prosecution can uncover what is needed to pursue challenges for cause and to intelligently exercise peremptory challenges.
"Third, the experiences and backgrounds of jurors could have a significant bearing on the potential biases that jurors may have. A variety of potential experiences, both general, e.g., being a victim of a crime, and specific, e.g., molestation, unwanted sexual contact, sexual assault, rape, domestic violence, among others, are relevant in child pornography cases. Many of these experiences are of a highly personal nature, the revelation of which in pubhc could lead to embarrassment and, as a result, need to be addressed in a sensitive and supporting setting."

(Frederick Affidavit, pp. 3-5) (internal footnotes omitted). For the reasons more fully articulated in Dr. Frederick's Affidavit, [Redacted] requests the Court permit the use of the accompanying jury questionnaire (attached as Exhibit 3), permit attorney conducted voir dire during which counsel are permitted to ask open-ended questions and requests that the following jury selection procedures be followed;

(1) On the day jury selection is set to begin, the prospective jurors are brought to the courtroom, or alternative appropriate location, with the Court and counsel present.

(2) Hardships requested in advance of the start of jury selection will only be granted by the Court, in consultation with counsel for the government and defense, and not by court staff. No juror responding to a summons in this case should be excused for hardship except by the Court, in consultation with counsel.

(3) The Court provides the prospective jurors an initial orientation to the case, and the potential jurors are asked to complete the jury questionnaires under the supervision of court staff, and in the presence of counsel.

(4) The parties should then be afforded the opportunity to undertake an initial evaluation of the questionnaires and an opportunity to reach agreement on the exclusion, by consent, of those prospective jurors whose questionnaire answers clearly demonstrate either a legitimate hardship or other valid reason to be excused.

(5) Once this initial "culling" has been completed, jurors would be scheduled to return for individual questioning in groups of 30, in the morning and afternoon. Each morning and afternoon panel should be instructed generally (the parties should provide the court with a recommended instruction), then jurors in groups of 4-6 brought separately to the courtroom for follow-up voir dire questioning by the Court and counsel with individual sequestered voir dire for sensitive topic such as exposure and reactions to child pornography and sexual, physical and emotional abuse.

(6) At the conclusion of the group of 4-6 jurors' voir dire, the Court would then hear and decide any challenge for cause. No back striking should be permitted. Those jurors who are not excused for cause are sent to the jury assembly room with instructions not to discuss the case. This process continues until the requisite number of pre-qualified jurors is obtained to permit each parte to exercise its peremptory challenges.

CONCLUSION

WHEREFORE, for all the foregoing reasons, and such additional reasons as may be offered at a hearing on this Motion, it is respectfully requested that the Court adopt the requested procedures and grant the relief requested herein.

Respectfully submitted,

[Redacted]

By Counsel

/s/_________
Nina J. Ginsberg, Esquire
VSB # 19472
[Redacted]
DiMuroGinsberg, P.C.
908 King Street, Suite 200
Alexandria, VA 22314
Phone: 703-684-4333
Fax: 703-548-3181
nginsberg@dimuro.com

CERTIFICATE OF SERVICE

I hereby certify that on November 5, 2010, I will electronically file the foregoing pleading with the Clerk of Court using the CM/ECF system, which will then send a notification of such filing (NEF) to:

Samuel E. Fishel
Special Assistant U.S. Attorney
Virginia Office of Attorney General
900 East Main Street
Richmond, VA 23219
Thomas K. Johnstone, IV
Special Ass. U.S. Attorney
Virginia Office of Attorney General
900 East Main Street
Richmond, VA 23219

/s/_________
Nina J. Ginsberg, Esquire
VSB # 19472
[Redacted]
DiMuro Ginsberg, P.C.
908 King Street, Suite 200
Alexandria, VA 22314
Phone: 703-684-4333
Fax: 703-548-3181
nginsberg@dimuro. com

ALVIN B.H. MIRMELSTEIN, JR.
EDWARD B. GERBEB
STEPHEN R. HART
JAMES P. WITT
MICHAEL D. JAFFE
JOHN M. STONE
DOUGLAS C. PLANK
ROBERT B. McKINNEY
TIMOTHY I. SNIDER
THOMAS H. ROMER

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