“Fairness, the Appearance of Fairness, and Public Confidence in the System”: The Case Against Anonymous Juries

The History of Public Voir Dire

As then Chief Justice Warren Burger recounts in his opinion in Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984), public voir dire, including the names of the jury pool, has its roots in English common law and was adopted in colonial America as well. One of the earliest and best illustrations of the importance of press and public access to this information comes from the 1735 trial of immigrant printer John Peter Zenger, charged with seditious libel for publishing anonymous—but truthful—attacks on William Cosby, the corrupt royal governor of the Province of New York. Unable to post the exorbitant bail set by presiding New York Supreme Court Chief Justice James De Lancey, Zenger languished in jail for many months. One of his lawyers, James Alexander, also the author of some of the articles, was disbarred for challenging De Lancey’s impartiality in the case. His appointed replacement, the young attorney John Chambers, was regarded as a “Governor’s man” and might have been expected to pack the jury. To his credit, Chambers recognized that most of the jury panel, who were publicly identified by name and occupation, were indebted to the governor in some way. Among them were the governor’s baker, candlemaker, and tailor. In the face of counsel’s objections—and no doubt aware of the presence of many of Zenger’s friends and supporters in the courtroom—even De Lancey knew that he must dismiss the initial pool. He ordered a new panel drawn from the Freeholder’s Book, and eventually that jury, in an early instance of jury nullification of the seditious libel law, found Zenger not guilty, persuaded by the eloquent argument of prominent Pennsylvania lawyer Andrew Hamilton that every citizen has the right to expose and oppose “arbitrary power . . . by speaking and writing truth.” Julius J. Marke, Peter Zenger’s Trial, 6 Litigation 41 (1980).

The outcome of Zenger’s trial, so instrumental in establishing the principle of freedom of the press as a means of holding government and its institutions accountable, would probably have been very different had De Lancey been able to shield the jurors’ identities or question them privately, without the eyes of Zenger’s friends and supporters on both him and the jurors. It is hardly surprising, then, that the news media themselves would be among those most ardent in challenging the concept of anonymous juries. Our criminal courts are presumed to be open, and both the press and the public have a First Amendment right to attend. As Chief Justice Burger observed in the first of his series of opinions on the topic, “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 572 (1980). Openness promotes institutional and individual accountability by increasing the likelihood that witnesses and jurors will tell the truth. Secrecy, on the other hand, increases public skepticism and distrust of the outcome, short-circuiting the “community catharsis” that Burger recognized is essential to fully realized justice. It is hard for the public to trust the institutions of justice when those institutions do not trust the public with the information necessary to evaluate their performance.

The Rise of Anonymous Juries

In short, public trials are rooted in tradition and history, as well as function. By contrast, the phenomenon of the anonymous jury is comparatively recent. The first reported completely anonymous jury was impaneled in the 1977 trial of Leroy “Nicky” Barnes, boss of the largest heroin distribution network in Harlem, in the federal district court in Manhattan. Although no threats had been made against the potential jurors prior to trial, government officials reported an anonymous telephone caller had threatened to murder a witness being held in protective custody. Another potential government witness was reportedly murdered near the drug-trafficking site. The trial judge, declining to sequester the jury, instead forbade disclosure of the jury panel’s names, addresses, religion, and ethnicity. The defendants appealed following conviction, but the Second Circuit found no due process violation, citing risks of jury tampering, potential harassment by the press, and the need to protect jurors’ privacy generally as adequate justification for the trial judge’s action. United States v. Barnes, 604 F.2d 121 (2d Cir. 1979). Most federal circuits have embraced some version of the Barnes reasoning, granting trial judges broad discretion to impanel anonymous juries, provided that they have good reason to conclude the jurors require protection and that they take reasonable precautions to minimize the prejudicial effects on the defendant and to protect the fundamental right to a fair trial.

Although initially limited mostly to organized crime trials in which juror identities were withheld even from the parties and their counsel, the practice of jury anonymization exploded in the 1980s and 1990s. Prompted at least in part by public and judicial reaction to high-profile trials such as those involving Rodney King, Reginald Denny, and O.J. Simpson, California enacted a law in 1996 prohibiting the release of jurors’ names and addresses in all criminal cases. Cal. Civ. Proc. Code § 237. Many other states followed with similar legislation, often granting broad discretion to trial court judges as to whether to release jurors’ names to the public.

