No First Amendment Problem with Routine Anonymous Criminal Juries

So the Arizona Supreme Court held today (Morgan v. Dickerson), in an opinion by Vice Chief Justice Ann A. Scott Timmer:

The superior court in Cochise County uses “innominate juries” for all criminal jury trials. Under that procedure, prospective and impaneled jurors are referred to by numbers rather than by names throughout open-court proceedings, although the court and the parties know their identities. Accordingly, although voir dire examinations and trials are open for public viewing, observers are not provided jurors’ names absent order of the court….

[W]e are asked to decide whether the First Amendment provides the public a qualified right of access to jurors’ names during voir dire, thereby creating presumptive access to those names that can be overcome only on a case-by-case basis by showing both a compelling state interest and that denying access is a remedy narrowly tailored to serve that interest. We hold the First Amendment does not prohibit the court’s practice….

Arizona law provides that “[t]he list of juror names or other juror information shall not be released unless specifically required by law or ordered by the court.” …

[T]he [Supreme] Court has held that the First Amendment guarantee of qualified public access attaches to criminal trials, voir dire examinations, and trial-like preliminary hearings… [But] the right to attend voir dire [and] a right to access juror names … are far from the same thing. Here, the public was not barred from attending any part of the criminal trials, including voir dire, so the most essential press and public right is not implicated…. [T]he Supreme Court has not addressed whether the First Amendment guarantee of qualified public access to voir dire examinations extends to learning jurors’ names….

The court then applied the Supreme Court’s “experience and logic” inquiry into whether a particular facet of the judicial process should be open; It agreed that, as to experience, “jurors’ names were traditionally revealed during jury selection proceedings,” but concludes that “logic” cuts in favor of upholding departures from that tradition:

By asking whether access to jurors’ names “plays a significant A positive role in the functioning of the particular process in question,” the logic inquiry sets an exacting standard. A minimally positive role falls short….

[The] reasoning [in the Supreme Court’s Press Enterprise I decision] for holding that open voir dire examinations play a significant positive role in that process guides our answer to the logic inquiry. The Court observed that the public right to attend voir dire promotes fairness and the appearance of fairness, critical to public confidence in the criminal justice system. Specifically, “[t]he value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; The sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known.” Open proceedings also have a “community therapeutic value” by providing an outlet for public reaction to criminal acts.

“[P]ublic proceedings vindicate the concerns of the victims and the community in knowing that offenders are being brought to account for their criminal conduct by jurors fairly and openly selected.” In short, open dates play a significant positive role in voir dire by checking the courts to Ensure established standards are being used to select jurors and by simultaneously assuring the public that fairly selected jurors are holding offenders to account for their crimes.

Morgan has failed to show that public access to jurors’ names likewise plays a significant positive role in voir dire. With or without such access, the press and the public can attend voir dire proceedings and were able to do so in these cases. Anyone can sit in the courtroom during a criminal trial and observe the juror screening process, including voir dire examinations. They can also observe for-cause challenges and peremptory strikes, hear the judge’s rulings, and mark any deviation from standards put in place by the legislature or this court to select a fair jury. The public is also generally entitled to access public records reflecting how jury pools are formed in the superior court. Accessing jurors’ names would not significantly add to the public’s ability to assure itself that voir dire is conducted fairly or to check the courts in disregarding established standards for jury selection.

Other courts have reached the opposite conclusion, reasoning that public knowledge of jurors’ names would deter prospective jurors from misrepresenting their answers during voir dire, permit public investigation of the accuracy of those answers, and assure the public that prospective jurors are drawn from a fair cross-section of the community. We disagree.

First, the public’s role in voir dire is as an observer, not as a participant charged with selecting a fair jury. The judge and the parties are charged with that responsibility. See They are provided prospective jurors’ names and are highly motivated to safeguard the integrity of the process, ensure the jury pool is drawn from a fair cross-section of the community, and unearth any information demonstrating the juror bias.

Second, we are unconvinced that providing open access to jurors’ names would cause prospective jurors to be more forthcoming during voir dire. It is just as likely that such access would motivate them to be less than forthcoming to avoid public embarrassment about very sensitive matters, like disabilities, medications, and past experiences as crime victims. And in this internet age, where jurors’ names can trigger lightning-fast access to a wealth of biographical information, including addresses, any slightly positive role in divulging jurors’ names to the public is outweighed by the risk to jury integrity.

In sum, public access to jurors’ names promotes neither fairness in voir dire proceedings nor the perception of fairness. As such, it does not play a significant positive role in the functioning of voir dire, and we answer the logic inquiry in the negative. Accordingly, the First Amendment does not provide the press or public with a qualified right to access jurors’ names, and § 21-312(A) is facially valid. The Cochise County Superior Court herefore did not err by presumptively using innominate juries.

Justice Clint Bolick concurred, but added:

I write only to add that the statute protecting juror names survives even the most demanding First Amendment compelling-interest standard. Unlike most states, Arizona’s constitution contains an express privacy protection, providing in relevant part that “[n]o person shall be disturbed in his private affairs … without authority of law.” Whatever the scope of that right, the State plainly has a compelling interest in enforcing it to protect juror privacy.

Query whether similar reasoning could be used by courts to justify pseudonymity of litigants, notwithstanding some courts’ statements that the First Amendment right of access presumptively precludes such pseudonymity (see my The Law of Pseudonymous Litigation), and not just of jurors.

Congratulations to counsel Marjorie S. Becklund and Michael A. Powell, who delivbered the oral arguments in favor of this result.

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