Toward a limited right of access to jury deliberations.

• Author: Lewis, Torrence

1. THE CONSTITUTION AND ACCESS TO JURY DELIBERATIONS II. THE JURY AND THE COMMON LAW III. NO DANGER: ABSOLUTE JURY PRIVACY IS A RELIC IV. PARAMETERS FOR A POSTVERDICT RIGHT OF ACCESS TO JURY DELIBERATIONS V. POSTSCRIPT: CAMERAS IN THE JURY ROOM? Nothing in the Constitution prohibits the recording or publication of jury deliberations. As with any other judicial function in our democratic society, the public relies on the work and product of the jury to ensure that justice is done. Unlike any other governmental deliberative process, jury deliberations receive unparalleled protection from the glare of the public eye. An increasing mistrust of the jury has resulted from public displeasure with the results in high profile cases. In addition, access to jurors and the contents of the deliberative process is increasing through the prevalence of postverdict interviews. When freely given, the First Amendment almost insurmountably protects this post-verdict testimony.

   Under a contemporary reading of Richmond Newspapers, Inc. v. Virginia, (1) faithful to one prong of that majority opinion, (2) and in consideration of the current "treatment" of jury anonymity, (3) a limited right of access should attach to jury deliberations after the end of trial. This right of access should be subject to limitations designed to protect both defendants' fair trial rights and juror privacy and safety. (4)

   Discretion whether to permit access to deliberations would thus inhere in much the same way it does in the context of media access to judicial proceedings generally. (5) This approach would serve as a basis for demystifying the jury process while educating the public and increasing its confidence in the jury system. Furthermore, a right of access to jury deliberations might lessen the incentive for publicity-hungry media to harass and intimidate individual jurors. Finally, and over time, the publication of jury deliberations, and the accompanying scrutiny by the public, scholars, and bar, might produce better juries, resulting from a broad and informed solemnity for the jury process. (6)

   This Comment argues that transcripts of jury deliberations, subject to the same balancing exercised by judges in the context of access to judicial proceedings, should be routinely accessible after trial. These transcripts could preserve juror anonymity through the use of codes or numbers to distinguish, but not personally identify, individual jurors. Further, and subject to the consent of the defendant and the jury, audio and visual records of jury deliberations should be permitted, subject to judicial discretion similar to that exercised in the context of televisions in the courtrooms. (7) Additional mechanisms are proposed to mitigate concerns that these recordings would skew the composition of the jury. At no point does this Comment argue that transcripts or audiovisual records should be subject to judicial review, form the basis for appellate litigation, or disturb the common law and statutory prohibitions on the impeachment of jury verdicts. (8)

   Part I of the Comment explores the constitutional provisions relevant to access to jury deliberations. Part II outlines the common law traditions regarding access to jury deliberations, specifically impeachment of jury verdicts and the protection of jury privacy. Part III explores the dangers associated with access to jury deliberations, concluding that such concerns are ultimately unpersuasive in the postverdict setting, and in light of already existing practices that compromise the privacy of the jury. In either case, the concern for jury privacy should otherwise be subordinated to the public benefits from a limited right of access. Part IV suggests a framework for limited access to jury deliberations that satisfies most of the historical concerns for jury privacy and concludes with an argument that limited access to jury deliberations might result in an increased and informed solemnity for the function of the jury. A Postscript addresses the particular case of audiovisual recording devices in the jury room.

1. THE CONSTITUTION AND ACCESS TO JURY DELIBERATIONS

   Nothing in the Constitution prohibits the recording of jury deliberations. (9) Nevertheless, any positive theory of access to jury deliberations must be grounded in that text in order to mitigate the ongoing and inevitable legislative attempts to bar such access. (10) Additionally, such a theory of access must account for constitutional provisions, which, in the context of access to jury deliberations, might be used to affirmatively bar or severely limit such access. Once a limited right of access attaches, similar findings and devices, balanced against the fight of access in order to justify closure of courtroom proceedings, (11) can be implemented to mitigate any constitutional privacy or fair-trial implications that arise in the context of access to jury deliberations.

