B. Juror identities, questionnaires and other records
The Supreme Court indirectly addressed the right of access to voir dire transcripts, noting that in the unusual circumstance where voir dire must be held behind closed doors, “the constitutional values sought to be protected by holding open proceedings may be satisfied later by making a transcript of the closed proceedings available within a reasonable time, if the judge determines that disclosure can be accomplished while safeguarding the juror’s valid privacy interests.” Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 512 (1984) (“Press-Enterprise I”).
Generally, the Eleventh Circuit will grant access to the identities of the jurors. While, under some circumstances, juror identities will be kept anonymous, the Eleventh Circuit warned in United States v. Ross that "empanelment of an anonymous jury is a drastic measure, one which should be undertaken only in limited and carefully delineated circumstances." 33 F.3d 1507, 1519 (11th Cir. 1994). The Eleventh Circuit reaffirmed this principle in United States v. Ochoa-Vasquez, where the court expanded upon the circumstances under which an anonymous jury may be appropriate. 428 F.3d 1015, 1034–1035 (11th Cir. 2005). These are known as the Ross factors, and they maintain that an anonymous jury may be appropriate if: (1) the defendant is involved in organized crime, (2) the defendant participated in a group with the capacity to harm jurors, (3) the defendant has previously attempted to interfere with the judicial process, (4) there is the potential that, if convicted, the defendant will suffer a lengthy incarceration and substantial monetary penalties, and (5) there is extensive publicity that could enhance the possibility that jurors' names would become public and expose them to intimidation and harassment. Id.
Nevertheless, while public access to voir dire proceedings is protected by the First Amendment, the court may maintain the confidentiality of the juror identities where such restrictions are in the interests of justice. United States v. Sami Amin Al-Arian, No. 8:03-cr-77-T-30TBM, 2005 WL 8166946, *2 (M.D. Fla. 2005).
The Eleventh Circuit Court of Appeals has not yet recognized a right of access to juror questionnaires. However, in Jackson v. Deen, a district court in Georgia’s Southern District, cited with approval the District of Columbia Court of Appeals’ decision, which found a First Amendment right of access to written juror questionnaires. No. CV412–139, 2013 WL 2027398, *14 (S.D. Ga 2013) (citing In re Access to Jury Questionnaires, 37 A.3d 879, 885–87 (D.C. App. 2012)).
The Supreme Court addressed the right of access to voir dire transcripts, noting that in the unusual circumstance where voir dire must be held behind closed doors, “the constitutional values sought to be protected by holding open proceedings may be satisfied later by making a transcript of the closed proceedings available within a reasonable time, if the judge determines that disclosure can be accomplished while safeguarding the juror’s valid privacy interests.” Press-Enterprise Co. v. Superior Court (“Press-Enterprise I”), 464 U.S. 501, 512 (1984).
The First Circuit held that judges in the District of Massachusetts must release the names and home addresses of jurors after trial, absent exceptional circumstances justifying impoundment. In re Globe Newspaper Co., 920 F.2d 88 (1st Cir. 1990). The opinion was ostensibly based on the text of the Jury Plan for the District of Massachusetts, but it also drew heavily from the Supreme Court’s First Amendment access cases. Applying the “logic” test of Press-Enterprise II, 478 U.S. 1, 9 (1986), the court observed that post-trial interviews of jurors can reveal bias, root out misconduct, expose misconceptions, and otherwise improve the quality of the justice system. “In a democracy,” the court concluded, “criminal trials should not, as a rule, be decided by anonymous persons.” Id.
In United States v. Chin, 913 F.3d 251 (1st Cir. 2019), the First Circuit reaffirmed the public and media’s right of access to juror identities in the District of Massachusetts, established by In re Globe, notwithstanding the worries of some district judges about potential threats to juror privacy in the era of social media. The court held that in the District of Massachusetts trial courts must disclose juror names and home addresses post-trial absent “particularized findings” of “exceptional circumstances that were peculiar to the case” such as “a credible threat of jury tampering, a risk of personal harm to individual jurors, and other evils affecting the administration of justice.” Id. at 257.
With regard to timing, the court also held that any delay in releasing the jurors’ identities must be supported by findings of a threat to the judicial system, and that courts must promptly release jurors’ home addresses, in addition to names and hometowns, so that the press can identify and interview them. The court also held that In re Globe “requires that any delay in post-verdict disclosure be justified by the requisite ‘particularized findings.’” The First Circuit faulted the district court’s three-month delay (between the verdict and sentencing) because it “far outstrips” any “brief time period that could constitute an acceptable delay.” Id. at 261.
In response to the arguments that changes in technology justify a departure from In re Globe, which required public access to juror identities, the First Circuit acknowledged that In re Globe “was decided decades ago and thus well before the first tweet was tweeted.” Id. at 261. The court also accepted that “there is now a greater potential for the public release of a juror’s name, and, especially, a juror’s address, to be more intrusive and concerning than would have been the case in an era in which social media was unknown.” But the court concluded, “these technological changes have by no means diminished the need for accountability and transparency in our system of justice that In re Globe treats as relevant in construing the critical provision of the Jury Plan.” Id. The First Circuit described the competing interests this way:
The obligation of jury service is one of the most important that our government imposes on its citizens. It is, therefore, important to ensure that the fulfillment of this obligation is not made so burdensome that it becomes more than a citizen should have to bear. It is important to ensure as well, though, that our system of justice remains accountable to the broader public that it serves.
Id. at 262.
Voir dire access limitations are properly invoked only where circumstances demonstrate their need, and, even then, any limitation must be narrowly drawn and supported by findings, after alternatives have been considered. United States v. King, 140 F.3d 76, 83 (2d Cir. 1998); see also United States v. Bruno, 700 F. Supp. 2d 175, 185 (N.D.N.Y. 2010) (holding that jurors' privacy rights in pre-screening questionnaires outweighed rights of public access).
In United States v. Wecht, 537 F.3d 222, 239–40 (3d Cir. 2008), the Third Circuit held that the public has a First Amendment right of access to the names of both trial jurors and prospective jurors. The court found that “a presumption of openness exists at the latest at the time of the swearing and empanelment of the jury” and added that although press coverage during trial “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.” Id. The Third Circuit concluded that the district court failed to establish that this presumptive right of access had been overcome, as it did not state specific reasons for withholding juror names and failed to consider less-restrictive alternatives. Id. at 242.
In Wecht, the Third Circuit permitted voir dire to be conducted, in part, using written questionnaires rather than in open court, finding that it is “well established that ‘the method of conducting voir dire is left to the sound discretion of the district court.’” Id. The media intervenors did not seek access to the questionnaires in that case, id., and the Supreme Court has not addressed whether there is a right of access to such questionnaires.
In addition, the Jury Selection and Service Act of 1968, 28 U.S.C. § 1863(b)(7), provides for the disclosure of juror names once the jurors have been summoned and either appeared or failed to appear, unless secrecy is in the “interest of justice.”
The Supreme Court indirectly addressed the right of access to voir dire transcripts, noting that in the unusual circumstance where voir dire must be held behind closed doors, “the constitutional values sought to be protected by holding open proceedings may be satisfied later by making a transcript of the closed proceedings available within a reasonable time, if the judge determines that disclosure can be accomplished while safeguarding the juror’s valid privacy interests.” Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 512 (1984).
The Third Circuit expanded on this in United States v. Antar, 38 F.3d 1348, 1360 (3d Cir. 1994), noting “[i]t would be an odd result indeed were we to declare that our courtrooms must be open, but that transcripts of the proceedings occurring there may be closed, for what exists of the right of access if it extends only to those who can squeeze through the door?” In addition to the First Amendment access right, the court found that “the [voir dire] transcript at issue is a public judicial document, covered by a presumptive right of access” under the common law. Id. at 1360 (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978)).
Because voir dire is presumptively open to the public, the right of access extends to the names and addresses of the jurors, as well as the men and women summoned but not chosen for the jury. However, the presumption of access may be overcome in circumstances involving realistic threats of violence or jury corruption. See In re Baltimore Sun Co., 841 F.2d 74, 76 (4th Cir. 1988).
