Juror Anonymity: Issues And Instructions

(December 2001)

by Thomas Lundy

    Trial by an anonymous jury is a "drastic measure, one which should be undertaken only in limited and carefully delineated circumstances." (U.S. v. Ross (11th Cir. 1994) 33 F3d 1507, 1519.) In balancing the government’s interest in safeguarding the jurors the totality of the circumstances must be considered. (See generally Caplow & Griffin, Multidefendant Criminal Cases: Federal Law & Procedure (West, 1998) §§ 12:5, pp. 226-27.)

    Typically, juror anonymity is permitted upon a showing of good cause. (See e.g., Erickson v. Superior Court (CA 1997) 55 CA4th 755 [64 CR2d 230].) Deciding to withhold even the name and address of a member of the venire "require[s] a trial court to make a sensitive appraisal of the climate surrounding a trial and a prediction as to the potential security or publicity problems that may arise during the proceedings." (U.S. v. Childress (DC Cir. 1995) 58 F3d 693, 702; see also U.S. v. Branch (5th Cir. 1996) 91 F3d 699, 723.) Therefore, a "strong reason" must exist for use of an anonymous jury and if anonymity is ordered, "reasonable precautions" must be taken by the court to ensure defendant’s fundamental rights are protected. (See U.S. v. Wong (2nd Cir. 1994) 40 F3d 1347, 1376 U.S. v. Riggio (5th Cir. 1995) 70 F3d 336, 340 and fn 23.)

    The following are examples of good cause which may justify use of an anonymous jury: "(1) the defendants' involvement in organized crime; (2) the defendants’ participation in a group with the capacity to harm jurors; (3) the defendants' past attempts to interfere with the judicial process or witnesses; (4) the potential that, if convicted, the defendants will suffer a lengthy incarceration and substantial monetary penalties; and, (5) extensive publicity that could enhance the possibility that jurors’ names would become public and expose them to intimidation and harassment." (Branch, 91 F3d at 724.)

    In addition, trial courts should look to the "totality of the circumstances." (U.S. v. Ross (11th Cir. 1996) 33 F3d 1507, 1521, fn 26; see also U.S. v. Sanchez (5th Cir. 1996) 74 F3d 562, 564-65 [rejecting an anonymous jury because there was no indication that the jurors would be subjected to intimidation and harassment].) Hence, in any case where the jurors are referred to by number without the required showing of necessity, the rights of the defendant to a fair trial by jury and due process under the 5th, 6th and 14th Amendments to the federal constitution may be implicated. (See Section II, below.)

    II.     Juror Anonymity Is Prejudicial To The Defendant

    Juror anonymity may implicate a criminal defendan’'s constitutional rights to a fair trial and due process. Procedural measures violate the defendant’s constitutional right to a fair trial if they are inherently prejudicial or cause actual prejudice. (Holbrook v. Flynn (1986) 475 US 560, 572 [106 SCt 1340; 89 LEd2d 525]; see also Illinois v. Allen (1970) 397 US 337 [90 SCt 1057; 25 LEd2d 353]; Morgan v. Aispuro (9th Cir. 1991) 946 F2d 1462, 1465 [enhanced security measures may implicate the 6th Amendment right to a fair trial and the presumption of innocence]; but see U.S. v. Scarfo (3rd Cir. 1988) 850 F2d 1015, 1026 ["juror who fears a defendant’s retaliation might be more apt to return a guilty verdict despite such fears rather than because of them"].)

    When the jury is anonymous the impact upon the jurors is inherently prejudicial.

    First, juror anonymity implies that the defendant is a "dangerous person from whom the jury must be protected, thereby implicating the defendant's constitutional right to presumption of innocence." (U.S. v. Thomas (2nd Cir. 1985) 757 F2d 1359, 1364; see also Illinois v. Allen (1970) 397 US 337, 344 [90 SCt 1057; 25 LEd2d 353] [shackling of defendant is likely to lead jurors to infer that he or she is a violent person disposed to commit crimes of the type alleged]; U.S. v. Scarfo (3rd Cir. 1988) 850 F2d 1015, 1021-230.)

