# Mu'Min v. Virginia

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## Concurring Opinion

    O'Connor

## Dissenting Opinions

    Marshall
    Kennedy
United States Supreme Court
500 U.S. 415
Mu'Min v. Virginia
No. 90-5193 Argued: Feb. 20, 1991. --- Decided: May 30, 1991
See U.S., 112 S.ct. 13.
Syllabus
Petitioner Mu'Min, a Virginia inmate serving time for first-degree murder, committed another murder while out of prison on work detail. The case engendered substantial publicity in the local news media. The trial judge denied his motion for individual voir dire and refused to ask any of his proposed questions relating to the content of news items that potential jurors might have seen or read. Initially, the judge questioned the prospective jurors as a group, asking four separate questions about the effect on them of pretrial publicity or information about the case obtained by other means. One juror who admitted to having formed a belief as to Mu'Min's guilt was excused for cause. The judge then conducted further voir dire in panels of four, and each time a juror indicated that he had acquired knowledge about the case from outside sources, he was asked whether he had formed an opinion. One juror who equivocated as to her impartiality was excused by the judge sua sponte, and several others were excused for various reasons. Although 8 of the 12 eventually sworn admitted that they had read or heard something about the case, none indicated that they had formed an opinion based on the outside information or would be biased in any way. The jury found Mu'Min guilty of capital murder, and the judge sentenced him to death. The Supreme Court of Virginia affirmed, finding that, while a criminal defendant may properly ask on voir dire whether a juror has previously acquired any information about the case, the defendant does not have a constitutional right to explore the content of the acquired information, but is only entitled to know whether the juror can remain impartial in light of the previously obtained information.
Held: The trial judge's refusal to question prospective jurors about the specific contents of the news reports to which they had been exposed did not violate Mu'Min's Sixth Amendment right to an impartial jury or his right to due process under the Fourteenth Amendment. Pp. 422-432.
(a) This Court's cases have stressed the wide discretion granted to trial courts in conducting voir dire in the area of pretrial publicity and in other areas that might tend to show juror bias. For example, in holding that a trial court's voir dire questioning must "cover the subject" of possible juror racial bias, Aldridge v. United States, 283 U.S. 308, 311, 51 S.Ct. 470, 471, 75 L.Ed. 1054, the Court was careful not to specify the particulars by which this could be done. Pp. 422-424.
(b) Mu'Min's assertion that voir dire must do more than merely "cover the subject" of pretrial publicity is not persuasive. Although precise inquiries about the contents of any news reports that a potential juror has read might reveal a sense of the juror's general outlook on life that would be of some use in exercising peremptory challenges, this benefit cannot be a basis for making "content" questions about pretrial publicity a constitutional requirement, since peremptory challenges are not required by the Constitution. Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 2278, 101 L.Ed.2d 80. Moreover, although content questions might be helpful in assessing whether a juror is impartial, such questions are constitutionally compelled only if the trial court's failure to ask them renders the defendant's trial fundamentally unfair. See Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589. Furthermore, contrary to the situation in Aldridge, supra, 283 U.S., at 311-313, 51 S.Ct., at 471-72, there is no judicial consensus, or even weight of authority, favoring Mu'Min's position. Even the Federal Courts of Appeals that have required content inquiries have not expressly done so on constitutional grounds. Pp. 424-427.
(c) Mu'Min misplaces his reliance on Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751, in which the Court held that pretrial publicity in connection with a capital trial had so tainted the particular jury pool that the defendant was entitled as a matter of federal constitutional law to a change of venue. That case did not deal with any constitutional requirement of voir dire inquiry, and it is not clear from the Court's opinion how extensive an inquiry the trial court made. Moreover, the pretrial publicity here, although substantial, was not nearly as damaging or extensive as that found to exist in Irvin. While adverse pretrial publicity can create such a presumption of prejudice that the jurors' claims that they can be impartial should not be believed, Patton v. Yount, 467 U.S. 1025, 1031, 104 S.Ct. 2885, 2888, 81 L.Ed.2d 847, this is not such a case. Pp. 427-430.
(d) Mu'Min also misplaces his reliance on the American Bar Association's Standards For Criminal Justice, which require interrogation of each juror individually with respect to "what [he] has read and heard about the case," "[i]f there is a substantial possibility that [he] will be ineligible to serve because of exposure to potentially prejudicial material." These standards leave to the trial court the initial determination of whether there is such a substantial possibility; are based on a substantive for-cause eligibility standard that is stricter than the impartiality standard required by the Constitution, see Patton, supra, 467 U.S., at 1035, 104 S.Ct., at 2890; and have not commended themselves to a majority of the courts that have considered the question. Pp. 430-431.
(e) The two-part voir dire examination conducted by the trial court in this case was by no means perfunctory and adequately covered the subject of possible bias by pretrial publicity. Pp. 431-432.
239 Va. 433, 389 S.E.2d 886, affirmed.
REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA, and SOUTER, JJ., joined. O'CONNOR, J., filed a concurring opinion. MARSHALL, J., filed a dissenting opinion, in all but Part IV of which BLACKMUN and STEVENS, JJ., joined. KENNEDY, J., filed a dissenting opinion.
John H. Blume, Columbia, S.C., for petitioner.
John H. McLees, Jr., Richmond, Va., for respondent.
Chief Justice REHNQUIST delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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