Juror questionnaires, as part of voir dire, are presumptively open to the public. See In re South Carolina Press Ass'n, 946 F.2d 1037, 1040-1041 & n.3 (4th Cir. 1991) (affirming district court’s order closing voir dire, including juror questionnaires, to the public); accord Eaglin v. McCall, 689 F. App'x 166, 168 (4th Cir. 2017) (per curiam) (“This presumption of access applies to written juror questionnaires.”). When the court and the attorneys prepare such a questionnaire and promise confidentiality of responses thereto, they must consider the notice requirements for restricting access. See In re S.C. Press Ass'n, 946 F.2d at 1040 n.3. The Jury Selection Act prevents disclosure of records or papers used by the jury commission or clerk before voir dire; it is does not prevent disclosure of information revealed during voir dire, and thus is not a basis for sealing juror questionnaires. See In re WP Co., No. 15-1293, Order at n.* (Fourth Circuit Apr. 27, 2015).
The Fifth Circuit has upheld the right to anonymous juries in certain situations, and the First Amendment does not entitle the press to a list of jurors’ names and addresses. United States v. Gurney, 558 F.2d 1202, 1210 (5th Cir. 1977). A court may refuse to allow the media to inspect documents not a matter of public record, including records that indicate jurors’ names and addresses. United States v. Brown, 250 F.3d 907, 914–15 (5th Cir. 2001). Unlike with general court closure orders, a court does not have to make specific findings that support juror anonymity if the reasons are obvious. Id. at 919. However, the use of an anonymous jury should still be viewed as a “drastic measure” to be undertaken only in limited and carefully delineated circumstances, such as the need to ensure against a serious threat to juror safety. United States v. Sanchez, 74 F.3d 562, 563 (5th Cir. 1996).
Factors that may justify use of an anonymous jury include: (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 the defendant will get a long jail sentence or substantial fines if convicted; and (5) extensive publicity that could expose jurors to intimidation or harassment. Id. at 564.
A court’s decision to use an anonymous jury is entitled to significant deference and will be reviewed by appellate courts only for abuse of discretion. United States v. Salvatore, 110 F.3d 1131, 1143 (5th Cir. 1997). But a court must base its decision on more than mere allegations or inferences of potential risk. In certain circumstances, the use of an anonymous jury will be grounds for reversal if it was unnecessary. Sanchez, 74 F.3d at 563.
Pretrial publicity is less likely to be deemed prejudicial to a defendant’s ability to get a fair trial if considerable time has elapsed since the publicity, and if the news reports in question were “factual accounts” and “straight news reports” rather than the “sensational” type that tend to inflame ill will. Willie v. Maggio, 737 F.2d 1372, 1387 (5th Cir. 1984). The constitutional standard of fairness requires only that the accused have a panel of impartial and “indifferent” jurors who base their decision solely on the evidence produced in court; it does not require that jurors be wholly ignorant of the case. Id. It is thus very difficult to establish that pretrial publicity creates a presumption of prejudice, which is confined to those extreme situations where a party can demonstrate inflammatory pretrial publicity that literally saturates the community. Mayola v. Alabama, 623 F.2d 992, 997 (5th Cir. 1980).
While a court may order an anonymous jury, a court order that the media not attempt to “circumvent” its anonymous jury order will generally amount to an unlawful prior restraint on the media because it blocks the press from reporting certain kinds of independently gathered stories relating to the trial. Brown, 250 F.3d at 914–15. Prior restraints are disfavored and will be upheld only if the government can establish that the activity restrained poses a clear and present danger or a serious and imminent threat to a protected competing interest. Id. at 915. Therefore, while a court can order an anonymous jury, an order that the media not report jurors’ identities should they unearth them through other means would be constitutionally suspect.
The Fifth Circuit has held that a court, with proper justification, may refuse to allow the media to inspect jury records and documents that are not a matter of public record, including jurors’ names and addresses. Id. at 915. Intimidation of venire members and jurors by the press and/or the defendants can be a valid justification for such an order. Id. Although the media generally have a right to publish information that they obtain, they do not have a right of access to government information or sources of information within the government’s control. Id. at 915.
While a denial of access to confidential court information may hamper newsgathering, this burden is outweighed by strong governmental interests in ensuring that jurors are entitled to privacy and protection against harassment, even after their jury duty has ended. Id. at 918. The Fifth Circuit has noted that the judge’s power to prevent harassment and protect juror privacy does not cease when the case ends, and the usefulness of releasing jurors’ names is “highly questionable.” Id. at 919 n.17. Specific findings are not required where the reasons for the court’s decisions are obvious and compelling, and in a highly publicized case, the reasons are obvious. Id. at 919.
When individual voir dire has been closed at the request of a juror, a transcript must be made of the questioning. The judge must then make a determination as to whether to redact portions of the questioning before making the transcript public. In re Dallas Morning News Co., 916 F.2d 205, 206 (5th Cir. 1990).
The First Amendment does guarantee the media a limited right of access to the record of closed proceedings concerning potential jury misconduct. United States v. Edwards, 823 F.2d 111, 118 (5th Cir. 1987).
The Sixth Circuit has held that whether to empanel an anonymous jury is within the sound discretion of the trial court, but the court has also provided “guidelines to determine when circumstances of a case call for the use of an anonymous jury.” United States v. Talley, 164 F.3d 989, 1001 (6th Cir. 1999) (United States v. Eufrasio, 935 F.2d 553, 573 (3d Cir. 1991)); see also United States v. Warman, 578 F.3d 320, 343 (6th Cir. 2009) (“A district court may empanel an anonymous jury in any case in which the interests of justice so require” (citing 28 U.S.C. § 1863(b)(7))). “[A] district court should not order the empaneling of an anonymous jury without ‘(a) concluding that there is a 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.’” Talley, 164 F.3d at 1001 (quoting United States v. Paccione, 949 F.2d 1183, 1192 (2d Cir. 1991); see also United States v. Lawson, 535 F.3d 434 (6th Cir. 2008) (same). More specifically, “[t]he anonymity of the jury should be preserved in cases: 1) with very dangerous persons who were participants in large scale organized crime, and who participated in mob-style killings and have previously attempted to interfere with the judicial process; 2) where defendants have had a history of attempted jury tampering and serious criminal records; or 3) where there have been allegations of dangerous and unscrupulous conduct by the defendant, coupled with extensive pretrial publicity.” Id. (citing Paccione, 949 F.2d at 1192).
When courts decide to empanel an anonymous jury, they must conduct “voir dire designed to uncover bias as to issues in the case and as to the defendant himself.” Id. at 1001–01. In one case, the voir dire was done so that the defendant “would be informed of each prospective juror’s community of residence, education, and type of work experience” and took three days. Lawson, 535 F.3d at 440.
Courts must also be careful regarding the explanation that is given to the jury for its decision to empanel an anonymous jury so as not to violate the criminal defendant’s right to a fair trial. Talley, 164 F.3d at 1002. The Sixth Circuit has suggested that such an explanation “would have been better if it had premised anonymity on the need to prevent the jurors from being harassed by the media…” Lawson, 535 F.3d at 440.
The court has also specifically held that “there is no constitutional right to a public jury” when an anonymous jury was challenged by a criminal defendant. Id.
The Sixth Circuit has favorably cited to application of the Richmond Newspapers “experience and logic” test for “post-trial examination of juror for potential misconduct” by the Third Circuit in a criminal case. Detroit Free Press v. Ashcroft, 303 F.3d 681, 695 (6th Cir. 2002) (citing United States v. Simone, 14 F.3d 833, 842 (3d Cir. 1994)).
“[N]o one contends (or should contend) that jurors' names always must be released. Anonymous 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. . . . The right question is not whether names may be kept secret, or disclosure deferred, but what justifies such a decision.” United States v. Blagojevich, 612 F.3d 558, 561 (7th Cir. 2010); see also United States v. Harris, 763 F.3d 881, 886 (7th Cir. 2014) (“To be sure, both ‘confidential’ and ‘anonymous’ juries infringe on the public nature of trials and should therefore only be used sparingly and after sound consideration that is articulated by the district court on the record”).
Remanding for further consideration of whether the common law presumption of access had been overcome, the Blagojevich Court observed that, “[a]lthough deferred release of jurors' names requires less justification than does anonymity . . . a judge must find some unusual risk to justify keeping jurors' names confidential; it is not enough to point to possibilities that are present in every criminal prosecution. The great public interest in this prosecution may indeed create exceptional risks,” but this had to be “explored on the record.” 612 F.3d at 564-65.
