Privacy

Why Don't We Protect the Privacy of Jurors?

The case for making jury duty anonymous

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Under the best of circumstances, jury duty is about as enjoyable as being trapped in an elevator with a Ronco salesman. You're yanked away from your job or domestic responsibilities, stuck in an airless bunker with lawyers who flunked out of charm school, forced to work with strangers and paid only a minimal stipend—and all this can go on for weeks or even months.

But one 79-year-old New York divorcee found out what jury duty is like when the circumstances are not the best. Ruth Jordan, a member of the jury in the trial of Tyco International executives Dennis Kozlowski and Mark Swartz, has not only had her name and photo spread around the world, but was ridiculed in New York newspapers for allegedly being stingy, snobbish, and paranoid.

The abuse occurred because she supposedly made a sympathetic signal to defense lawyers. That outrage prompted The Wall Street Journal's website and the New York Post to publish her name while the trial was underway, which is almost unheard of.

With that information out, Jordan soon got a hostile anonymous phone call and a letter she regarded as disturbing. So Judge Michael Obus declared a mistrial, citing "the notoriety that was brought to bear on one particular juror, whose name and background have been widely publicized in the media."

By that time, it was irrelevant that the abuse was unwarranted. The judge made a point of declaring that she did nothing wrong. His ire was directed at the press for disclosing her identity.

But if it's important to protect the privacy of jurors, why should their names be available in the first place? Obus could have sealed them at the outset. And a strong case can be made that jurors are entitled to anonymity as a matter of course.

After all, we impose severe burdens on them. Since the abolition of the draft, jury duty is about the only legal form of involuntary servitude. Jurors often undergo interrogation about embarrassing personal matters, sometimes endure stomach-turning exhibits, and may be separated from their family and friends for long periods of time.

These inconveniences may not be avoidable. But loss of privacy and fear of retribution are. A friend of mine who was in the pool for a murder case found several fierce-looking associates of the defendant, apparently gang members, staring ominously at potential jurors—whose names were a matter of public record. One federal appeals court has said, "As judges, we are aware that, even in routine criminal cases, (jurors) are often uncomfortable with disclosure of their names and addresses to a defendant."

That's not the only worry. A study by Paula Hannaford, a lawyer with the National Center for State Courts, notes that the data collected for jury service "links many aspects of a person's life—home, family, work, citizenship and residency status, criminal history and finances—in a single, convenient record, and no effort is made to place restrictions on public access to information that is not ordinarily in the public domain."

Some judges have tried keeping names confidential and identifying jurors only by number. But defense lawyers often object, arguing that the secrecy may cause jurors to see the defendant as dangerous. Any taint caused by the selective use of anonymity, however, would vanish if it were the rule.

The news media insist names are important to make juries accountable to the public. But we don't let cameras into jury deliberations, and we don't publish transcripts of those discussions, because we know the value of confidentiality. Jurors are not government officials who must answer to the citizenry for their decisions. If some of them fall short, it's the job of the judge, not the news media or the public, to take remedial action.

As for the value of interviewing jurors afterward, as various news organizations did in the Tyco case, fear not: Some jurors will always be eager to rush to the nearest TV camera. But those who prefer to avoid uninformed second-guessing and catty put-downs should be allowed to go in peace.

Granting jurors anonymity in all criminal trials would make service more attractive and improve the quality of deliberations. Since other demographic information about jurors would remain available, the public would lose no crucial knowledge—and it would gain a better system of justice.

Jury service is a civic responsibility as important as voting. If we let citizens vote in elections with the protection of secrecy, why do jurors deserve less?

COPYRIGHT 2008 CREATORS SYNDICATE, INC.

Editor's Note: Steve Chapman is currently on vacation. This column was originally published in April 2004.

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  1. Jury service is a civic responsibility as important as voting.

    Consenting to be ruled.

  2. I don’t want anonymity getting its dirty little fingers on any part of my justice system, thank you.

  3. I’ve served on two juries and am glad I did.I learned quite a bit.The first was a civil “whiplash’ case and should never been in court.The second was a DUI case and it opened my eyes.The man was arrested for weaving inside the lines,refused to take a breath test and was charged.The officer said the usual,slurred speech,red eyes and bad balance.The DA gave a speech about how dangerous his actions were.The tape showed another story.The man weaved once in over the course of a mile,barely,sounded fine on tape and seemed to preform the road test well.We found him not guilty and couldn’t believe he was even charged.This jaded me on DUI enforcement to this day.

  4. I would definitely like to be on a jury like the one Michael describes above, or MJ possession, because it would allow me to try and convince other jurors to not convict for nonviolent offenses and spread the word about jury nullification. But I’d never want to somehow end up on a case which takes months or even weeks, as it would utterly fuck up one’s life.