    Second, the anonymity procedure suggests that the defendant may attempt to influence the outcome of the trial by intimidation which implies a consciousness of guilt and is highly prejudicial. (See e.g., People v. Hannon (CA 1977) 19 C3d 588, 600 [138 CR 885].)

    Third, the jurors will naturally assume that the judge made the anonymity order based on his or her predetermination that the defendant is guilty and, therefore, the jury needs to be protected. (See e.g., U.S. v. Thomas (2nd Cir. 1985) 757 F2d 1359, 1364-5; see also "Courtroom Security: Sources Of Prejudice To The Defendant.") Such an assumption would be highly prejudicial and would undermine the presumption of innocence. (Ibid.)

    Fourth, unnecessary juror anonymity may diminish the jurors’ sense of responsibility for their verdict which undermines the reliability of the verdict in violation of the right to a fair jury trial and due process (5th, 6th and 14th Amendments). (See generally White v. Illinois (1992) 502 US 346 [112 SCt 736; 116 LEd2d 848] ["Reliability is ... a due process concern"]; see also "Federal Constitutional Rights Implicated By Unreliable Trial Or Conviction.") And, in capital cases, the 8th Amendment right to be free from cruel and unusual punishment may also be implicated. (Cf. Caldwell v. Mississippi (1985) 472 US 320, 328-34 [105 SCt 2633; 86 LEd2d 231] [reliability of jury verdict undermined when jurors’ sense of personal responsibility is compromised].)

    In sum, "[t]he dangers of impaneling an anonymous jury are an increase in bias against the defendant and a threat to the presumption of innocence." (Caplow & Griffin, Multidefendant Criminal Cases: Federal Law & Procedure (West, 1998) §§ 12:5, p. 226; see also U.S. v. Ross (11th Cir. 1996) 33 F3d 1507, 1519.)

    Although it is generally assumed that the jury will follow the court’s admonitions (see U.S. v. Greer (1987) 483 US 756, 767 [107 SCt 3102; 97 LEd2d 618]; People v. Arias (CA 1996) 13 C4th 92, 148 [51 CR2d 770]), this presumption is "rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical accommodation ...." (Richardson v. Marsh (1987) 481 US 200, 208 [107 SCt 1702; 95 LEd2d 176].) In point of fact the "benefit of a cautionary instruction is ‘debatable’ in that it may tend to highlight the fact it was intended to minimize." (People v. Frierson (CA 1991) 53 C3d 730, 744 [280 CR 440]; see also People v. Melton (CA 1988) 44 C3d 713, 757-58 [244 CR 867] [no sua sponte duty to instruct the jury to not draw an adverse inference from a defendant's failure to testify].) (See also  "Cautionary Or Limiting Instructions May Emphasize The Prejudicial Matter".) This reality provides another basis for arguing against juror anonymity. It is one thing to presume that cautionary instructions will cure prejudice from security procedures which have been shown to be necessary due to the defendant's own conduct. (See e.g., Arias, 13 C4th at 148 [defendant’s courtroom outbursts].) Normally in such cases the necessity of the situation justifies requiring the defendant to rely on the "debatable" utility of a limiting instruction.

    However, it is quite another thing to unnecessarily expose the defendant to a potentially prejudicial procedure without any showing that the defendant’s conduct necessitated the procedure. In such a situation it is an unfair abridgement of the defendant’s rights to a fair trial and due process to require the defense to rely upon a limiting instruction to protect against an inherently prejudicial procedure which has not been shown to be necessary under the circumstances. (See Illinois v. Allen (1970) 397 US 337 [90 SCt 1057; 25 LEd2d 353]; People v. Duran (CA 1976) 16 C3d 282, 292 [127 CR 618].)

