The Anonymity Of Juries Essay, Research Paper
Abstract
The American criminal justice system has traditionally made
the identities and addresses of jurors known to the judge, the
prosecution, and the defense. That tradition began to erode with the
unprecedented sua sponte trial court decision to use an anonymous jury
in the case of United States v. Barnes, a highly publicized criminal
trial of notorious organized crime figures in New York City. Since
“Barnes,” Federal prosecutors in New York have requested and been
granted anonymous juries in a number of similar cases, a development
which has generated criticism. This paper first addresses the issue of
whether juror anonymity violates a defendant’s sixth amendment right
to a jury trial by adversely affecting the defendant’s ability to
exercise effectively peremptory challenges during voir dire. It also
discusses the effect an anonymous jury may have on the presumption
that a defendant is innocent until proven guilty. Also considered are
attempts by trial judges, through particular jury instructions, to
minimize or eliminate prejudice to defendants resulting from the use
of an anonymous jury. And finally the paper examines the need for
anonymous juries and concludes that in certain cases jurors may either
fear retaliation or actually be exposed to intimidation unless the
court employs measures to conceal their identities.
Introduction
Juror anonymity is an innovation that was unknown to the
common law and to American jurisprudence in its first two centuries.
Anonymity was first employed in federal prosecutions of organized
crime in New York in the 1980’s. Although anonymous juries are unusual
since they are typically only empanelled in organized-crime cases, its
use has spread more recently to widely publicized cases such as the
federal prosecution of police officers accused of beating Rodney King;
and the trial of those accused of the World Trade Center bombing.
In these cases, attorneys selected a jury from a panel of
prospective jurors whose names, addresses, ethnic backgrounds and
religous affiliations remain unknown to either side. This unusual
procedure, designed to protect jurors from outside influence and the
fear of retaliation, has occasionally been used in New York federal
courts since the trial of drug kingpin Leroy “Nicky” Barnes.1 Despite
apparent benefits, critics assail anonymous juries both as an
infringment of the sixth amendment guarantee of an impartial jury 2
and as a serious and unnecessary erosion of the presumption of
innocence.3
Since many attorneys believe trials are frequently won or lost
during jury selection,4 any procedure diminishing the role of counsel
invites close scrutiny and criticism. Opponents of anonymous juries
argue that the procedure restricts meaningful voir dire and thereby
undermines the defendant’s sixth amendment right to an impartial
jury.5 Critics also claim that jurors interpret their anonymity as
proof of the defendant’s criminal proclivity, thereby subverting the
presumption of innocence.6 Nevertheless, this paper argues that
anonymous juries neither undermine the sixth amendment nor
meaningfully dilute the presumption of innocence. Limited Voir Dire
and the Peremptory Challenge
Consistent with due process and the sixth amendment,7 the
trial judge may refuse to ask prospective jurors any questions not
reasonably calculated to expose biases or prejudices relevant to the
case.8 Although addresses and group affilations may indicate
significant potential for bias, attorneys do not have an unfettered
right to this information in every case.9 Denying access to these
facts may constrain an attorney’s ability to assemble an ideal jury,
but it violates no constitutional right.
Although the Barnes court may have been on firm constitutional
ground in rejecting the defendants’ request for the ethnic and
religous backgrounds and addresses of prospective jurors,10 it
unnecessarily downplayed the relevance of this information to
intelligent peremptory challenges.11 Indeed, racial, ethnic and
socio-economic undercurrents are present in every case involving an
anonymous jury. Trial judges should acknowledge this fact and permit
some inquiry into group affiliations and approximate community in lieu
of names and addresses. Because such disclosure does not undermine the
purpose of juror anonymity and more than adequately substitutes for
the information normally inferable from names and addresses, it should
be permitted in every case using the procedure.
Some aspects of juror anonymity may even work to a defendant’s
advantage. Assuming attorneys are able to discern subtle prejudices
from a prospective juror’s group affiliations, anonymity equally
restrains both sides from eliminating members of the jury pool with
undesirable demographic characteristics.12 Although defense attorneys
may be unable to weed out jurors with group characteristics that are
supposedly prejudicial to criminal defendants, pro-secutors will
similarly be unable to detect jurors from supposedly sympathetic
jurors.13 This equality of ignorance may favor defendants. Because
conviction requires a unanimous verdict, anonymity increases the
possibility of a hung jury by increasing the liklihood that jurors
associated with religous, ethnic or socio-economic groups favoring
particular defendants will slip through the voir dire.
One writer has argued that equal access to information about
the jury panel is crucial to a fair voir dire.14 He noted that, in the
past, prosecutors have had unilateral access to governmental agency
data on prospective jurors.15 Thus, the prosecution enjoys a potential
systemic advantage in every case.16 He concludes that a relatively
broad voir dire is necessary to remedy this institutional disparity.17
One might more readily conclude, however, that anonymous juries remedy
this systemic inequality. Without names and addresses, prosecutors
could not take advantage of the superior informational and
investigative resources of the government. Anonymity thus ensures that
both sides are on equal footing with regard to information about
prospective jurors.
