Judicious use of juror anonymity

Recent media reports suggest that courts increasingly are withholding the names and identifying information of trial jurors, a practice commonly referred to as impaneling an "anonymous jury." Most reports of anonymous juries indicate that the court took action in response to a unique feature of the case that seemed to call for additional protection against possible intimidation or influence of the jury. But a number of courts have considered, and a handful of them have implemented, procedures for anonymous juries on a routine basis. This trend is particularly notable given efforts of the justice system to open court proceedings and general operations to the public, thus serving the very important goals of public education and public trust and confidence in the courts.

The term "anonymous jury" describes a wide variety of court practices and degrees of anonymity. The greatest degree of anonymity is achieved when only the court has access to identifying information about jurors; no information is provided to the lawyers or parties, much less to the public or press, and the restrictions on access to juror information extend indefinitely. A less severe variation occurs when the court and counsel have access to identifying information, but not the parties or the public or press. Still less restrictive is affording access to juror information to counsel and the parties, but not to the public or press, again indefinitely. At the least restrictive end of the continuum is a case where the court, counsel, and parties have access before and during trial, but the public and press are not given access until sometime after the verdict is announced.

In order to decide what (if any) level of anonymity is appropriate, it is necessary to define the objective to be achieved. Most of the objectives cited in media reports reflect legitimate concerns, but it is not always clear that those objectives are best achieved through juror anonymity. For example, is the court trying to insulate jurors from possible intimidation or harassment by the parties, which is common in gang or organized crime-related trials? Is this a high profile trial likely to extend more than a couple of days, in which case family, friends, or co-workers might be tempted to try to influence jurors with their opinions about the case? Is the court trying to protect juror privacy when voir dire is likely to involve questions about sensitive issues (e.g., drug/alcohol abuse, sexual history, criminal background, or victimization), which prospective jurors might be reluctant to reveal? Is the court trying to protect juror privacy generally, regardless of the scope of voir dire? Is the court simply hostile to press coverage of its affairs, and limiting access to thwart that coverage?

Before impaneling an anonymous jury, of whatever degree, judges should ask themselves these questions, for the answers should help to decide whether, and how much, anonymity is called for, and for how long. They may also suggest alternatives to juror anonymity that better address the specific objectives the court seeks to achieve. Anonymity can protect against possible threats or jury-tampering, but it does little by itself to promote greater candor during voir dire. Other techniques may be better suited for those purposes, such as written questionnaires, individual voir dire, and limitations on the scope of voir dire.

Similarly, it may be legitimate to insulate jurors from intense public and press scrutiny (and thus possible influence) before and during the trial, but that concern dissipates shortly after the verdict has been delivered. The media have a very short attention span, which suggests that extending anonymity protections for a week or so after the verdict is usually sufficient to discourage press interest. An even better alternative may be to have the court arrange a press conference with any jurors who care to participate immediately after the trial-as there is little incentive for the press to spend time and energy tracking down jurors who do not want to talk once one or two jurors have willingly discussed their views.

Using juror anonymity as a default mechanism for achieving all of the court's objectives, however legitimate, is ultimately a short-sighted approach to a very complex set of considerations. Courts, and jurors, are better served when judges carefully reflect on the issues or problems that need to be addressed in a particular case, tailor their orders-including those for juror anonymity where appropriate-to address those issues effectively and efficiently, and fully explain their objectives, including how juror anonymity, if required, helps to achieve those objectives.