    Once the court finds that impaneling an anonymous jury is justified, it may be appropriate to take reasonable precautions to minimize any prejudicial effects to the defendant. (See, e.g., U.S. v. DeLuca (1st Cir. 1998)137 F3d 24, 31 [reasonable safeguards must be adopted by the trial court to minimize any risk of infringement upon the fundamental rights of the accused]; U.S. v. Paccione (2nd Cir. 1991) 949 F2d 1183, 1192-93; U.S. v. Tutino (2nd Cir. 1989) 883 F2d 1125, 1132-33; U.S. v. Thomas (2nd Cir. 1985) 757 F2d 1359, 1364.)

    "The danger that the jury might infer that the need for anonymity was due to the defendant’s character may also be minimized where the court gives the jurors ‘a plausible and nonprejudicial reason for not disclosing their identities or for taking other security measures.’ [citation.]" (Caplow & Griffin, Multidefendant Criminal Cases: Federal Law & Procedure (West, 1998) §§ 12:5, pp. 231-32.)

    For example, the jury may be instructed that anonymity is a common practice (see U.S. v. Tutino (2nd Cir. 1989) 883 F2d 1125, 1133) or that it is being used to protect the jurors from the pressures of the media. (See U.S. v. LoCascio (2nd Cir. 1993) 6 F3d 924, 947 [instruction approved that informed jurors that protective measures were necessary because of "undue publicity"]; see also Maldonado-Rivera (2nd Cir. 1990) 922 F2d 934, 971; and see U.S. v. Thomas (2nd Cir. 1985) 757 F2d 1359, 1365, fn 1; [jury told that sequestration and anonymity required because of "considerable publicity" among "the media and the public"]; Caplow & Griffin, Multidefendant Criminal Cases: Federal Law & Procedure (West, 1998) §§ 12:5, p. 232.)

    Additionally, counsel could request that the court "instruct the jury at the outset of the trial that these special procedures are routine and designed to protect the jury from any contacts by the media with respect to the ... case. This plausible and nonprejudicial reason for not disclosing the jurors’ identity or taking any other security measures will minimize the possibility that the anonymous procedure would cast unfair aspersions on the defendants [citations]." (U.S. v. Gambino (S.D. NY 1992) 809 FSupp 1061, 1068.)

    Furthermore, the court should protect the defendant’s right to a fair and impartial jury by conducting a "probing voir dire that will attempt to uncover any biases that jurors might have..." (Ibid.; see also e.g., U.S. v. Vario (2nd Cir. 1991) 943 F2d 236, 241-42; U.S. v. Barnes (2nd Cir. 1979) 604 F2d 121, 140.) The voir dire should also be supplemented by use of a "comprehensive jury questionnaire to insure that both the government and defense counsel will have an ‘arsenal of information’ about each potential juror containing ‘responses to questions concerning his own life, as well as his attitudes about the issues that would arise in the case’ and, therefore, the parties will be able to intelligently exercise their challenges for cause and peremptory challenges." (U.S. v. Branch (5th Cir. 1996) 91 F3d 699, 723-24 [anonymous jury instruction given due to the public attention surrounding the case]; U.S. v. Halliburton (9th Cir. 1989) 870 F2d 557 [jury informed that escort was due to the neighborhood and late court sessions]; U.S. v. Gambino (S.D. NY 1992) 809 FSupp 1061, 1068.)

CAVEAT: Of course, the decision whether to request such an instruction requires careful evaluation of whether it will unduly emphasize the factor sought to be limited. (See Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) Chapter 1-1:18, p. 1-13 [counsel will need to make a tactical judgment about whether the instructions regarding juror anonymity are more beneficial than detrimental].) Consideration should also be given to the impact of the cautionary instruction on the potential constitutional challenge on appeal. Whether requested or not counsel should consider emphasizing the inadequacy of a limiting instruction due to the danger it will highlight the prejudice. (See Section III, above.)

NOTE: Moreover, by analogy to shackling, if the jurors are referred to by number over defendant's objection, a limiting instruction may be required sua sponte unless the defendant expressly waives such instruction. (See "Courtroom Security: Request Or Sua Sponte".)

