The rise of anonymous juries

One extreme form of jury secrecy is keeping the identities of jurors totally secret. Anonymous juries are a recent, and increasingly popular, phenomenon. The first fully anonymous jury empanelled in the United States was the 1977 trial of drug kingpin Leroy Barnes in New York City. There, the trial court reviewed the “sordid history” of jury and witness tampering in large-scale New York drug prosecutions and concluded that “all safety measures possible should be taken for the protection of prospective jurors, including complete anonymity, namely, no disclosure of name or address.”

By the mid-1990s, some courts were using anonymous juries regularly, prompting a cat-and-mouse game where local policies stand until an appellate court strikes them down. A county court in Ohio, for example, empanelled anonymous juries in all cases, civil and criminal. Similarly the Los Angeles Superior Court has used several methods for more than a decade to shield juror identities.

And the Judicial Conference of the United States, a body that governs the federal courts, said in 2004 that “documents containing identifying information about jurors or potential jurors” should “not be included in the public case file and should not be made available to the public at the courthouse or via remote electronic access.”

The policy was intended to prevent electronic access to juror identities during trial and does not prevent post-trial access to the identities, which are available in the jury management database maintained by each federal district court. But court employees appear confused about what the policy requires, very often refusing to release juror information even when it should be public under federal law. The constitutionality of the policy has not yet been litigated in the federal courts.

Despite the recent popularity of anonymous juries, most federal and state appellate courts which have addressed this issue have recognized a qualified First Amendment right to juror names and addresses. (In re Disclosure of Juror Names and Addresses). The U.S. Court of Appeals in Atlanta (11th Cir.) called the use of anonymous juries “a drastic measure, one which should be undertaken only in limited and carefully delineated circumstances.” (U.S. v. Ross).

Most federal appellate courts have decided whether to withhold juror identities based on some combination of the following five factors: (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. (U.S. v. Sanchez).

Another installment of the Secret Justice series deals with the problem of anonymous juries in depth. It can be found at www.rcfp.org/secretjustice/anonymousjuries.