Although the limited voir dire is constitutional, it prevents
access to information on which attorneys rely substantially in
exercising their peremptory challenges. Consequently, attorneys should
have alternative access to jurors’ ethnic backgrounds and approximate
community if the disclosure would not jeopardize jurors’ security.
The Presumption of Innocence
Unlike security measures that unequivocally point to the
defendant, juror anonymity could be perceived to address potential
disturbances wholly unrelated to the defendant. Yet, critics of the
anonymous jury contend that prospective jurors could only read the
anonymity instruction to be a judicial conclusion of the defendant’s
guilt.18 Therefore, they cannot obey the contradictory instruction to
presume the defendant innocent until the governnment meets its burden
of proof.19 Although plausible, this conclusion necessarily depends on
certain unsupported assump tions about juror perception and knowledge.
The potential burden of jury anonymity on the defendant’s
presumption of innocence was conceded in United States v. Thomas.20
It was even recognized that the prejudicial impact on the defendant
could not be eliminated totally. In rejecting a per se rule against
anonymity, the Thomas Court underlined two essential prerequisites for
use of an anonymous jury. First, there should be “strong reason to
believe the jury needs protection,” and second, reasonable precaution
must be taken to minimize the negative effect of use of the anonymous
jury “on the juror’s opinions of the defendants.” 21
Unfortunately, the court also endorsed concealing from the
jury the real reason for anonymity. The principal justfication offered
for anonymity was to prevent jury tampering, but the court approved an
instruction that deliberately made no mention of that, only of the
necessity to protect jurors from “unwanted and undesirable publicity
and embarrassment and notoriety and any access to you which would
interfere with preserving your sworn duty to fairly, impartially and
independently serve as jurors.22
In almost every case, the trial judge explains to jurors that,
due to the trial’s notoriety, anonymity is necessary to prevent the
media and the public from invading their privacy and impairing their
impartiality.23 Critics claim that jurors read through this facially
neutral instruction because no juror would believe he was being
insulated from anyone other than the defendants or their
sympathizers.24 This assumption would thus require judges to refrain
from making any suggestion concerning the jurors’ extra-judicial
contacts, lest defendants be cast in a negative light. Indeed, many
convicted defendants successfully argue on appeal that the jury was
either not adequately cautioned to avoid outside influence or that
juror contact with third parties prejudiced the defendant’s case.
Cases that inspire significant media attention and public
passion raise special concerns about juror insulation. The effect of
explosive media reports and hostile public opinion on a defendant’s
fair trial rights has long perplexed judges.2
criminals are tried, a juror could easily feel pressure to act as a
public avenger and thus could believe that his anonymity is aimed at
isolating the jury from forces and opinions hostile to the defendants.
But because some effort is always made to caution the jury against any
outside influence, it seems illogical to conclude that juror anonymity
could be perceived only as presumptive evidence of a defendant’s
guilt.
Assuming that the anonymity instruction signals the jury that
the defendants might “get” to them, critics of anonymous juries ignore
a likely consequence of that perception.26 A juror who anticipates a
defendant’s retaliation would be more likely to return a guilty
verdict despite such fears rather than because of them. Thus, even if
anonymity incidentally instills the fear it attempts to remedy, the
result arguably benefits the defendant by making jurors afraid to
convict. On the other hand, if anonymity helps to remedy existing
fears, it serves the ideal of dispassionate judgement. Although a
defendant would understandably welcome a trial before a jury biased
toward an acquittal, the people, as well as the defendant, are
entitled to an impartial jury.
Of course, a juror may interpret anonymity as a measure
designed only to prevent jury tampering, not as a measure protecting
him from a violent defendant. The question then becomes whether this
inference pre-judicially alters the juror’s perception of a defendant.
Whether jurors perceive their anonymity as a measure designed to
prevent tampering or violence, it does little to alter their
perception of certain defendants, since most qualified jurors have
some pretrial impressions or opinions of merits of important,
publicized cases. Nevertheless, the courts have consistently held that
jurors need not be completely oblivious to the facts underlying a
particular case.27 Pretrial impressions or opinions will not
disqualify a juror if, in the court’s judgement, he can set aside such
impressions and base his decision solely on the evidence admitted at
trial. While a juror’s ability to ignore pervasive media coverage may
be questionable, critics of anonymous juries seem presume that jurors
are oblivious to the nature of these cases until they are directed not
to reveal their identities.28 Only then, supposedly, are their minds
irrevocaably poisoned against the defendants.
By instructing a jury that anonymity prevents the media and
interested members of the public from interfering with their
deliberations, a trial judge avoids most prejudicial innuendo. Con-
sequently, an anonymous jury does not undermine the presumption of
innocence.
The Use of Anonymous Juries
Although the prejudicial impact of juror anonymity may be
exaggerated, any intrusion on a defendant’s fair trial rights is
unjustified if anonymity is unecessary. The need for anonymous juries
rests on several grounds.