Ensuring jurors’ physical safety from attacks by the defendants or their supporters was the most common rationale for anonymization. Over time, an additional justification for secrecy began to emerge: protecting juror privacy, particularly from the news media. Among the high-profile cases was the trial of former Louisiana governor Edwin Edwards and his associates, who had been charged with conspiracy, mail and wire fraud, and witness tampering. Although no overt threats to the jurors had been made, the district court granted the government’s motion for an anonymous jury, preventing even the parties from knowing the jurors’ identities and citing concerns about juror privacy based on prior incidents of what the judge characterized as aggressive media reporting in a prior related case. In the subsequent appeal (which did not challenge the anonymous jury), the Fifth Circuit gratuitously commented that the judge’s decision to anonymize the jury was justified by “very real threats . . . posed by excessive media coverage.” United States v. Brown, 250 F.3d 907 (5th Cir. 2001).

Extensive pretrial publicity in general is also used to justify anonymous juries. The Sixth Circuit has upheld federal district courts that impaneled anonymous juries when the goal was to minimize the prejudicial effects of pretrial publicity. See, e.g., United States v. Dakota, 197 F.3d 821 (6th Cir. 2000). In 2012, a federal court in Detroit presiding over a case involving two members of the Hutaree militia group charged with seditious conspiracy and conspiracy to use weapons of mass destruction invoked not juror safety, but rather the extensive pretrial publicity and an assumed need to protect jurors from subsequent press scrutiny. Judge Victoria Roberts wrote, “The media attention does give the Court pause; the jurors will be thrust into the eye of a storm simply because they have honored our request to perform this high civic duty. The strong possibility of the invasion of their privacy compels the Court to enter [that order].” United States v. Stone, No. 10-20123 (E.D. Mich. Jan. 13, 2012).

Clearly, judges feel especially protective toward individuals summoned to serve as jurors in high-profile cases and want to insulate the jurors from outside influences. For example, the Chicago Sun-Times reported in October 2020 that the judge expected to preside over singer R. Kelly’s racketeering trial in federal court in Brooklyn planned to keep the identity of all prospective jurors—names and home and business addresses—secret from Kelly, his attorneys, and the public, based not on concerns about juror safety but on the prosecutors’ argument that media coverage was likely to be extensive and that the jurors should “not mingle in the courthouse with the public or any potential trial spectator.” (The order itself was sealed.)

I experienced this mind-set firsthand when speaking on a panel on media coverage of the courts at a conference of Pennsylvania state trial judges in the early 1990s. To say that many of those in attendance were hostile to the media covering their courtrooms is an understatement. Some appeared to be ignorant of, or at least misinformed about, U.S. Supreme Court precedent on the rights of access to courts and the presumption that gag orders on the nonparty media are unconstitutional. Many seemed to consider the media to be at best a nuisance and at worst an impediment to a fair trial. One telling comment came from a judge who argued that juror questionnaires should routinely be sealed, juror selection should take place in secret, and, of course, juries should be anonymous. “As far as I’m concerned, it’s an invasion of privacy for anyone to be called to serve on a jury. It is my duty to protect them, and, in my court, all jurors will be anonymous,” he said.

The Conflict Between Public and Anonymous

This level of secrecy can backfire in practice. Jurors can lie during voir dire. They can and do violate court admonitions, often with impunity. The Burlington (Vt.) Free Press reported in 2015 that a juror serving in a sexual assault trial read the newspaper throughout the trial and reported its contents to his fellow jurors. He pleaded no contest to contempt of court. In 2019, Vice News similarly reported that a juror in the “El Chapo” drug trial routinely ignored Judge Brian Cogan’s instructions to avoid news coverage and social media. Most judges believe, or at least hope, that jurors follow the rules they set out in court. But with ubiquitous access to the internet from their smartphones, jurors can blog, post, or tweet their reactions to the case on social media, as well as use search engines to conduct unauthorized research. However diligent they may be, the attorneys and other court officials may not detect this misconduct until after the trial concludes, if then. Once it is revealed, public confidence in the verdict could be eroded, or a mistrial could result. Neither of the consequences is desirable, but a mistrial, if available, is unavoidable if the goal is to achieve a just result, rather than simply an expeditious disposition of the case. This seemingly intractable problem, which can only partially be addressed by draconian steps such as confiscating jurors’ cell phones, potentially could be ameliorated by disclosing to the public who these jurors are in the first place.

