How Did We End Up Sequestering Jurors?
It was a dark night in March of 1990 when the man made his move. He quietly opened his window, careful to ensure that the guards nearby did not hear. He was on the second floor, too high to safely jump, but he had a plan. Tying his bedsheets together into a crude rope, he carefully lowered one end to the ground. Once convinced it would hold, he swung his legs out the window and climbed toward freedom.
The escape plan was bold and unexpected. But it was also doomed to failure. Before he could flee the scene, court officers apprehended the escapee and swiftly returned him to confinement. He would be brought before a judge the next day to answer for what he had done.
Was he a prisoner? An accused criminal? No, worse, a juror on a sequestered trial. [1]
Jury sequestration, the forcible confinement of jurors for deliberations, has a long history, dating back to England centuries before the American founding. But America is where the practice reached its most shocking extremes. The O.J. Simpson jury was famously confined for 266 days. [2] The Charles Manson jurors were locked away for 244 days. [3] And while the practice has fallen out of favor, the last fifteen years have seen jurors in the Jerry Sandusky, George Zimmerman, Derek Chauvin, and Casey Anthony trials sequestered, showing that, while diminished, sequestration is very much alive in American law.
But why do we sequester jurors, and how did we end up with a system where ordinary members of the community end up dangling from bedsheets outside their hotel rooms?
It began, like many trial procedures, as a consequence of rules developed when trials looked very different than they do today. If you were to observe a criminal trial calendar in 1565, you might see, as Sir Thomas Smith did, multiple unrelated cases being tried back-to-back by the same jury. [4] The trials would last minutes, not hours, and after hearing several trials in a row, the jury (possibly drunk) [5] would retire to decide all of them at once. Smith claimed that occasionally a judge would try to burden the jury with even more trials in a row, causing them to exclaim “my Lord, we pray you charge us with no more, it is enough for our memorie.” [6] To ensure a steady stream of verdicts, sometimes a second jury would be brought in to hear more trials while the first jury deliberated.
As Professor Langbein writes “[t]he administration of criminal justice in early modern England presupposed that large numbers of felony defendants, many of them transparently guilty, would be processed rapidly in jury trials.” [7] And in this conveyer belt environment, a rule developed that criminal trials, once started, could not be adjourned. They had to proceed from start to finish in one sitting. And to further ensure that the “justice” train kept moving, another rule was implemented, requiring a jury to deliberate “without meat, drink, fire, or candle until they agree.” [8]
While there was talk of these rules as a means to prevent jurors from being bribed outside of the courtroom, even contemporary observers remarked that the true purpose was ensuring that jurors – hungry, tired, and eager to go home – would rapidly agree on a verdict. As Alexander Pope wrote in 1714:
Mean while decline from the Noon of day,
The Sun obliquely shoots his burning ray;
The hungry Judges soon the Sentence sign,
And Wretches hang that Jurymen may Dine. [9]
This set of rules was workable, if monstrous, when trials lasted a few minutes. But it presented obvious problems when a trial lasted longer than a day. What do you do with a jury if a trial takes days or weeks to conclude?
When that situation arose, as it did for the Boston Massacre trial in 1770, the solution that the courts came up with was to simply tell the jurors that they could not go home and keep them locked away for as long as the trial (or in some cases just the deliberations) lasted. [10] This default rule of sequestration, applied without much by the way of theory, persisted in some jurisdictions for a very long time. For example, New York state mandated sequestration in all criminal trials until 1995. [11] The state ultimately did away with it primarily for financial reasons, as by the end it was spending over $4 million dollars a year on hotel rooms for jurors.[12] Though lest you worry that New York has become too reasonable, note that CPL § 310.10 still mandates a mistrial if a criminal jury is separated (for any reason) for more than three days.
But while many other U.S. jurisdictions were moving away from mandatory sequestration, a new justification for locking away the jury was taking shape – publicity.
In the early 20th century, the advent of radio and television, coupled with cheap newspapers, gave rise to levels of media coverage and public interest in trials that stunned the citizenry and worried the judiciary. The 1935 trial of Bruno Hauptmann, ultimately convicted for murdering the Lindbergh baby, was a media circus from beginning to end. During the trial itself, no fewer than 200 reporters were present in the courtroom, alongside numerous members of the public. [13] The crowd was huge and raucous, and apparently would cheer or jeer at various parts of the witness testimony and attorney presentation. [14]
While a New Jersey Appellate Court called a little trial heckling “not unusual” and declined to reverse the conviction, others were more concerned. [15] By the time that the Charles Manson trial rolled around in 1970, it was broadly accepted that guarding against media coverage could be a reason to sequester a jury.
