This Court has not addressed whether, and upon what threshold showing, individual voir dire is constitutionally required to guarantee a defendant's right to "have sufficient information brought out on voir dire to enable him to exercise his challenges in a reasonably intelligent manner." United States v. Rucker, 557 F.2d 1046, 1048 (CA4 1977). Members of the Court, however, have urged that individual voir dire may be required to ferret out the damaging effect of pre-trial publicity. Nebraska Press Assn. v. Stuart, 427 U.S. 539, 602, 96 S. Ct. 2791, 2823, 49 L. Ed. 2d 683 (1976) (BRENNAN, J., concurring in judgment). Moreover, lower courts have concluded that this practice is constitutionally required under circumstances similar to those presented here. In United States v. Davis, 583 F.2d 190, 196 (CA5 1978), the court held that "where the nature of the publicity as a whole raised a significant possibility of prejudice," due process required more than general questions to the venire as a group regarding their ability to render an impartial verdict. The court found the extensive pretrial publicity potentially prejudicial on the basis of the "sensational nature of some of the reports" and disclosure of the arrest and conviction records of the defendants. Ibid. See also United States v. Hawkins, 658 F.2d 279 (CA5 1981). Similarly, the Louisiana Supreme Court, apparently relying on the Federal Constitution, see Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983), ordered individual voir dire when pretrial publicity had disclosed the defendant's confession and had linked him to a series of highly publicized crimes. See generally ABA Standards for Criminal Justice 8-3.5 (2d ed. 1980) (recommending individual voir dire when substantial possibility that potentially prejudicial material will make jurors ineligible to serve).
In this case, there can be little doubt of the extensive publicity the triple murder and petitioner's arrest received. Much of this information was prejudicial. Four members of the petit jury acknowledged their exposure to at least some of this material, but because the trial judge denied individual voir dire, defense counsel was effectively precluded from learning the nature of their pretrial knowledge or its potential effect on their impartiality, and from intelligently exercising his challenges. Apparently viewing petitioner's constitutional claim as one of state law only, the State Supreme Court concluded in a short paragraph that the refusal to grant individual voir dire, was not an "abuse of discretion." 461 So. 2d 67, 69 (1984). Trial judges certainly have broad discretion over the structuring of voir dire, but as federal and state courts have recognized, the extent and nature of pre-trial publicity may necessitate individual voir dire to assure fair process in the selection of an impartial jury. In light of petitioner's substantial showing in the trial court of the need for individual voir dire, I would grant certiorari to address whether, and upon what showing, the Constitution requires trial judges to grant individual voir dire.