In some jurisdictions, that is still the rule, rather than the exception. Despite the passage of more than 70 years since the release of Adam’s Rib, if Doris Attinger’s trial were to be held today in New York City, the prospective jurors’ names would almost certainly be public. The New York Court of Appeals, the state’s highest court, held in 2018 that the judge in the trial of four gang members accused of beating and stabbing a member of a rival gang committed reversible error when he impaneled an anonymous jury, hiding their identities from not only the media and public but also other trial participants. The high court did not rule that New York trial judges may never anonymize jurors. In the gang case, however, the Orange County judge acted “without factual predicate,” basing his decision “on anecdotal accounts from jurors in unrelated cases.” People v. Flores, 114 N.E.3d 141, 32 N.Y.3d 1087, 89 N.Y.S.3d 673 (N.Y. 2018).

According to the opinion of the Second Department (the mid-level appeals court) in Flores, the trial judge, confronted with objections to anonymization by defense counsel before jury selection began, contended that there is no constitutional right for defendants or their attorneys to know the names of jurors. He went on to cite “an increasing number of jurors” in unrelated cases who claimed they were uncomfortable giving their names in open court or “walking in and out of the courtroom to their cars.” Sure enough, when the jurors in the gang case were sworn in a few days later, one claimed that, as she walked to her car in the courthouse parking lot, one of the defendants, who was free on bail and was accompanied by about eight other people, stood in front of her car and stared at her. She said this made her feel “uncomfortable, a little intimidated.” She was excused from the jury. People v. Flores, 153 A.D.3d 182, 62 N.Y.S.3d 63 (N.Y. App. Div. 2017).

As the defendants’ counsel argued, New York has a statute, enacted in 1983, requiring that prospective jurors’ names be “drawn and called” in open court and that only business or residential addresses may be withheld from the public, and then only for good cause, such as bribery, jury tampering, or physical injury or harassment. N.Y. C.P.L. § 270.15(1)(a), (1-a). The majority of the appellate panel concluded that the trial judge’s order anonymizing the jury in Flores violated that law and deprived the defendants of their right to a fair trial.

One panel member dissented. Judge Mark Dillon observed that anonymous juries are not uncommon in federal trials held in New York, most typically in organized crime cases, such as the prosecutions of John Gotti, former head of the Gambino crime family. By contrast, the jurors’ names were public in Gotti’s state court assault trial in 1990. Dillon found this troubling, noting that at the time of enactment of the statute, concerns had been raised about potential threats to juror safety that could become real if a defendant simply had access to a juror’s name and a telephone book.

He went on to write:

Now, more than 30 years later, these concerns are heightened since jurors’ addresses, family relationships, employment details, and general background information can be immediately obtained at the courthouse from ubiquitous cell phones, tablets, and other electronic devices that are linked to sophisticated computer software, search engines, and social media. In today’s world of Internet technology, it may be reasonably argued that [the statute] . . . affords no real or practical protection whatsoever. . . .

Dillon’s musings underscore the privacy paradox that digital technology presents, as well as the possibility that, in a politically divided country where social media play an outsized role, concerns about the media may have been eclipsed by concerns about politically motivated harassment on the internet. Worse still, judges fear that public availability of juror information will enable or encourage troubled individuals to take violent action off-line.

The reality is that identifying data about potential jurors are already widely accessible online. This may include personal information contained in public databases. Many of the individuals in jury pools have previously voluntarily chosen to disclose a wide variety of information about themselves on social media. Journalists routinely turn to these sources as part of the news-gathering process. Lawyers use social media to research the background of jurors. In other words, the Good Ship Privacy sailed long ago. It is hard to argue that a juror’s perceived but often unrealistic expectation of privacy in publicly available information rises to the level of a compelling interest that would justify anonymization.

