The right of access to juror names and addresses

Feature
Page Number: 
7
Kevin Delaney

Since before the nation’s founding, the idea that the identities of jurors would be known not just to the parties before a court but also to the community at large has been a fundamental principle of the American judicial system. “When the colonists imported the jury system to America,” a Massachusetts trial court recognized, “they brought with them a system in which a defendant in all types of criminal trials traditionally had been tried by individuals whom the defendant knew or, at least was highly likely to know.”[1] A different court similarly pointed out that the jury selection for the British soldiers on trial for committing the Boston Massacre “was open to the public, and the identities of the jurors who acquitted the soldiers were known to the community.”[2]

It was not until 1977, more than 200 years after the signing of the Declaration of Independence, that the first fully anonymous jury in the nation’s history was empaneled.[3] The case was United States v. Barnes — a criminal trial where the leader of a large drug trafficking network, Leroy (“Nicky”) Barnes, and 14 co-defendants were tried for conspiracy as well as violating narcotics and firearms laws. The U.S. Court of Appeals for the Second Circuit upheld the use of the anonymous jury, finding the step was necessary because the jurors’ fear of retaliation would have hindered the deliberative process.[4]

Despite their overall rarity in American history, “nameless juries have progressed from a judicial fluke to a well-established departure from ordinary procedure, and a measure which some authorities argue seriously should be ordinary procedure.”[5] Today, every federal judicial circuit, excluding the 10th Circuit, has approved of the use of anonymous juries.[6] This past summer, for instance, a federal judge in Brooklyn ordered the empanelment of an anonymous jury in the criminal trial of an al Qaeda terrorist who threatened to kill prosecutors and court staff.[7] More troubling is the practice of trial courts in Los Angeles County of withholding juror names in the majority of criminal cases.[8] Even in situations where courts decide to disclose the identities of jurors to the parties, they may refuse to disclose such information to members of the news media.[9]

The use of anonymous juries undoubtedly raises important questions concerning a defendant’s Sixth Amendment right to a fair trial.[10] Their use, however, also raises important questions for journalists who cover the courts. Jurors in high profile cases are often a fundamental part of the story. Even though journalists, as a matter of ethics, typically refrain from interviewing jurors during a trial, journalists routinely make post-verdict requests for interviews. These interviews can enlighten the judicial process for readers and viewers, often shedding light on why a particular juror voted as he or she did.[11] Moreover, although journalists typically avoid naming jurors before and after a verdict is entered, journalists occasionally feel it is necessary to name jurors when serving as “watchdogs” of the democratic process. For instance, as the United States Court of Appeals for the Seventh Circuit recently noted, a press investigation into the jury in the corruption trial of former Illinois Governor George Ryan revealed that several jurors “had lied on their questionnaires and had disqualifying convictions or otherwise might have been subject to challenge for cause.”[12]

This white paper will evaluate the use of anonymous juries and the news media’s qualified First Amendment and common law rights of access to juror names and addresses. As will be displayed below, both the First Amendment and common law provide strong, albeit qualified, rights of access to this information. With anonymity becoming increasingly common, this issue will take on added importance for members of the news media.

Anonymous Juries

Although the term has an intuitive meaning, courts have struggled with defining what exactly constitutes an anonymous jury.[13] One court has asserted that the term means only “that the court does not disclose juror names to the parties.”[14] Another court, in providing a definition that best serves the readers of this white paper, concluded, “A jury generally is considered to be ‘anonymous’ when a trial court has withheld certain biographical information about the jurors either from the public, or the parties, or both.”[15] The biographical information typically withheld includes jurors’ and their spouses’ names, addresses, and places of employment.[16]

Generally, a court will not “order the empaneling of an anonymous jury without (a) concluding that there is strong reason to believe the jury needs protection, and (b) taking reasonable precautions to minimize any prejudicial effects on the defendant and to ensure that his fundamental rights are protected.”[17] Courts usually hold that some combination of the five following factors will show that the jury is in need of protection:

