The Journal of The DuPage County Bar Association

Back Issues > Vol. 22 (2009-10)

Medical Privacy and Voir Dire: Going Beyond Doctor and Patient
By Sara Zweig

To most Americans, "the right to be let alone [is] the most comprehensive of rights and the right most valued by civilized men."1 Still, while Americans generally consider the right to privacy to be of utmost importance, the Constitutional right to a fair and impartial jury is arguably the cornerstone of our legal system. The Sixth Amendment of the Constitution states that "the accused shall enjoy the right to a speedy and public trial, by an impartial jury."2 The question, however, becomes how to determine whether a juror is "impartial" if he or she withholds relevant information from the attorneys under the auspices of juror privacy.

Prospective jurors are required to divulge a certain amount of information to determine whether they qualify for jury service and are capable of making impartial decisions.3 In recent decades, however, trial attorneys have begun to demand increasing amounts of personal information from jurors in their attempt to determine impartiality.4 Because of the rising number of questions, attorneys are rapidly intruding upon juror privacy. Therefore, courts must reconcile a defendant’s right to an impartial jury with a potential juror’s right to privacy. To do so, courts have begun to examine how private a juror’s medical history really should be.

As patients, we tend to unquestioningly assume that our medical history is private. However, as courts explore the issue of juror privacy, it is evident that medical history is not always and maybe should not be completely private.

Voir Dire and Its Impact on Juror Privacy. The Sixth Amendment guarantees a defendant’s right to a speedy, public trial by an impartial jury.5 Therefore, to determine if prospective jurors would in fact be capable of making an impartial decision, there is an undisputed need to gather at least some information from them.6 Additionally, the need for a public, open trial is imperative since, as Press-Enterprise Company v. Superior Court of California emphasizes, it enhances fairness and is essential to bolster public confidence in the judicial system.7 Both of these requirements, however, "directly conflict... with the American population’s increasing interest in keeping such information private."8 It is thus imperative to examine not only the defendant’s right to a fair trial, but also the juror’s right to privacy.

According to the Supreme Court, "an individual has a Constitutional right to privacy [under the Fourteenth Amendment] that protects him from the compelled disclosure of personal matters with respect to which he has a reasonable expectation of privacy."9 Unless people lose their reasonable expectation of privacy by becoming prospective jurors, they should still "have a Constitutional right to privacy protecting them from disclosure of personal information during voir dire."10 However, nothing about becoming a prospective juror should cause a person to lose their expectation of privacy: "prospective jurors do not seek out the public forum; they are summoned, often unwillingly, to fulfill a public duty in the justice system. Prospective jurors should therefore have the same reasonable expectation of privacy that they had as ordinary citizens."11

Given these two contradictory concerns, the juror’s privacy right and the defendant’s right to a fair trial have to be balanced against one another."12 Although juror privacy rights cannot trump all other values, they should also not be ignored.13 "Instead, the rights of jurors should be a permanent fixture in the balancing of the interests that determine the manner in which trials are conducted."14

Balancing Privacy and The Sixth Amendment. "The search for an impartial juror is a balancing effort by the court between the competing parties, the public and the potential jurors."15 To do so, the "compelling interest of a prospective juror when interrogation touches on deeply personal matters that a person has legitimate reasons for keeping out of the public domain … must be balanced against the defendant’s right to a fair trial, and the need for openness in trial proceedings."16

The Court in Nixon v. Administrator of General Services adopted a "reasonable expectation of privacy test" to balance these interests.17 To determine if a potential juror has a reasonable expectation of privacy: "[f]irst, a person must have exhibited an actual subjective expectation of privacy and second, this expectation must be one that society is prepared to recognize as reasonable."18 If potential jurors fulfill both parts of this test, they have a reasonable expectation of privacy and their privacy interest outweighs the defendant’s right to question them. If, on the other hand, they do not fulfill the "reasonable expectation of privacy test," then the defendant may proceed with their questions. The test depends on the issue of relevance. Questions "must have some relevance [to] whether she should be qualified or disqualified from jury service … 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."19

If the information is not directly relevant to the issue of bias, "prospective jurors have no basis to reasonably expect that [the] information will be sought during the jury selection process, given that the only legitimate purpose of voir dire is to ensure the selection of an impartial jury."20 Jurors "have a Constitutional right to privacy with respect to matters not directly related to the question of bias, and the existence of this Constitutional right should lead the trial court judge to limit the exploration of such matters during the jury selection process."21 Courts have thus repeatedly sustained decisions to limit voir dire in circumstances where the issues being probed are too remote from the issues in the case to warrant the intrusion of the potential juror’s privacy.22

