Juror information

Until fairly recently, anonymous juries (where information about jurors’ names, addresses, ages or professions is sealed) were rarely used and limited primarily to cases where a credible threat to the safety or well-being of jurors existed. For example, courts approved the use of anonymous juries in organized crime trials, where a serious risk to jurors is posed by people seeking to influence them or to retaliate after a verdict. Anonymous juries also were used in the trials of Branch Davidian survivors in Waco, Texas, Oliver North, Kaczynski, and the 1993 World Trade Center bombers.

But judges are increasingly limiting access to juror information in a wider array of cases, citing privacy concerns. Juror identities were kept secret in criminal cases against Martha Stewart and investment banker Frank Quattrone, but both orders were overturned by the U.S. Court of Appeals in New York City (2d Cir.). Federal trial courts in California and Illinois recently decided to delay the release of juror identities until after the completion of the high-profile trials of baseball player Barry Bonds and former Illinois Governor Rod Blagojevich, respectively.  Notable in both cases, however, is the fact that the trial courts provided detailed explanations of their decisions.  In fact, the detailed analysis in the Blagojevich case came in response to an order from the U.S. Court of Appeals in Chicago (7th Cir.) instructing the trial court to provide "a better basis for understanding not only the risks of releasing the names before the trial's end, but also other options" for reducing the perceived risks from disclosure.   

Some federal courts also refuse to disclose information on jurors based on a 2001 policy change by the federal courts’ governing body that “documents containing identifying information about jurors or potential jurors” should no longer be available at the court house or online.  However, some appeals courts have ruled that the First Amendment gives the public a general right of access to names and addresses of jurors.

A related issue is public access to juror questionnaires. As addressed in another section, the jury selection process is typically open to the public.  But access to juror questionnaires varies by state and court jurisdiction, with many states restricting public access to these records.

Sometimes, the jurisdiction's rules or laws on access will vary depending on the use of the questionnaire. For example, some courts use questionnaires primarily for qualification purposes in order to help determine whether potential jurors are eligible and available to serve. The questions on such forms often seek to uncover whether the juror is a citizen of the U.S., of legal age and a resident of the county in state courts or resident of the district in federal courts. The information on such questionnaires is typically used by court clerks' offices to determine if a potential juror is qualified for jury duty, and is typically not a public record.

In other courts, however, prospective jurors fill out questionnaires as a substitute for responding to jury selection questions in open court. Although becoming more common, such questionnaires have traditionally been used primarily in high-profile cases like the criminal prosecutions of celebrities, where attorneys and judges face the high probability that potential jurors have already encountered information about these cases.

The Supreme Court has not addressed how juror questionnaires affect the public's established right of access to jury selection. Many lower courts, however, have concluded that questionnaires are an extension of the jury selection process and should be accessible to the public. The reasoning in these cases is that, to the extent questionnaires are used as a supplement or substitute for the traditionally public voir dire process, the questionnaires should be public as well.

Two recent cases are instructive on this point.

As part of jury selection for the murder trial of Ingmar Guandique, who was charged in the District of Columbia Superior Court with killing former Congressional intern Chandra Levy, prospective jurors completed an 11-page, 55-question form. The questionnaires asked potential jurors for standard demographic information as well as case-specific information, including their knowledge about the case, familiarity with the crime area and views on gangs and illegal immigration. Guandique, an illegal immigrant from El Salvador, was found guilty of Levy’s death and sentenced to 60 years in prison.

Attorneys for both sides used the completed surveys to examine members of the jury pool during the week-long voir dire process -- a use that merely “facilitated the jury selection process by exposing any biases relating to, among other issues, Latino ethnicity, illegal immigration, and gang affiliation that otherwise would have been explored through oral questioning,” the D.C. Court of Appeals, D.C.'s only appellate court ruled in January 2012 in In re Access to Jury Questionnaires.

“That a significant part of voir dire in this case was conducted through written questionnaires and not orally is of no constitutional significance. We can think of no principled reason to distinguish written questions from oral questions for purposes of the First Amendment right of public access,” Associate Judge Kathryn A. Oberly wrote on behalf of the three-judge panel. “The presumption, then, is that the completed questionnaires, as a part of voir dire, should be available to the press.”

As such, the trial judge had to disclose the questionnaires to The Washington Post with any court-ordered redactions supported by specific individualized findings that redaction was necessary to protect special privacy interests of the jurors and narrowly tailored to serve that interest, the appellate court ordered.

In March 2011, U.S. District Judge Susan Illston in San Francisco, the federal judge overseeing United States v. Bonds, the perjury and obstruction of justice trial of Major League Baseball slugger Barry Bonds, made the questionnaires of jurors selected for oral questioning available for public inspection but not copying.

Like that of the D.C. court, Illston’s decision turned on an evaluation of how the questionnaires were used -- as substitutes for the oral voir dire process of all potential jurors who were seated for questioning.

In contrast, Illston declined to release juror questionnaires of those individuals who were not questioned during voir dire, noting that “although these individuals will have filled out questionnaires in preparation for possible participation in the voir dire process, they will not actually have participated in the criminal trial, and their questionnaires will have served no function in the selection of the jury.”

Illston then had to decide whether there were any overriding interests that weighed against disclosing the questionnaires. She concluded that the jurors’ privacy rights and Bonds’ right to a fair trial were “compelling government interests” that supported a temporary withholding of the jurors’ names until the panel was dismissed.

See our News Media & The Law articles from Winter 2012, Summer 2008 and Fall 2007 for more information.