On remand in Blagojevich, the district judge held a hearing and determined that “[t]he amount of media attention in this case” and other “unusual risks associated with releasing the jurors' names during trial overcome the presumption of disclosure,” and that “the jurors' names should not be made public prior to the entry of a verdict.” United States v. Blagojevich, 743 F.Supp.2d 794, 806, 808 (N.D. Ill. 2010). See also United States v. Black, 483 F.Supp.2d 618 (N.D. Ill. 2007) (no First Amendment right of access to jury names during pendency of trial; releasing the names would violate the defendant’s Sixth Amendment rights given the “intense media scrutiny surrounding th[e] case”); United States v. Calabrese, 515 F.Supp.2d 880 (N.D. Ill. 2007) (denying newspaper access to jury names, citing concern for jurors’ safety); United States v. Warner, 396 F.Supp.2d 924, 928-29 (N.D. Ill. 2005) (court would conduct voir dire with the media present but would “instruct the press not to disclose the jurors' identities until the end of trial; in the court's experience, this is any event the media's standard practice”); In re Indianapolis Newspapers, Inc., 837 F. Supp. 956 (S.D. Ind. 1992) (disclosing juror names a week after verdict).
In the Blagojevich trial, the district judge also informed prospective jurors that he would destroy their questionnaires after trial, in the interest of complete candor. However, in a subsequent trial in the case, the judge changed his opinion: “I believe that I can secure candor by allowing jurors to object to release of any part of the questionnaire that would subject them to unjustified public embarrassment or harassment. . . . I now believe that total destruction of the questionnaires is unnecessary to achieve an effective voir dire and an effective jury selection process.” United States v. Blagojevich, No. 08 CR 888, 2011 WL 812116, at *3 (N.D. Ill. Feb. 28, 2011).
The Southern District of Illinois’ Local Rules provide that in a “widely publicized or sensational case, the Court, on motion of either party or on its own motion,” may issue an order “that the names and addresses of the jurors or prospective jurors not be publicly released, except as required by statute, and that no photographs be taken or sketch made of any juror within the environs of the Court.” See S.D. Ill. Local R. 83.6(c), (d)(4).
To protect juror privacy, virtually no documents relating to jurors are public. Alaska Admin. R. 15(j). Some, including statewide and master jury lists and qualification questionnaires are for internal court use only, (Admin. R. 15(j)(1)), while others are available to parties and their attorneys but cannot be disclosed to anyone else or use for purposes other than for jury selection in the case for which they were prepared—including the trial questionnaires, trial panel lists, or any compiled list of persons selected to serve on a jury. Admin. R. 15(j)(2), (3). If jurors (and, presumably, potential jurors) are questioned in private, the electronic record and log notes related to that questioning are confidential. Admin. R. 15(j)(4). Otherwise, the electronic record and log notes from jury selection are public. Id. However, the rule provides that juror names must never be recorded in the log notes and should only be recorded on the confidential form used to document juror selection. Id. The court may issue a certificate of attendance to a juror or the juror’s employer. Admin. R. 15(j)(5). This Rule provides that “any other record of juror attendance is confidential,” arguably leaving it ambiguous whether the certificate of attendance is confidential. Juror information maintained in the Alaska court system’s electronic case management systems will not be published on the court system’s website or otherwise made available to the public in electronic form. Admin. R. 37.8(7).
Pursuant to Rule 123(e)(10) of the Arizona Supreme Court Rules, “[t]he home and work telephone numbers and addresses of jurors, and all other information obtained by special screening questionnaires or in voir dire proceedings that personally identifies jurors summoned for service, except the names of jurors on the master jury list, are confidential, unless disclosed in open court or otherwise opened by order of the court.”
The names of jurors “shall be made available to the public upon request unless the court determines that a compelling interest,” such as “protecting jurors from threats or danger of physical harm,” requires that the information be kept confidential. Cal. Code Civ. Proc. § 237. See also Pantos v. City and County of San Francisco, 151 Cal. App. 3d 258, 262-263, 198 Cal. Rptr. 489 (1984) (list of qualified jurors is a judicial record, presumed open to public access).
In a criminal case, trial jurors’ names, addresses, and phone numbers are sealed after a verdict, although any person may petition a court for access on a showing of good cause. Id. § 237(a). If no jurors object and the court finds no compelling reason for non-disclosure, it must release the information, but if a juror is unwilling to be contacted, the petition must be denied. Id. § 237(d).
Juror questionnaires are presumptively public under the First Amendment, although juror names and contact information must be redacted and sought by petition pursuant to Code of Civil Procedure § 237. See Bellas v. Superior Court, 85 Cal. App. 4th 636, 639, 645, 102 Cal. Rptr. 2d 380 (2000). The contents of the questionnaires must be disclosed unless the trial court finds sealing is necessary to preserve an overriding interest, and the sealing order is narrowly tailored. Id. See also Copley Press, Inc. v. Superior Court, 228 Cal. App. 3d 77, 84-85, 278 Cal. Rptr. 443 (1991); Lesher Communications v. Superior Court, 224 Cal. App. 3d 774, 777-778, 274 Cal. Rptr. 154 (1990).
The Colorado Judicial Department’s Public Access to Court Records policy (“Public Access Policy”) (pdf) excludes from public access all juror questionnaires. (See Section 4.60(d)(15).) Colorado appellate courts have not addressed the constitutional implications of this policy or a general constitutional right of access to juror questionnaires.
The First Amendment right of access to records generally extends to blank and completed juror questionnaires, although the trial court may require redactions, or may delay release of completed questionnaires until the jury is seated if it finds facts supporting the conclusion that earlier release would cause prospective jurors to lie in their questionnaire responses. United States v. King, 140 F.3d 76, 82–83 (2d Cir. 1998). A Connecticut statute declares that completed questionnaires “shall not constitute a public record,” Conn. Gen. Stat. § 51-232(c), but it appears that no state court has yet had occasion to apply the First Amendment right of access to the statute.
In federal court, the names of all prospective jurors who appear in open court for voir dire will be released upon request to the clerk’s office. D. Conn. Jury Plan § 17; 28 U.S.C. § 1863(b)(7); see also United States v. Quattrone, 402 F.3d 304, 312 (2d Cir. 2005) (in either state or federal court, juror names revealed in open court are all but guaranteed to be available to the public). The Second Circuit has not opined on when the district judge may keep the list of juror names secret; other circuits have held that the open knowledge of jurors’ names benefits public confidence in trials. See United States v. Blagojevich, 612 F.3d 558, 561-62 (7th Cir. 2010); In United States v. Wecht, 537 F.3d 222 (3d Cir. 2008); In re Globe Newspaper Co., 920 F.2d 88 (1st Cir.1990); In re Baltimore Sun Co., 841 F.2d 74, 76 (4th Cir. 1988).
Any prohibition against publishing jurors’ names would be assessed the same as any prior restraint on speech, i.e., would be exceedingly unlikely to be lawful unless the court found that disclosure of the names was a very serious threat to the trial, and that no lesser restriction would adequately address that threat. United States v. Quattrone, 402 F.3d 304, 309–10 (2d Cir. 2005).
State law has no specific prohibition against publication of juror names. See State v. Miller, 202 Conn. 463, 476, 522 A.2d 249, 256 (1987) (pretrial publication of names of jurors in local newspaper did not deprive defendant of right to fair and impartial jury, where jurors claimed it would not affect their judgment).
Under 18 U.S.C. § 3432, a court may empanel an anonymous jury when the court finds by a preponderance of the evidence that providing a list of veniremen and witnesses to the defendant may jeopardize the life or safety of any person. See United States v. Edelin, 128 F. Supp. 2d 23, 43 (D.D.C. 2001) (citing 18 U.S.C. § 3432 and allowing the empaneling of an anonymous jury because organized crime posed a risk to jurors where defendants were part of a large-scale criminal organization that distributed massive amounts of cocaine in Washington, D.C., and used violent acts to achieve its goals). In United States v. Edmond, the D.C. Circuit sets forth five factors that D.C. district courts should consider when deciding whether an anonymous jury should be empaneled. United States v. Edmond, 52 F.3d 1080 (D.C. Cir. 1995), cert. denied, 516 U.S. 998 (1995). Those factors are:
- the defendant's involvement in organized crime;
- the defendant's participation in a group with the capacity to harm jurors;
- the defendant's past attempts to interfere with the judicial process;
- the potential that, if convicted, the defendant will suffer a lengthy incarceration; and
- extensive publicity that could enhance the possibility that jurors' names would become public and expose them to intimidation and harassment.
United States v. Mohammed, 538 F. Supp. 2d 281, 282–83 (D.D.C. 2008) (citing Edmond, 52 F.3d at 1090). Additionally, after applying the factors but before empaneling an anonymous jury, the court should: (a) conclud[e] that there is strong reason to believe the jury needs protection, and (b) tak[e] reasonable precautions to minimize any prejudicial effects on the defendant and to ensure that his fundamental rights are protected. Edmond, 52 F.3d at 1090 (citing United States v. Paccione, 949 F.2d 1183, 1192 (2d Cir. 1991), cert. denied, 505 U.S. 1220 (1991)).