On the other hand, "prospective jurors have no Constitutional right to privacy with respect to matters directly related to the question of juror bias."23 As such, there is consensus that "when a highly intrusive question is also highly relevant … the interest of the juror in nondisclosure must give way to the interest of the litigants in seating an impartial jury."24

Prior Instances of Conflict Between Juror Privacy Rights and the Parties’ Right to an Impartial Jury. To determine how courts should balance the jurors’ right to medical privacy with the litigants’ right to an impartial jury, it may be helpful to examine how courts have ruled on other, highly private issues. In United States v. Barnes, the court reasoned that "unbridled voir dire into venire members’ religion, politics, social standing, family ties, friends, habits of life and thought, would strip jurors of any semblance of privacy."25 Therefore, the courts have held that, on highly private issues, the court should permit questions only if the line of questioning is highly relevant to whether or not a bias exists.26

In the case of religion, the courts have repeatedly held that attorneys may only question potential jurors about their religion if it is relevant to the case.27 While religious background is often a useful area to ask prospective jurors about, when it is "unrelated to the issue at trial it is not a proper subject for inquiry."28 In Barnes, the court noted voir dire was "not designed to subject prospective jurors to a catechism of their tenets of faith, whether it be Catholic, Jewish, Protestant, or Mohammedan, or to force them to publicly declare themselves to be atheists."29

Still, if the question is relevant to the issues to be decided at trial, inquiry is allowed.

This same standard has been applied in a number of contexts. Although questions related to rape can be highly sensitive, for example, in Press-Enterprise, the Court held that it was appropriate in a rape case to ask a prospective juror if she, or a member of her family, had been raped but declined to seek prosecution.30 Other courts have likewise held that, although it is a potentially traumatizing topic to discuss, if the defendant is being tried on rape charges, "a juror’s own experience with rape may well affect her ability to be impartial" and may thus be a proper subject for inquiry.31 The courts have concluded in such cases that, "a juror’s interest in keeping her experience with rape private conflicts with the compelling Constitutional interest of the litigant in ensuring that the case is tried by a fair and impartial jury."32

Courts have also found that if race and ethnic background is likely to affect the jury’s decision-making process, the defendant has a right to "specific voir dire inquiries concerning the venire members’ racial biases."33 And courts have held that in cases where the potential juror’s views on illegal drugs or homosexuality are concerned, if it is within the scope of the case, inquiry is proper.34 Thus, in many cases involving particularly sensitive and private issues, if relevant to the issues to be tried, the courts have repeatedly held that the defendant’s Constitutional rights to an impartial jury outweigh the prspective jurors’ rights to not be questioned, even if the inquiry is likely to involve particularly sensitive and personal aspects of the jurors’ lives.

Techniques to Minimize Juror Privacy Intrusion. While jurors have no Constitutionally protected privacy right with respect to matters that are directly relevant to issues of bias, they "may have a legitimate interest in limited disclosure of such information which should be accommodated to the extent practicable."35 The Supreme Court has thus held that "a prospective juror may have a legitimate privacy interest in limiting disclosure of such information when it is highly personal, embarrassing, or potentially damaging."36 By using less intrusive means, courts can "minimize any potential injury to the prospective juror’s privacy interest while at the same time allowing the information to be elicited."37

The court in Nixon impliedly requires a "least intrusive means component" when analyzing privacy rights.38 There are a number of less intrusive alternatives for obtaining information.39 One means of accommodating juror’s privacy, while still probing possible bias, is to conduct the voir dire in camera. First, if the questions are relevant to bias or prejudice but the prospective juror asserts a right to privacy, "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."40 Second, if the court determines that "the issue is relevant but entails a private matter, the court should enter into an in camera proceeding where the juror is allowed to answer the question in the presence of the court and the attorneys."41

Alternatively, as the Court in Press-Enterprise acknowledged, a "valid privacy interest may rise to a level that part of the transcript should be sealed, or the name of the juror withheld to protect the person from embarrassment."42 Another option is to rephrase the questions in the least offensive way possible to still elicit necessary information.43 Questionnaires permit personal questions while avoiding public inquiry.44 If the balance between the juror’s privacy interest and the litigant’s Constitutional right to an impartial jury tips toward the litigant, these alternative methods of questioning can still provide potential jurors at least some protection.

