Invaluable Tool vs. Unfair Use of PrivateInformation: Examining Prosecutors' Use ofJurors' Criminal History Records in Voir Dire

I. Introduction Consider the following hypothetical scenario: The government has charged the defendant with the felony of possession of cocaine with intent to distribute, and a jury trial is set to begin. During jury selection, the court asks the potential jurors whether any of them is a convicted felon. All the prospective jurors deny any felony convictions. The prosecutor then asks whether any of the prospective jurors has been arrested or convicted of any criminal offense. Again, all the potential jurors answer in the negative. At the conclusion of voir dire,1 twelve jurors sit in the jury box ready to hear the case. Juror X is a convicted felon, although his answer to the court's question was not a he intended to deceive the court. X simply thought his conviction for grand larceny was not a felony because his guilty plea resulted only in a fine. X thought all felonies required a jail sentence of a year or more. Juror Y's criminal history includes a conviction for misdemeanor possession of marijuana. Y chose to deny this conviction because he disagrees with the government's policy of criminalizing the recreational use of drugs. Yalso did not see the need to embarrass himself in open court by admitting his drug use. Juror Z has never been convicted of a crime. However, Z once was arrested for prostitution. Z denied this arrest because she did not want to humiliate herself by admitting to an arrest for such a degrading crime, particularly when the prosecutor had dropped the charges - In addition, Z views her arrest as resulting from nothing less than police entrapment. An impartial jury is the "touchstone of a fair trial."2 Like the defendant, the government has a right to an impartial jury.3 However, in the scenario described above, the potential for juror bias against the government's case is high.4 Not only does Juror Xs felony conviction create a potential for bias against the government,5 it disqualifies him from jury service.6 X's ineligibility could provide the basis for an appellate court to overturn any conviction the defendant may receive. 7 The experiences of Juror Y and Juror Z, while not disqualifying them from jury service, may cause them to be prejudiced against the government's case. Y's feelings about the illegality of drug use may adversely affect his consideration of the government's case against the defendant, Likewise, Zs distrust of the tactics that the police used in her case may cause her to view unfairly the government's evidence against the defendant with extreme suspicion. In order to uncover these potential biases, prosecutors use lists containing the names of prospective jurors to check their criminal histories.8 Prosecutors then use that information as a basis for removing jurors in voir dire.9 Despite the important implications of this practice,10 neither courts nor legal scholars have devoted much attention to answering the fundamental question of whether prosecutors should use the criminal history records of potential jurors in voir dire.11 Many state courts, as well as some federal circuit courts, have answered the secondary question of whether the defendant has a right to disclosure of jurors' criminal records in the prosecutor's possession.12 But only three states - Iowa,13 Alaska,14 and Missouri15 - have answered the primary question of whether prosecutors even can use the records in voir dire.16 Recently, however, this question has surfaced in Virginia, where Chief Judge James H. Chamblin of Virginia's Twentieth Judicial Circuit issued an order prohibiting Virginia's prosecutors from engaging in the common practice of conducting criminal and driving history checks on prospective jurors.17Legal scholars also have failed to examine adequately the question of prosecutors' use of jurors' criminal records in voir dire. Commentators discussing information about jurors have focused almost exclusively on the privacy rights of jurors in the context of voir dire questioning,18 public and press access to voir dire,19 limiting disclosure of juror identities,20 and posttrial interviews. …