Sua Sponte: Be Cautious About Anonymous Juries

• Author: Hon. Kevin S. Burke
• Pages: 30-32

Published in Litigation, Volume 48, Number 1, Fall 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

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ubiquitous access to the internet from their smartphones, ju-

rors can blog, post, or tweet their reactions to the case on social

media, as well as use search engines to conduct unauthorized

research. However diligent they may be, the attorneys and other

court officials may not detect this misconduct until after the trial

concludes, if then. Once it is revealed, public confidence in the

verdict could be eroded, or a mistrial could result. Neither of the

consequences is desirable, but a mistrial, if available, is unavoid-

able if the goal is to achieve a just result, rather than simply an

expeditious disposition of the case. This seemingly intractable

problem, which can only partially be addressed by draconian

steps such as confiscating jurors’ cell phones, potentially could

be ameliorated by disclosing to the public who these jurors are

in the first place.

In some jurisdictions, that is still the rule, rather than the

exception. Despite the passage of more than 70 years since the

release of Adam’s Rib, if Doris Attinger’s trial were to be held

today in New York City, the prospective jurors’ names would

almost certainly be public. The New York Court of Appeals, the

state’s highest court, held in 2018 that the judge in the trial of

four gang members accused of beating and stabbing a member of

a rival gang committed reversible error when he impaneled an

anonymous jury, hiding their identities from not only the media

and public but also other trial participants. The high court did not

rule that New York trial judges may never anonymize jurors. In

the gang case, however, the Orange County judge acted “without

factual predicate,” basing his decision “on anecdotal accounts

from jurors in unrelated cases.” People v. Flores, 114 N.E.3d 141,

32 N.Y.3d 1087, 89 N.Y.S.3d 673 (N.Y. 2018).

According to the opinion of the Second Department (the mid-

level appeals court) in Flores, the trial judge, confronted with

objections to anonymization by defense counsel before jury se-

lection began, contended that there is no constitutional right for

defendants or their attorneys to know the names of jurors. He

went on to cite “an increasing number of jurors” in unrelated

cases who claimed they were uncomfortable giving their names

in open court or “walking in and out of the courtroom to their

cars.” Sure enough, when the jurors in the gang case were sworn

in a few days later, one claimed that, as she walked to her car in

the courthouse parking lot, one of the defendants, who was free

on bail and was accompanied by about eight other people, stood

in front of her car and stared at her. She said this made her feel

“uncomfortable, a little intimidated.” She was excused from the

jury. People v. Flores, 153 A.D.3d 182, 62 N.Y.S.3d 63 (N.Y. App.

Div. 2017).

As the defendants’ counsel argued, New York has a statute, en-

acted in 1983, requiring that prospective jurors’ names be “drawn

and called” in open court and that only business or residential

addresses may be withheld from the public, and then only for

good cause, such as bribery, jury tampering, or physical injury

The author is a senior district court judge in the state of Minnesota.

SUA SPONTE

Be Cautious About

Anonymous Juries

HON. KEVIN S. BURKE

The use of anonymous juries is a relatively recent phenomenon,

dating back only to 1977. The practice initially was concentrated

in New York federal courts and used only in exceptional circum-

stances. But today, every federal circuit has approved their use

and so have most states. Anonymous juries have even been used

in civil cases, though that is rare. A few judges have used anony-

mous juries regularly. Two California judges decided to impanel

anonymous juries in all criminal cases until an appellate court

ordered an end to the practice.

Judicial inclinations to protect jurors’ privacy when they

are conscripted to perform a civic duty are understandable.

Prospective jurors are asked not just such benign questions as

address, place of employment, and family members’ names. They

are asked quite personal questions such as whether they or some

loved one has ever been sexually assaulted. Almost every time

they are asked these intensely private questions, potential jurors

acquiesce and give honest answers.

The use of anonymous juries raises questions regarding not

only transparency in the administration of justice but also the

impact on a defendant’s presumption of innocence. Referring

to jurors by number instead of name implies that a defendant’s

dangerousness requires juror anonymity,thereby implicating

defendants’ Fifth Amendment right to a presumption of inno-

cence.Then there is voir dire. If the anonymous jury selection

includes withholding certain biographical information, the

court denies a defendant information that may be helpful to

strike biased jurors, thereby threatening that defendant’s Sixth

Amendment right to an impartial jury. One mock jury experiment

found that anonymous jurors returned about 15 percent more

guilty verdicts than “normal” juries.

Jury misconduct is exceedingly rare, but it does happen.

Misconduct often can be discovered only when we know who the

jurors are. A trial of mobster John Gotti illustrates the importance

of the news media as a proxy watchdog for the public and how

juror anonymity can complicate the journalists’ ability to do their

jobs. The judge impaneled an anonymous jury because he feared

Gotti might threaten, intimidate, or bribe the jury. One of the ju-

rors was George Pape, a man with ties to an organized crime group.