    [As a matter of routine procedure] [To protect you from unwarranted intrusions from the media] you will be referred to by your juror identification number rather than your name during the trial.

    You may not consider the use of this procedure for any purpose or draw any inferences from it at all. Do not consider it as evidence of anything and do not permit it to enter into your view of the evidence or your later deliberations. Such procedures should have no bearing on your determination of whether or not the defendant has been proven guilty beyond a reasonable doubt.

[Source: NCJIC.]

SAMPLE INSTRUCTION # 2 [Customary Practice]:

    Ladies and gentlemen of the jury, you will be referred to by number rather than name during this trial. This is a customary practice that has nothing to do with the defendant.

[Source: NCJIC.]

    Ladies and gentlemen of the jury, you will be referred to by number rather than name during this trial. This is a customary practice that has nothing to do with the defendant. Therefore, you can see that it would be very unfair for you to somehow hold this procedure against the defendant, when it has nothing to do with [him] [her] at all. As a result, I instruct you that you may not consider the use of numbers rather than names at all. Do not consider it as evidence of anything and do not permit it to enter into your view of the evidence or your later deliberations.

[Source: NCJIC.]

SAMPLE INSTRUCTION # 4 [Anonymity as "Experiment"]:

    This case is a little different from most in that, as you know, you have been selected on an anonymous basis. This is a sort of experimental procedure that we are trying in this case; and the reasons for it, I want to make clear, do not have anything to do with whether or not the defendant is guilty. That question is something which you as jurors must decide on the basis of the evidence which has been presented.

[Source: Instruction given in U.S. v. Scarfo (E.D. Pa. 1987)1987 WL 14505.]

    And as I told you at the beginning, and I will repeat now, the fact that you have been sequestered and have been kept anonymous does not represent any expression of opinion on the part of the court as to the validity or accuracy of any of the testimony which has been presented. This does not represent a decision that in fact these witnesses for the government are telling the truth, nor, of course, does it state a contrary position. It is simply a totally neutral decision so far as you are concerned.

[Source: Instruction given in U.S. v. Scarfo (E.D. Pa. 1987) 1987 WL 14505.]

    Jury instruction issues are an important consideration in any case involving anonymous jurors. First, the very decision of whether or not to permit juror anonymity may be impacted by consideration of how effective limiting instructions would be. Second, if juror anonymity is ordered counsel will have to make a strategic evaluation of the situation to decide whether to request instructions. Third, the key to an effective instruction may be in its ability to convince the jurors that their anonymity has nothing to do with the defendant. In this regard, the most fruitful avenue may be to inform the jury that anonymity is a matter of routing or regular procedure that is designed to protect the jurors from the media. However, in the final analysis, counsel will have to decide how well such instructions will play with the jury.

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Juror Anonymity: Issues And Instructions Related Issues

NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM

VOLUME 3 - CHAPTER 17

PRACTICE NOTE: There are several sources of prejudice to the defendant when the jury becomes aware of security measures.

    First, "the constitutional presumption of innocence may be undermined by the physical indicia of guilt..." (U.S. v. Childress (DC Cir. 1995) 58 F3d 693, 704.) The jurors may assume, from the use of security measures, that the defendant is a dangerous person. (See, e.g., U.S. v. Thomas (2nd Cir. 1985) 757 F2d 1359, 1364-65; U.S. v. Scarfo (3rd Cir. 1988) 850 F2d 1015, 1021-23.) This may undermine the presumption of innocence because the jury may rely on the defendant’s assumed bad character and propensity to commit violent crimes to convict even in the absence of proof beyond a reasonable doubt as to the defendant’s guilt of the charged crime. (See Illinois v. Allen (1970) 397 US 337, 344 [90 SCt 1057; 89 LEd2d 525] [shackling of defendant is likely to lead jurors to infer that he or she is a violent person disposed to commit crimes of the type alleged]; see also Estelle v. Williams (76) 425 US 501, 512 [96 SCt 1691; 48 LEd2d 126] [trial in prison garb is unconstitutional]; Spain v. Rushen (9th Cir. 1989) 883 F2d 712, 715, 721.)

