The Anonymity of 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 

 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 

 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 

 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 

 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." 

 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 


 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.

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.


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 

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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