IX. Disclosing the Identity of Jurors

LibraryThe Rights of the Accused under the Sixth Amendment (ABA) (2016 Ed.)
IX. Disclosing the Identity of Jurors

Historically, jurors' names were made publicly available as a routine matter. Over the past two decades, growing concerns over individual safety and privacy have made courts more willing to empanel anonymous jury members, though still on a very limited basis.189

A. Standards to Enforce Anonymity

In several prominent cases, judges have withheld jurors' home addresses and, in some instances, their names.190 However, judges remain reluctant to withhold juror identities because of the Sixth Amendment implications. Juror anonymity "may hinder the defendant's ability to conduct an informed voir dire examination and to challenge effectively the seating of individual jurors."191 "Unquestionably, the empanelment of an anonymous jury is a drastic measure, one which should be undertaken only in limited and carefully delineated circumstances."192 It should occur "only in rare circumstances."193An anonymous jury "raises the specter that the defendant is a dangerous person from whom the jurors must be protected, thereby implicating the defendant's constitutional right to a presumption of innocence."194

While concerns are present, "every court that has considered the issue has concluded that in appropriate circumstances the empanelment of an anonymous jury does not infringe on the right to an impartial jury."195 Many courts find that under the right circumstances, anonymity is necessary and should be allowed.196 The question, of course, is what are the right circumstances?

The definitive answer is hard to state. Whether a jury should remain anonymous is determined on a case-by-case basis,197 with courts weighing numerous factors such as:

• Defendant's clear participation in organized crime;
• Defendant's involvement with a group that has the capacity to harm jurors;
• Defendant's prior efforts to interfere with the judicial process or with witnesses;
• The likelihood that, if convicted, the defendant will suffer a lengthy incarceration and substantial monetary penalties;
• Intense publicity that could enhance the chance that jurors' names would become public and expose them to possible intimidation and harassment.198

The weighing process has resulted in some prominent prosecutions in which jurors' names have not been disclosed. In one case, the appeals court affirmed the district court's decision to empanel an anonymous jury, as the appellants were members of a dangerous gang linked to several murders in the state where they resided and were being tried. Furthermore, the case was the focus of much publicity, which the court thought would persist until the end of the trial.199 In another federal prosecution, the court focused on the defendants' prior criminal behavior. There was strong evidence of defendants' past attempts to interfere with the judicial process, and defendants were alleged to be part of a group that possessed the means to harm jurors.200

Perhaps the most prominent recent example of the weighing process is United States v. Blagojevich,201 the public corruption trial of the former governor of Illinois. Here the district court judge reached a compromise. He denied a pretrial motion by news outlets to reveal the names of the jurors in the incredibly high-profile case.202 This decision was based on his concern that people would contact the jurors, which could hinder and influence deliberations. However, the judge agreed to release the jurors' names after a verdict was reached.203

The trial judge's decision in high-profile cases is quite complex, looking to both Sixth Amendment and First Amendment considerations. As one court wrote, "[If jurors were to feel] . . . that their personal safety was at risk, they might not only be reluctant to serve, but might tailor verdicts so as to forestall harm to themselves, thus depriving the parties of an impartial jury."204

B. First Amendment Analysis

The Supreme Court has not addressed the First Amendment implications of juror anonymity. Instead, the Court's main concern has been the related—but distinctly different—matter of closing trial proceedings to the public. This issue is discussed further in Chapter 2. The seminal case is Press-Enterprise Co. v. Superior Court,205 where the Court reviewed a trial judge's decision to close several weeks of voir dire proceedings. This, the justices found, was unconstitutional under the public's First Amendment right to open proceedings, without careful consideration by the trial judge of less restrictive alternatives.206 Thus, the Court interpreted the First Amendment to include a "presumptive openness of the jury selection process."207

This constitutional presumption enables the press to regularly argue that the rights of the public and the media are infringed if a court restricts access to juror identities. Recently, this argument has been quite effective. In fact, one court has specifically found that there is a "presumptive First Amendment right of access to obtain the names of both trial jurors and prospective jurors prior to the empanelment of the jury."208 To limit that right, the trial court must find a specific, strong reason for nondisclosure even if the jurors' own preference is to the contrary.209

The court rulings make clear that judges are to be sensitive to jurors' fears regarding safety and invasions of privacy. Still, empaneling an anonymous jury remains an unusual occurrence. Anonymous juries are "a...

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