Juror [REDACTED]: The Rise of Anonymous Juries

The “El Chapo” trial in New York has brought anonymous juries into the spotlight recently. Following the prosecutor’s motion, the district court judge ruled that the jury would be anonymous and partially sequestered to protect the trial’s integrity and minimize jurors’ fears of harassment or intimidation. Despite the defense’s opposition, the judge implemented these measures based on the high media profile of the case and the violent history of the cartel that El Chapo controlled for 25 years.

By New York statute, a court may issue a protective order for good cause shown upon the motion of a party or upon its own initiative that regulates the disclosure of the business or address of a prospective or sworn juror. If granted, only counsel for the parties will have access to such information. Good cause exists where there is a likelihood of bribery, jury tampering, or physical injury or harassment of the jurors. Notably, the statute does not permit the protection of jurors’ names, as a New York appellate court recently pointed out in People v. Flores.

Under Second Circuit case law, empaneling an anonymous jury requires the judge to identify and take reasonable precautions to minimize prejudice and assure that the defendant’s rights remain protected. The judge must also give appropriate charges to the jurors. Generally, anonymous juries have been found appropriate in cases where the defendant was involved in organized crime, the defendant was a member or participated in a group that had the ability to harm jurors, the defendant attempted to interfere with the judicial process in the past, the defendant’s potential sentence would involve a lengthy period of incarceration, or when there is extensive publicity and allegations of dangerous conduct.

Though anonymous juries are far from common, their use seems particularly troubling for the Sixth Amendment’s demand for a fair trial by an impartial jury. After all, a mandate from a judge declaring a case so sensitive that the jurors must remain anonymous certainly sends a signal to the jurors that they have reason to fear for their safety and that the defendant is dangerous. Such a decision may cause so much anxiety that it affects the jury pool, as in the El Chapo case where the judge dismissed a juror who developed extreme anxiety after her selection. A juror who fears for their safety would likely be unable to think clearly or able to judge a case impartially. Further, this could interfere with ensuring the defendant’s presumption of innocence because a judge has already essentially told jurors that the defendant is extremely dangerous, which may cause jurors to reason that conviction is justified before any evidence in the case is ever presented. Moreover, the use of an anonymous jury impedes media coverage, which touches on yet another important principle of our American concept of the jury trial—the public’s right of access.

The most problematic aspect of the use of anonymous juries stems from the fact that the procedures seemingly provide little protection to the jurors at all, at least under the New York statutory approach where jurors’ names must be released. In the internet age, a name is all you need to uncover all sorts of details about a person’s life, including their business and addresses, which may be withheld under the New York statute.

So just who are we protecting? Because it seems that the use of the anonymous jury does little to protect the jurors themselves if their names are released anyways (or even if names are released after the trial as is true in some cases). It does little to protect the defendant, who will likely suffer from prejudicial treatment stemming from the message sent by the mere fact of empaneling an anonymous jury in the first place. And it does little to protect the integrity of the trial itself because doubts arise about the impartiality of jurors who have been implicitly told that they have reason to fear the defendant and for their own personal safety as a result of their service. In fact, the practice seems to only protect the prosecution’s chances of winning a guilty verdict. In one mock juror study, anonymous jurors returned over 15% more guilty verdicts than non-anonymous jurors (Lynn Hazelwood & John C. Brigham, The Effects of Juror Anonymity on Jury Verdicts, 22 Law & Human Behavior 695 1998).