Lawjurie Essay, Research Paper

Anonymous JuriesThe American criminal justice system has traditionally made the identities and addresses ofjurors known to the judge, the prosecution, and the defense. That tradition began to erodewith the unprecedented sua sponte trial court decision to use an anonymous jury in the caseof United States v. Barnes, a highly publicized criminal trial of notorious organized crimefigures in New York City. Since “Barnes,” Federal prosecutors in New York have requestedand been granted anonymous juries in a number of similar cases, a development which hasgenerated criticism. This paper first addresses the issue of whether juror anonymityviolates a defendant’s sixth amendment right to a jury trial by adversely affecting thedefendant’s ability to exercise effectively peremptory challenges during voir dire. It alsodiscusses the effect an anonymous jury may have on the presumption that a defendant isinnocent until proven guilty. Also considered are attempts by trial judges, throughparticular jury instructions, to minimize or eliminate prejudice to defendants resultingfrom the use of an anonymous jury. And finally the paper examines the need for anonymousjuries and concludes that in certain cases jurors may either fear retaliation or actually beexposed 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 Americanjurisprudence in its first two centuries. Anonymity was first employed in federalprosecutions of organized crime in New York in the 1980’s. Although anonymous juries areunusual since they are typically only empanelled in organized-crime cases, its use hasspread more recently to widely publicized cases such as the federal prosecution of policeofficers accused of beating Rodney King; and the trial of those accused of the World TradeCenter 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. Thisunusual procedure, designed to protect jurors from outside influence and the fear ofretaliation, has occasionally been used in New York federal courts since the trial of drugkingpin Leroy “Nicky” Barnes.1 Despite apparent benefits, critics assail anonymous juriesboth as an infringment of the sixth amendment guarantee of an impartial jury 2 and as aserious and unnecessary erosion of the presumption of innocence.3 Since many attorneys believe trials are frequently won or lost during jury selection,4 anyprocedure diminishing the role of counsel invites close scrutiny and criticism. Opponentsof anonymous juries argue that the procedure restricts meaningful voir dire and therebyundermines the defendant’s sixth amendment right to an impartial jury.5 Critics also claimthat jurors interpret their anonymity as proof of the defendant’s criminal proclivity,thereby subverting the presumption of innocence.6 Nevertheless, this paper argues thatanonymous juries neither undermine the sixth amendment nor meaningfully dilute thepresumption of innocence. Limited Voir Dire and the Peremptory Challenge Consistent with due process and the sixth amendment,7 the trial judge may refuse to askprospective jurors any questions not reasonably calculated to expose biases or prejudicesrelevant to the case.8 Although addresses and group affilations may indicate significantpotential for bias, attorneys do not have an unfettered right to this information in everycase.9 Denying access to these facts may constrain an attorney’s ability to assemble anideal jury, but it violates no constitutional right. Although the Barnes court may have been on firm constitutional ground in rejecting thedefendants’ request for the ethnic and religous backgrounds and addresses of prospectivejurors,10 it unnecessarily downplayed the relevance of this information to intelligentperemptory challenges.11 Indeed, racial, ethnic and socio-economic undercurrents are presentin every case involving an anonymous jury. Trial judges should acknowledge this fact andpermit some inquiry into group affiliations and approximate community in lieu of names andaddresses. Because such disclosure does not undermine the purpose of juror anonymity andmore than adequately substitutes for the information normally inferable from names andaddresses, it should be permitted in every case using the procedure. Some aspects of juror anonymity may even work to a defendant’s advantage. Assumingattorneys are able to discern subtle prejudices from a prospective juror’s groupaffiliations, anonymity equally restrains both sides from eliminating members of the jurypool with undesir-able demographic characteristics.12 Although defense attorneys may beunable to weed out jurors with group characteristics that are supposedly prejudicial tocriminal defendants, pro-secutors will similarly be unable to detect jurors from supposedlysympathetic jurors.13 This equality of ignorance may favor defendants. Because convictionrequires a unanimous verdict, anonymity increases the possibility of a hung jury byincreasing the liklihood that jurors associated with religous, ethnic or socio-economicgroups 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 fairvoir dire.14 He noted that, in the past, prosecutors have had unilateral access togovernmental agency data on prospective jurors.15 Thus, the prosecution enjoys a potentialsystemic advantage in every case.16 He concludes that a relatively broad voir dire isnecessary to remedy this institutional disparity.17 One might more readily conclude,however, that anonymous juries remedy this systemic inequality. Without names andaddresses, prosecutors could not take advantage of the superior informational andinvestigative resources of the government. Anonymity thus ensures that both sides are onequal footing with regard to information about prospective jurors. Although the limited voir dire is constitutional, it prevents access to information on whichattorneys rely substantially in exercising their peremptory challenges. Consequently,attorneys should have alternative access to jurors’ ethnic backgrounds and approximatecommunity if the disclosure would not jeopardize jurors’ security. The Presumption of Innocence Unlike security measures that unequivocally point to the defendant, juror anonymity could beperceived to address potential disturbances wholly unrelated to the defendant. Yet, criticsof the anonymous jury contend that prospective jurors could only read the anonymityinstruction to be a judicial conclusion of the defendant’s guilt.18 Therefore, they cannotobey the contradictory instruction to presume the defendant innocent until the governnmentmeets its burden of proof.19 Although plausible, this conclusion necessarily depends oncertain unsupported assump tions about juror perception and knowledge. The potential burden of jury anonymity on the defendant’s presumption of innocence wasconceded in United States v. Thomas.20 It was even recognized that the prejudicial impacton the defendant could not be eliminated totally. In rejecting a per se rule againstanonymity, the Thomas Court underlined two essential prerequisites for use of an anonymousjury. First, there should be “strong reason to believe the jury needs protection,” andsecond, reasonable precaution must be taken to minimize the negative effect of use of theanonymous 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 thecourt approved an instruction that deliberately made no mention of that, only of thenecessity to protect jurors from “unwanted and undesirable publicity and embarrassment andnotoriety and any access to you which would interfere with preserving your sworn duty tofairly, impartially and independently serve as jurors.22 In almsot every case, the trial judge explains to jurors that, due to the trial’s notoriety, anonymityis necessary to prevent the media and the public from invading their privacy and impairingtheir impartiality.23 Critics claim that jurors read through this facially neutralinstruction because no juror would believe he was being insulated from anyone other than thedefendants or their sympathizers.24 This assumption would thus require judges to refrainfrom making any suggestion concerning the jurors’ extra-judicial contacts, lest defendantsbe cast in a negative light. Indeed, many convicted defendants successfully argue on appealthat the jury was either not adequately cautioned to avoid outside influence or that jurorcontact with third parties prejudiced the defendant’s case.

