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In today’s law environment, the experienced litigation paralegal is asked to work closely with attorneys in the jury selection process (voir dire). This is certainly a significant pre-trial assignment, not just from the plaintiff’s side but also from the defendant’s side and equally applicable to civil and criminal trials. Trial attorneys may call upon litigation paralegals to assist in the proceedings by organizing jury charts of biographical information and recording potential biases or prejudices that could effect a juror’s decision. It is imperative that paralegals, in this position, are not only well versed in the voir dire proceedings, but also understand court decisions that may affect jury selection. Comprehending the rationale behind a court’s decision helps the paralegal to interpret jurors’ fears as being authentic or just an excuse to be removed from jury duty. One such case that should be of interest to paralegals is the recent May 31 appeal by the Tribune-Review Publishing Co., parent company of The Pittsburgh Tribune Review, and WPXI-TV, Pittsburgh, in the case of the Commonwealth v. Long. The state Supreme Court had to decide on a constitutional issue regarding the press’ right of access to voir dire proceedings which included jurors’ names and addresses. The trial court ruled that juror questionnaires are not public record. On appeal, the Superior Court affirmed the lower court’s decision. The Supreme Court, after reviewing the case, agreed to hear the press’ argument limiting the issue only to the following: Should the First Amendment to the U.S. Constitution; Article I, Section 11 of the Pennsylvania Constitution; and/or common law provide a right of access to the names and addresses of impaneled jurors in a criminal case? After examining the evolution of the jury system and precedential cases such as Press-Enterprise Co., v. Superior Court and Commonwealth v. Fenstermaker, the Supreme Court relied on the experience and logic theory addressed in Press to find that there was a “tradition of accessibility” to juror names and that “public access did play a significant role” in the issue at hand. They overturned the lower court’s decision and found the refusal to disclose jurors’ names unwarranted, deeming their right of access as qualified, not absolute. They did, however, affirm the lower court’s decision and denied access to the jurors’ addresses. After the court reviewed Press and other precedent-setting cases, Chief Justice Ralph Cappy wrote for the majority. “If the right asserted is grounded in both experience and logic, then the right of access to the proceedings in question exists under the First Amendment. . . . The process of juror selection is itself a matter of importance, not simply to the adversaries but to the criminal justice system,” Cappy wrote. When I first read about Long in an Associated Press story on June 1, my reactions were mixed. The media functions as a surrogate for the public; however, it would seem that this decision could potentially result in more harassment, intimidation or retaliation against jurors rendering unpopular verdicts if their names were publicly released. It’s tough enough to find people willing to participate in jury duty without this added complication. Talking to average citizens about the court’s decision in this case made many uncomfortable and defensive. Typical responses were “the mob will kill you if they don’t like the verdict” or “my privacy rights are more important than the criminals.” Obviously, this decision would be controversial. It seemed the consensus among people I spoke to – blue collar and professional – was that the right of privacy was being violated by the courts. However, there was one obvious problem: their reasoning wasn’t grounded in fact. Rather, I suggest it was grounded in assumptions and prejudices. Common sense seems to have gone by the wayside in this country and too many people can no longer separate real life from story lines created by Hollywood. Law isn’t about assumptions or personal feelings. It’s about findings of fact and precedence and trusting those on the bench that they are educated, ethical and upholding the laws of this country as they promised. The court could have easily said that in today’s world, threats or intimidation to the American people, of any kind, must be taken seriously and therefore, the media has no right to a juror’s information and that information shall remained sealed. It seems commonplace in today’s government to alleviate the masses fears of feeling unsafe by rewriting laws or creating new laws rather than abiding by the Constitution. Though many citizens expressed fear of their exposure, the court did not take the easy way out and it deserves kudos, although some will still disagree. James Bucci, a common pleas court judge in Berks County, and Allan Sodomsky, a criminal defense attorney in Berks County, jointly agree that intimidation is a valid concern among jurors, especially in high-profile cases. They quickly pointed out that criminal trials have been historically open to the press and public and the process has remained virtually unchanged over the years. The history of the jury system shows, that at one time, everyone not only knew the jurors but where they lived. When weighed against the number of criminal jury trials that are held across the United States every day, Sodomsky and Bucci believe “intimidation is rare” and, as Sodomsky stated, “people realize that the penalties for jury intimidation are just too severe.” Neither Sodomsky nor Bucci has a problem with releasing juror’s names and stressed the importance of keeping public as much information as possible and balancing constitutional rights. “There is a problem with conducting any type of business in secret but even more so when it comes to the administration of justice,” explained Sodomsky. “Deliberation rooms are considered public entities. The potential harm that could be done behind closed doors is just too great and would corrupt our system.” Bucci added, “The sanctity of the jury system and the safety of the individual jurors outweigh the public’s First Amendment right. If the findings of fact reveal a clear and present danger to the jurors, the judge still reserves the right to seal the record. This is done on a case-by-case basis and potential jurors need to know that this discretion has not been taken away from us.” When it comes to addressing a juror’s privacy, Tom Goggin, detective sergeant for the Phoenixville Police Department, doesn’t believe a privacy issue exists. “If you think about it, technology has made it so easy to obtain anyone’s information. . . . For a few dollars, nothing is really private anymore. Provided the courts continue to allow the judge the discretion of whether to seal a case or not, I really have no problem with releasing their names.” The court’s opinion in this case was clearly expressed. It focused on fact, precedence, and tradition and did not discount society’s view on privacy or fear of retaliation. Above all, the opinion policed the court’s decisions and upheld a constitutional right of free speech for everyone. If our government continues to make a mockery of our laws, in particular the Constitution, cases like this will not be given the attention that is imperative to the fairness and equality that has been the symbol of freedom in the United States. The erosion of our basic freedoms should be feared more than retaliation from a verdict. There is no doubt that being called to juror selection is an inconvenience. It disrupts business, imposes on the limited free time many people have and the pay received for jury duty is far less than an average day’s wages. Add to that the stress and possible repercussions from disgruntled litigants or family members and it’s no wonder many in our society are reluctant to fulfill their civic responsibility. The safety of those fulfilling this duty is as paramount as ensuring a defendant’s right to a fair trial or the press’s right to freedom of speech. Balancing the preservation of fairness and tradition with people’s rights is indeed complicated, as this case shows. The media has a right to free expression just as the juror has the right to sell their story after the verdict is read. What the media doesn’t have is a right to place another person in harms way with irresponsible reporting and this is where the judge’s discretion comes into play. Paralegals need to be concerned with juror safety while still understanding that constitutional rights need to be protected. Today’s criminals are becoming more violent and brazen. Privacy issues and violations of rights will undoubtedly be challenged again and at a higher judicial level. Until then, losing a little bit of privacy to ensure free speech and fair trials for a short period of time is a fair trade as long as it remains balanced for everyone. GAILYNNE FERGUSON is a member of the hiladelphia Association of Paralegals and a contributing writer to PAP’s quarterly newsletter. She also holds membership in the Chester County Paralegal Association. Ferguson provides executive support for Collinson Inc., as contracts administrator.

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