But while perhaps better intentioned than the original “force them to agree quickly” motivation, sequestration for publicity reasons also gave rise to heavy criticism. While short sequestrations might pose little more than an annoyance, the psychological impact of long confinement on juries has been likened to torture. One O.J. Simpson juror, dismissed after two months in sequestration, attempted suicide in the months thereafter, shaken by the experience. [16] Another, dismissed after four months of confinement, suffered from such severe depression that she was hospitalized shortly after discharge. [1]
In 1994, four months into a civil defamation trial in New York, an entire jury rebelled, demanding that the judge end the trial. [18] One juror claimed that his blood pressure had become uncontrollable and that continued service would risk his life. [19] Others claimed that their careers were being ruined by the extended service and would never recover. Left with little choice, the judge declared a mistrial. [20]
So where does that leave matters today?
Sequestration is optional in most jurisdictions, though some specify that it is to be used only in the most extreme of cases. But should you ask for it? The practice has a long history, but much of that history is quite bad, even shameful. And there is little evidence that it prevents jurors from learning about media coverage. For example, despite all of the money spent to lock them away, O.J. Simpson jurors reported learning about aspects of the Fuhrman tapes reported in the media during conjugal visits. And in an era of smartphones, if a juror wants to violate a judge’s instruction not to read about the case, it’s hard to imagine that a locked hotel room will help.
But in any event, should you see a desperate man climbing out a hotel room window, do not automatically assume that he’s a burglar. He may just be an ordinary citizen desperately fleeing from his civic duty.
[1] People v. Conyers, 189 A.D.2d 607, 608 (1st Dep’t 1993) (“Defendant next contends that a mistrial should have been granted because one of the jurors, sequestered for the night after the first day of deliberations, was observed attempting to leave the hotel on bed sheets via his second-story window. Court Officers returned him to his room and, at an inquiry conducted in Chambers the following morning, the trial court concluded that, despite the ‘seemingly strange’ episode, a mistrial was not warranted.”).
[2] James P. Levine, The Impact Of Sequestration On Juries, 79 Judicature 267 (1996).
[3] Mark Hansen, Sequestration, Little Used, Little Liked, 81-OCT A.B.A. J. 16 (1995).
[4] Thomas Smith, De republica Anglorum The maner of gouernement or policie of the realme of England, compiled by the honorable man Thomas Smyth, Doctor of the ciuil lawes, knight, and principall secretarie vnto the two most worthie princes, King Edwarde the sixt, and Queene Elizabeth [1583], at Chapter 23, available at: https://quod.lib.umich.edu/e/eebo/A12533.0001.001
[5] Consider this passage from Reverend Martin Madan in 1785. “Another cause of much evil is, the trying of prisoners after dinner; when from the morning’s adjournment, all parties have retired to a hearty meal; which at assize-time, is commonly attended, among the middling and lower ranks of people, at least, with a good deal of drink. The symptoms of this vulgar species of festivity are usually too apparent, when the court assembles in the afternoon… when this is done, drunkenness is too frequently apparent, where it ought of all things to be avoided, I mean, in jurymen and witnesses. The heat of the court of the court, joined to the fumes of the liquor has laid many an honest juryman into a calm and profound sleep.” Martin Maden, Thoughts on Executive Justice: With Respect to Our Criminal Laws, Particularly on the Circuits : Dedicated to the Judges of Assize and Recommended to the Perusal of All Magistrates and to All Persons who are Liable to Serve on Crown Juries, 142-4 (1785), available at: https://books.google.com/books?id=ZK0DAAAAQAAJ&pg=PA142
[6] Id.
[7] John H. Langbein, The Origins of the Adversary Criminal Trial [2005], at p.25.
[8] Smith, De republica Anglorum, supra n.4.
[9] Alexander Pope, The Rape of the Lock (London 1714) (canto 3, lines 19-22), available at https://www.gutenberg.org/files/9800/9800-h/9800-h.htm.
[10] Marcy Strauss, Sequestration, 24 Am. J. Crim. L. 63, 71 (1996) (“In 1770, the jurors sworn on the Boston Massacre trials were confined to the courthouse for the week or so of the trial. Their incarceration, however, resulted not from fear of mid-trial exposure to media accounts but from the fact that up to then no trial had ever lasted more than a day, and no one knew how else to accommodate the common law rule that a jury, once sworn, could not separate before rendering a verdict.”).
[11] Michael Pasinkoff, Resolving the Conflict Between the Temporarily Unavailable Juror and New York’s Mandatory 24-hour Limit on the Separatio of Jurors During Deliberations, 92 St. John’s L. Rev. 187, 191 (2018).
[12] Strauss, Sequestration, supra n. 9 at 106.
[13] Strauss, Sequestration, supra n. 9 at n. 79.
[14] Id.
[15] State v. Hauptmann, 115 N.J.L. 412, 443–44 (N.J. Court of Err. & App. 1935) (“That such outbursts should occur is not unusual at the trial of a case of great public interest, and in a crowded courtroom.”).
[16] Strauss, Sequestration, supra n. 9 at 66-67.
[17] Id.
[18] Raymond Hernandez, Westchester Trial Illustrates the Burden of Jury Service, The New York Times, Section A, Page 1 (Dec. 19, 1994) available at: https://www.nytimes.com/1994/12/19/nyregion/westchester-trial-illustrates-the-burdens-of-jury-service.html.
[19] Id.
[20] Id.