    I don’t think I have to worry about it, though, because no prosecutor would ever let me on the jury unless I lie.

  5. I’ve also served twice and given this a bit of thought. Unless a jury is hidden from view their is no real anonymity.

    If the jury were to be hidden from the public it would be a whole other can of worms – how would selection take place? What would the oversight be in the selection process? What public assurance would there be that the jury was unbiased and representative of the public?

    Pesky 6th amendment.

    I’d like to think that volunteer juries with the regular screening process would be better in the long run. What would be wrong with a career juror? Their history, biases, etc would all be publically known and with their consent.

  6. Any taint caused by the selective use of anonymity, however, would vanish if it were the rule.

    100% correct. I’m willing to listen to any rational argument against Steve Chapman’s proposal to keep all jurors’ identity confidential.

  7. The 6th guarantees the right to an “impartial
    jury.” Counsel can question potential jurors to determine impartiality and counsel certainly needs access to the potential juror’s names to determine if a juror is hiding a relationship with a prosecutor or some such. Can counsel withhold such names from his client?

  8. Ah yes, juries. A collection of 12 of the most ignorant people available, with the power of life and death in their hands. I say abolish the system and make them all bench trials.

  9. Sorry for the above, I think I was channeling that ultimate anonymity troll.

  10. 100% correct. I’m willing to listen to any rational argument against Steve Chapman’s proposal to keep all jurors’ identity confidential.

    By what mechanism would “jury of your peers” be guaranteed if they were hidden from view?

    Besides, if jury anonymity became a holy thing, securing mistrial after mistrial would be simple. You can’t hide the identities of twelve people who have to show up at the same public building every day; something will leak eventually.

  11. Anonymity in any form in the justice system has proven disastrous. Perfect example: confidential informants. There’s no reason to think that it work fine in this case.

    Also, Chapman is for it so that generally means it’s a bad idea.

  12. Episiarch,I’d never thought much about non violent offenses till that day.It was obvious the guy caused no harm and was no danger,a fact another brought up.It seemed the main reason he was stopped was the time.It was around 1:00 am.It opened my eyes.As for MJ,I have several friends I play golf with that partake.All collage grads in various professions.I don’t see the danger,hell one seems to play better when smoking!

  13. If the jury were to be hidden from the public it would be a whole other can of worms – how would selection take place?

    Exactly as it is now. Defense and prosecution are officers of the court and can be prohibited from publicly discussing all sorts of things.

    What would the oversight be in the selection process?

    Again, exactly as it is now. Judges, guided by statute, oversee jury selection and preemptory challenges.

    What public assurance would there be that the jury was unbiased and representative of the public?

    You can never “know” that a juror is unbiased. As to representative of the public, in the article Steve Chapmen states

    Since other demographic information about jurors would remain available, the public would lose no crucial knowledge…

    and I concur.

  14. LMNOP,
    I’m sensitive to your slippery slope objection. Not saying I agree, but I definitely understand your reservations.

  15. Also, Chapman is for it so that generally means it’s a bad idea.

    I wrote rational arguments. 😉

  16. The only government officials I can think of off the top of my head that can serve anonymously are spies, and that’s to prevent them from becoming dead.

    Oh wait, also undercover cops and US Marshals. Same reason.

    Unless there’s been a rash of jury killings not being reported on, I’d say that anonymizing the jury pool doesn’t quite make it to the threshold of “stuff that government does that can be held away from public scrutiny”.

    What we are talking about here is placing the power of life and death into the hands of people forever held outside of review or account. Not cool.

  17. I’m sensitive to your slippery slope objection. Not saying I agree, but I definitely understand your reservations.

    This is something that strikes very close to home. I’ve been a vociferous advocate of openness in all aspects of a justice system, because I have seen first-hand the corruption that can take place when a justice system is not accountable to the public.

  18. p.s. It occurs to me that if anonymity is necessary, then sequestration of the jury would become de facto necessary. Think of the expense for the state, not to mention the additional burden on the jurors!

  19. The only government officials I can think of off the top of my head that can serve anonymously are spies, and that’s to prevent them from becoming dead.

    Oh wait, also undercover cops and US Marshals. Same reason.

    As pointed out, in some cases juror identity is kept secret fo obvious reasons. This likely has the unintended consequence of prejudicing said juries. If it’s routine, that problen goes away.

  20. If it’s routine, that problen goes away.

    I don’t see how. If a juror’s identity is kept secret, there’s an implied signal to the juror that their job is dangerous, which implies that the accused suspect is dangerous.

    All making this routine would do is to permanently etch that assumption into every case with a jury.

