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The Anonymity Of Juries Essay, Research Paper


The American criminal justice system has traditionally made

the identities and addresses of jurors known to the judge, the

prosecution, and the defense. That tradition began to erode with the

unprecedented sua sponte trial court decision to use an anonymous jury

in the case of United States v. Barnes, a highly publicized criminal

trial of notorious organized crime figures in New York City. Since

“Barnes,” Federal prosecutors in New York have requested and been

granted anonymous juries in a number of similar cases, a development

which has generated criticism. This paper first addresses the issue of

whether juror anonymity violates a defendant’s sixth amendment right

to a jury trial by adversely affecting the defendant’s ability to

exercise effectively peremptory challenges during voir dire. It also

discusses the effect an anonymous jury may have on the presumption

that a defendant is innocent until proven guilty. Also considered are

attempts by trial judges, through particular jury instructions, to

minimize or eliminate prejudice to defendants resulting from the use

of an anonymous jury. And finally the paper examines the need for

anonymous juries and concludes that in certain cases jurors may either

fear retaliation or actually be exposed to intimidation unless the

court employs measures to conceal their identities.


Juror anonymity is an innovation that was unknown to the

common law and to American jurisprudence in its first two centuries.

Anonymity was first employed in federal prosecutions of organized

crime in New York in the 1980’s. Although anonymous juries are unusual

since they are typically only empanelled in organized-crime cases, its

use has spread more recently to widely publicized cases such as the

federal prosecution of police officers accused of beating Rodney King;

and the trial of those accused of the World Trade Center bombing.

In these cases, attorneys selected a jury from a panel of

prospective jurors whose names, addresses, ethnic backgrounds and

religous affiliations remain unknown to either side. This unusual

procedure, designed to protect jurors from outside influence and the

fear of retaliation, has occasionally been used in New York federal

courts since the trial of drug kingpin Leroy “Nicky” Barnes.1 Despite

apparent benefits, critics assail anonymous juries both as an

infringment of the sixth amendment guarantee of an impartial jury 2

and as a serious and unnecessary erosion of the presumption of


Since many attorneys believe trials are frequently won or lost

during jury selection,4 any procedure diminishing the role of counsel

invites close scrutiny and criticism. Opponents of anonymous juries

argue that the procedure restricts meaningful voir dire and thereby

undermines the defendant’s sixth amendment right to an impartial

jury.5 Critics also claim that jurors interpret their anonymity as

proof of the defendant’s criminal proclivity, thereby subverting the

presumption of innocence.6 Nevertheless, this paper argues that

anonymous juries neither undermine the sixth amendment nor

meaningfully dilute the presumption of innocence. Limited Voir Dire

and the Peremptory Challenge

Consistent with due process and the sixth amendment,7 the

trial judge may refuse to ask prospective jurors any questions not

reasonably calculated to expose biases or prejudices relevant to the

case.8 Although addresses and group affilations may indicate

significant potential for bias, attorneys do not have an unfettered

right to this information in every case.9 Denying access to these

facts may constrain an attorney’s ability to assemble an ideal jury,

but it violates no constitutional right.

Although the Barnes court may have been on firm constitutional

ground in rejecting the defendants’ request for the ethnic and

religous backgrounds and addresses of prospective jurors,10 it

unnecessarily downplayed the relevance of this information to

intelligent peremptory challenges.11 Indeed, racial, ethnic and

socio-economic undercurrents are present in every case involving an

anonymous jury. Trial judges should acknowledge this fact and permit

some inquiry into group affiliations and approximate community in lieu

of names and addresses. Because such disclosure does not undermine the

purpose of juror anonymity and more than adequately substitutes for

the information normally inferable from names and addresses, it should

be permitted in every case using the procedure.

Some aspects of juror anonymity may even work to a defendant’s

advantage. Assuming attorneys are able to discern subtle prejudices

from a prospective juror’s group affiliations, anonymity equally

restrains both sides from eliminating members of the jury pool with

undesirable demographic characteristics.12 Although defense attorneys

may be unable to weed out jurors with group characteristics that are

supposedly prejudicial to criminal defendants, pro-secutors will

similarly be unable to detect jurors from supposedly sympathetic

jurors.13 This equality of ignorance may favor defendants. Because

conviction requires a unanimous verdict, anonymity increases the

possibility of a hung jury by increasing the liklihood that jurors

associated with religous, ethnic or socio-economic groups favoring

particular defendants will slip through the voir dire.