(1) the defendant’s involvement in organized crime, (2) the defendant’s participation in a group with the capacity to harm jurors, (3) the defendant’s past attempts to interfere with the judicial process, (4) the potential that, if convicted, the defendant will suffer a lengthy incarceration and substantial monetary penalties, and (5) extensive publicity that could enhance the possibility that jurors’ names would become public and expose them to intimidation or harassment.[18]

Moreover, at least one federal statute would seemingly permit the use of anonymous juries. The Jury Selection and Service Act states that each district court shall put into operation a written plan for the random selection of jurors that fixes “the time when the names drawn from the qualified jury wheel shall be disclosed to parties and to the public.” [19] That Act also states, however, that judges may keep the names of jurors “confidential in any case where the interests of justice so require.”[20]

Appellate courts routinely refer to the empanelment of an anonymous jury as a “drastic measure” because their use “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.”[21] Nonetheless, at the federal level, judges are rarely overturned for their decision to empanel an anonymous jury. It appears that reversal due to the use of an anonymous jury has occurred in only one federal case: United States v. Sanchez, [22] a case in which the United States Court of Appeals for the Fifth Circuit held there was no evidence suggesting that the defendant was involved in organized crime or that he had attempted to manipulate the judicial process. The lack of reversals derives from the reality that a trial court’s decision to empanel an anonymous jury is subject to the deferential abuse-of-discretion standard on appeal. Every federal appellate court to consider the question has come to the conclusion that the abuse of discretion standard is appropriate.[23]

The qualified right of access to juror names and addresses

Despite the rise of anonymous juries, members of the news media possess the general right to challenge a court’s decision to withhold juror names and addresses. [24] When making these challenges, the press typically asserts they have a First Amendment and common law right to the desired information. As will be displayed below, the majority of courts to consider the issue have concluded that a qualified right of access to juror names and addresses exists.[25]

The First Amendment right of access

In the milestone case of Richmond Newspapers, Inc. v. Virginia,[26] the U.S. Supreme Court recognized that the public and press have a qualified First Amendment right to attend criminal trials. “[T]he right to attend criminal trials is implicit in the guarantees of the First Amendment,” the Court explained, because “without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press could be eviscerated.”[27] In other words, if members of the public were not afforded access to trials, their First Amendment right to report on them would be meaningless. Since Richmond Newspapers, the Court has extended the qualified First Amendment right of access to the testimony of child sex offense victims,[28] the voir dire examination of prospective jurors,[29] and criminal pre-trial hearings.[30]

In Press-Enterprise II, the Court articulated a two-part test, referred to as the “experience and logic” test, for determining when the presumptive right of access under the First Amendment applies. Under the first part of the test, courts are instructed to ask “whether the place and process have historically been open to the press and general public.”[31] Under the second part, courts must “consider whether public access plays a significant positive role in the functioning of the particular process in question.”[32] If a court finds that a certain part of a proceeding passes both parts, the First Amendment right of access applies.

When addressing whether the First Amendment right of access exists, courts usually apply a de novo standard of review.[33] Thus, unlike the abuse of discretion standard that is applied to the question of whether a trial court erred in empaneling an anonymous jury, courts evaluating the existence of the First Amendment right of access usually afford no deference to the lower court.

Although strong, the First Amendment right of access is not absolute. The Court has made clear that the right is qualified and can be overcome by a narrowly tailored overriding interest that closure is necessary to preserve a higher value.[34] To show that an overriding interest exists, a court must make specific factual findings on the record.[35] The U.S. Supreme Court has identified “safeguarding the physical and psychological well-being of a minor” and the accused’s right to a fair trial as potential “overriding interests” sufficient to overcome the First Amendment right of access.[36]

Applying "experience and logic: case law evaluating the qualified First Amendment right of access

Excellent examples of cases recognizing the qualified First Amendment right of access to juror names and addresses include United States v. Wecht,[37] United States v. Doherty,[38] Commonwealth v. Long,[39] State ex rel. Beacon Journal Publ’g Co. v. Bond, [40] and People v. Mitchell.[41]

