Saturday, August 10, 2019
What's an anonymous jury? The exact details vary somewhat from jurisdiction to jurisdiction, but here's what was done in a recent Nevada case:
[T]he district court decided to empanel an anonymous jury and redact the jurors’ names and addresses from the juror questionnaires. The record indicates that the district court expressly explained its reasons for doing so to the parties before trial. The record also indicates that counsel retained access to the jurors’ geographical locations, ages, professions, education levels, family demographics, and other biographical and personal information. Moreover, the district court apparently invited counsel to view the unredacted juror questionnaires of certain jurors the court flagged before formally starting jury selection.
Before questioning began, the district court informed all prospective jurors of its decision to identify them by number, not name, but explained that it was doing so to protect their privacy:
You may be questioning why are we using numbers instead of names. Well, some of you may have seen the newspaper yesterday. I don’t know if it’s in today. But as the judge here, I felt your privacy was important and I didn’t want you being harassed or followed up during your time as jurors here. And so for that reason, I’ve selected this panel according to numbers. So you can rest assured that the newspaper reporters will leave you alone.
This was the question of first impression addressed by the Supreme Court of Nevada in its recent opinion in Menendez-Cordero v. State, 2019 WL 3366612 (Nev. 2019). And, in answering this question, Nevada's highest court adopted the two-factor test from the Ninth Circuit, which states that
[T]he trial court may empanel an anonymous jury where (1) there is a strong reason for concluding that it is necessary to enable the jury to perform its factfinding function, or to ensure juror protection; and (2) reasonable safeguards are adopted by the trial court to minimize any risk of infringement upon the fundamental rights of the accused.
Moreover, the court found that five subfactors might bear upon the determination under factor one (although it found these neither exhaustive nor dispositive):
(1) the defendants’ involvement with 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 the defendants will suffer a lengthy incarceration if convicted; and (5) extensive publicity that could enhance the possibility that jurors’ names would become public and expose them to intimidation and harassment.
Ultimately, the court found that all five subfactors applied in the case at hand and that the procedure described above contained reasonable safeguards. Therefore, the court upheld the use of an anonymous jury.