Medical Privacy and Voir Dire. Most people expect that their medical history is only between their doctors and themselves. Generally, "information about one’s body and state of health is a matter which the individual is ordinarily entitled to retain within the private enclave where he may lead a private life."45 Since few matters are as personal as the status of one’s health, "the right to confidentiality includes the right to protection regarding information about the state of one’s health."46 Particularly since the enactment of the Health Insurance Portability and Accountability Act ("HIPAA") in 1996, which "restricts health care entities from disclosure of protected health information,"47 people generally feel even more confident that their medical history is free from prying eyes.

While society considers medical history to be a highly private matter, similar to other privacy matters, courts emphasize the need to balance the potential jurors’ right to privacy against the defendant’s right to a fair trial. Courts have been willing to limit inquiry into panel members’ medical conditions by using a balancing approach.48

If the inquiry is not relevant, than there is an expectation of privacy and a juror’s right to privacy outweighs any potential information that the litigant could gain from the questioning. If the matter is not relevant, than the balance tips drastically toward the potential juror since courts have already determined that there is a right to confidentiality, including regarding the state of one’s health.49 As such, attorneys are limited from inquiring into "highly personal matters, such as what medications jurors are taking, in cases where these questions have little apparent connections to the proceedings."50

However, if such questioning is relevant, for example in a medical malpractice case, courts have generally found that such inquiries are necessary. The court in United States v. McDade commented that "[j]ust because one gets called into jury service does not give eager and assiduous counsel the right to … rummage through one’s medicine cabinet, … perusing the array of Rx labels." But the Court in McDade was also still willing to permit some inquiry because medical history was relevant to the trial.51 It stressed that juror’s "privacy rights – to be let alone – are not, of course absolute."52

The question of whether medical privacy laws should serve to restrict counsel’s ability to examine prospective jurors is anything but settled. In State v. Wise, a jury convicted the defendant of second degree burglary and first degree theft and he appealed.53 He argued that the trial court violated his Constitutional rights to an open trial when it conducted portions of the voir dire, including questioning a prospective juror about his health problems, in chambers.54 The appellate court found that the trial court could not "compel all potential jurors to waive HIPPA protections when they are questioned about their personal medical information."55 It noted that potential jurors are required to be candid with the court and are under oath. As such, it reasoned that since the trial court specifically asked the jury whether anyone had any medical conditions that would make it difficult to sit as a juror, "any disclosures in response to that question cannot be seen as a waiver of HIPPA and the prospective juror’s Constitutional rights under … the Washington Constitution to keep personal information private."56

Although Wise is a state case, it suggests that a more dramatic shift toward protecting juror’s medical privacy could be imminent. The enactment of HIPPA is indicative of the large importance that most people place on keeping their medical history private. As such, it is entirely possible that courts may follow Wise and do more to protect juror’s medical privacy during voir dire, including refusing questions on such issues altogether.

Protection of juror privacy is important. But it must be balanced against a defendant’s Sixth Amendment rights. As courts have consistently held on other sensitive, private issues, where medical history is relevant to show bias, a court’s refusal to allow any such questioning should be found unconstitutional. Rather than refuse such questions altogether, therefore, the Courts should allow them when necessary, subject to appropriate safeguards such as individualized (in camera) voir dire and the use of questionnaires.

1 Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).

2 U.S. Const. amend. VI.

3 See, Lauren A. Rousseau, Privacy and Jury Selection: Does the Constitution Protect Prospective Jurors from Personally Intrusive Voir Dire Questions?, 3 Rutgers J.L. & Pub. Pol’y 287, 294 (2006).

4 Id. at 298.

5 U.S. Const. Amend. VI.

6 See Rousseau, supra note 3 at 294.

7 See Press-Enter. Co. v. Super. Ct. of Cal., 464 U.S. 501, 504-10 (1984).

8 Id. at 298.

9 Michael R. Glover, The Right to Privacy of Prospective Jurors During Voir Dire, 70 Cal. L. Rev. 708, 711 (1982); see also Whalen v. Roe, 429 U.S. 589, 598-600 (1977) (holding that individuals have a Constitutionally protected right to keep certain matters private); Nixon v. Adm’r of Gen. Servs., 97 U.S. 425, 458 (1977) (refining the Whalen decision that there is a Constitutionally based privacy interest to avoid public disclosure of personal matters to include a "legitimate expectation of privacy" standard).