One writer has argued that equal access to information about

the jury panel is crucial to a fair voir dire.14 He noted that, in the

past, prosecutors have had unilateral access to governmental agency

data on prospective jurors.15 Thus, the prosecution enjoys a potential

systemic advantage in every case.16 He concludes that a relatively

broad voir dire is necessary to remedy this institutional disparity.17

One might more readily conclude, however, that anonymous juries remedy

this systemic inequality. Without names and addresses, prosecutors

could not take advantage of the superior informational and

investigative resources of the government. Anonymity thus ensures that

both sides are on equal footing with regard to information about

prospective jurors.

Although the limited voir dire is constitutional, it prevents

access to information on which attorneys rely substantially in

exercising their peremptory challenges. Consequently, attorneys should

have alternative access to jurors’ ethnic backgrounds and approximate

community if the disclosure would not jeopardize jurors’ security.

The Presumption of Innocence

Unlike security measures that unequivocally point to the

defendant, juror anonymity could be perceived to address potential

disturbances wholly unrelated to the defendant. Yet, critics of the

anonymous jury contend that prospective jurors could only read the

anonymity instruction to be a judicial conclusion of the defendant’s

guilt.18 Therefore, they cannot obey the contradictory instruction to

presume the defendant innocent until the governnment meets its burden

of proof.19 Although plausible, this conclusion necessarily depends on

certain unsupported assump tions about juror perception and knowledge.

The potential burden of jury anonymity on the defendant’s

presumption of innocence was conceded in United States v. Thomas.20

It was even recognized that the prejudicial impact on the defendant

could not be eliminated totally. In rejecting a per se rule against

anonymity, the Thomas Court underlined two essential prerequisites for

use of an anonymous jury. First, there should be “strong reason to

believe the jury needs protection,” and second, reasonable precaution

must be taken to minimize the negative effect of use of the anonymous

jury “on the juror’s opinions of the defendants.” 21

Unfortunately, the court also endorsed concealing from the

jury the real reason for anonymity. The principal justfication offered

for anonymity was to prevent jury tampering, but the court approved an

instruction that deliberately made no mention of that, only of the

necessity to protect jurors from “unwanted and undesirable publicity

and embarrassment and notoriety and any access to you which would

interfere with preserving your sworn duty to fairly, impartially and

independently serve as jurors.22

In almost every case, the trial judge explains to jurors that,

due to the trial’s notoriety, anonymity is necessary to prevent the

media and the public from invading their privacy and impairing their

impartiality.23 Critics claim that jurors read through this facially

neutral instruction because no juror would believe he was being

insulated from anyone other than the defendants or their

sympathizers.24 This assumption would thus require judges to refrain

from making any suggestion concerning the jurors’ extra-judicial

contacts, lest defendants be cast in a negative light. Indeed, many

convicted defendants successfully argue on appeal that the jury was

either not adequately cautioned to avoid outside influence or that

juror contact with third parties prejudiced the defendant’s case.

Cases that inspire significant media attention and public

passion raise special concerns about juror insulation. The effect of

explosive media reports and hostile public opinion on a defendant’s

fair trial rights has long perplexed judges.25 When notorious

criminals are tried, a juror could easily feel pressure to act as a

public avenger and thus could believe that his anonymity is aimed at

isolating the jury from forces and opinions hostile to the defendants.

But because some effort is always made to caution the jury against any

outside influence, it seems illogical to conclude that juror anonymity

could be perceived only as presumptive evidence of a defendant’s


Assuming that the anonymity instruction signals the jury that

the defendants might “get” to them, critics of anonymous juries ignore

a likely consequence of that perception.26 A juror who anticipates a

defendant’s retaliation would be more likely to return a guilty

verdict despite such fears rather than because of them. Thus, even if

anonymity incidentally instills the fear it attempts to remedy, the

result arguably benefits the defendant by making jurors afraid to

convict. On the other hand, if anonymity helps to remedy existing

fears, it serves the ideal of dispassionate judgement. Although a

defendant would understandably welcome a trial before a jury biased

toward an acquittal, the people, as well as the defendant, are

entitled to an impartial jury.

