Hiding the Identity of Potential Jurors  | American Journalism Review
 AJR  Columns :    FIRST AMENDMENT WATCH    
From AJR,   June 1997

Hiding the Identity of Potential Jurors   

When do privacy concerns override the right to know?

By Jane Kirtley
Jane Kirtley (kirtl001@tc.umn.edu) is the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communications.     


The bombing of the Alfred P. Murrah Federal Building in Oklahoma City in 1995 resulted in the deaths of 168 people, with hundreds more seriously wounded in what the Washington Post called "the worst terrorist attack ever on American soil."

In April, jury selection began in the case of United States vs. McVeigh in federal district court in Denver. Presiding Judge Richard Matsch decided that the case would be tried by an "anonymous" jury.

He sealed all records that could reveal the identity of those summoned for jury selection. Most of the juror questioning, or voir dire, was held in open court. But when attorneys challenged potential jurors for "cause" – factors that might indicate the juror was prejudiced and could not rule fairly in the case – the matter was heard in closed sessions from which the press and public were barred. Presumably, this was intended to save prospective jurors from embarrassment.

In a most unusual move, Matsch also ordered that a partition be placed in the courtroom, obscuring the jurors from the view of spectators on the left side of the public seating area, although not from those on the right.

Guess where the press was required to sit? Not only were no cameras allowed in the courtroom other than the closed-circuit camera beaming the proceedings to the remote viewing center for victims in Oklahoma City, Matsch presumably wanted to make sure that members of the news media could not recognize and confront members of the jury pool outside of the courthouse.

As a consequence of these orders, the identities of the jurors will be known only to the court and to the parties in the case. In light of the use of anonymous juries in high-profile cases in recent years, such as the federal trial of the police officers accused of beating Rodney King and the O.J. Simpson criminal trial, Matsch's decision may seem like business as usual. But in fact, it represents the latest eruption in a growing epidemic of secrecy that is shrouding the selection and identity of the individuals who sit in judgment of their fellow citizens.

It was not always so. Under the English common law system imported to the American colonies, public jury selection was the norm. A classic example of the salutary effects of this practice was the seditious libel trial of John Peter Zenger, the immigrant printer and free press icon, in 1735.

The court clerk had tried to "pack" the jury with potential members who either were not eligible to serve, or who were expected to be sympathetic to the colonial governor who had been skewered in the newspaper. But because their names were available to the public, the ploy was detected, contributing in no small part to Zenger's exoneration.

Similarly, a juror in the case of Reginald Denny, the white motorist beaten during the Rodney King riots, was struck from the panel after neighbors reported that he had repeatedly violated his promise to ignore media coverage of the case.

Until a few years ago, public jury selection with identified potential jurors remained the norm, with only limited exceptions permitted, such as in cases involving organized crime. In 1984, the U.S. Supreme Court affirmed in Press-Enterprise vs. Riverside County Superior Court that voir dire is open to the public and can be closed only in the face of an overriding interest to the contrary. Preserving the Sixth Amendment right of a defendant to a fair trial could be one such interest. Preserving the privacy of a particular juror in a particular case might be another.

But the high court repudiated an across-the-board presumption that serving on a jury is inherently an invasion of privacy justifying anonymity. To the contrary, several of the justices wrote in separate opinions that, to be consistent with the First Amendment, each case would have to be considered on its own merits, and measures limiting public access to information about jurors could be no more restrictive than absolutely necessary to protect a compelling interest.

Although generalized concern about juror privacy or even safety may seem "compelling," it simply cannot be allowed to override the rights of the press and public to know who will decide the fate of Timothy McVeigh. Only specific findings based on concrete threats should be allowed to trump the First Amendment.

There is an understandable temptation to treat the trial of McVeigh as one in which the normal rules of access should be suspended. But in fact, it is the kind of case that tests the mettle of every aspect of our democratic system. The perpetrators of the Oklahoma City bombing must not only be brought to justice; justice must be seen to be done. This can happen only if the proceedings, including the selection and identity of the jurors, are public.

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