10 Glover, supra note 9 at 711.

11 Id. at 712.

12 David Weinstein, Protecting a Juror’s Right to Privacy: Constitutional Constraints and Policy Options, 70 Temp. L. Rev. 1, 7 (1997).

13 Id. at 51.

14 Id.

15 Brandborg v. Lucas, 891 F. Supp. 352, 356 (E.D. Tex 1995).

16 Weinstein, supra note 12 at 7.

17 Glover, supra note 9 at 718.

18 Id. (internal citations omitted).

19 Brandborg, 891 F. Supp at 361.

20 Id. at 316-17.

21 Id. at 289.

22 See United States v. Barnes, 604 F.2d 121, 140 (2nd Cir. 1979).

23 Rousseau, supra note 3 at 288; see also Brandborg, 891 F. Supp. at 358 (explaining that the "gist of the history of selecting fair and impartial jurors allows that if the issue is relevant to determining the bias or prejudice of a prospective juror then the question is proper").

24 Rousseau, supra note 3 at 311-12.

25 Weinstein, supra note 12 at 16 (internal citations omitted).

26 Brandborg, 891 F. Supp at 361; see also Barnes, 604 F.2d 121 (holding that it was not an error to prevent questions related to potential jurors’ religion and ethnic backgrounds since they were not directly relevant to the case); Press-Enter., 464 U.S. 501 (finding that it was appropriate to question jurors about past experiences with rape during voir dire in a rape and murder trial so long as the juror’s privacy interests were protected by alternative questioning techniques).

27 See Yarborough v. United States, 230 F.2d 56, 63 (4th Cir. 1956) (holding that, in a prosecution for failure to file tax returns, where religious was not at all significant, the trial court’s failure to inquire into jurors’ religious affiliations on voir dire was not error); Barnes, 604 F.2d at 139-43 (upholding Yarborough’s decision that if jurors’ religious backgrounds and affiliations were not significant to establishing bias, then questions it was not appropriate to ask questions on the jurors’ religion).

28 Brandborg, 891 F. Supp at 358.

29 Barnes, 604 F.2d at 141.

30 Press-Enter., 464 U.S. at 512.

31 Rousseau, supra note 3 at 310.

32 Id. at 310-11.

33 Weinstein, supra note 12 at 10.

34 See People v. James, 304 Ill. App. 3d 52, 60 – 61, 710 N.E.2d 484, 490-91 (1999); Mays v. Texas, 726 S.W.2d 937, 949 (1986).

35 Id. at 288-89.

36 Id. at 316 (citing Press-Enter., 464 U.S. at 514 ("[A] juror has a valid interest in not being required to disclose to all the world highly personal or embarrassing information simply because he is called to do his public duty.")).

37 Glover, supra note 9 at 719.

38 Id.

39 Id.

40 Brandborg, 891 F. Supp at 361; see also Press-Enter., 464 U.S. at 512 (noting that individuals who believe public questioning would be damaging and embarrassing could request "an opportunity to present the problem to the judge in camera but with counsel present and on the record).

41 Brandborg, 891 F. Supp at 360.

42 Press-Enter., 464 U.S. at 512; see also Rousseau, supra note 3 at 304.

43 Glover, supra note 9 at 720.

44 Id.

45 Doe v. City of New York, 15 F.3d 264, 267 (1994).

46 Id.

47 Washington v. Wise, 200 P.3d 266, 275-76 (2009).

48 Weinstein, supra note 12 at 17.

49 See Doe v. City of New York, 15 F.3d at 267.

50 Weinstein, supra note 12 at 19.

51 United States v. McDade, 929 F. Supp. 815, 817 (1996).

52 Id. at 817-18. See also Stewart v. Carroll, 154 P.3d 382, 386-87 (2007) ("[T]he ‘legislature’s decision to maintain the confidentiality of medical statements submitted by prospective jurors does not infringe the Constitutional requirement of public judicial proceedings; rather it accommodates legitimate personal privacy rights...’").

53 State v. Wise, 200 P.3d 266, 269 (Wash. App. 2009).

54 Id. at 269-70.

55 Id. at 276.

56 Id.

Sara Zweig is a student at Loyola University Chicago School of Law working with the American Medical Association as an intern in the Private Sector Advocacy Department. Prior to law school, she graduated from Franklin & Marshall College with a Joint Studies Degree in Government and Biology, then worked as a paralegal at Kirkland & Ellis LLP for three years.

DCBA Brief