EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, August 10, 2019

Supreme Court of Nevada Sets Rules for Empaneling Anonymous Juries

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.

Extensive voir dire followed, which appears to have lasted a couple of hours. During this time, both parties had the opportunity to examine the panel of prospective jurors and ask a wide range of questions aimed at uncovering bias. Nothing in the record suggests that the district court limited the scope of questioning or rushed either party during this process. Instead, the only apparent limitation placed on voir dire was the redaction of the jurors’ names and addresses.
 
So, when is a judge allowed to empanel an anonymous jury?

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.

-CM

https://lawprofessors.typepad.com/evidenceprof/2019/08/anonymous-jury-first-impression-nv-2019-wl-3366612.html

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Comments

Interesting one.Just worth to note,that recorded conversations presented to the court, actually proved, that the defendant, already conspired for threatening potential key witness, enhancing so, the need for anonymous jury. Yet:

Concerning the fifth sub factor for example( "extensive publicity that could enhance the possibility that jurors’ names would become public and expose them to intimidation and harassment ") one may wonder:

Typically, behind the shield of anonymity, people acts differently. Having sensation of being less compelled to norms of right conduct. For, it does shield them actually. In the Internet for example,one commenter would feel more safe and daring to express himself more brutally, thanks to anonymity simply. So, the defendant could raise such potential impact upon juries. They are treated as numbers, they may act so or alike in accordance.That could have been, very interesting one.

Thanks

Posted by: El roam | Aug 11, 2019 5:31:56 AM

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