On the experience prong, as evident from these opinions and others, courts typically stress the nation’s long tradition of making the names and addresses of jurors open to the public. For instance, in United States v. Wecht—a case in which the news media challenged a trial court’s decision to empanel an anonymous jury in the criminal case against Dr. Cyril H. Wecht, a coroner charged with using his public office for private financial gain—the United States Court of Appeals for the Third Circuit noted that it was rare for juror names to be withheld before the upsurge in the use of anonymous juries in the 1970s.[42] The Third Circuit concluded that “[b]ecause juries have historically been selected from local populations in which most people have known each other . . . the traditional public nature of voir dire strongly suggests that jurors’ identities were public as well.”[43] In Beacon Journal, a case in which a newspaper sought an order directing a trial court to disclose a list of juror names and addresses from a criminal case that ended in a mistrial, the Supreme Court of Ohio noted that even before the Norman Conquest trials were held in which “the public knew the identity and residence of the participants.”[44] It further stated that this tradition of “access to jurors’ identities continued in the new American nation” where, “[i]n the treason trial of Aaron Burr, for example, Chief Justice John Marshall printed the names of the jurors in the court’s reported decision.”[45]

The outcome of the experience prong, however, can be affected by how the court frames the inquiry. In United States v. Doherty,[46] two newspapers intervened in the criminal case of multiple defendants for post-verdict access to the names and addresses of the jurors who had served. On the experience prong, instead of asking whether names and addresses of jurors have historically been open to the public, the District Court for the District of Massachusetts evaluated the tradition of press accessibility to jurors for post-verdict interviews.[47] Framed this way, the district court found the history of post-verdict interviews to be “scant,” but nevertheless concluded that the “broad latitude afforded to the press in gathering news” tended to favor access on the experience prong.[48]

On the logic prong, courts recognizing the qualified First Amendment right of access typically stress the ability of the news media to prevent juror bias and educate the public on the judicial process. The Third Circuit in Wecht, for instance, wrote that affording the public access to juror names will improve the fairness of the proceedings. Quoting from the First Circuit’s decision in In re Globe Newspaper Co., the Third Circuit wrote:

“Knowledge of juror identities allows the public to verify the impartiality of key participants in the administration of justice, and thereby ensures fairness, the appearance of fairness and public confidence in that system. It is possible, for example, that suspicions might arise in a particular trial (or in a series of trials) that jurors were selected from only a narrow social group, or from persons with certain political affiliations, or from persons associated with organized crime groups. It would be more difficult to inquire into such matters, and those suspicions would seem in any event more real to the public, if names and addresses were kept secret.”[49]

To the Third Circuit, the value (or to put it differently, the logic) in affording access to juror names is in eliminating juror malfeasance. “Corruption and bias in a jury should be rooted out before a defendant has to run the gauntlet of trial,” the Third Circuit wrote.[50] “Public knowledge of the jurors’ identities is desirable in part because it can deter such corruption and bias.”[51]

In Beacon Journal, the Supreme Court of Ohio wrote that many of the five values “served by openness in criminal proceedings” recognized by the U.S. Supreme Court in Richmond Newspapers were also served by affording public access to juror names.[52] Those five values are:

(1) ensuring that proceedings are conducted fairly, (2) discouraging perjury, misconduct of participants, and unbiased decisions, (3) providing a controlled outlet for community hostility and emotion, (4) securing public confidence in a trial’s results through the appearance of fairness, and (5) inspiring confidence in judicial proceedings through education on the methods of government and judicial remedies.[53]

The Ohio high court further recognized the value of post-trial media interviews with jurors. These interviews, the court wrote, can shed light on juror misconduct as well as on larger problems that may need to be improved by the judicial or legislative process.[54] Similar sentiments were echoed by the district court in Doherty, which wrote that stories on jurors can help educate “the public as to their own duties and obligations should they be called for jury service.”[55]

Although it is clear that many courts recognize a qualified First Amendment right of access to juror names, courts often differ on when this right of access attaches. The Third Circuit in Wecht, for instance, held that the right attaches “at the latest at the time of the swearing and empanelment of the jury . . . .”[56] In contrast, citing concerns related to the defendants’ right to a fair trial and juror privacy, the district court in Doherty held that access to juror names and addresses would be delayed until seven days after the verdict was returned.[57]

