Jury Trial Issues - The Anonymous Jury

By John DiMotto

In a previous blog, I have discussed the right to a public trial. While every criminal defendant is entitled to a public trial under the Sixth Amendment to the US Constitution and Article I, Section 7 of the Wisconsin Constitution, this right is not conferred without boundaries. Under limited circumstances, an anonymous jury may be impanelled.

Before the trial court can impanel an anonymous jury, the court must articulate compelling circumstances on the record. It must be shown that there is a strong reason to believe that the jury needs protection. In addition, the court must take reasonable precautions to minimize any prejudicial effects on the defendant and ensure that fundamental rights are protected. [see State v. Britt, 203 Wis.2d 25 (Ct. App. 1996)]

Examples of compelling circumstances have included participants' histories of violence -- including the defendant/s or victim/s; history of potentially threatening associations; witness intimidation; defendant involvement in organized crime; defendant involvement in a group with capacity to harm jurors; defendant's past attempts to interfere with judicial process; extensive publicity that could enhance the possibility that juror names would become public and expose them to intimidation or harassment. [see State v. Tucker, 259 Wis.2d 484 (2003)]

When the court concludes that an anonymous jury is warranted based on articulable facts, the court must take action to minimize any prejudicial effect. Usually this is accomplished by doing "voir dire by number." When this approach is utilized, the court ordinarily advises the jury that this practice is routine to avoid the inference that the jury should fear the defendant. The court should give a special presumption of innocence instruction that the use of numbers is not a reflection on the defendant's guilt. This instruction must not mislead the jury. Also, at the outset of the voir dire the attorneys are provided with a list of the names of the jurors as well as juror questionnaires. This way they have a "knowledge base" on the jurors. Under this scenario, when addressing jurors only their numbers are used.

Trial courts must take great care to balance the right to a public trial with the right of jurors to be free from fear and intimidation. Judges must always remember that anonymous juries should not be routine or standard practice. They are the exception not the rule.