The Edmond factors apply when jurors face a threat of harm because of the proximity of the organized crime ring; however, they are not intended to apply to all circumstances where defendants are alleged participants in organized crime. In contrast to United States v. Edelin, in which an anonymous jury was appropriate where defendants were part of an organized crime ring accused of 14 murders and multiple counts of assault with intent to murder, including threats to kill two witnesses in a case proceeding in the Superior Court for the District of Columbia, 128 F. Supp. 2d at 28, 30, in United States v. Mohammed, an anonymous jury was not appropriate because all criminal acts identified by the government related to conduct in Afghanistan, so the jury was unlikely to need protection. United States v. Mohammed, 538 F. Supp. 2d 281, 283 (D.D.C. 2008). The government was unable to provide concrete, reliable, or verifiable evidence showing threats to jurors in Washington, D.C. Id.
The names of jurors in a criminal trial of a former U.S. Secretary of Agriculture were sealed for seven days following the return of the verdict, since temporary sealing accommodates competing interests of the press asserting its constitutional right of access to this information, and jurors, in their desire to remain confidential. United States v. Espy, 27 Media L. Rep. 1190 (D.D.C. 1998).
The D.C. Circuit found that the district court's exclusion of the public, but not the press, from criminal trial violated the defendant’s Sixth Amendment right to public trial. United States v. Edmond, 16 Media L. Rep. 2327 (D.C. Cir. 1989). The circuit court concluded that the trial court failed to provide notice and hearing before closing trial, and failed to issue findings demonstrating that closure was essential to preserve higher values and was narrowly tailored to serve those interests. Id. The court further noted that none of the three reasons cited by the court—juror's recognition of spectator, defendant's relative's recognition of juror, and defense attorney's learning that juror's relative was among spectators—showed any imminent threat to the jurors' well-being. Id.
A D.C. district court permitted the Washington Post's application for public access to certain voir dire questionnaires completed by prospective jurors in a criminal case. In re Wash. Post, No. 92–301 (RCL), 1992 WL 233354 (D.D.C. July 23, 1992). Another district court held that the public has a right of access to jury questionnaires completed for voir dire in a criminal trial of a former CIA official, although answers that contained “intensely personal” information could be redacted, regardless of whether prospective jurors responded affirmatively to a question that asked whether any information disclosed on the questionnaire was “confidential and personal.” United States v. George, No. 92-301, 1992 WL 233354, at *4 (D.D.C. July 23, 1992).
The D.C. Court of Appeals has also recognized that the media has a presumptive, First Amendment right of access to written jury questionnaires used as part of the voir dire process. In re Access to Jury Questionnaires, 37 A.3d 879, 885–87 (D.C. 2012).
District of Columbia
Juror identities are withheld throughout the course of the trial, and are usually made part of the case record after the verdict. See Journalists’ Handbook to the Courts in the District of Columbia, Council for Court Excellence 30, https://www.dccourts.gov/sites/default/files/pdf-forms/JournalistsHandbook.pdf.
In United States v. Espy, 31 F. Supp. 2d 1 (D.D.C. 1998), a federal district court ordered that the names of jurors be sealed for seven days following the announcement of their verdict in a “high-profile” criminal case. The court noted that “[m]any of the purposes served by open access to criminal proceedings are also served by recognizing the interest and putative right of the press to have access to the names of jurors following a verdict,” but found that the seven-day “limitation on the interests of the press is narrowly tailored in time and scope and will not ultimately thwart the purposes served by providing open access to criminal proceedings.” Id. at 2.
No Florida appellate courts have specifically addressed the issue of anonymous juries. While anonymous juries are virtually unheard of in Florida, courts in high-profile criminal cases have been willing to restrict or delay access to juror information. See State of Florida v. Casey Marie Anthony, No.: 48-2008-CF-015606-AO, Order Granting in Part Motion to Intervene for the Limited Purpose of Seeking Release of Juror Information Once Jury is Discharged, July, 26, 2011 (Fla. Cir. Ct. 2011) (ordering that after October 25, 2011, court personnel could, upon request, release seated juror names for jurors that have not previously disclosed their identities); State of Florida v. George Zimmerman, No. 12-CF-1083-A, Order Directing that Jurors’ Identities Be Kept Confidential, June 5, 2013 (Fla. Cir. Ct. 2013) (forbidding the Clerk of Court from releasing to the public names of jurors called to be part of venire, requiring jurors to be referred to by number during voir dire, and forbidding sitting jurors to be identified or photographed during the course of trial); State of Florida v. George Zimmerman, No. 12-CF-1083-A, Order Regarding Jurors’ Identities, Mar. 21, 2014 (Fla. Cir. Ct. 2014) (ordering release of juror names only, eight months after trial concluded); State of Florida v. Dunn, No. 16-2012-CF-11572-AXXX-MA, Order Directing that Jurors’ Identities be Kept Confidential, Feb. 3, 2014 (Fla. Cir. Ct. 2014) (ordering juror information to be kept confidential until 60 days after trial concludes).
Jury closure questions also often involve camera access to jurors during voir dire and the trial. The Florida Supreme Court rejected an attempt to grant trial judges broader discretion to prohibit photographing or filming jurors’ faces. In re Amendments to the Rules of Judicial Admin., 915 So. 2d 157, 160-61 (Fla. 2005). Instead, attempts by parties and courts to shield jurors from the media with bans on photographing or filming jurors’ faces should be analyzed like other restrictions on electronic media coverage, applying Florida Rule of Judicial Administration 2.450 and the Florida Supreme Court’s Post-Newsweek decision. To prohibit photographing jurors, a court must find that the coverage will have a substantial effect upon the juror that would be qualitatively different from the effect of traditional media coverage. 370 So. 2d 764, 778-79 (Fla. 1979). However, at least two courts have allowed restrictions on photographing or filming jurors faces to be based upon group concerns rather than concerns with individual jurors. Sunbeam Television Corp. v. State, 723 So. 2d 275, 280 (Fla. Dist. Ct. App. 1999) (en banc); Times Publ’g Co. v. State, 632 So. 2d 1072, 1075 (Fla. Dist. Ct. App. 1994). In addition, a court must consider whether “less restrictive measures” to closure would suffice. State v. Palm Beach Newspapers, Inc., 395 So. 2d 544, 548 (Fla. 1981).
Litigation in this area has most often focused on access to judicial records which include juror names and information. See Sarasota Herald-Tribune v. State, 916 So. 2d 904, 908 (Fla. Dist. Ct. App. 2005) (reviewing trial court order which, among other things, required the clerk of court to “not release to any person the names, addresses, or any other identifying information concerning potential jurors in this case”). In the hands of the court, a record containing juror information is a judicial record, access to which is governed by Article I, Section 24 of Florida’s Constitution, the Barron and Lewis cases and Florida Rule of Judicial Administration 2.420. Those standards are discussed in greater detail above.
Juror notes are promptly collected and destroyed by the court at the conclusion of the trial and following the discharge of the jury. Fla. R. Jud. Admin. 2.430(k).
Records of “names of jurors placed in a panel for a trial of an action and the contents of jury qualification forms and jury questionnaires for these jurors” are exempt from disclosure, unless the presiding judge orders otherwise. I.C.A.R. 32(g)(8). Only attorneys of a party or a party representing himself may obtain copies of the juror questionnaire responses. Idaho Crim. R. 23.1.; Idaho R. Civ. Pro. 47(d). Even then, such disclosure shall be subject to the rule of maintaining juror confidentiality and may include the “deletion of the name, address, phone number or any other information about a prospective juror that should remain confidential.” Idaho R. Civ. Pro. 47(d).
According to Jury Rule 10, “[p]ersonal information relating to a juror or prospective juror not disclosed in open court is confidential, other than for the use of the parties and counsel. The court shall maintain that confidentiality to an extent consistent with the constitutional and statutory rights of the parties.”