    Second, security measures suggest to the jury that the defendant may attempt to escape, thus implying a consciousness of guilt. "'It is universally conceded today that the fact of an accused's flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself.' [Citation to Wigmore, Evidence.]" (U.S. v. Clark 8th Cir. 1995) 45 F3d 1247, 1250; see also NCJIC 34.2.1 [Consciousness Of Guilt Requires A Logical Chain Of Inferences] Available to subscribers.  To become a subscriber, click here.) Thus, as a matter of common sense, jurors will be likely to conclude that, if the defendant is an escape risk, the defendant is more likely to be guilty. (See generally NCJIC 34.3 [Flight] Available to subscribers.  To become a subscriber, click here.)

    Third, the very existence of security measures suggests to the jury that the judge, who presumably ordered that the security measures be imposed, believes the defendant is guilty. This is effectively a comment on the evidence by the judge which further undermines the presumption of innocence. Any comment by the court indicating belief in the defendant's guilt is highly prejudicial. (See NCJIC 16.14.3.5 [No Inference From Rulings Of The Court: Cautionary Instruction] Available to subscribers.  To become a subscriber, click here.; NCJIC 297.6.1 [Whether Inconsistent Verdicts Can Be Overturned On Appeal] Available to subscribers.  To become a subscriber, click here.)

    Communication between the defendant and counsel is an essential underpinning of the 6th Amendment right to counsel. "[T]he unjustified use of restraints could, in a real sense, impair the ability of the defendant to communicate effectively with counsel." (People v. Fierro (CA 1991) 1 C4th 173, 220 [3 CR2d 426]; see also Spain v. Rushen (9th Cir. 1989) 883 F2d 712, 721.)

    See also NCJIC 300.27.1 [Trial] Available to subscribers.  To become a subscriber, click here.

    Restraints also offends the confrontation clause and the right to a fair jury by impairing the defendant's ability to confront the prosecution witness. (Illinois v. Allen (1970) 397 US 337, 338 [90 SCt 1057; 25 LEd2d 353].)

See Capital Punishment Handbook [4.1.6 a. Defendant’s Appearance Before Jury: Jail Clothing And Restraints: General Principles And Authorities] Available to subscribers.  To become a subscriber, click here.

See also generally, NCJIC 305.16.5 [Physical Restraints, Courtroom Security, Disruption, Etc.] Available to subscribers.  To become a subscriber, click here.

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NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM

VOLUME 16 - CHAPTER 300

PRACTICE NOTE: "Reliability is ... a due process concern." (White v. Illinois (1992) 502 US 346, 363-64 [112 SCt 736; 116 LEd2d 848].) Hence, the Due Process clauses of the federal constitution (5th and 14th Amendments) require that criminal convictions be "reliable and trustworthy." (California v. Green (1970) 399 US 149, 164 [90 SCt 1930; 26 LEd2d 489] [due process might prevent convictions where a reliable evidentiary basis is totally lacking]; see also Donnelly v. DeChristoforo (1974) 416 US 637, 646 [94 SCt 1868; 40 LEd2d 431] and cases collected at fn 22 [due process "cannot tolerate" convictions based on false evidence]; Thompson v. City of Louisville (1960) 362 US 199, 204 [80 SCt 624; 4 LEd2d 654].)

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NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM

VOLUME 14 - CHAPTER 297

PRACTICE NOTE: Cautionary/limiting instructions may actually heighten the prejudice that they were meant to alleviate. (See e.g., People v. Garcia (CA 1984) 160 CA3d 82, 93 [206 CR 468] ["A strong argument can be made that [an admonition to disregard the defendant's courtroom behavior] does little to dispel prejudice and instead only serves to emphasize an unruly defendant's conduct"]; see also U.S. v. Brawner (DC Cir. 1994) 32 F3d 602, 605 [defense counsel should be free to make as little of the admission by defendant of a prior felony conviction as possible].) As a matter of trial strategy, it may be decided that a limiting instruction would only serve to emphasize the conviction, and hence no admonition may be requested. (Ibid.; see also People v. Elmore (MI 1979) 285 NW2d 417, 420 [trial court properly refused defense request for cautionary instruction because it would emphasize defendant's outburst].)

