BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007
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Section 2 - Plea Taking/Criminal Trial

    2.05  Jury Selection--Criminal

        2.05.1 Jury Selection-Criminal: General Principles
        2.05.2 Jury Selection-Criminal: Peremptory Challenges
        2.05.3 Jury Selection-Criminal: Anonymous Juries
        2.05.4 Jury Selection-Criminal: Other Sources

1. The opponent of a peremptory challenge must make out a prima facie case of discrimination based on the totality of the relevant facts. [FOOTNOTE 1]

• conduct the above inquiry on the record but outside of the venire’s hearing, to avoid "tainting" the venire by discussions of race, gender, or other characteristics of potential jurors; and
• use a method of jury selection which requires litigants to exercise challenges at sidebar or otherwise outside the venire’s hearing and in which no venire members are dismissed until all of the challenges have been exercised. See Jury Selection Procedures in United States District Courts, supra.
• These procedures should ensure that prospective jurors are never aware of Batson discussions or arguments about challenges and therefore can draw no adverse inferences by being temporarily dismissed from the venire and then recalled. [FOOTNOTE 2]

FOOTNOTES:

Footnote 1:    “[A] defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” The defendant does not have to show that it was “more likely than not” that discrimination occurred. Johnson v. California, 125 S. Ct. 2410, 2417 (2005).

Footnote 2:     For a summary of procedures that courts developed for criminal cases in the first two years after Batson, see Bench Comment, nos. 3 & 4 (1988). For a discussion of voir dire practices in light of Batson, see Chambers to Chambers, vol. 5, no. 2 ( Federal Judicial Center 1987).

In rare cases, a district court may determine that a jury should be impaneled anonymously because of concerns about juror safety or tampering. The court may enter an order to prevent disclosure of names, addresses, places of employment, and other facts that might reveal the identity of jurors. [FOOTNOTE 4] The Benchbook Committee neither advocates nor discourages use of an anonymous jury but notes that courts must be careful to take steps to minimize potential prejudice to defendants from this procedure. Listed below are the main "rules" that may be summarized from circuit court decisions on this issue. [FOOTNOTE 5]

1. There must be a strong reason to believe the jury needs protection. For example, anonymous juries have been approved in cases involving organized crime figures who, currently or previously, attempted to or did influence, intimidate, or harm witnesses, jurors, or judges. Extensive media coverage may be considered in combination with other factors.

2. The court must take reasonable precautions to minimize any prejudicial effects on the defendant and ensure that fundamental rights to an impartial jury and fair trial are not infringed. For example, the court should

(a) ensure that the voir dire allows the defendant to adequately assess the prospective jurors and uncover possible bias as to the defendant or the issues in the case. The court should conduct a thorough and searching voir dire, which could include use of written questionnaires.

(b) give plausible and nonprejudicial reasons to ensure that the explanation for jury anonymity does not adversely reflect on the defendant. The court may, for example, assure jurors that this is a common practice or that it is to protect them from unwanted media attention. [FOOTNOTE 6] It may be advisable to repeat the explanation during jury instructions and before jury deliberation, to stress that the need for anonymity should have no effect on the verdict.

FOOTNOTES:

Footnote 3:    Note that, with one exception, anonymous juries are not allowed in capital cases. See 18 USC 3432 (defendant charged with capital offense must be given list of potential jurors and witnesses three days before trial, “except that such list of the veniremen and witnesses need not be furnished if the court finds by a preponderance of the evidence that providing the list may jeopardize the life or safety of any person”) (exception added Sept. 13, 1994). 

Footnote 4:    The Third Circuit held that it is within the trial court’s discretion to hold an evidentiary hearing on whether the facts warrant an anonymous jury. It also held that the court is not required to make findings and give reasons on the record for using an anonymous jury, but suggested that doing so is the “better practice.” See United States v. Eufrasio, 935 F.2d 553 (3d Cir.), cert. denied sub nom. Idone v. United States, 112 S. Ct. 340 (1991).

Footnote 5:    Most circuits have now ruled on this issue and approved the use of anonymous juries under appropriate circumstances. See United States v. Shryock, 342 F.3d 948, 971 (9th Cir. 2003), cert. denied, 124 S. Ct. 1729 (2004); United States v. Talley, 164 F.3d 989, 1001–02 (6th Cir.), cert. denied, 119 S. Ct. 1793 (1999); United States v. DeLuca, 137 F.3d 24 (1st Cir.), cert denied, 119 S. Ct. 174 (1998); United States v. Darden, 70 F.3d 1507 (8th Cir. 1995), cert. denied, 116 S. Ct. 1449 (1996); United States v. Krout, 66 F.3d 1420 (5th Cir. 1995), cert. denied, 116 S. Ct. 963 (1996); United States v. Edmond, 52 F.3d 1080 (D.C. Cir.) (per curiam), cert denied, 116 S. Ct. 539 (1995); United States v. Ross, 33 F.3d 1507 (11th Cir. 1994), cert. denied, 115 S. Ct. 2558 (1995); United States v. Crockett, 979 F.2d 1204 (7th Cir. 1992), cert. denied, 113 S. Ct. 1617 (1993); United States v. Paccione, 949 F.2d 1183 (2d Cir. 1991) (also discussing several prior Second Circuit cases), cert. denied, 112 S. Ct. 3029 (1992); United States v. Scarfo, 850 F.2d 1015 (3d Cir.), cert. denied, 488 U.S. 910 (1988).

Footnote 6:    For examples of explanations, see Ross, 33 F.3d 1507, at n.27; United States v. Tutino, 883 F.2d 1125 (2d Cir. 1989), cert. denied, 493 F.2d 1081 (1990); Scarfo, 850 F.2d 1015, at Appendix; United States v. Barnes, 604 F.2d 121 (2d Cir. 1979), cert. denied, 446 U.S. 907 (1980).