The judge determines whether a jury may be anonymous on a case-by-case basis, depending on whether “(a) the trial court concludes that there is a strong reason to believe that the jury needs protection; and (b) it takes reasonable precautions to minimize the potential prejudice to the defendant and ensure that his fundamental rights are protected.” Major v. State, 873 N.E.2d 1120, 1127 (Ind. App. 2007); see also Brewington v. State, 981 N.E.2d 585, 592–595 (Ind. Ct. App. 2013) (vacated in part, 7 N.E.3d 946) (holding that the trial court did not abuse its discretion in impaneling an anonymous jury). See Major, 873 N.E.2d at 1126–28 (citations and footnotes omitted), for a discussion on the policy considerations concerning anonymous juries:
“An anonymous jury is one in which certain identifying information, particularly jurors’ names, is withheld from the public as well as from the parties themselves. While it appears that there is no Indiana law on this issue, multiple federal courts and state courts, including the Seventh Circuit Court of Appeals, have considered the question of anonymous juries. In deeming anonymous juries to be ‘an extreme measure,’ the Seventh Circuit has observed that the empanelment of an anonymous jury implicates a defendant’s Fifth Amendment right to a presumption of innocence because it ‘raises the specter that the defendant is a dangerous person from whom the jurors must be protected.’ Many courts, including the Seventh Circuit, have also observed that empaneling an anonymous jury may interfere with a defendant’s right to trial by an impartial jury under the Sixth Amendment. . . . Given these constitutional implications, many courts have similarly highlighted the rare circumstances in which anonymous juries are appropriate, deeming them a ‘last resort,’ and a ‘drastic measure.’
In spite of these constitutional limitations, however, courts have also recognized that ‘neither the right to a presumption of innocence nor the right to exercise peremptory challenges is a constitutional absolute; each, at times, must yield to the legitimate demands of trial administration and court-room security so long as steps are taken to ensure that the defendant receives a fair trial.’ Indeed, appellate courts considering the permissibility of anonymous juries have largely upheld their use. . . .
. . . .
‘Within these parameters the decision whether or not to empanel an anonymous jury is left to the [lower] court’s discretion.’ Accordingly, we review the trial court’s decision to empanel an anonymous jury for an abuse of discretion. . . .
We first observe that given the above authority indicating the widespread approval of the use of anonymous juries so long as (a) the trial court concludes that there is a strong reason to believe that the jury needs protection; and (b) it takes reasonable precautions to minimize the potential prejudice to the defendant and ensure that his fundamental rights are protected, we conclude that Indiana law should adopt a similar position. We do so especially in light of our prior treatment of Sixth Amendment rights, finding that they are fundamental but not absolute, and that they may give way in cases in which the government has an interest in inhibiting disclosure of sensitive information. See Williams v. State, 690 N.E.2d 162, 167 (Ind.1997) (observing that Sixth Amendment does not prohibit the exclusion of the public from a criminal trial where the witness fears retaliation).
In evaluating the instant case, we observe that pursuant to the above precedent and as the State concedes, a determination as to the propriety of an anonymous jury requires judicial consideration on a case-by-case basis and is not justifiable based solely upon a local rule authorizing the wholesale use of anonymous juries. Here, the trial court provided no case or fact-specific justification in permitting the empanelment of an anonymous jury. Indeed, the court’s only justification for empaneling this anonymous jury was the apparent local rule allegedly permitting Lake County juries to be anonymous, as well as the fact that the jurors’ names were available if necessary to resolve any improprieties. In light of our above standard requiring the trial court, in empaneling an anonymous jury, to make a factual determination that the jury needs protection, we conclude this was error. See Williams, 690 N.E.2d at 169-70 (holding that additional restrictions to the unfettered access of the public and press at trial must be justified by trial court findings).”
Jury lists are considered public records in Iowa. See Des Moines Register & Tribune Co. v. Osmundson, 248 N.W.2d 493 (Iowa 1976) (an order restraining disclosure of the jury list in a criminal trial was an “unwarranted prior restraint on freedom of the press under the first amendment” and under article I, section 7 of the Iowa Constitution).
In Iowa, “[t]he court may, on its own motion, or upon the motion of a party to the case or upon the request of a juror, order the sealing or partial sealing of a completed juror questionnaire, if the court finds that it is necessary to protect the safety or privacy of a juror or a family member of a juror.” Iowa Code § 607A.47 (2017).
The Kansas Supreme Court has prescribed when a trial judge may grant anonymity to jurors in criminal trials:
"Empaneling an anonymous jury is viewed as a drastic measure which should be undertaken only under certain limited circumstances. The trial court must balance the need to ensure juror safety against the defendant’s right to the presumption of innocence and the ability to conduct an effective voir dire. This balancing test is met where (1) there is strong reason to believe the jury needs protection and (2) the court takes reasonable precautions to minimize any prejudicial effects on the defendant and to ensure his or her fundamental rights are protected."
State v. Brown, 118 P.3d 1273, 1279 (Kan. 2005) (citations omitted).
The Kansas Supreme Court noted that states generally follow federal practice in requiring that a jury be anonymous only for “a compelling reason.” Brown, 118 P.3d at 1279. The court said a finding that a jury needs protection may be based on the following factors:
"(1) the defendants’ involvement in organized crime; (2) the defendants’ participation in a group with the capacity to harm jurors; (3) the defendants’ past attempts to interfere with the judicial process or witnesses; (4) the potential that, if convicted, the defendants 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 and harassment."
Brown, 118 P.3d at 1279 (citations omitted).
In Brown, the state supreme court approvingly cited State v. Tucker, 657 N.W.2d 374 (Wis. 2003), which said, “‘A jury is typically deemed “anonymous” when juror information is withheld from the public and the parties themselves. [Citation omitted.]’”
Regarding information about juries generally, the Kansas Supreme Court has a rule that states: “A juror questionnaire is not a public record under the Kansas Open Records Act.” See Kan. Sup. Ct. R. 167, Use of Juror Questionnaire, http://www.kscourts.org/rules/District_Rules/Rule%20167.pdf, which appears in Kansas Judicial Branch, Rules Adopted by the Supreme Court/Rules Relating to District Courts/Trials and Related Matters, http://www.kscourts.org/rules/District_Court.asp.
A Kansas statute, K.S.A. 22-3408(1), states that in preparation for a trial, “a list of prospective jurors shall be filed in the office of the clerk of the court and shall be a public record.” The statute originally required that prospective jurors’ addresses be included on the list with their names. However, in 2017, the state legislature amended the statute to omit the reference to addresses. The legislature acted in response to state judges who had proposed that names of prospective jurors, as well as their addresses, not be a public record. The judges said they sought to protect jurors from harassment and intimidation by anyone who wanted to influence the outcome of a case or retaliate for an adverse verdict. Transparency advocates criticized the judges as seeking to promote anonymous juries. The legislature compromised by retaining prospective jurors’ names on the public record but omitting their addresses. See Kansas judges back off effort to keep jurors’ names secret, The Associated Press/ABC News (April 30, 2017), https://apnews.com/ee22650d7e754bd3a6f0233259f38415.
Kentucky Administrative Procedures of the Court of Justice, Part II, § 10(9) provides that “[t]he names of jurors selected as grand and petit jurors shall be made available to the public unless the Chief Circuit Judge, or his designee, determines that in the interest of justice, the names shall be kept confidential.” However, § 13 of the same rule provides that “[t]he contents of any records or papers used by the clerk in connection with the selection process and not required to be made public under this chapter shall not be disclosed . . . .” This includes jury questionnaires and similar jury records.
There are no Louisiana statutes or reported cases on this subject.
In the Louisiana federal courts, the “decision to empanel an anonymous jury is within the discretion of the district court.” Factors that may support use of an anonymous jury include: “(1) the defendants’ involvement in organized crime; (2) the defendants’ participation in a group with the capacity to harm jurors; (3) the defendants’ past attempts to interfere with the judicial process or witnesses; (4) the potential that, if convicted, the defendants 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 and harassment. United States v. Edwards, 303 F.3d 606, 613 (5th Cir. 2002); United States v. Brown, 303 F.3d 582, 602 (5th Cir. 2002).
In Maine, during the period of service of jurors and prospective jurors, the names of the members of the jury pool are confidential and may not be disclosed, except to the attorneys and their agents and investigators and to pro se parties. 14 M.R.S.A. § 1254-A(7); see also Public Information and Confidentiality, Admin. Order JB-05-20 § III(A)(8).
Once the period of juror service has expired, a person may file a written request for disclosure of the names of the jurors and an affidavit stating the basis of the request. 14 M.R.S.A. § 1254-B(7); see also Admin. Order JB-05-20 § III(A)(9). The court may disclose the names of the jurors only if the court determines that the disclosure is in the interest of justice. Id. Requests for disclosure of juror names and addresses have been granted for various reasons, including to allow the state to gather information concerning the reasons for a hung jury in a criminal case and to allow attorneys to request that jurors complete a written questionnaire evaluating their performance at trial. There are no reported Maine cases on public access to juries.
