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The Anonymity of Juries
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.25 When notorious 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. --- Bibliography Gold v. United States, 378 F.2d (9th Cir. 1967). Hevesi, Dennis. (1992, April 3). A need for security kept numbered jurors cloaked in anonymity. New York Times, pp. A17, B2. Johnson v. United States, 270 F.2d (9th Cir. 1959), cert denied, 362 U.S. 937 (1960). Kunstler, William M. (1983, October). The Threat of Anonymous Juries. The Nation, p. 360. Lehner, D. P. (1988, Fall-Winter). Anonymous Juries: Do the Benefits Warrant Jeopardizing the Rights of the Accused? Criminal Justice Journal, pp. 187-201. Marcus, Amy Dockser. (1991, April 9). Legal Beat: An Anonymous Jury. Wall Street Journal, p. B8 Margolin, Ephraim & Uelman, Gerald F. (1994, Fall). The Anonymous Jury. Criminal Justice Journal, pp. 14-18, 60-61. Roane, Kit R. (1994, August 12). We, the jury, who are anonymous. New York Times, p. A20. Rosales-Lopez v. United States, 451 U.S. (1981). United States v. Barnes, 604 F.2d (2d Cir. 1979), cert. denied 446 U.S. 907 (1980). United States Constitution amendments V, VI, XIV. United States v. Thomas, 757 F.2d (2d Cir.), cert. denied, 106 S.Ct 66 (1985). Wagner v. United States, 264 F.2d (9th Cir.), cert. denied, 360 U.S. 936 (1959). Wishman, Seymour. (1986). Anatomy of a Jury: the system on trial. New York: Times Books, 1986. Worthington, Rogers. (1993, February 15). L.A. beatings test concept of jury anonymity. Chicago Tribune, p. 1.


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