Anonymous Juries


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.
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
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 undesir-able
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
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
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
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 almsot 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

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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