   A qualified fight of access attaches to judicial proceedings through the First and Sixth Amendments. The Court in Richmond Newspapers found that "the fight to attend ... trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, ... important aspects of freedom of speech and 'of the press could be eviscerated.'" (12) The Court also found that in the absence of identifiable prejudice to the defendant this fight of access trumped the defendant's fight to a fair trial as protected by the Sixth Amendment. (13) Further, the defendant's fight to a public trial did not include the negative fight to a private trial. (14) Finally, the Court recognized that in the modern era, the public receives most of their information from the media, which acts as a proxy for the public. (15)

   In order to determine whether a fight of access attached to judicial proceedings, the Court looked to both logic, the "community therapeutic value" of openness, and experience--whether the trial proceedings in question had historically been opened to the public. (16) However, implicit in the Court's opinion are two concerns: (1) the media increasingly functions as a proxy for the public and as a check on and observer of government, specifically judicial proceedings; and (2) because of the nature of modern society, where individuals have neither the time nor the proximity to courthouses in order to participate, a more fundamental right of access was needed in order to accommodate and facilitate scrutiny of judicial proceedings.

   In this way, Richmond Newspapers seems to assert that, in consideration of the public's alienation from the trial experience, a right of access must now attach as an indispensable element of an "informed" democracy, necessary to the "enjoyment of [those constitutional] rights explicitly defined." (17) Viewed in the context of subsequent case law, (18) focusing more specifically on the logic prong, Richmond Newspapers can be viewed as a fundamental decision that unlocked the door and grounded the right of access as an indispensable element of modern democracy, a "categorical assurance of the ... freedom of access to information" in the judicial setting. (19) And the parameters of this right of access must shift with other developments in modern life. Indeed, just as technology will open new and less intrusive avenues to access, the Supreme Court has explicitly recognized that the doctrine of access will similarly accompany such changes. (20) In this sense, the right of access will come to play "a structural role ... in securing and fostering our republican system of self-government." (21) And this right of access, to gather information, will not be subordinated to the fights or interests of the parties or of the courts except on particularized findings that prejudice will inhere.

   Constitutional provisions that might insulate or bear on the roles of jurors and jury are not sufficient to trump the right of access to gather information. A constitutional fight of privacy does not attach to the deliberations of the jury, nor does such a fight attach for the individual. Indeed, absent articulable findings as to possible danger to jury safety, juror identity is part of the public record generated during trial proceedings. (22) Such concerns for privacy are generally satisfied through enforcement of common law protections of jury secrecy. Alternately, the First Amendment affords almost complete protection for postverdict speech by individual jurors. (23) Indeed, the increase and profile of postverdict interviews in the media today is some evidence both that juror secrecy is no longer sacrosanct in our culture and that limited access to jury deliberations is both desirable and necessary to an informed democracy, albeit one where the distinction between entertainment and news has been significantly eroded. (24)

   Finally, any fight of access to jury deliberations, as protected by the Fifth and Sixth Amendments, might impair the defendant's fight to a fair trial--specifically as fairness is implicated by jury privacy in deliberations. As Justice Cardozo opined, "For the origin of the privilege we are referred to ancient usage, and for its defense to public policy. 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." (25) The argument follows that, if jurors were aware in advance of the verdict that their deliberations were to be disseminated to the public, their ability to remain free of influence (neighbors, parties, media) and to deliberate freely would be affected, possibly affecting defendant's right to a fair trial. Given that the right to a fair trial is owned by a defendant, and post-verdict release of jury transcripts might be said to impair that right, a "knowing and intelligent" waiver by the defendant could cure this concern. (26)

   Nevertheless, the suggestion that postverdict release of jury deliberations might have more...