Moreover, even courts that recognize the qualified First Amendment right of access acknowledge situations in which the right does not apply. For instance, in In re Globe Newspaper Co.,[58] the First Circuit applied the First Amendment to interpret a local court rule to make available juror names and addresses after the completion of a trial “unless the presiding judge identifies specific, valid reasons necessitating confidentiality in the particular case.” Reasons necessitating confidentiality “include a credible threat of jury tampering, a risk of personal harm to individual jurors, and other evils affecting the administration of justice, but do not include the mere personal preferences or views of the judge or jurors.”[59] The Court of Appeals of Michigan, for its part, place great weight on juror safety, writing that access to juror names and addresses can be restricted in “exceptional cases, especially organized crime trials, and trials involving an unusually violent offender . . . .”[60] Courts have also made clear that juror names can be withheld if their publication would impinge on the defendant’s right to a fair trial.[61]

Additionally, not every court has applied the experience and logic test to find a qualified First Amendment right of access. In contrast to the courts above, the Supreme Court of Delaware in Gannett Co. v. State[62] applied the experience and logic test to hold that the press does not have a qualified First Amendment right to require courts to announce juror names during a murder trial. The Delaware high court’s decision was affected by the conduct of journalists in an earlier prominent murder case. In that earlier case, juror names were published in an article profiling the jurors, providing readers with information on the jurors’ “hometowns, occupations, marital status, number and ages of their children, personal mannerisms and appearance.”[63] The profiles were described as “rarely flattering.”[64]

On the experience prong, the Delaware Supreme Court noted that the mere fact that juror names may be announced in court does not automatically mean the practice should be afforded constitutional protection.[65] It further acknowledged various state and federal statutes that “give trial courts broad discretion over release of jurors’ names,” which “authorize courts to keep jurors’ names confidential in the interest of justice and to limit such use in any case in whole or in part.[66] According to the court, the statutes establish a historical tradition under which judges have the discretion to disclose juror names—not a historical tradition under which juror names are uniformly disclosed. On the logic prong, the court disagreed with Gannett’s assertion that the announcement of juror names allows the public and press to serve as a check on undisclosed juror bias. The voir dire process and preemptory challenges, the court stated, should be sufficient to ensure a fair trial without the additional help of the press.[67] The court, moreover, expressed the concern that the publication of articles about the jurors would lead to outside pressure being placed on the jurors, thereby corrupting the fairness of the trial.[68]

The Common Law Right of Access

In Nixon v. Warner Communications,[69] the U.S. Supreme Court recognized a general, common law “right to inspect and copy public records and documents, including judicial records and documents.” Under this holding, the public and press possess a common law right of access to judicial records. When applying the common law right of access, courts will generally balance “the presumption of openness against the circumstances warranting sealing of the document . . . .”[70] Thus, the First Amendment typically provides a stronger right of access than the common law because the qualified First Amendment right can be overcome only by a narrowly tailored overriding interest.

Decisions involving the common law right of access to juror names and addresses often turn on whether the list containing the names and addresses of jurors is considered a “judicial record.” In In re Baltimore Sun Co.,[71] the United States Court of Appeals for the Fourth Circuit concluded that the list was a judicial record that the common law right attaches to when the jury is seated. “After a jury has been seated,” the Fourth Circuit wrote, juror names “are just as much a part of the public record as any other part of the case, and we think so also are their addresses in order to identify them.”[72] The United States Court of Appeals for the Seventh Circuit in United States v. Blagojevich[73] likewise concluded that the common law presumption of access attaches to juror names. That opinion, however, primarily focused on the Jury Selection and Service Act, referenced above, which it wrote also created a presumption that juror names should be disclosed.