Of course, a juror may interpret anonymity as a measure

designed only to prevent jury tampering, not as a measure protecting

him from a violent defendant. The question then becomes whether this

inference pre-judicially alters the juror’s perception of a defendant.

Whether jurors perceive their anonymity as a measure designed to

prevent tampering or violence, it does little to alter their

perception of certain defendants, since most qualified jurors have

some pretrial impressions or opinions of merits of important,

publicized cases. Nevertheless, the courts have consistently held that

jurors need not be completely oblivious to the facts underlying a

particular case.27 Pretrial impressions or opinions will not

disqualify a juror if, in the court’s judgement, he can set aside such

impressions and base his decision solely on the evidence admitted at

trial. While a juror’s ability to ignore pervasive media coverage may

be questionable, critics of anonymous juries seem presume that jurors

are oblivious to the nature of these cases until they are directed not

to reveal their identities.28 Only then, supposedly, are their minds

irrevocaably poisoned against the defendants.

By instructing a jury that anonymity prevents the media and

interested members of the public from interfering with their

deliberations, a trial judge avoids most prejudicial innuendo. Con-

sequently, an anonymous jury does not undermine the presumption of


The Use of Anonymous Juries

Although the prejudicial impact of juror anonymity may be

exaggerated, any intrusion on a defendant’s fair trial rights is

unjustified if anonymity is unecessary. The need for anonymous juries

rests on several grounds.

Juror anonymity rests on the assumption that at least some

jurors will be intimidated by the characterzation of the defendants in

the indictment and the corresponding pretrial media attention. Critics

complain that judges have imposed anonymity without an indication from

jurors that they were afraid.29 Although juror fear may be difficult

to prove, aassuming its existence is not as specious as this criticism


First, the impracticality of judicial inquiry into this area

is obvious. If the jurors are not already apprehensive, extensive

questioning about such fears would certainly tend to generate the fear

the questions are designed to detect. Second, while no juror expressed

any fear of violence on the record in Barnes and its progency, jurors

have voiced such fears in cases involving less notorious defendants.

Most of the current cases using anonymous juries involve powerful

organized crime groups whose public reputations for corruption,

intimidation, and ruthlessness have become matters of contemporary


Another premise underlying the need for anonymous juries is

that certain defendants or their sympathizers are likely to corrupt or

intimidate the jury. Critics assert that courts accept this premise

despite a “total absence of any evidence of jury tampering, or of a

conspiracy to tamper, injure, or otherwise adversely affect a juror.”


Although the need for anonymity is not limited to traditional

organized crime cases, and the factors considered in empaneling

anonymous juries existed to a lesser degree in cases preceding Barnes,

the procedure is an appropriate safety measures in cases that “stretch

the traditional dimensions of criminal law.” 31


An impartial jury is only a criminal defendant’s

constitutional right but a hallmark of any civilized judicial system.

In extraordinary cases, juror anonymity is necessary to ensure this

goal. Rather than alerting a juror to a defendant’s violent persona,

anonymity merely allays existing fears and prevents outside forces

from prejudicing either side. Preventing a defendant from using his

reputation or resources to discourage conviction preserves, rather

than subverts, the integrity of the judicial process.


1 United States v. Barnes, 604 F.2d 121, 140-41 (2d Cir. 1979), cert.

denied 446 U.S. 907 (1980).

2 William M. Kunstler, “The Threat of Anonymous Juries,” The Nation,

22 October 1983, 360.

3 Ibid., 360.

4 Seymour Wishman, Anatomy of a Jury: the system on trial, (New York:

Times Books, 1986), 28.

5 Ephraim Margolin & Gerald F. Uelman, “The Anonymous Jury,” Criminal

Justice Journal, Fall 94, 16.

