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Litigation Journal

Fall 2021: Discovering

Be Cautious About Anonymous Juries

Kevin S Burke


  • Review the local rules, especially about speaking to the press, researching jurors, and interviewing jurors after the trial.
  • Choose the right local counsel.
  • Speak to local public defenders. 
  • Get to know your judge.
Be Cautious About Anonymous Juries
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The use of anonymous juries is a relatively recent phenomenon, dating back only to 1977. The practice initially was concentrated in New York federal courts and used only in exceptional circumstances. But today, every federal circuit has approved their use and so have most states. Anonymous juries have even been used in civil cases, though that is rare. A few judges have used anonymous juries regularly. Two California judges decided to impanel anonymous juries in all criminal cases until an appellate court ordered an end to the practice.

Judicial inclinations to protect jurors’ privacy when they are conscripted to perform a civic duty are understandable. Prospective jurors are asked not just such benign questions as address, place of employment, and family members’ names. They are asked quite personal questions such as whether they or some loved one has ever been sexually assaulted. Almost every time they are asked these intensely private questions, potential jurors acquiesce and give honest answers.

The use of anonymous juries raises questions regarding not only transparency in the administration of justice but also the impact on a defendant’s presumption of innocence. Referring to jurors by number instead of name implies that a defendant’s dangerousness requires juror anonymity, thereby implicating defendants’ Fifth Amendment right to a presumption of innocence. Then there is voir dire. If the anonymous jury selection includes withholding certain biographical information, the court denies a defendant information that may be helpful to strike biased jurors, thereby threatening that defendant’s Sixth Amendment right to an impartial jury. One mock jury experiment found that anonymous jurors returned about 15 percent more guilty verdicts than “normal” juries.

Jury misconduct is exceedingly rare, but it does happen. Misconduct often can be discovered only when we know who the jurors are. A trial of mobster John Gotti illustrates the importance of the news media as a proxy watchdog for the public and how juror anonymity can complicate the journalists’ ability to do their jobs. The judge impaneled an anonymous jury because he feared Gotti might threaten, intimidate, or bribe the jury. One of the jurors was George Pape, a man with ties to an organized crime group. Pape contacted a Gotti associate and accepted a bribe, leading to Gotti’s acquittal. If the jurors had not been anonymous, the prosecutors or the media might have had the opportunity to investigate the jurors’ backgrounds and perhaps prevented Pape’s selection. Pape was later tried for what he did in the Gotti trial. The prosecutor, Geoffrey Mearns, said in his summation that Pape became a juror by withholding information. “George Pape had no business being on John Gotti’s jury and he knew it.” Part of the problem was that—because of the anonymous jury—no one else knew it.

To be free and independent, courts need a free and independent media that has the ability to tell the public what is happening. Juries are an important component of a transparent and independent court system. Secretive courts are the hallmark of authoritarian dictatorships. While our country has enjoyed a couple of centuries of a democracy and an independent judiciary, there are plenty of current examples of judiciaries crumbling. Judges in Turkey were arrested. The judiciary was dismantled in Hungary and Poland. Yes, there are journalists who are an embarrassment to their profession, just as there are judges and lawyers whose conduct causes us to cringe. But judges cannot let fear be the guiding force to hamper journalists from reporting what we do or what jurors do.

Judges predisposed to shrouding jurors in anonymity are at least perceived to have broad discretion to do so—and it is pretty hard to abuse broad discretion. Meanwhile, the standard for anonymity is easily manipulated. Most formulations require (1) a strong reason to believe the jury needs protection and (2) reasonable precautions to minimize any prejudicial effects on the defendant and to ensure the defendant’s rights are protected. There are no appellate cases that apply a “you better be damn well right about this” standard to the factual determinations that are a predicate to using an anonymous jury.

Should we be concerned about the use of anonymous juries? Of course. Should we ban anonymous juries entirely? Maybe not. There is a concept called the “Tyranny of the ‘Or.’” Any debate about anonymous jurors is highly susceptible to the Tyranny of the “Or”: You are either in favor or opposed. The Tyranny of the “Or” pushes people to believe that things must be either A or B, but not both.

There is room in our judicial system for anonymous juries. Most judges should end their careers on the bench without ever having impaneled an anonymous jury, and certainly no judge should do what the California judges did in making anonymity the default. One can certainly imagine scenarios where identifying jurors would threaten either the defendant’s right to a fair trial or the jurors’ personal safety. But they should be exceedingly rare. Neither speculative concerns about juror privacy and security nor the impulse to show gratitude for the burdens jurors shoulder should ever be enough.