By Jonathan Yunes
“Do you know anyone involved in this case? Do you have strong feelings about the police? Have you recently been a victim of a crime? Have you previously heard anything about this case?” These questions are typically posed to potential jurors during voir dire. From these questions, counsel can select an impartial jury. However, the process becomes much more challenging in high profile cases. For example, the Aaron Hernandez murder trial and the federal death penalty case of Boston Marathon bomber Dzhokhar Tsarnaev come with risks of bias and prejudice due to publicity and strong emotions. In each respective case, over 1,000 prospective jurors were called to answer long questionnaires. These questionnaires are specifically tailored for the case to avoid impartiality, but the questions are qualitatively different because biases are inevitable in high profile cases.
In Boston, the best sports city in America, questions in the Aaron Hernandez case were aimed to discover the existence of preexisting prejudice regarding a potential juror’s loyalty as a Patriots fan and their exposure to prejudicial publicity. That being said, would someone really return a not-guilty murder verdict just because they are big fans of the defendant’s former team? You may be surprised to learn that one potential juror arrived in a Bruins jersey and chanted, “go Pats!” This juror was obviously excluded from serving. According to defense counsel, the media frenzy has tainted 70 – 80% of the jury pool.
Unlike Aaron Hernandez’s murder trial, the Government is seeking the death penalty against Dzokhar Tsarnaev. Therefore, the voir dire questions in Dzokhar Tsarnaev’s case face a much higher chance of demonstrating bias. You would be hard pressed to find a person living in Massachusetts who has not heard of the Boston Marathon bombings. In addition to the amount of hate the Commonwealth has for Tsarnaev, defense counsel unsuccessfully raised the issue that the recent attacks in France would add even more prejudice against Tsarnaev.Surprisingly, one prejudice may offset the other. Massachusetts abolished the death penalty in 1984, but jurors are being automatically excluded if they are against the death penalty under any circumstances. This may further prevent an impartial jury. In a recent poll, only 33% of Boston residents favored the death penalty for Tsarnaev, if convicted.
These issues present challenges as well as opportunities for defense attorneys. Defense counsel in the Tsarnaev case will seek jurors who may seem hesitant to impose the death penalty. In contrast, counsel in the Hernandez case will likely seek jurors who display their loyalty to the New England Patriots. Prosecutors for Tsarnaev will seek out those who are loyal to Boston, with small children, or perhaps just anyone who celebrates Marathon Monday. Although the courts denied requests in both the Hernandez and Tsarnaev case to change venue, it will undoubtedly be an issue on appeal should there be a guilty verdict in either case.
 See generally Milton J. Valencia, New Trial Location Asked for Tsarnaev, The Boston Globe (Dec. 1, 2014),https://www.bostonglobe.com/metro/2014/12/01/lawyers-for-dzhokhar-tsarnaev-again-ask-for-change-venue-marathon-bombing-trial/krTyXr0snQRy9zAmrmz2VI/story.html (arguing that ongoing media coverage and the nature of the crime require change of venue); Mike Pescaro et al., Hernandez Defense Cites Tsarnaev Motion to Change Venue, NECN (Oct. 1, 2014), https://www.necn.com/news/new-england/Lawyers-for-Aaron-Hernandez-Seek-to-Move-Trial-277635131.html (same).
 See Jennifer Levitz, Boston Bomber Dszokhar Tsarnaev’s Trial Begins, The Wall Street Journal, https://www.wsj.com/articles/trial-for-accused-boston-bomber-dzhokhar-tsarnaev-begins-1420481267 (last updated Jan. 5, 2015) (expecting 1,200 potential jurors)
 See generally Valerie P. Hans, Juror Bias is a Special Problem in High-Profile Trials, Insights on L. & Soc’y 15, 15, 18 (2005) (discussing the potential bias in the murder trial of Scott Peterson).
 Ben Carsley, No. 1 Best City to Be a Sports Fan: Boston, Bleacher Report (Dec. 15, 2014), https://bleacherreport.com/articles/2133623-no-1-best-city-to-be-a-sports-fan-boston/page/5 (scoring fan passion in Boston as ten out of ten).
 See Maria Cramer, Hernandez Jury Pool Asked if They’re Patriots Fans, The Boston Globe (Jan. 14, 2015),https://www.bostonglobe.com/metro/2015/01/14/hernandez/c85ikieO76Bpz2wklWk3KK/story.html.
 Eric Levenson, Aason Hernandez Trial Begins With Potential Juror Yelling ‘Go Pats’, Boston (Jan. 9, 2015),https://www.boston.com/news/local/massachusetts/2015/01/09/aaron-hernandez-trial-begins-with-potential-juror-yelling-pats/btTrvs2yUaSAUbDr7nBUWP/story.html.
 Mike Pescaro et al., Hernandez Defense Cites Tsarnaev Motion to Change Venue, NECN (Oct. 1, 2014), https://www.necn.com/news/new-england/Lawyers-for-Aaron-Hernandez-Seek-to-Move-Trial-277635131.html.
 Milton J. Valencia, Federal Prosecutors to Seek Death Penalty Against Marathon Terror Bomb Suspect Dzokhar Tsarnaev, Boston (Jan. 30, 2014),https://www.boston.com/news/local/massachusetts/2014/01/30/federal-prosecutors-seek-death-penalty-against-marathon-bombing-suspect-dzhokhar-tsarnaev/C9wfpKi5WrETurHtqlTIMK/story.html.
 Jon Kamp, Boston Bombing Defense Lawyers Seek Delay in Jury Selection, The Wall Street Journal (Jan. 13, 2015),https://www.wsj.com/articles/boston-bombing-defense-lawyers-seek-delay-in-jury-selection-1421193989.
 Massachusetts, Death Penalty Info. Center,https://www.deathpenaltyinfo.org/massachusetts-0 (last visited Jan. 18, 2015); Milton J. Valencia & Patricia Wen, Potential Tsarnaev Jurors Face Deeper Questioning, The Boston Globe (Jan. 7, 2015),https://www.bostonglobe.com/metro/2015/01/07/more-potential-tsarnaev-jurors-due-court-wednesday/mPLn3Ggafwm9I52s7XJ4nL/story.html.
 Public Opinion: Boston Residents Favor Life Without Parole for Suspect in Marathon Bombing, Death Penalty Information Center,https://www.deathpenaltyinfo.org/public-opinion-boston-residents-favor-life-without-parole-suspect-marathon-bombing (last visited Jan. 18, 2015) (citing Brian Macquarrie, In Globe Poll, Most Favor Life Term For Dzhokhar Tsarnaev, The Boston Globe (Sep. 16, 2013), https://www.bostonglobe.com/metro/2013/09/15/most-boston-residents-favor-life-without-parole-for-tsarnaev-convicted-poll-shows/Ur6ivWIUiYCpEZLXBApHDL/story.html?event=event12)).
 Aaron Hernandez Motion for Change of Venue is Denied, Boston WHDH, https://www.whdh.com/story/27364676/aaron-hernandez-motion-for-change-of-venue-is-denied (last updated Dec. 24, 2914); Eugene Volokh, No Change of Venue in Tsarnaev Boston Marathon Bombing Trial, The Washington Post (Jan. 3, 2015),https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/01/03/no-change-of-venue-in-tsarnaev-boston-marathon-bombing-trial.