Cases that inspire significant media attention and public passion raise special concerns aboutjuror insulation. The effect of explosive media reports and hostile public opinion on adefendant’s fair trial rights has long perplexed judges.25 When notorious criminals aretried, a juror could easily feel pressure to act as a public avenger and thus could believethat his anonymity is aimed at isolating the jury from forces and opinions hostile to thedefendants. But because some effort is always made to caution the jury against any outsideinfluence, it seems illogical to conclude that juror anonymity could be perceived only aspresumptive 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 whoanticipates a defendant’s retaliation would be more likely to return a guilty verdictdespite such fears rather than because of them. Thus, even if anonymity incidentallyinstills the fear it attempts to remedy, the result arguably benefits the defendant bymaking jurors afraid to convict. On the other hand, if anonymity helps to remedy existingfears, it serves the ideal of dispassionate judgement. Although a defendant wouldunderstandably welcome a trial before a jury biased toward an acquittal, the people, as wellas the defendant, are entitled to an impartial jury. Of course, a juror may interpret anonymity as a measure designed only to prevent jurytampering, not as a measure protecting him from a violent defendant. The question thenbecomes 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 orviolence, it does little to alter their perception of certain defendants, since mostqualified jurors have some pretrial impressions or opinions of merits of important,publicized cases. Nevertheless, the courts have consistently held that jurors need not becompletely oblivious to the facts underlying a particular case.27 Pretrial impressions oropinions will not disqualify a juror if, in the court’s judgement, he can set aside suchimpressions and base his decision solely on the evidence admitted at trial. While ajuror’s ability to ignore pervasive media coverage may be questionable, critics of anonymousjuries seem presume that jurors are oblivious to the nature of these cases until they aredirected not to reveal their identities.28 Only then, supposedly, are their mindsirrevocaably poisoned against the defendants. By instructing a jury that anonymity prevents the media and interested members of the publicfrom 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 adefendant’s fair trial rights is unjustified if anonymity is unecessary. The need foranonymous juries rests on several grounds. Juror anonymity rests on the assumption that at least some jurors will be intimidated by thecharacterzation of the defendants in the indictment and the corresponding pretrial mediaattention. Critics complain that judges have imposed anonymity without an indication fromjurors that they were afraid.29 Although juror fear may be difficult to prove, aassumingits 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 alreadyapprehensive, extensive questioning about such fears would certainly tend to generate thefear the questions are designed to detect. Second, while no juror expressed any fear ofviolence on the record in Barnes and its progency, jurors have voiced such fears in casesinvolving less notorious defendants. Most of the current cases using anonymous juriesinvolve 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 theirsympathizers are likely to corrupt or intimidate the jury. Critics assert that courtsaccept this premise despite a “total absence of any evidence of jury tampering, or of aconspiracy to tamper, injure, or otherwise adversely affect a juror.” 30 Although the need for anonymity is not limited to traditional organized crime cases, and thefactors considered in empaneling anonymous juries existed to a lesser degree in casespreceding Barnes, the procedure is an appropriate safety measures in cases that “stretch thetraditional dimensions of criminal law.” 31Conclusion An impartial jury is only a criminal defendant’s constitutional right but a hallmark of any civilizedjudicial 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 allaysexisting fears and prevents outside forces from prejudicing either side. Preventing adefendant from using his reputation or resources to discourage conviction preserves, ratherthan 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, Fall94, 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’ religousbackgrounds); Johnson v. United States, 270 F.2d 721, 724 (9th Cir. 1959) (no right tojurors’ addresses), cert denied,362 U.S. 937 (1960); Wagner v. United States, 264 F.2d524, 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 theAccused?,” 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 theAccused?,” 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 theAccused?,” 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 theAccused?,” Criminal Justice Journal, Fall-Winter 1988, 200. 31 Ibid., 199. BibliographyGold v. United States, 378 F.2d (9th Cir. 1967). Hevesi, Dennis. (1992, April 3). A need for security kept numbered jurors cloaked inanonymity. 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). 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