  21. Under the best of circumstances, jury duty is about as enjoyable as being trapped in an elevator with a Ronco salesman.

    Ronco salesman!? Did you look that up in your 1979 edition of “current cultural references” there Steve? I bet you don’t even know what UHF is. There are no “Ronco salesmen” Mr. retro hip poser. Ronald M. Popeil was Ronco products, he could properly be described as a “pitchman” although he was so much more. Once the Veg-O-Matic commercial hit the air, America was never the same.

  22. John-David – “Ah yes, juries. A collection of 12 of the most ignorant people available, with the power of life and death in their hands. I say abolish the system and make them all bench trials.”

    Ah yes, a collection of lowest common denominator political appointees with the power of life and death in their hands. I say comprise juries of randomly selected citizens with no obvious former conduct (not opinions) indicating clear bias. It only takes one to acquit. The current system results in mostly malleable idiots on juries because one side or the other will weed out anyone with any strength of character or any hint of a nuanced view of life.

    And – defendants already have the right to have the case heard by a judge rather than a jury if they want.

  23. And – I’m mindful of an old lawyer I knew who stoutly maintained that nearly everyone in the justice system is capable of corruption on some cases due to bias or interest. He maintained that the weird rules of evidence and procedure are the system’s attempt to make up for the fact that everybody in the process lies at least some of the time.

  24. the weird rules of evidence and procedure are the system’s attempt to make up for the fact that assist everybody in the process with their lies at least some of the time.

    fixed

    But I’m with you on “comprise juries of randomly selected citizens with no obvious former conduct (not opinions) indicating clear bias”. Except that I’d replace ‘conduct indicating clear bias’ with ‘relationship to any of the principals in the case’.

  25. i’m opposed to juror anonymity, it seems like an unduly drastic prescription for a minor problem. there should be a lot more juror privacy during the voir dire. ever seen a juror questionnaire in a prominent case, e.g., o.j. simpson? it contained “do you own a gun?” and “have you ever used illegal drugs?” the purpose of voir dire, as i see it, is to impanel a jury free of known biases based on relationships with the parties, not to provide a trove of information for jury consultants to exercise their various demographic prejudices. the only way to find out whether i own a gun is to break into my house at night – have your last will and testament in order first.

    google “diana brandborg” for the story of a heroic texas juror who balked at “what is your annual income?” the state court held her in contempt, but the federal district court quashed it. i’m one of the very few 53-year olds who has never been summoned for jury duty, notwithstanding decades of licensed driving/property ownership/registered voting, but as a retired lawyer, i would be diana brandborg on steroids if they asked me questions like this.

  26. Jurors are not government officials who must answer to the citizenry for their decisions.

    Aren’t they?

  27. I’ve often been puzzled that American jurors aren’t granted anonymity. Anybody who remembers the OJ Simpson trial, with Johnnie Cochran sternly advising the jurors that they would have to take their verdict “back to the ‘hood,” can understand how Simpson was acquitted.

  28. Jury service is a civic responsibility as important as voting.

    No, it is coercion and involuntary servitude. Let’s not try to put lipstick on that pig and pretend it isn’t temporary serfdom.

    If the jury were to be hidden from the public it would be a whole other can of worms – how would selection take place? What would the oversight be in the selection process?

    You could conduct voir dire behind closed doors, with strict instructions to not disclose the information.

    But, I think that you need transparency in the process — the ability of reporters and interested parties to view the proceedings — to ensure that jury trials aren’t too flagrantly biased. The real problem is that citizens are conscripted into service. Make an all-volunteer jury paid at a market rate sufficient to ensure enough people show up, and the lack of privacy would simply be a factor people considered when deciding whether to take the job offer.

    What public assurance would there be that the jury was unbiased and representative of the public?

    HAHAHAHA! Whew. * Wipes tears from eyes. * Good one. We have voir dire and peremptory strikes — the ability of lawyers to exclude numerous people from the jury without any given reason at all — and you think that can possibly result in an unbiased jury that is a representative cross-section of the public? Or that it is possible to have a representative cross-section of the public that is unbiased, when the public itself is of necessity biased?

  29. “””Jurors are not government officials who must answer to the citizenry for their decisions.”””

    How big of idiots would we be if we accepted a judicial system where those who saw all the evidence about a trial answered to people who’s knowledge is about an hour of Fox or CNN news?

    “””Johnnie Cochran sternly advising the jurors that they would have to take their verdict “back to the ‘hood,” can understand how Simpson was acquitted.””””

