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Nov 16 2010

Anonymous Juries Not Good For System

Recently, a former law student of mine called me to ask my opinion for an article he was writing about anonymous juries. I told him that I was against them in general and that I thought in the long run, anonymous juries did more harm than good.  He boiled down our half hour conversation to one quote in the article:

“Telling a jury that their identities are being kept anonymous is tantamount to the judge saying to them, ‘We know the defendant and his friends are dangerous bad guys.’ The presumption of innocence goes out the window.”

His response in the article was: “This worry seems overblown”   Gee thanks. He bases his opinion on four trials on which he served as a juror and about a dozen more he observed as an intern in a  NY trial court. While that’s great experience for a law student to have, its not enough of a sample to really assess whether anonymous juries would work in NY. You need to get in the trenches a little more with someone’s life, future, career or life savings on the line to realize the full value of open juries.

Here’s the link to the whole article in City Journal if you’re interested ( http://www.city-journal.org/2010/eon1110sc.html) .

The entire American system is based on open courtrooms and on giving the defendant all the possible information he can have in his fight against the government. We know it can be messy and inconvenient, but we are predominantly worried about whether its fair.  The right of the defendant to know who is judging him is paramount. Of course, courts must also be mindful of the Sixth Amendment to the US Constitution which gives the accused the “right to  a speedy and public trial, by an impartial jury.”

My student points out that the Federal system allows courts to provide anonymity to jurors in certain cases.  But who said the Federal system was fair? It is usually universally decried by legal analysts as being slanted towards the prosecution from beginning to end.  Its shortened jury selection process and anonymous jurors are just part of a troubled system that hardly ever gives a defendant a break. The minute potential jurors are told that their information will be kept anonymous, there can only be one conclusion: this guy in front of us is so dangerous they don’t even want him to know our names. They will also be more prone to ignore the presumption of innocence as they will see a guilty verdict as an act of self preservation. Another consideration often overlooked by proponents of anonymous jurors is that since the dawn of American jurisprudence, the jury has always been seen as a body of government with an obligation to serve the  public.  Jurors are keepers of a public trust and they perform a public function. Like potential candidates for public office that requires that some personal information be made public so that the public can know who exactly is performing their public functions.

But apart from the rights of the defendant, anonymous juries also damage our system of justice (and the First Amendment) which is based on  open courts and access to information.  The free press has a right to gather news and information related to a case  and to analyze why certain cases went one way or another.  Maybe they won’t want to talk right after a case has ended but maybe several years later they will,and a reporter should have access to the info to find them.  But most importantly, there have been several instances where litigants have uncovered a potential bias from a sitting juror which they would not have uncovered had the jurors been anonymous.

Recently, a friend of mine sat as a juror on a police brutality trial.  While I will write about her experiences in a later post, I asked her what she would have thought if the court told her that all jurors would be anonymous.  Without knowing my opinion on the subject, she said, “I would have thought, Oh wow, this guy must be a real criminal.  He must have done something to deserve the beating.”  The only way to make anonymous juries work is to make all juries anonymous and that is too big a sacrifice to our system of justice and freedom of the press.

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