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Case 1:20-cr-00330-PAE Document 614 Filed 02/24/22 Page 4 of 12

Since the beginning of our Republic, sensational high-profile trials have complicated
efforts to eliminate bias from the jury through voir dire,¹ but never before have jurors been as
incentivized to lie. In the past, coupling voir dire with prospective jurors swearing an oath to tell
the truth was a powerful way to eliminate bias, but the oath no longer carries the force that it once
did. As a former Chief Judge of this Court remarked:

When our judicial system was established and the requirement of an oath or affirmation
on the part of a witness was borrowed from the British common law, the swearing of an
oath meant something—namely, that the court could be fairly sure that a witness would
tell the truth. In the time of our Founding Fathers, witnesses believed that they would be
subject to severe and perhaps immediate Divine retribution if they lied under oath on the
witness stand, based on the Ninth Commandment’s proscription, handed down by God to
Moses that “Thou shalt not bear false witness against thy neighbor” (Exodus, Ch. 20,
Verse 16 (King James Version)). Unfortunately, the sanctity of the oath taken by
witnesses at trial has been significantly eroded and laced with skepticism in recent years.

United States v. Ianniello, 740 F. Supp. 171, 179 (S.D.N.Y. 1990) (Brieant, C.J.), rev’d in part,
United States v. Salerno, 974 F.2d 231 (2d Cir.1992); see, e.g., Donald Blackwell, Has The Time
Come To Dispense With The Testimonial Oath?, 36 No. 4 Trial Advocate Quarterly 28, 29-30
(2017) (noting that prospective jurors now frequently lie during voir dire).

Prospective jurors now have more reason to lie than they did in the past because they know
that sitting as jurors in a high-profile trial may bring them fame, prestige, and even profit. We live
in an age of reality television in which the “true crime” genre is dominant. Jurors often find
themselves instant celebrities. They are interviewed by the press and talk shows,² and often seek

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¹ See, e.g., United States v. Burr, 25 F. Cas. 49, 52 (C.C. Va. 1807) (Marshall, C.J.) (concluding
that an impartial trial for Burr’s alleged treason could be chosen through voir dire).
² See, e.g., Derek Chauvin Jurors Speak Out For The First Time, CNN (Oct. 28, 2021) (interview
with seven jurors who convicted a police officer of killing George Floyd); Weinstein Juror Reflects
On Witness Testimonies, CBS Morning (Feb. 28, 2020); Juror On Weinstein Case Explains How
Verdict Was Reached, Inside Edition (Feb. 25, 2020).

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