In Maine, juror questionnaires, the records and information used in connection with the juror selection process, and the names drawn are confidential and may not be disclosed to any person, except by judicial order. Admin. Order JB-05-20 § III(A)(7). During the period of service of jurors and prospective jurors, the names of the members of the jury pool are confidential and may not be disclosed, except to the attorneys and their agents and investigators and to pro se parties. Id.
There are no reported Maine cases addressing whether Maine’s juror confidentiality statutes are constitutional.
Under the Maryland Rules, “[u]pon request, the trial judge may authorize a custodian to disclose the names and zip codes of the sworn jurors contained on a jury list after the jury has been impaneled and sworn, unless otherwise ordered by the trial judge.” Md. Rule 16-905(c)(1)(B).
In Hearst Corp. v. State, 484 A.2d 292 (Md. Ct. Spec. App. 1984), the Court of Special Appeals held that the press had the right to intervene during jury deliberations to seek access to the court file, including the names and addresses of jurors, which the trial court had sealed sua sponte. Id. at 657–59. Because the juror names had been provided to the press by the government the day after the appeal was noticed, the court did not address whether the jurors’ right to privacy was a sufficiently compelling reason to overcome the right of the press to access judicial documents, including the court file in a criminal case. Id. at 293, 294 n.4 & 295.
The Maryland Rules forbid parties who are given lists of jurors, including their name, age, sex, occupation, and address, from distributing such lists to others absent permission from the court. Md. Rule 2-512(c)(2)(B). Unless marked into evidence, juror lists are not part of the court record, and are returned to the jury commissioner. Md. Rule 2-512(c)(3). Once they are returned to the jury commissioner, they are considered “administrative records” of the court, Md. Rule 16-902(a), and became subject to Md. Rule 16-905(c)(1)(A), which provides that “a custodian shall deny inspection of an administrative record used by the jury commissioner in the jury selection process, except (i) as otherwise ordered by a trial judge orders in connection with [a party’s challenge to the process by which the jury panel was selected]; and (ii) as provided in subsections (c)(1)(B) and (c)(1)(C) of this Rule.”
Subsection (B) provides that “[u]pon request, the trial judge may authorize a custodian to disclose the names and zip codes of the sworn jurors contained on a jury list after the jury has been impaneled and sworn, unless otherwise ordered by the trial judge.” Md. Rule 16-905(c)(1)(B). Subsection (C) states that “[a]fter a source pool of qualified jurors has been emptied and re-created . . . , and after every individual selected to serve as a juror from that pool has completed the individual’s service, a trial judge, upon request, shall disclose the name, zip code, age, sex, education, occupation, marital status, and spouse’s occupation of each person whose name was selected from that pool and placed on a jury list, unless, in the interest of justice, the trial judge determines that this information remain confidential in whole or in part.” Md. Rule 16-905(c)(1)(C).
Absent a court order to the contrary, Massachusetts law requires courts to enter into the public record lists of grand jurors and trial jurors (including their names, addresses, and birth dates) no later than ten days prior to the jurors’ scheduled appearances. Mass. Gen. Laws. ch. 234A, § 67.
According to Massachusetts law, juror questionnaires are not public records and must be destroyed after completion of jury selection. Mass. Gen. Laws. ch. 234A, § 23. The court and the office of jury commissioner may inquire into potential juror’s criminal history records, but this information must be kept confidential and does not become part of the public record. Mass. Gen. Laws. ch. 234A, § 33.
“The due process clause precludes the empanelment of an anonymous jury at a criminal trial unless anonymity is necessary to protect the jurors from harm or improper influence.” Commonwealth v. Fujita, 23 N.E.3d 882, 885 (Mass. 2015) (quoting Commonwealth v. Angiulo, 415 Mass. 502, 527 (1993)).
As with other judicial records, there is a strong presumption of public access to documents containing juror identities; this presumption may only be overcome by a finding of “good cause,” a context-specific balancing which considers such factors as “the nature of the parties and the controversy, the type of information and the privacy interests involved, the extent of the community interest, and the reason for the request.” Fujita, 23 N.E.3d 882, 888 (Mass. 2015) (quoting Republican Co., 442 Mass. at 222–223).
Risk of harm to, or improper influence upon, jurors may constitute sufficient good cause. See, e.g., id. at 885 (Mass. 2015) (quoting Angiulo, 415 Mass. at 527) (“The due process clause precludes the empanelment of an anonymous jury at a criminal trial unless anonymity is necessary to protect the jurors from harm or improper influence.”); Commonwealth v. Silva, 864 N.E.2d 1, 3, 6–8 (Mass. 2007) (finding that a legitimate concern for juror safety overrides the public’s right to juror information in the context of a murder trial in which a principal witness against the gang-affiliated defendant had been shot prior to scheduled testimony). By contrast, a “judge’s aversion to exposing jurors to press interviews and the personal preferences of the jurors” are insufficient for good cause purposes. Fujita, 23 N.E.3d at 885.
The Minnesota Supreme Court has held that an anonymous jury may be impaneled only if the trial court: “(a) determines that there is a strong reason to believe that the jury needs protection from external threats to its members’ safety and impartiality; and (b) takes reasonable precautions to minimize any possible prejudicial effect the jurors’ anonymity might have on the defendant.” State v. Bowles, 530 N.W.2d 521, 530-531 (Minn. 1995); see also State v. Wren, 738 N.W.2d 378, 385 (Minn. 2007); State v. Ford, 539 N.W.2d 214, 220 (Minn. 1995). A trial judge must include in the record “a clear and detailed explanation” of the facts that demonstrate that the jury needs protection from external threats. Bowles, 530 N.W.2d at 531. A trial court’s decision to impanel an anonymous jury is reviewed under the “abuse of discretion” standard. Id.
The Minnesota Court of Appeals has held that “[a]ccess to records revealing the identities of jurors may be denied only in the ‘interest of justice,’ upon a showing of ‘exceptional circumstances peculiar to the case.’” State v. Stewart, No. C4-92-1321, 1992 Minn. App. Lexis 1278, at *1 (Minn. Ct. App. Aug. 18, 1992) (citing Minn. R. Gen. Prac. 814(a) and In re Globe Newspaper Co., 920 F.2d 88, 97 (1st Cir. 1990)). The individual preferences of jurors to remain anonymous are insufficient to justify sealing the records that contain juror identifying information. Id. (citing In re Globe Newspaper Co., 920 F.2d at 91). The desire of the victim’s family to contact jurors does not, by itself, create a risk of personal harm or a threat of jury tampering and, therefore, does not justify denying public access to juror information. Id. (citing In re Globe Newspaper Co., 920 F.2d at 97).
Under the Minnesota Rules of Criminal Procedure, if all or part of the voir dire is closed to the public, “a complete record of the [voir dire] proceedings shall be made.” Minn. R. Crim. P. 26.02, subd. 4(4)(g). Such records must be transcribed upon request, and the transcript must be made available to the public provided that this can be accomplished without jeopardizing the “overriding interests” that justified the closure of the voir dire proceedings in the first place. Id. The court may order that all or part of the voir dire transcript be sealed or excised, or the court may order that the names of the jurors be withheld if doing so will protect the “overriding interests” involved in the case. Id.
Under Mississippi law, according to Miss. Code Ann. § 13-5-32, “The names of jurors drawn from the jury box shall be made available to the public unless the court determines in any instance that this information in the interest of justice should be kept confidential or its use limited in whole or in part.” In applying this statute, the Mississippi Supreme Court has ruled that juror names should be kept secret “only in rare and exceptional cases.” Valentine v. State, 396 So.2d 15, 16 (Miss. 1981).
The U.S. Supreme Court indirectly addressed the right of access to voir dire transcripts, noting that in the unusual circumstance where voir dire must be held behind closed doors, “the constitutional values sought to be protected by holding open proceedings may be satisfied later by making a transcript of the closed proceedings available within a reasonable time, if the judge determines that disclosure can be accomplished while safeguarding the juror’s valid privacy interests.” Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 512 (1984).
Jury records are exempt from Mississippi’s Public Records Act. Miss. Code. Ann. § 25-61-11.
Missouri Court Operating Rule 16 prohibits “media coverage” of any “prospective juror, juror, and jury selection, including any audio, video or other electronic recording, photograph, or report of any kind, taken or made in or out of the courtroom, in which the face or other identifying characteristic of a juror or prospective juror is discernable.” The rule defines “media coverage” as “audio, video or electronic recording; broadcasting, filming or televising; photographing; or otherwise transmitting information, including by text, electronic mail, online post or other electronic message, whether for live or later dissemination in any medium.”