In Commonwealth v. Long,[74] the Supreme Court of Pennsylvania held that “a list containing the names and addresses of impaneled jurors” does not constitute a “public judicial document” to which the common law right of access attaches. According to that court, documents typically classified as public judicial documents are filed with the court and used by the judge in reaching a decision.[75] This standard was not met because the jury list is never entered into evidence and “is not the type of information upon which a judge bases his or her decision.”[76] The Court of Appeals of New York in Newsday, Inc. v. Sise[77] similarly concluded there was no common law right of access to records of juror names and addresses because the records “have not been entered into evidence or filed in court and are, therefore, not public judicial records.”

Although the increase in the number of anonymous juries is troubling, the foregoing displays that the news media has been successful in challenging the decision of courts to withhold juror names. Indeed, it appears that the news media has been more successful at challenging anonymous juries than litigants in the actual case.

Both the First Amendment and common law provide valid arguments for members of the news media who seek to promote the right of access to juror names and addresses. When arguing the First Amendment, it is imperative that members of the news media stress the nation’s long tradition of access to juror names and addresses. Equally important is stressing the soundness behind affording such access. The opinions addressed above and others provide members of the news media with many valid arguments for why the right of access to juror names should be afforded. As Justice Harlan once wrote, “[J]urors will perform their respective functions more responsibly in an open court than in secret proceedings.”[78] So strong is the First Amendment right of access that it should be overcome only by a credible risk to the safety or integrity of the jury. When arguing the common law, members of the news media should emphasize that juror lists are judicial records to which the common law right of access attaches. Without such an argument in place, courts stand to bypass the common law access right altogether.

Valid arguments also exist for asserting that the access right should attach at the time of the swearing and empanelment of the jury. Courts, such as the district court in United States v. Doherty, that hold the access right should attach after the entry of the verdict fail to see the news media’s role in preventing juror misconduct. By affording access to juror names and addresses, members of the news media are positioned to perform further investigations into jurors’ backgrounds, potentially preventing a miscarriage of justice.

Although judges will likely remain protective of jurors’ safety and privacy, it must always be kept in mind that reasonable alternatives to secrecy exist. Members of the news media should remind judges that they have the ability to “forbid anyone to make repeated requests that a juror discuss a case after the juror’s refusal to do so and may instruct the jurors that they have no obligation to discuss the case with anyone.”[79] “[W]hile privacy concerns following a publicized trial are real,” the First Circuit reflected, “these unfocused fears must be balanced against the loss of public confidence in our justice system that could arise if criminal juries very often consisted of anonymous persons.”[80]

End notes:

[1] Commonwealth v. Dupont, No. 85-981-987, 1998 Mass. Super. LEXIS 476, at *55 (Mass. Super. Ct. Aug. 24, 1998).

[2] Commonwealth v. Fujita, 470 Mass. 484, 486 n.8 (2015).

[3] Abraham Abramovsky & Jonathan I. Edelstein, Anonymous Juries: In Exigent Circumstances Only, 13 St. John’s J. Legal Comment. 457 (1999).

[4] United States v. Barnes, 604 F.2d 121, 141 (2d Cir. 1979).

[5] Abramovsky & Edelstein, supra, at 465.

[6] See, e.g., United States v. Ramírez-Rivera, 800 F.3d 1 (1st Cir. 2015); Barnes, 604 F.2d at 130; United States v. Scarfo, 850 F.2d 1015 (3d Cir. 1988); United States v. Dinkins, 691 F.3d 358 (4th Cir. 2012); United States v. Krout, 66 F.3d 1420 (5th Cir. 1995); United States v. Deitz, 577 F.3d 672 (6th Cir. 2009); United States v. Crockett, 979 F.2d 1204 (7th Cir. 1992); United States v. Darden, 70 F.3d 1507 (8th Cir. 1995); United States v. Shryock, 342 F.3d 948 (9th Cir. 2003); United States v. Ross, 33 F.3d 1507 (11th Cir. 1994); United States v. Edmond, 52 F.3d 1080 (D.C. Cir. 1995); see generally Christopher Keleher, The Repercussions of Anonymous Juries, 44 U.S.F. L. Rev. 531, 570 n.1 (2010).

