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”).
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).
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. United States v. Sanchez, 74 F.3d 562, 564 (5th Cir. 1996).
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. United States v. Sanchez, 74 F.3d 562, 563 (5th Cir. 1996).
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. United States v. Brown, 250 F.3d 907, 914-15 (5th Cir. 2001). 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. United States v. Brown, 250 F.3d 907, 915 (5th Cir. 2001). 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. United States v. Brown, 250 F.3d 907, 918 (5th Cir. 2001). 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).
“[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).
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.”
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).
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.
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.
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).
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.”).
See State v. Tucker, 259 Wis. 2d 484, 657 N.W.2d 484 (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. 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, 553 N.W.2d 528 (Wis. App. 1996) (Trial court did not abuse 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.