“Generally, impaneling an anonymous jury is a drastic measure that should only be undertaken in limited circumstances. . . .” State v. Sandoval, 280 Neb. 309, 326-27, 788 N.W.2d 172, 195 (7-30-2010). A court should not impanel an anonymous or innominate jury unless it “(1) concludes that there is a strong reason to believe the jury needs protection and (2) takes reasonable precautions to minimize any prejudicial effects on the defendant and to ensure that his or her fundamental rights are protected.” Id. at 327, 788 N.W.2d at 195-96.
Per Neb. Rev. Stat. § 25-1635, it is unlawful for anyone to disclose the names of persons drawn to serve as grand or petit jurors until the persons are picked for actual service as jurors. Neb. Rev. Stat. § 25-1637(4) (Reissue 2016) provides:
(4) The contents of any records or papers used by the jury commissioner or the clerk in connection with the selection process and not made public under Chapter 25, article 16, shall not be disclosed, except in connection with the preparation or presentation of a motion under subsection (1) of this section, until after all persons on the revised proposed juror list have been discharged. The parties in a case may inspect, reproduce, and copy the records or papers at all reasonable times during the preparation and pendency of a motion under subsection (1) of this section.
The Nevada Supreme Court has held that the First Amendment’s qualified right of access extends to juror questionnaires prepared in anticipation of oral voir dire. Stephens Media, LLC v. Eighth Judicial Dist. Court of State ex rel. Cty. of Clark, 125 Nev. 849, 861, 221 P.3d 1240, 1249 (2009). District courts are required to satisfy the Press-Enter. Co. v. Super. Ct., 106 S. Ct. 2735 (1986) balancing test that it make specific findings to support a denial of access to juror questionnaires. Stephens Media, 125 Nev. at 866, 221 P.3d at 1252.
The Nevada Supreme Court has held that a trial court may, in its discretion, empanel an anonymous jury, though the court recognized that this is “an unusual measure” and “caution[ed] that a district court should employ such a measure only after careful consideration of the competing individual and institutional interests at stake.” Menendez-Cordero v. State, 135 Nev. Adv. Op. 29, 445 P.3d 1235, 1238–39 (2019). The Supreme Court adopted the following rule:
“The trial court may empanel an anonymous jury where (1) there is a strong reason for concluding that it is necessary to enable the jury to perform its factfinding function, or to ensure juror protection; and (2) reasonable safeguards are adopted by the trial court to minimize any risk of infringement upon the fundamental rights of the accused.”
In New Mexico, the judge or the judge's designee certifies a numbered list of the jury panel members' names when qualified. The certified list of jurors and the questionnaires obtained from jurors are available for inspection and copying by a party to a pending proceeding or their attorney or to any person having good cause for access to the list and the questionnaires. NMSA 1978, § 38-5-11. However, neither the jury nor any member of the jury may be filmed in or near the courtroom, nor shall the jury selection process be filmed. Rule 23-107 NMRA.
New Mexico has ruled that prior restraint on publication concerning the names of jurors selected in criminal case must be based upon imperative circumstances supported by the record that clearly demonstrates that defendant's right to fair trial will be jeopardized. It must further demonstrate that there are no other reasonable alternatives to protect that right. The mere speculation that publishing names of jurors selected in criminal cases might expose them to intimidation during trial is insufficient reason to justify prior restraint on media. State, ex rel. N.M. Press Ass'n v. Kaufman, 1982-NMSC-060, ¶ 35, 98 N.M. 261, 267, 648 P.2d 300, 306 (holding that the trial court erred in restricting the publication of names of jurors selected in the case where the names were announced in open court and filed as public record).
Despite the presumption of public access, courts have on occasion limited the public’s access to records underlying jury selection. See, e.g., People v. Owens, 721 N.Y.S.2d 489, 721 N.Y.S.2d 489 (2001) (granting a request to make jurors’ names and addresses private, despite the rest of the trial being accessible by the public); Newsday, Inc. v. Sise, 71 N.Y.2d 146, 153, 518 N.E.2d 930, 933 (1987) (restricting access to jury selection records); see also People v. Arthur, 178 Misc. 2d 419, 425, 682 N.Y.S.2d 811, 816 (Sup. Ct. N.Y. Cty. 1998).
In Ohio, defendants have “no unqualified constitutional right to know the identity of jurors.” State v. Hill, 749 N.E.2d 274, 282 (Ohio 2001). A trial court, however, “should not order the empaneling of an anonymous jury without ‘(a) concluding that there is strong reason to believe that 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.’” Id. at 281 (quoting United States v. Talley, 164 F.3d 989, 1001 (6th Cir. 1999)).
The Ohio Supreme Court has defined jury questionnaires without responses as public records subject to disclosure. See State ex rel. Beacon Journal Publ’g v. Bond, 781 N.E.2d 180, 187 (Ohio 2002). Responses to the questions may also be disclosed under the First Amendment. Id. at 194. Courts, however, must inform prospective jurors of their right to an in-camera hearing regarding the protection of privacy interests revealed in a juror question and may require redaction of Social Security numbers, telephone numbers and driver’s license numbers from the questionnaires before public disclosure. Id. at 189–90. Before ruling that juror questionnaires will not be publicly disclosed, the trial court must “(1) make specific findings, on the record, demonstrating that there is a substantial probability that the defendant would be deprived of a fair trial by the disclosure of the questionnaires and (2) consider whether alternatives to total suppression of the questionnaires would have protected the interest of the accused.” Id. at 191.
The public also has a qualified right of access to the jury list that may be overcome “only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Id. at 194 (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984)).
Before disclosure of juror questionnaires, a court can in its discretion order redaction of certain information, including juror “names, addresses, Social Security numbers, telephone numbers, driver’s license numbers, and current employers.” State ex rel. Cincinnati Enquirer v. Ghiz, 101 N.E.3d 1005, 1012 (Ohio Ct. App. 2017).
Okla. Stat. tit. 22, § 853.1 allows a judge in either a civil or criminal proceeding to issue a protective order on the motion of a party, or any affected person, or on its own initiative regulating the disclosure for a stated period of the identity and home and business addresses of any prospective or sworn juror if the court determines there is a likelihood of bribery, jury tampering, or of physical injury or harassment of the juror.
Oklahoma Uniform Jury Instruction (Civil)–3d 1.2A and Oklahoma Uniform Jury Instruction (Criminal)–2d 1–10 require jurors to complete a confidential jury questionnaire to be used by counsel in preparing for voir dire. The original questionnaires of jurors questioned during voir dire are sealed after voir dire; they are retained as part of the trial record but are not public. The original questionnaires of jurors not questioned during voir direand copies of questionnaires of all jurors are to be destroyed on conclusion of the jurors’ service and are not part of the public record. See In re Adoption of the 2007 Revisions to the Oklahoma Uniform Jury Instructions, 2007 OK CR 5, 163 P.3d 567; Rule 1.3(C), Rules of the Court of Criminal Appeals, 2008 OK CR 5; Cohee v. State, 1997 OK CR 30, 942 P.2d 211. Jury questionnaires are routinely used in civil cases, although there is no statutorily–prescribed or universally accepted form of questionnaire. Under Rule 32, Rules for District Courts, juror questionnaires in civil cases are treated the same as questionnaires in criminal cases under Rule 1.3(C), Rules of the Court of Criminal Appeals.
ORS 10.215(1) provides that “[e]xcept as specifically provided by law, the State Court Administrator and circuit courts may not disclose source lists obtained from any person or public body, and jury lists containing names selected from a source list, to any other person or public body.”
In In re Derderian, the Rhode Island Superior Court applied the test from Cianci to deny a newspaper’s request for access to completed preliminary jury questionnaires even after the defendant entered a plea of nolo contendere before the jury was impaneled. M.P. No.: 06-835, 2006 WL 2942786, at *5-10, 2006 R.I. Super. LEXIS 134, at *14-32 (R.I. Super. Ct. Oct. 12, 2006) (citing State v. Cianci, 496 A.2d 139, 144 (R.I. 1985)). The Court held that denying access to the juror questionnaires was “necessary and narrowly tailored to protect legitimate governmental interests” in preserving a defendant’s Sixth Amendment right to a fair trial, and that closure would serve this interest by encouraging candor on the part of jurors. Id. at 2006 WL 2942786, at *10, 2006 R.I. Super. LEXIS 134, at *27. However, the Court permitted access to a copy of the blank questionnaire. Id. at 2006 WL 2942786, at *8-9, 2006 R.I. Super. LEXIS 134, at *33. On review, the Rhode Island Supreme Court dismissed the appeal as moot. In re Derderian, 972 A.2d 613, 617-18 (R.I. 2009).