[7] Lia Eustachewich, Judge grants request for anonymous jury in al Qaeda terrorist’s trial, New York Post (June 21, 2016, 7:08 PM), https://nypost.com/2016/06/21/judge-grants-request-for-anonymous-jury-in....

[8] Ashby Jones & Nathan Koppel, Anonymous Ladies and Gentlemen of the Jury, The Wall Street Journal (July 12, 2010, 12:01 AM), http://www.wsj.com/articles/SB10001424052748704799604575357443655839472.

[9] See, e.g., Gannett Co. v. State, 571 A.2d 735 (Del. 1990) (holding that the news media do not “have a qualified first amendment right to require announcement of jurors’ names during a highly publicized first degree murder trial, even though the parties have full access to such information”).

[10] Keleher, supra, note 6 at 532 (writing that “if jurors conflate anonymity with a criminal defendant’s dangerousness, the right to a fair trial is eviscerated”).

[11] For just one example, see Ray Sanchez, Aaron Hernandez jury: 'Emotional toll on all of us,' CNN (Apr. 17, 2015, 10:18 AM), http://www.cnn.com/2015/04/16/us/aaron-hernandez-jurors-interview/.

[12] United States v. Blagojevich, 612 F.3d 558, 561 (7th Cir. 2010).

[13] See Keleher, supra note 6, at 531 (writing that “[t]he definition of an ‘anonymous jury’ is a shifting one”); Dinkins, 691 F.3d at 371 (“The term ‘anonymous jury’ does not have one fixed meaning.”).

[14] United States v. Black, 483 F. Supp. 2d 618, 624 (N.D. Ill. 2007).

[15] Dinkins, 691 F.3d at 371.

[16] See Shryock, 342 F.3d at 970; Ross, 33 F.3d at 1519.

[17] United States v. Paccione, 949 F.2d 1183, 1192 (2d Cir. 1991).

[18] Ross, 33 F.3d at 1520.

[19] 28 U.S.C. § 1863(b)(7).

[20] Id.

[21] Ross, 33 F.3d at 1519.

[22] 74 F.3d 562, 565 (5th Cir. 1996).

[23] Dinkins, 691 F.3d at 371.

[24] See, e.g., Gannett Co., 565 A.2d at 899 (“[I]ntervention by the news media in a criminal proceeding, for the limited purpose of protecting their First Amendment rights, appears to be the most desirable procedure for providing a judicial resolution of those rights.”)

[25] See generally State ex rel. Beacon Journal Publ'g Co. v. Bond, 98 Ohio St. 3d 146, 156 (2002); People v. Mitchell, 233 Mich. App. 604, 605-06 (Mich. Ct. App. 1999).

[26] 448 U.S. 555 (1980).

[27] Id. at 580 (citations and internal quotation marks omitted).

[28] Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982).

[29] Press-Enterprise Co. v. Superior Court of California (“Press-Enterprise I”), 464 U.S. 501(1984).

[30] Press-Enterprise Co. v. Superior Court of California (“Press-Enterprise II”), 478 U.S. 1 (1986); El Vocero de P.R. v. Puerto Rico, 508 U.S. 147 (1993).

[31] Press-Enterprise II, 478 U.S. at 8.

[32] Id.

[33] United States v. Wecht, 537 F.3d 222, 234 (3d Cir. 2008); Times Mirror Co. v. United States, 873 F.2d 1210, 1212 (9th Cir. 1989).

[34] Press-Enterprise I, 464 U.S. at 510.

[35] Id.

[36] See Globe Newspaper Co., 457 U.S. at 607; Press-Enterprise I, 463 U.S. at 510.

[37] 537 F.3d 222.

[38] 675 F. Supp. 719 (D. Mass. 1987).

[39] 592 Pa. 42 (2007) (holding there is a qualified First Amendment right of access to juror names but not addresses).

[40] 98 Ohio St. 3d 146.

[41] 233 Mich. App. 604 (Mich. Ct. App. 1999).

[42] 537 F.3d at 224, 236.

[43] Id. at 235.

