Unaccountable at the founding: the originalist case for anonymous juries.

• Author: Langhofer, Kory A.

The "anonymous jury" is quickly emerging as a powerful tool to protect jurors. (1) Consider United States v. Skryock (2): The defendants were "extraordinarily violent" mobsters, drug lords, and killers. (3) They had a long history of "threatening, assaulting, killing, or attempting to kill potential witnesses." (4) To prevent jury tampering, the district court permanently sealed "the names, addresses, and places of employment of [venirepersons] and their spouses." (5) After hearing the evidence, the nameless jurors sent nine defendants to prison for life. (6) The jurors then slipped back into obscurity--never revealing their identities.

Nearly every state and federal jurisdiction that has considered the issue allows at least some use of anonymous juries. (7) Nevertheless, defendants continue to challenge the constitutionality of anonymous juries under the Sixth Amendment. In response, courts use balancing tests to weigh defendants' constitutional rights against jurors' security concerns. (8)

This Comment argues that the courts overlook important Founding-era evidence on juror accountability. It concludes that the Public Trial Clause does not require juror identification. Part I describes the Public Trial Clause accountability argument made against the anonymous jury. Part II then turns to the evidence rebutting this argument--namely, that the First Congress treated juror identification requirements as statutory law, not constitutional law, and that the accountability argument is inconsistent with the theory of juries that prevailed at the Founding.

1. THE PUBLIC TRIAL CLAUSE AS AN ACCOUNTABILITY REQUIREMENT

   Criminal defendants strenuously resist the spread of anonymous juries. The Shryock defendants, (9) for example, claimed that juror anonymity violated their Public Trial Clause (10) rights. This argument, elaborated more fully in other sources, is essentially that "public trials produce greater reliability because the [jurors] are accountable" to the observing public. (11) Conversely, the "deindividuation" of anonymity strips jurors of personal responsibility and dilutes their sense of duty. (12) The Public Trial Clause, they argue, checks misconduct by creating personal and reputational accountability for jury verdicts. (13)

   Although not cited by the Shryock defendants, three historical facts support their claim. First, venirepersons in the Founding era were local, drawn from relatively intimate communities. (14) Because these individuals were often known (or at least identifiable) to onlookers, juror identification may have been an assumed characteristic of early trials. Second, the First Continental Congress expressly cited reputational accountability as a virtue of jury trials. In the Letter to the Inhabitants of Quebec, the Continental Congress stated that jurors "cannot injure [a defendant], without injuring their own reputation[s]." (15) Third, Thomas Jefferson famously supported local juror accountability. In fact, if Jefferson had any reservation about reputational checks, it was because he thought them too weak. (16) Jefferson repeatedly petitioned for more concrete electoral checks on jurors. (17)

   Several jurists and commentators have accepted the Shryock defendants' fundamental proposition, as a matter of both policy and history. As to the former, Justice Harlan commented in a concurrence that "the public-trial guarantee embodies a view of human nature, true as a general rule, that ... jurors will perform their respective functions more responsibly in an open court than in secret proceedings." (18) On the historical front, Professor Daniel Blinka has claimed that Founding-era jurors "risked damaging their own reputations" when they reached unpopular verdicts. (19) Together, their writings suggest that anonymous juries lack the reputational stakes essential to reliable trials.

2. FOUNDING-ERA EVIDENCE SUPPORTING THE

   CONSTITUTIONALITY OF ANONYMOUS JURIES

   The argument that the Public Trial Clause forbids anonymous juries is unpersuasive for three reasons. First, the First Congress rejected a constitutional provision that would have prohibited at least some anonymous juries. The earliest phrasing of the Sixth Amendment required criminal prosecutions to adhere to all the "accustomed requisites" of jury trials (20)--that is, the jury trial customs long followed in England and the colonies. When this phrase was proposed and rejected in 1789, (21) juror identification was an accustomed requisite of criminal trials at common law. (22) Further, English statutory law had expressly guaranteed limited juror identification rights for more than eighty years. (23) In this historical context, the accustomed requisites clause, had it survived, likely would have protected juror identification rights.

   But in rejecting the clause, the First Congress suggested that juror identification is a nonconstitutional issue. As Justice White commented in a similar Sixth Amendment dispute, the elimination of the accustomed requisites clause

   is concededly open to the explanation that "accustomed requisites" were thought to be already included in the concept of a "jury." But that explanation is no more plausible than the contrary one: that the deletion had some substantive effect. Indeed, ... the latter explanation is, if anything, the more plausible.... [W]here Congress wanted to leave no doubt that it was incorporating existing common-law features of the jury system, it knew how to use express language to that effect. (24) Although it rejected a constitutional requirement, the First Congress adopted a statutory juror...