Potential juror lists are available from the clerk of court of the local county courthouse the week before trial for either common pleas (civil cases) or general sessions (criminal matters).
Juror drawings must be made openly and publicly in the office of the clerk of court of common pleas, and the jury commissioners shall give ten days' notice of the place, day, and hour of each of the drawings by posting in a conspicuous place on the courthouse door or by advertisement in a county newspaper. S.C. Code Ann. § 14-7-220.
The members of the jury may not be photographed except when they happen to be in the background of other subjects being photographed. Camera and audio coverage of prospective jurors during selection is prohibited. SCACR 605.
There is no provision for juror anonymity. S.D. Codified Laws § 16-13-31.1 permits public inspection of all records and materials used in “all stages of the jury selection process.”
S.D. Codified Laws § 16-13-31.1 permits public inspection of all records and materials used in “all stages of the jury selection process. . . upon court order. . . for the purpose of determining the validity of the selection of the jury.”
Although personal information about jurors is confidential by default, trial courts must allow for the disclosure of such information in criminal cases upon application and a showing of good cause by a party or bona fide member of the media acting in that capacity. See Tex. Code Crim. Proc. Ann. art. 35.29. A “good cause” showing requires evidentiary support and must establish more than a mere possibility of the condition which purportedly justifies disclosure. See Cardenas v. State, No. 13-09-353-CR, 2010 WL 3279489, at *7 (Tex. App.—Corpus Christi–Edinburg Aug. 19, 2010, no pet.).
The public does not have a right of access to jury deliberations in criminal trials. See State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 209 n.7 (Tex. Crim. App. 2003); Tex. Code Crim. Proc. Ann. art. 36.22. Conversations with jurors during the pendency of a criminal trial are not permitted unless with the court’s permission and in the court’s presence. See Tex. Code Crim. Proc. Ann. art. 36.22. Jury deliberations may not be recorded. See Tex. Code Crim. Proc. Ann. art. 36.215.
The Vermont Rules for Public Access to Court Records contain an exception to the general right of public access for “[r]ecords with respect to jurors or prospective jurors as provided in the Rules Governing Qualification, List, Selection and Summoning of All Jurors.” Vt. Pub. Acc. Ct. Rec. Rule 6(b)(29). The Rules Governing Qualification, List, Selection and Summoning of All Jurors prohibit public access to a juror’s “address, date of birth, social security number, telephone number and mileage to the courthouse on any court record . . . unless the record is opened by the court for good cause shown.” Vt. Jury Select. Rule 10.
All information other than an individual’s address and date of birth contained in the “Questionnaire as to Qualification for Jury Service” received pursuant to this rule is public, including the name of the individual and town of residence. Public access to the supplemental information supplied to determine whether the individual meets mental and physical demands is prohibited. All information contained in a jury questionnaire is, however, available to the parties. Vt. Jury Select. Rule 4(c); see also V.R.Cr.P. 24(a)(2) (providing that a physical (not electronic) record of the information provided by jurors in response to a written voir dire questionnaire “shall be open to public inspection after the name and address of the person responding have been redacted.”)
The Virginia Supreme Court has held that a master jury list, whether current or expired, may not be disclosed absent good cause. See Prieto v. Commonwealth, 283 Va. 149, 185, 721 S.E.2d 484, 505 (2012); see also Va. Code § 8.01-347 (box containing master jury list “shall be locked and safely kept by the clerk of such court and opened only by the direction of the judge thereof.”).
Because voir dire is presumptively open to the public, the Fourth Circuit has held that so, too, are the names and addresses of the jurors, as well as the men and women summoned but not chosen for the jury. The presumption of openness to juror identifying information may be overcome in circumstances involving “realistic threats of violence or jury corruption.” See In re Baltimore Sun Co., 841 F.2d 74, 76 (4th Cir. 1988).
The Virginia Code and the Rules of the Supreme Court of Virginia provide for restrictions on the disclosure of juror identification information in criminal cases for “good cause sufficient to warrant departure from the norm of open proceedings[.]” Va. Sup. Ct. R. 3A:14.1(a)(1); see also Va. Code § 19.2-263.3. Good cause “includes, but is not limited to, a determination by the court in a particular case that if personal information of jurors or prospective jurors is disclosed there is a reasonable possibility of bribery, tampering, physical injury, harassment, intimidation of a juror, or any other material interference with the proper discharge of the jury's functions, such as a reasonably perceived threat to the jury's safety, well-being, or capacity to properly focus upon and perform its trial and deliberative duties.” See Va. Sup. Ct. R. 3A:14.1(a). See also Va. Code § 19.2-263.3(A) (“good cause shown includes, but is not limited to, a determination by the court that there is a likelihood of bribery, tampering, or physical injury to or harassment of a juror if his personal information is disclosed.”).
The Fourth Circuit has held that juror questionnaires, as part of voir dire, are presumptively open to the public. See In re South Carolina Press Ass'n, 946 F.2d 1037, 1040-1041 & n.3 (4th Cir. 1991); accord Eaglin v. McCall, 689 F. App'x 166, 168 (4th Cir. 2017) (per curiam) (“This presumption of access applies to written juror questionnaires.”).
The Fourth Circuit held that a district court may empanel an anonymous jury when there is a strong reason to conclude that the jury needs protection from interference or harm, or that the integrity of the jury's function will be compromised absent anonymity; and reasonable safeguards have been adopted to minimize the risk that the rights of the accused will be infringed. United States v. Dinkins, 691 F.3d 358, 372 (4th Cir. 2012).
In In re South Carolina Press Association, the Fourth Circuit addressed jury questionnaires and the right of privacy stating that “[t]he selection of a fair and impartial jury is a right protected by the Sixth Amendment and is one of the ‘high values’ mentioned above. Full and frank answers from potential jurors, when they are questioned on voir dire are essential to the process of selecting such a jury.” In re S.C. Press Ass'n, 946 F.2d 1037, 1043 (4th Cir. 1991). In weighing the defendant’s right to a fair trial coupled with a juror’s truthful answers on a jury questionnaire, the court held that there were no reasonable alternatives to closure to sufficiently protect the defendant’s right to a fair trial. Id. at 1044. Other courts disagree, stating that responses to questionnaires are presumptively subject to disclosure and are viewed in favor of openness due to their relation to voir dire. Id. at 1040 (citing Press-Enterprise Co. v. Superior Court (“Press-Enterprise I”), 464 U.S. 501 (1984)). Proponents of keeping the questionnaires private must meet the Press-Enterprise test. Judge Joseph A. Colquitt, Using Jury Questionnaires; (Ab)using Jurors, 40 Conn. L. Rev. 1, 10–15 (2007).
See State v. Tucker, 259 Wis. 2d 484, 498–502, 657 N.W. 2d 374 (Wis. 2003):
As illustrated by these federal and state court decisions, the restriction of juror information raises serious concerns regarding a defendant’s rights to an impartial jury and a presumption of innocence. . . .
. . .
Based on all the above, we hold that when a circuit court restricts any juror information, the court must: (1) make an individualized determination that the jury needs protection; and (2) take reasonable precautions to minimize any prejudicial effect to the defendant, which includes making a precautionary statement to the jury so that the restriction does not negatively reflect on the defendant’s guilt or character.
See also State v. Matos, 272 Wis. 2d 854, 679 N.W.2d 926 (Wis. App. 2004) (per curiam) (unpublished) (citations omitted):
In Tucker, the supreme court set out the criteria for restricting information about jurors. Before a circuit court may restrict juror information, the court “should determine that the jurors are in need of protection and take reasonable precautions to avoid prejudice to the defendant.” The court must make an individualized determination based on the circumstances of the case. Factors to be considered by the circuit court include but are not limited to:
(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; and (4) extensive publicity that could enhance the possibility that jurors’ names would become public and expose them to intimidation or harassment.
But see State v. Britt, 203 Wis. 2d 25, 29, 553 N.W.2d 528 (Wis. App. 1996) (ruling that the trial court did not abuse its discretion when empaneling anonymous jury by not revealing juror names during voir dire): “Because the record supports the court’s determination that the jury needed the protection of anonymity and because the court took reasonable precautions to otherwise protect Britt’s right to a fair and impartial jury, we affirm the court’s ruling.”