What is the impact of publicity on the selection of a jury in a penalty trial?

The conscience of the community is expressed by assuring that the pool from which penalty phase jurors is drawn accurately reflects the [28 Cal.3d 983] community as a whole. In this way, the discretion exercised by those jurors will, in the long run, closely approximate that which would be exercised by the community as a whole. (Cf., generally, Hovey v. Superior Court (1980) 28 Cal.3d 1, 73-74, 168 Cal.Rptr. 128, 616 P.2d 1301.)

However, when a case produces a great deal of potentially prejudicial publicity, certain members of the community become ineligible to serve at the trial as a consequence of that publicity. They are removed from the pool of persons from which, inter alia, the penalty phase jury is drawn. Certain types of individuals tend to be removed from the pool as a result of pretrial publicity. It has been suggested that an "honest juror" will frequently find himself excluded. (See Corona v. Superior Court, supra, 24 Cal.App.3d at p. 879, 101 Cal.Rptr. 411.) One might further speculate that the "self-aware" juror may also tend to be excluded. [623 P.2d 268] But one type of juror will, almost by definition, tend to be removed in disproportionate numbers from the jury pool: the jurors who are informed and knowledgeable about current affairs.