Sequestration

Sequestering a jury means keeping all the jurors together in a location separate from their normal abodes, under the care of court authorities, throughout some or all of the trial. Surprisingly, there is not much legal scholarship about sequestration—in fact, there is only one major article on the topic in the last decade: Marcy Strauss, "Sequestration," 24 Am. J. Crim. L. 63 (1996). Fortunately, it is a very thorough one. Some of Professor Strauss’ conclusions are set forth below.

Although the number of cases in which sequestration is ordered is relatively small, the dread thought of being on a sequestered jury looms large in the public’s mind.

Sequestration is governed by statute in the federal and all state systems. Statutes are of four types:

• Most jurisdictions do not require sequestration during either the trial or deliberation stages in any kind of case but give the trial judge discretion to order sequestration in any case.
• Some states require sequestration in certain kinds of cases, but give discretion to the trial judge in all other kinds of cases. The most common kind of case in which sequestration is required is death penalty cases.
• A few states require sequestration for deliberations but give discretion to the judge concerning whether to order sequestration prior to deliberations.
• A couple of states require sequestration in certain cases for either the whole trial, or for deliberations, if either litigant requests it.

The reasons for requiring sequestration are some or all of the following:

• Preventing exposure of the jurors to prejudicial publicity
• Minimizing pressure from non-jurors for a particular verdict
• Ensuring juror safety from harassment, threats, or actual violence
• Promoting a perception of fairness because of assurance of no outside influence

The reasons for not requiring sequestration are:

• It is financially costly to the government.
• It risks psychological harm to the jurors if the sequestration period is long.
• It may be counter to truth-seeking because it:
  • Can lead to a non-representative jury because only limited categories of people are available for a jury that will be sequestered.
  • Can cause jurors to rush to judgment to escape sequestration.
  • Can cause the jurors to identify with the government (as the jury’s caretaker) or against the government (as the jury’s jailer).
  • Can cause lawyers and judges to try to rush the case along to avoid the possibility that the jury will align against the party that seems to be prolonging the case.

Prof. Strauss concludes that the costs of sequestration outweigh its benefits, and that the practice should be abolished.