6 Ibid., 16.

7 United States Constitution amendments V, VI, XIV.

8 Rosales-Lopez v. United States, 451 U.S. 182, 189-90 (1981).

9 Gold v. United States, 378 F.2d 588, 594 (9th Cir. 1967) (no right

to jurors’ religous backgrounds); Johnson v. United States, 270 F.2d

721, 724 (9th Cir. 1959) (no right to jurors’ addresses), cert denied,

362 U.S. 937 (1960); Wagner v. United States, 264 F.2d 524, 528 (9th

Cir.) (no right to jurors’ names), cert. denied, 360 U.S. 936 (1959).

10 United States v. Barnes, 604 F.2d 121, 140-41 (2d Cir. 1979), cert.

denied 446 U.S. 907 (1980).

11 Ibid., 121, 174.

12 D. P. Lehner, “Anonymous Juries: Do the Benefits Warrant

Jeopardizing the Rights of the Accused?,” Criminal Justice Journal,

Fall-Winter 1988, 189-190.

13 Ibid., 189-190.

14 Seymour Wishman, Anatomy of a Jury: the system on trial, (New York:

Times Books, 1986), 134-36.

15 Ibid., 134-135.

16 Ibid., 136.

17 Ibid., 136.

18 Ephraim Margolin & Gerald F. Uelman, “The Anonymous Jury,” Criminal

Justice Journal, Fall 94, 61.

19 Ibid., 94, 61.

20 United States v. Thomas, 757 F.2d 1359, 1364-65 (2d Cir.), cert.

denied, 106 S.Ct 66 (1985).

21 Ibid., 1359, 1364-65.

22 Ibid., 1359, 1364-65.

23 D. P. Lehner, “Anonymous Juries: Do the Benefits Warrant

Jeopardizing the Rights of the Accused?,” Criminal Justice Journal,

Fall-Winter 1988, 188.

24 Ibid., 188.

25 Ibid., 200-201.

26 William M. Kunstler, “The Threat of Anonymous Juries,” The Nation,

22 October 1983, 360.

27 United States v. Barnes, 604 F.2d 121, 141 (2d Cir. 1979), cert.

denied 446 U.S. 907 (1980).

28 D. P. Lehner, “Anonymous Juries: Do the Benefits Warrant

Jeopardizing the Rights of the Accused?,” Criminal Justice Journal,

Fall-Winter 1988, 187.

29 William M. Kunstler, “The Threat of Anonymous Juries,” The Nation,

22 October 1983, 360.

30 D. P. Lehner, “Anonymous Juries: Do the Benefits Warrant

Jeopardizing the Rights of the Accused?,” Criminal Justice Journal,

Fall-Winter 1988, 200.

31 Ibid., 199.


Gold v. United States, 378 F.2d (9th Cir. 1967).

Hevesi, Dennis. (1992, April 3). A need for security kept numbered

jurors cloaked in anonymity. New York Times, pp. A17, B2.

Johnson v. United States, 270 F.2d (9th Cir. 1959), cert denied, 362

U.S. 937 (1960).

Kunstler, William M. (1983, October). The Threat of Anonymous Juries.

The Nation, p. 360.

Lehner, D. P. (1988, Fall-Winter). Anonymous Juries: Do the Benefits

Warrant Jeopardizing the Rights of the Accused? Criminal Justice

Journal, pp. 187-201.

Marcus, Amy Dockser. (1991, April 9). Legal Beat: An Anonymous Jury.

Wall Street Journal, p. B8

Margolin, Ephraim & Uelman, Gerald F. (1994, Fall). The Anonymous

Jury. Criminal Justice Journal, pp. 14-18, 60-61.

Roane, Kit R. (1994, August 12). We, the jury, who are anonymous. New

York Times, p. A20.

Rosales-Lopez v. United States, 451 U.S. (1981).

United States v. Barnes, 604 F.2d (2d Cir. 1979), cert. denied 446

U.S. 907 (1980).

United States Constitution amendments V, VI, XIV.

United States v. Thomas, 757 F.2d (2d Cir.), cert. denied, 106 S.Ct 66


Wagner v. United States, 264 F.2d (9th Cir.), cert. denied, 360 U.S.

936 (1959).

Wishman, Seymour. (1986). Anatomy of a Jury: the system on trial. New

York: Times Books, 1986.

Worthington, Rogers. (1993, February 15). L.A. beatings test concept

of jury anonymity. Chicago Tribune, p. 1.

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