    "One experienced judge has compared a limiting instruction to an act of throwing a skunk into the jury box and telling the jury not to smell it." (Alexander, MAINE JURY INSTRUCTIONS MANUAL 4-14 [Limited Purpose Evidence-Limiting Instructions] (Lexis, 1999). This merely emphasizes the need to balance the need for limiting instructions against the risk of prejudice. The primary prejudice is that the limiting instruction may give undue significance to the evidence in the jury’s mind. (Ibid.)

    See also NCJIC 26.5.3.2 [Ineffectiveness Of Limiting Instruction As To Uncharged Acts Or Crimes] Available to subscribers.  To become a subscriber, click here.

    See also NCJIC 272.5.4 [Inability Of Limiting Instruction To Cure Highly Prejudicial Misconduct During Summation/Closing Argument] Available to subscribers.  To become a subscriber, click here.

RESEARCH NOTES:

See generally, NCJIC 305.1.12 [Appeal] Available to subscribers.  To become a subscriber, click here.

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NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM

VOLUME 3 - CHAPTER 17

PRACTICE NOTE: There are conflicting views as to whether cautionary instructions on security measures should be given sua sponte (on the court's own motion.)

    People v. Duran (CA 1976) 16 C3d 282, 291-92 [127 CR 618] held that the trial court is required to instruct sua sponte that restraints should have no bearing on the determination of the defendant's guilt when such restraints are visible to the jury. (See also Thomas v. Nevada (NV 1978) 584 P2d 674, 677; State v. Roberts (NJ 1965) 206 A2d 200, 205; State v. Thompson (TN 1991) 832 SW2d 577, 581 [in cases involving the use of shackles in the view of the jury, a limiting instruction is a fundamental safeguard, and the trial court's duty to give such an instruction does not depend on a request by the defendant]; State v. Smith (TN 1982) 639 SW2d 677, 681; Willocks v. State (TN 1976) 546 SW2d 819, 822 [sua sponte duty to instruct that shackling should in no way influence the determination of guilt or innocence or the assessment of punishment].)

    On the other hand, there are situations where a defendant would not want the jury cautioned for strategic reasons. Consequently, some jurisdictions have specifically declined to impose upon the trial court the mandatory responsibility of giving such an instruction when the defendant fails to request one. (See Patterson v. Estelle (5th Cir. 1974) 494 F2d 37, 38; Wilson v. McCarthy (9th Cir. 1985) 770 F2d 1482, 1485; State v. Stewart (MN 1979) 276 NW2d 51, 63 ["decision to instruct the jury on the use of restraints is left with defense counsel. We believe this to be the better rule since any imposition of a requirement of sua sponte instructions by the trial court transfers the trial strategy from defense counsel to the trial judge"]; People v. Young (NY 1992) 586 NYS2d 805; State v. Paige (NC 1986) 343 SE2d 848, 858; State v. Cassel (WI 1970) 180 NW2d 607, 612.)

    In any event, regardless of whether the instruction is required sua sponte or only on request, it should not be given over objection. (See NCJIC 17.1.8 [Courtroom Security: No Instruction Over Objection] Available to subscribers.  To become a subscriber, click here.)

See Capital Punishment Handbook [4.1.6 a. Defendant’s Appearance Before Jury: Jail Clothing And Restraints: General Principles And Authorities] Available to subscribers.  To become a subscriber, click here.

See also generally, NCJIC 305.16.5 [Physical Restraints, Courtroom Security, Disruption, Etc.] Available to subscribers.  To become a subscriber, click here.

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