Q&A: Issues for journalists

The issue of juror anonymity raises a few practical issues for journalists who cover trials. Below are some frequently asked questions and general responses. The answers are not a substitute for legal advice.

Q: Can I challenge a court's order to keep jurors' names or other identifying information secret?

A: Most courts allow the media to intervene in a case to challenge orders affecting newsgathering. Any journalist or media entity wishing to challenge a court's anonymity order may do so by filing a motion to intervene in the case, asking the court to reconsider its order, and if necessary, requesting an expedited appeal of the trial court's order.

In fact, courts will often actually require intervention to gain access. The Virginia Supreme Court ruled in April that the news media must file a motion to intervene in a case in which a judge has closed a courtroom before requesting that an appellate court reverse the trial judge, and threw out two media appeals where that step had not been taken. (Hertz v. Times-World Corp.; Mason v. Richmond Newspapers)

However, some courts question whether the media may properly intervene, especially in criminal trials. (In re Globe Newspaper Co.)

An attorney can help you determine the proper procedure for challenging a court order in your particular case.

Q: If the court seals information about jurors, can I obtain the information from other sources?

A: You can certainly try. In smaller communities, reporters can sometimes visit the courthouse and hope to recognize a juror. Remember, though, journalists may be liable if they break ordinarily applicable laws (such as stealing or engaging in fraud to get the list of jurors) when gathering information.

Q: If I discover a juror's identity after the court empanels an anonymous jury, can I publish it?

A: Generally, prior restraints on the media are not upheld. Nevertheless, courts have imposed restrictions on the media. A federal appeals court has upheld an order prohibiting the press from asking jurors about other jurors' votes or asking more than once for an interview. (U.S. v. Harrelson)

Judge Edith Clement, who presided over the most recent Edwin Edwards corruption trial in Louisiana, issued an order barring the press from interfering with juror anonymity. Although the order could be considered a prior restraint, an appellate court may view it as a reasonable limitation on press. Five media organizations appealed her order. (U.S. v. Brown, et al.)

Also, be aware that in California, a state statute makes improperly obtaining or releasing sealed juror information a misdemeanor. No one has yet challenged the constitutionality of this statute. (Cal. Code of Civ. Proc. § 237)

Q: Even if anonymity is respected and jurors' names are not used, can I still speak with them at the courthouse?

A: It is generally believed that a judge cannot forbid a jury from speaking with the press after a trial. However, a judge may instruct jurors they are free to refuse interviews or order them to not discuss deliberations or the opinions of other jurors. (U.S. v. Sherman; In re Express News Corp.; Journal Pub. Co. v. Mechem)

Also, as noted previously, one federal appeals court upheld a prohibition on the press from asking one juror about another's votes or asking a juror more than once for an interview. (U.S. v. Harrelson)

Q: Can I photograph or videotape a juror coming out of the courthouse in cases where jurors are supposed to be anonymous?

A: Although courts may prohibit cameras inside the courtroom, it is difficult for a judge to control cameras outside of the courtroom. In one case, however, an Associated Press photographer captured a jury on film while in public. The judge sanctioned the AP by barring all of their reporters from the trial. Judges may try to exert control over all media activities involving jurors. It is questionable whether such orders would be upheld, but one must also consider the financial expense and length of time required to appeal such orders.