Yet, judges continue to rely on this misconception as a justification for anonymization. In his concurring opinion in Press-Enterprise, Justice Harry Blackmun cautioned against assuming that jurors have a fundamental constitutional right of privacy. Doing so, he wrote, would “unnecessarily complicate the lives of trial judges” and could deprive defendants of information they might have a “need to know.”

It is also essential for judges to remember that there are others who have a “need to know” about jurors: the public. The public interest in having meaningful access to criminal trials is usually not represented by counsel in criminal cases and often is brushed aside, if considered at all.

Circumstances Justifying Anonymity

There are limited circumstances where protecting a juror’s privacy could rise to the level of a compelling state interest sufficient to defeat the presumption of openness. In a case arising from, for example, the January 6, 2021, attacks on the U.S. Capitol, it is possible that there might be sufficient particularized evidence of a genuine threat to a juror’s safety to justify impaneling an anonymous jury. But judges who dismiss the established public interest in transparency based on “mere generalized privacy concerns” or “unfocused fears” are misguided. As the First Circuit recognized in 1990, “knowledge of juror identities allows the public to verify the impartiality of key participants in the administration of justice, and thereby ensures fairness, the appearance of fairness, and public confidence in the system.” In re Globe Newspapers Co., 920 F.2d 88 (1st Cir. 1990).

Public confidence in the criminal justice system has been severely tested in recent years. The deaths of individuals of color at the hands of police since 2014 have prompted large-scale protests around the country. Some members of these communities are already highly skeptical about whether the system will yield justice when a police officer is the defendant. Others believe not only that, by virtue of being arrested and charged, defendants must be guilty but also that they—or their supporters—are so dangerous that the identity of those who decide their fates must be shrouded in secrecy. Curtailing access to the identity of jurors can only exacerbate these perceptions.

Nevertheless, high-profile cases involving fatal police encounters, such as the Freddie Gray case in Baltimore and the Mohamed Noor trial in Minneapolis, were tried before anonymous juries. In the Noor case, Judge Kathryn L. Quaintance, citing the need to protect jurors from “unwanted publicity or harassment,” sealed all juror information even before the trial began, an order she renewed five times. After intervention by the Minneapolis Star Tribune and Hubbard Broadcasting, she finally released the jurors’ names—but no other identifying information—18 months after Noor’s conviction for murder in the death of Justine Ruszczyk Damond. Judge Quaintance was not persuaded that the public interest dictated that more information about the jurors should be made available. In fact, she effectively chose to relegate the public interest in oversight of the judicial process to second-class status, insisting that there is a difference between impaneling an anonymous jury whose names are unknown to defendants and “merely withholding juror names from the public and the press.” (Emphasis added.) Citing concerns about an invasion of jurors’ personal privacy by the news media, she noted drily that “it is not always the case” “that the interest of the public and the media are synonymous.” Minnesota v. Noor, No. 27-CR-18-6859 (Minn. Dist. Ct. July 10, 2020).

The Supreme Court of the United States might beg to differ. In Richmond Newspapers, the high court recognized that both the press and the public have a First Amendment right to attend criminal trials. To that extent, the interests of both are coextensive. As a practical matter, the media often act as the public’s surrogate in keeping government open and accountable. Challenging the impaneling of anonymous juries is no exception.

Although anonymous juries may be justified in very limited and specific exceptions, a presumption of openness in court proceedings is, and should be, the rule, not the exception. Jurors play a critical role in the criminal justice system. They wield enormous power and should be subject to oversight, not only by the judiciary but by the public as well. Judge Roberts’s recognition of the “high civic duty” of juror service in the Detroit case against two members of the Hutaree militia minimized that reality. Jury duty is not limited to listening attentively to the evidence and rendering a verdict; it also extends to accepting public scrutiny as part of the obligation. That scrutiny is essential to promoting public confidence in the system.

I am certain that John Peter Zenger, as well as Amanda and Adam Bonner, would agree.