    Appeal to fear about their verdict had no affect on their decision. That verdict falls squarely on a cop that lied about saying the N word, and the other cop that plead the 5th when asked about the missing blood in the vial. Two of the main cops blew their credibility. It made easy work for Cochran and Co to imply the prosecution was based on racism and lies. The cop that plead the 5th handled the blood used for DNA testing. That thows the DNA evidence into question. Cops that were not up and up with the prosecution team blew that case.

  30. “Since the abolition of the draft, jury duty is about the only legal form of involuntary servitude.”

    Uh . . .no. Try being a noncustodial parent. At least with jury duty you get to see the fruit of your slavery, and it is a short-term indenture.

    Most non-custodial parents become “Lost Dads,” forced away from their kids, and constantly threatened with one dire penalty after another if they get behind in their child support — while the “primary caregiver” (ie, mom) can quit her job, then demand more child support based on her decreased income.

  31. I can see that it sucks to be a juror on a high-profile trial, but if we allow anonymity of jurors to be enforced against the press, how do we know that they’re not some pack of apparatchiki chosen by the government?

    -jcr

  32. voir dire and peremptory strikes

    I never have to worry. I give my occupation- satellite communications engineer- and the head of every defense attorney in the room explodes. In five trips into the juror system, I’ve been thanked and excused by the defense seven out of seven times. If I’m feeling snarky, I use “military outer space communications lead designer.” 🙂

    If those fail there’s other ways to answer questions if you really want to get out of there. The one thing I really learned from jury duty was how to game the system during jury seating.

    Tips:

    1. Say it is very important to you that the defendant takes the stand, otherwise you’ll assume guilt. This is actually a fairly common POV, so it’ll fly. In the last case I saw, the defense actually posed the question.

    2. In a gun crime case, the defense *will* ask who owns a gun. If you do, proclaim it as a proud right, and one that carries a high level of personal responsibility.

    3. You can go the other way, too, and get the prosecutor nervous. On *any* drug case advocate the complete legalization of drugs and the end of the Drug War. Talk about how you find it disturbing the way police have become paramilitary organization due to drug policies (Thank you, Reason Magazine!) 🙂

  33. The truth is that most jurors today do not want to remain in the background. How many jump at the chance to be interviewed by the press? Many hope to make money writing books.

    I have been paneled, but always removed. I was actually removed because of my stance on the 2nd amendment. It was a self-defense case and all gun-owners had to identify themselves and answer other questions in that area. The DA said I was scarey because I owned a gun but was not a hunter.

  34. After reading Quiet Desperation’s I have a better understanding of how cops are aquitted for shooting innocent people, and why Haynes and Co was so successful with lame evidence in Mississippi.

  35. “””Talk about how you find it disturbing the way police have become paramilitary organization due to drug policies (Thank you, Reason Magazine!) :-)”””

    You might actually help fight against the drug war by keeping your mouth shut and aquitting.

    Not directed at any one person but intelligent people talking about getting out of jury duty shouldn’t complain about the lack of quality in the outcome.

  36. You might actually help fight against the drug war by keeping your mouth shut and aquitting.

    Yes, but you see that would involve doing actual work for a system that rapes my wallet, rapes my sensibilities and just generally rapes reality, and doesn’t even buy dinner first. You *and* the system are all cordially invited to blow me.

    Not directed at any one person but intelligent people talking about getting out of jury duty shouldn’t complain about the lack of quality in the outcome.

    Well, I solve that by not complaining. 🙂 I’m such a misanthropic pessimist I expect the worst possible outcome, so when actual justice is served I can only be pleasantly surprised.

    And my “methods” of getting out of jury duty involve nothing more than telling the absolute truth about what I believe. It’s the *system* that rejects *me*. I just make it easier for it.

    Ultimately, I haven’t cared since I made the decision to retire overseas in about 8 to 10 years.

  37. An awful lot of Mr. Chapman’s articles read like cowardly sorts of Authoritarian ideas rather than Libertarian ones. Why is this guy on Reason again?

    Anyway its not like we have an epidemic of Jury tampering and witness intimidation.

    I’d rather make the case that Jury duty pays the prevailing wage as a salary instead. This might make people a bit more interested in serving.Cut off federal aid ,combine it with an end to plea bargains, proper minimum jail standards and mandatory funding equality for defense and I’ll guarantee you that a lot of bad laws will go away.

    As for this idea, its a great way to facilitate a police state. It rather reminds me of the masked Judges in 3rd world dictatorships or of a hooded lynch mob.

    Justice is very much a public matter. Private justice after all is vigilantism at its worst. Hidden justice is not justice

  38. In some ways jurors are already cloaked in an excessive shroud of secrecy. In particular, the inadmissability of testimony concerning jury deliberations can prevent a wrongfully convicted defendant from demonstrating the impropriety of his conviction.

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