Juror anonymity rests on the assumption that at least some
jurors will be intimidated by the characterzation of the defendants in
the indictment and the corresponding pretrial media attention. Critics
complain that judges have imposed anonymity without an indication from
jurors that they were afraid.29 Although juror fear may be difficult
to prove, aassuming its existence is not as specious as this criticism
suggests.
First, the impracticality of judicial inquiry into this area
is obvious. If the jurors are not already apprehensive, extensive
questioning about such fears would certainly tend to generate the fear
the questions are designed to detect. Second, while no juror expressed
any fear of violence on the record in Barnes and its progency, jurors
have voiced such fears in cases involving less notorious defendants.
Most of the current cases using anonymous juries involve powerful
organized crime groups whose public reputations for corruption,
intimidation, and ruthlessness have become matters of contemporary
wisdom.
Another premise underlying the need for anonymous juries is
that certain defendants or their sympathizers are likely to corrupt or
intimidate the jury. Critics assert that courts accept this premise
despite a “total absence of any evidence of jury tampering, or of a
conspiracy to tamper, injure, or otherwise adversely affect a juror.”
30
Although the need for anonymity is not limited to traditional
organized crime cases, and the factors considered in empaneling
anonymous juries existed to a lesser degree in cases preceding Barnes,
the procedure is an appropriate safety measures in cases that “stretch
the traditional dimensions of criminal law.” 31
Conclusion
An impartial jury is only a criminal defendant’s
constitutional right but a hallmark of any civilized judicial system.
In extraordinary cases, juror anonymity is necessary to ensure this
goal. Rather than alerting a juror to a defendant’s violent persona,
anonymity merely allays existing fears and prevents outside forces
from prejudicing either side. Preventing a defendant from using his
reputation or resources to discourage conviction preserves, rather
than subverts, the integrity of the judicial process.
—
Endnotes
1 United States v. Barnes, 604 F.2d 121, 140-41 (2d Cir. 1979), cert.
denied 446 U.S. 907 (1980).
2 William M. Kunstler, “The Threat of Anonymous Juries,” The Nation,
22 October 1983, 360.
3 Ibid., 360.
4 Seymour Wishman, Anatomy of a Jury: the system on trial, (New York:
Times Books, 1986), 28.
5 Ephraim Margolin & Gerald F. Uelman, “The Anonymous Jury,” Criminal
Justice Journal, Fall 94, 16.
6 Ibid., 16.
7 United States Constitution amendments V, VI, XIV.
8 Rosales-Lopez v. United States, 451 U.S. 182, 189-90 (1981).
9 Gold v. United States, 378 F.2d 588, 594 (9th Cir. 1967) (no right
to jurors’ religous backgrounds); Johnson v. United States, 270 F.2d
721, 724 (9th Cir. 1959) (no right to jurors’ addresses), cert denied,
362 U.S. 937 (1960); Wagner v. United States, 264 F.2d 524, 528 (9th
Cir.) (no right to jurors’ names), cert. denied, 360 U.S. 936 (1959).
10 United States v. Barnes, 604 F.2d 121, 140-41 (2d Cir. 1979), cert.
denied 446 U.S. 907 (1980).
11 Ibid., 121, 174.
12 D. P. Lehner, “Anonymous Juries: Do the Benefits Warrant
Jeopardizing the Rights of the Accused?,” Criminal Justice Journal,
Fall-Winter 1988, 189-190.
13 Ibid., 189-190.
14 Seymour Wishman, Anatomy of a Jury: the system on trial, (New York:
Times Books, 1986), 134-36.
15 Ibid., 134-135.
16 Ibid., 136.
17 Ibid., 136.
18 Ephraim Margolin & Gerald F. Uelman, “The Anonymous Jury,” Criminal
Justice Journal, Fall 94, 61.
19 Ibid., 94, 61.
20 United States v. Thomas, 757 F.2d 1359, 1364-65 (2d Cir.), cert.
denied, 106 S.Ct 66 (1985).
21 Ibid., 1359, 1364-65.
22 Ibid., 1359, 1364-65.
23 D. P. Lehner, “Anonymous Juries: Do the Benefits Warrant
Jeopardizing the Rights of the Accused?,” Criminal Justice Journal,
Fall-Winter 1988, 188.
24 Ibid., 188.
25 Ibid., 200-201.
26 William M. Kunstler, “The Threat of Anonymous Juries,” The Nation,
22 October 1983, 360.
27 United States v. Barnes, 604 F.2d 121, 141 (2d Cir. 1979), cert.
denied 446 U.S. 907 (1980).
28 D. P. Lehner, “Anonymous Juries: Do the Benefits Warrant
Jeopardizing the Rights of the Accused?,” Criminal Justice Journal,
Fall-Winter 1988, 187.
29 William M. Kunstler, “The Threat of Anonymous Juries,” The Nation,
22 October 1983, 360.
30 D. P. Lehner, “Anonymous Juries: Do the Benefits Warrant
Jeopardizing the Rights of the Accused?,” Criminal Justice Journal,
Fall-Winter 1988, 200.
31 Ibid., 199.
—
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