[44] Beacon Journal, 98 Ohio St. 3d at 157. Interestingly, the Supreme Court of Ohio in Beacon Journal also interpreted the Court’s holding in Press-Enterprise I as requiring the First Amendment right of access to attach to juror names. Id. at 156. According to the Ohio high court, juror identity is a component of voir dire, which the Court in Press-Enterprise I held a qualified First Amendment right of access attaches to. This reading of Press-Enterprise I was rejected by the Third Circuit in Wecht. See Wecht, 537 F.3d at 234 n.24.

[45] Id.; see also Long, 592 Pa. at 59 (writing that historical practice “support[s] a conclusion that jurors’ names were generally available to the public, since the practice was to ‘call’ the jury forward”).

[46] 675 F. Supp. 719.

[47] Id. at 722.

[48] Id.

[49] Wecht, 537 F.3d at 238 (quoting In re Globe Newspaper Co., 920 F.2d 88, 94 (1st Cir. Mass. 1990)).

[50] Id. at 239.

[51] Id.

[52] Beacon Journal, 98 Ohio St. 3d at 158.

[53] Id. (citing Richmond Newspapers, 448 U.S. at 569-72).

[54] Id.

[55] Doherty, 675 F. Supp. at 723.

[56] Wecht, 537 F.3d at 239.

[57] Doherty, 675 F. Supp. at 725.

[58] 920 F.2d at 91.

[59] Id. at 97; see also Fujita, 470 Mass. at 486 (writing that the right of access to a list identifying the names of jurors can be withheld only “on a judicial finding of good cause, which may include a risk of harm to the jurors or to the integrity of their service . . . .”).

[60] Mitchell, 233 Mich. App. at 629; see also United States v. Blagojevich, 612 F.3d 558, 561 (7th Cir. 2010) (writing at “[a]nonymous juries are permissible when the jurors' safety would be jeopardized by public knowledge, or the defendant has attempted to bribe or intimidate witnesses or jurors”).

[61] See generally Black, 483 F. Supp. 2d at 630-31.

[62] 571 A.2d 735.

[63] Id. at 783.

[64] Id.

[65] Id. at 745.

[66] Id. at 748 (emphasis in original).

[67] Id. at 750.

[68] Id. at 751. This conclusion contradicts the opinion of the Third Circuit in Wecht, a decision in which the court stated:

The prospect that the press might publish background stories about the jurors is not a legally sufficient reason to withhold the jurors’ names from the public. Although such stories might make some jurors less willing to serve or more distracted from the case, this is a necessary cost of the openness of the judicial process.

Wecht, 537 F.3d at 240.

[69] 435 U.S. 589, 597 (1978).

[70] Long, 592 Pa. at 51 n.6; but see Lee Levine et al., Newsgathering and the Law, § 5.01 (4th Ed. Matthew Bender & Company 2011) (“While common law balancing is typically not perceived to be as exacting as constitutional review, the common law right has widely been construed to create a presumption of access that often rivals the standards courts traditionally apply in the First Amendment context” (citations omitted)).

[71] 841 F.2d 74, 75 (4th Cir. 1988).

[72] Id. Although the Fourth Circuit based its holding on the common law right of access, the court was clearly impacted by the First Amendment, noting specifically that “[w]hen the jury system grew up with juries of the vicinage, everybody knew everybody on the jury and we may take judicial notice that this is yet so in many rural communities throughout the country.” Id.; see also Fujita, 470 Mass. at 489 (concluding that “a juror list is a court record . . . .”).

[73] 612 F.3d at 563.

[74] 592 Pa. at 52.

[75] Id.

[76] Id.

[77] 71 N.Y.2d 146, 153 n.4 (1987).

[78] Estes v. Texas, 381 U.S. 532, 588 (1965) (Harlan, J., concurring); see also Richmond Newspapers, 448 U.S. at 572 (internal quotation marks omitted) (“[It] is not unrealistic even in this day to believe that public inclusion . . . hopefully promotes confidence in the fair administration of justice.”).

[79] Beacon Journal, 98 Ohio St. 3d at 159.

[80] In re Globe Newspaper Co., 920 F.2d at 97.