sympathy, and give impartial consideration to that evidence?'
Thereafter, in different form and with repeated emphasis the substance of that question was reiterated. Mr. Cassidy made complete disclosure of the fact that he was a member and officer of Local 906 UAW associated with AFL-CIO. He disclosed that he had been a member since the inception of the union in 1941; that he was a trustee of the union; and that he had held a succession of offices in the union prior to becoming a trustee. He disclosed that the union membership numbered 4500 and he disclosed the names of other officers.
Defendant stresses the fact that Mr. Cassidy did not respond to certain general questions put to the panel where the response was by raising of hands. The reporter noted the jurors who 'apparently' raised their hands. At the hearing on this motion it was developed as a matter of record that the reporter's position in the courtroom with his back to the jury was such that during the course of the voir dire he could not be certain as to the accuracy of his observations. There was a general question by the Court to all who did raise hands.
As noted above, there was no restriction upon the number of questions which counsel could submit to be addressed by the Court to the jurors. The record will also show that a morning recess was taken while the jury was being selected and a further recess for lunch before selection was completed. Ample opportunity existed before peremptory challenges were exhausted to develop further detailed interrogation. When all peremptory challenges had been exercised, there was opportunity to submit further questions to excuse for cause and this opportunity still existed after the alternates were chosen and before the jury was sworn.
The main thrust of defendant's argument is grounded upon the contention that negative responses of Mr. Cassidy to some of the questions constituted a failure to disclose his alleged bias against the defendant. Defendant has not established as a fact that such bias existed.
The defendant had a constitutional right to a fair trial by an impartial jury. But this right does not embrace unlimited exercise of peremptory challenges. Defendant exhausted his peremptory challenges; and in every instance where a juror had indicated any reservation on the voir dire as to capacity to consider the evidence without bias or prejudice, the Court excused that juror. If, now, defendant could have a verdict set aside merely on the grounds that if certain information had been revealed on the voir dire, defense counsel might have exercised peremptory challenges in a different manner, then there could never be any finality to litigation involving trial by jury. Protraction would not run apace with means. Besides the Court is not satisfied by any proofs offered that the juror, Cassidy, concealed any material fact on the voir dire.
The most that can be suggested on the basis of the record before this Court is that it would be likely that certain adverse publicity directed toward the defendant would come to the attention of Mr. Cassidy as a member and officer of Local 906 UAW together with other knowledge of the activities of the Teamsters. If there is a likely inference as to this now, it was equally so at the time of the voir dire. Nevertheless, defense counsel, with knowledge of Mr. Cassidy's membership in Local 906 and his position as an officer of that union, did not choose to exercise a peremptory challenge as to him. In considering any negative response on the part of Mr. Cassidy during the voir dire relating to interrogation as to adverse publicity directed to the defendant, it must also be taken into account that news items published in newspapers, by radio and television have different impressive impact upon different individuals resulting in varied degrees of preservation of recollection.
Even if it were assumed for the purpose of argument, contrary to the findings of fact made herein, that Mr. Cassidy had been exposed to literature or other adverse publicity relating to the defendant which created a biased impression of the defendant in his mind, it would not necessarily follow that such bias would prevail in the determination of the innocence or guilt of the defendant on a specific charge. Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961); see also United States v. Thomas Letchos, 316 F.2d 481 (7th Cir. 1963). In the Irvin case it was stated by the Supreme Court at 722 and 723 of 366 U.S. at 1642 and 1643 of 81 S. Ct.:
'It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. Spies v. People of State of Illinois, 123 U.S. 131 (8 S. Ct. 22, 31 L. Ed. 80); Holt v. United States, 218 U.S. 245 (31 S. Ct. 2, 54 L. Ed. 1021); Reynolds v. United States (98 U.S. 145, 25 L. Ed. 244), supra.'
Counsel for the defendant cites Marshall v. United States, 360 U.S. 310, 79 S. Ct. 1171, 3 L. Ed. 2d 1250 (1959), for the proposition that a juror exposed to prejudicial statements about a defendant may not be able to remove the bad impressions gained and thereby should be disqualified. In that case the petitioner was charged and convicted of unlawfully dispensing a drug without a prescription from a licensed physician. He did not take the stand to testify. The trial judge refused to permit the Government to show that the petitioner had previously practiced medicine without a license. During the trial two newspapers reported the petitioner's previous record of two felony convictions including an admission of prior practice of medicine without a license. Seven of the jurors saw these newspaper articles while the trial was in progress. The facts in the instant case are not analogous in any respect.
Defendant also raises the question of additional evidence that might exist which would be relevant to the issue of guilt and seeks by order of this Court an investigation to be conducted by the Government to develop such evidence. The Court has considered the allegations of defendant's affidavits with reference to the existence of newly discovered evidence and finds that there is no showing that such evidence as is suggested could not have been discovered or was not available at the time of trial. The Court finds no merit to the contention that the Government should conduct the investigation requested.
