DOJ-OGR-00005218.pdf

--- Page 1 --- The extracted text is: **Header:** * Case 1:20-cr-00330-PAE * Document 342 * Filed 10/13/21 * Page 13 of 17 **Main Text:** into account the fact that it is the parties, rather than the Court, who have a full grasp of the nuances and the strength and weaknesses of the case.... Experience indicates that in the majority of situations questioning by counsel would be more likely to fulfill this need [for information upon which to base the intelligent exercise of peremptory challenges] than an exclusive examination in general terms by the trial Court. United States v. Ible, 630 F.2d 389, 395 (5th Cir. 1980). In this case, voir dire conducted solely by the Court will interfere with the intelligent exercise of peremptory challenges. Attorneys have been working on this case well over a year. They are most likely to know the areas of questioning that must be explored to further uncover the prejudices that are most pertinent to the evidence that will be presented at trial. They also act with an awareness that they will have to base peremptory challenges on the juror's answers. Permitting attorney-conducted voir dire in addition to Court voir dire will therefore maximize the information obtained in voir dire. **B. The Extensive Pretrial Publicity Related to This Case Necessitates Attorney-Conducted Voir Dire** The possibility of prejudice in this case due to the extensive pretrial publicity is so great that specific voir dire questions by counsel are necessary. In United States v. Davis, the Fifth Circuit held that the district court erred in not undertaking a more thorough examination of panel members exposed to publicity ("[W]here the nature of the publicity as a whole raised a significant possibility of prejudice, the cursory questioning by the court was not enough."). A district court is required, under Davis, to determine what each juror may have heard or read and how it may have affected his attitude toward the trial, and whether any juror's impartiality had been destroyed. Id; see also Silverthorne v. United States, 400 F.2d 627, 638 (9th Cir. 1968) ("[I]n the absence of an examination designed to elicit answers which provide an objective basis **Footer:** * DOJ-OGR-00005218