[Frank Ettin]

Originally Posted by JimDandy

...I'm going to assume you and I were posting at the same time, and so you haven't seen the Brandborg case I cited yet that found a juror's right to privacy in the 1st and 14th amendment apparently, at least when the questions aren't established as relevant to the case they're being used on. Or some such.

"Or some such"? Let's try to be more precise when discussing important legal principles.

Anyway, Brandborg v. Lucas, 891 F.Supp. 352 (E. D. Tex., 1995) is an interesting case. First, of course, it's a federal trial court case and therefore of no real value as precedent, nor does it support your various contentions up to this point. However, it does help illustrate how certain questions in a jury questionnaire could be subject to challenge as irrelevant and thus an impermissible invasion of privacy.

Ms. Brandborg was called as a prospective juror in a Texas state court. She was asked to complete a 110 question questionnaire. She answered all but 12 of those questions and declined to answer those on the theory that they were needless intrusive and violated her privacy. The questions she declined to answer related to such matters as her income, religious affiliation, political affiliation, medications she takes, and similar questions of a highly personal nature.

She continued to decline to answer even after discussion with the judge in the Texas court and even after the judge advised her that she could be cited for contempt of court. Given her continued refusal to answer she was cited for contempt. She challenged that citation in the state court and ultimately found her way to the federal district court on a petition for a writ of habeas corpus, resulting in the memorandum decision cited above setting aside the contempt order.

In his decision the magistrate judge first considers the challenge of finding an impartial jury, 891 F.Supp. 352, at 356:

...The search for an impartial juror is a balancing effort by the court between the competing parties, the public and the potential juror. Without proper consideration of the rights of each of these interests, the jury will not be the solid cornerstone of our trial system that it must be....

He also considers the constitutional right of a defendant to an impartial jury, the constitutional right of privacy derived from the First and Fourteenth Amendments, the right of the public to open proceedings and the trial court's role in protecting these competing rights.

Then, applying those principles to the instant case, the magistrate judge writes, at 360 -- 361 (emphasis added):

...To determine the outcome in this case, the Court must examine the competing interests involved. Petitioner may have a constitutionally protected right to nondisclosure of matters deemed to be private, if that right is not out-weighed by the rights of the parties to an impartial jury. Petitioner should not lose her expectation of privacy merely by becoming a prospective juror. James Lee Clark, the criminal defendant, also has a competing interest in enjoying his right to a trial by an impartial jury. Additionally, the public has an interest in keeping the proceedings open.

These competing interests must be balanced to determine whether a prospective juror should have to answer questions which are deemed to be private in nature. The questions involved in the case should have been examined to determine whether they were relevant to the underlying criminal case. The questions posed to petitioner must have some relevance to the question of whether she should be qualified or disqualified from jury service in this case because of bias or prejudice. If the questions are not directed to procure this type of information, the questions should not be presented to the prospective juror and the issue of privacy will not arise.

If the trial court finds that the questions are relevant to the question of bias or prejudice of a prospective juror, and the prospective juror raises her privacy right, the trial court should conduct an in camera hearing to determine what is the least intrusive means to procure the information and protect the rights of the prospective juror. In determining whether the prospective juror should be required to answer the questions posed, the trial court must balance the competing interests of the prospective juror, the criminal defendant, the prosecution, and the public.

Petitioner's specific circumstances do not report a proper balancing of her right of privacy in relation to the rights of the public and the parties. The trial court should limit voir dire when the parties seek information too remote from the issues in the case to warrant invasion of the potential juror's private thoughts. Barnes, 604 F.2d at 140.....

And in setting aside Ms. Brandborg contempt citation, the magistrate judge writes, at 361 (emphasis added):

...the relevance of the specific questions at issue was never considered or established. The trial court's failure to determine the relevance of the questions and conduct a balancing test of the competing interests, entitled the petitioner to refuse to answer. However, a potential juror is certainly not free to refuse to answer any question propounded when it is found by the court to be relevant, or potentially relevant, and a balancing of the competing interests is performed. If a trial court determines that a specific question is relevant and after conducting a balancing of the competing interests determines that the prospective juror's privacy rights are outweighed by the other interests, the prospective juror cannot refuse to answer the question. However, the court should provide the prospective juror with the least intrusive means to provide that information.....