The Government representing the public interest, as well as the defendant, is entitled to fair and impartial administration of justice and every reasonable precaution must be taken in the interest of both to assure that the rights of neither are unduly or unfairly subordinated. But the protection of individual rights cannot be extended to the point where protection of the public interest becomes sterile.
The reasonable balance that must be struck in charting the middle course which gives fair and equal recognition to the competing considerations is not always easy to achieve. General rules developed from experience in the administration of justice by our courts during past decades are helpful guides, but the facts peculiar to each case compel variance in the application.
There is one final observation which the Court feels it should make. This Court does not subscribe to the proposition that a disappointed litigant should be permitted to conduct unrestricted investigation of jurors. The subject matter of this from the standpoint of public policy in the administration of justice is well covered in State v. LaFera, 42 N.J. 97, 106-108, 199 A.2d 630, 635-636 (1964) and this Court subscribes to the views therein expressed which are quoted as follows:
'A jury deliberates in secrecy to encourage each juror to state his thoughts, good and bad, so that they may be talked out. 'Freedom of debate might be stifled and independence of thought checked if jurors were made to feel that their arguments and ballots were to be freely published to the world.' Clark v. United States, 289 U.S. 1, 13, 53 S. Ct. 465, 469, 77 L. Ed. 993, 999 (1932). Some will recall the furor a few years ago when a jury's deliberations were secretly recorded, notwithstanding that the recording was made in a controlled study and the anonymity of the individual juror was completely assured. Ferguson, 'Legal Research on Trial,' 39 J.Am.Jud. Soc'y 78 (1955).
'For the juror's individual protection, the law raises a privilege against disclosure of his communications during deliberations, a privilege which will yield only to some greater public need. 8 Wigmore, Evidence (McNaughton rev. 1961) § 2346, p. 678; Clark v. United States, supra (289 U.S. 1, 53 S. Ct. 465, 77 L. Ed. 993). It is true that no settled rule bars extrajudicial, posttrial disclosures by a juror of his own views even though in cases of public interest the trial judge not infrequently cautions against such disclosures. Yet one of twelve may not be able to disclose his own part without revealing something the other jurors are entitled to have protected. Moreover the public too has a stake in the promise of secrecy to insure free debate in cases to come. In these circumstances it is appropriate to protect all the jurors against efforts of others to browse among their thoughts in search of something to invalidate their verdict. This R.R. 1:25A seeks to do. (Referring to State Rule.)
'We see no difference between an intrusion upon a juror personally of which the rule speaks literally and an intrusion into the juror's private relationships with others. If, anything, an investigation conducted among others may be even more disturbing in that it tends to suggest to those who are interviewed that something is already known to be amiss. Hence it is unfair to jurors to permit a disappointed litigant to pick over their private associations in search of something to discredit them and their verdict. And it would be unfair to the public too if jurors should understand that they cannot convict a man of means without risking an inquiry of that kind by paid investigators, with, to boot, the distortions an inquiry of that kind can produce.
'But defendants say that due process of law is denied them if they may not probe to find out whether the verdict was vulnerable. They do not go so far as to say that a proceeding for discovery should lie in which the jurors, their families, friends, and associates may be produced by subpoena, but they do assert a right to search on their own. The State disputes the claim of right and adds with much force that if such a right exists, then every indigent defendant may demand the State furnish him the wherewithal to conduct the far-flung exploration here made.
'It may appear odd to recognize a ground for invalidation of a verdict while denying a litigant a chance to find out whether such an event perchance did occur. The fate of the defendant is thus made to depend upon sheer luck, that the wrongful event somehow comes to light. The weight of the criticism is appreciated, but when contending values clash in their demands, a balance must be struck, and the balance struck is not shown to be a poor one because in some unknowable cases there may be an injustice. Overall the instances of invalidating misbehavior are exceedingly few. And even within that limited group, a new trial may be a windfall for the defendant, since if the misconduct is capable of tainting the verdict, the verdict will be set aside without inquiry into the actual impact of that misconduct upon the result. State v. Kociolek, 20 N.J. 92, 100, 118 A.2d 812, 58 A.L.R.2d 545 (1955); State v. Levitt, supra (36 N.J. (266), at p. 271, 176 A.2d 465, 91 A.L.R.2d 1112). Thus there is but a small factor of possible hurt. Against this must be weighed the substantial interest of the public and of defendants as a group, in the full and free debate in the jury room. We think the approach of our rule is correct. In any event we see no constitutional difficulty.
'We do not question the good faith of counsel, for we recognize that prior to our expression in this case another view of the reach of our rule could sincerely be held. In these circumstances we need not consider the State's proposal that the product of an offending investigation be suppressed as a suitable sanction.'
A specific rule on this subject has not been adopted by this Court. But the State rule becomes applicable by virtue of General Rule 18 of this Court which provides as follows:
'Applicability of State Court Procedure. 'In circumstances not provided for by the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, or these General Rules, the procedure and practice of the courts of the State of New Jersey shall govern.'
For the reasons stated, the motion of defendant for a new trial will be denied and the stay of operation of the mandate of the United States Court of Appeals heretofore granted will be vacated.